Congressional Authority to Direct How States Administer Elections

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RL30747

Congressional Authority to Direct How States Administer Elections

Summary

In the United States, states have primary responsibility for the administration of federal elections.

The federal government, however, has significant authority to determine how these elections are

run, and may direct states to implement such federal regulations as the federal government

provides. This authority can extend to registration, voting, reporting of results, or even more

fundamental aspects of the election process such as redistricting. This report focuses on

Congress’s constitutional authority to regulate how states administer elections.

Congress’s authority to regulate a particular type of election may vary depending on whether that

election is for the Presidency, the House, the Senate, or for state and local positions. Further, there

may be variations in what aspects of elections are amenable to regulation. Consequently,

evaluating Congress’s authority to establish election procedures requires an examination of a

variety of different proposals and scenarios.

Although the Constitution is silent on various aspects of the voting process, it seems to anticipate

that states would be primarily responsible for establishing election procedures. Federal authority

to regulate federal elections, however, is specifically provided for in the Constitution. There are

two main provisions at issue—Article I, Section 4, cl. 1, which provides Congress the authority to

set the “Times, Places and Manner” of congressional elections, and Article II, Section 1, cl. 4,

which provides that Congress may designate the “Time” for the choosing of Presidential Electors.

Congress’s power is broadest in the case of House elections, which have historically always been

decided by a system of popular voting. Congressional power over Senate elections, while almost

as broad as it is for House elections, contains one textual exception—that Congress may not

regulate “the Places of chusing Senators.” On the other hand, the power of Congress to regulate

presidential elections is not as clearly established as the power over House and Senate elections.

As noted above, the text of the Constitution provides Congress only the limited power to

designate the “Time” of the choosing of Presidential Electors. It does appear that Congress’s

regulatory authority over presidential elections is more extensive than might appear based on the

text of Article II, Section 1, cl. 4. How much more extensive, however, remains unclear.

There are also a variety of other constitutional provisions that provide Congress the power to

regulate all elections. This includes Congress’s authority under the Civil War Amendments—

Thirteenth, Fourteenth, and Fifteenth—and the Nineteenth, Twenty-fourth, and the Twenty-sixth

Amendments, which provide Congress the power to prevent various types of discrimination in

access to voting. Further, to the extent that there are gaps in Congress’s power to regulate federal,

state, or local elections, Congress might use the Spending Clause to condition the receipt of

federal monies upon compliance with federal requirements. This power would extend to

nonfederal elections, over which Congress has little textual authority.

It should be further noted that legislation in this area may require state agencies to implement

federal election mandates. Such mandates, however, do not appear to run afoul of the “anticommandeering” requirements of the Tenth Amendment, as the Constitution appears to

contemplate that states will bear the burden of administering federal election regulations.

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Congressional Authority to Direct How States Administer Elections

Contents

Background ...................................................................................................................................... 1

Relevant Constitutional Provisions.................................................................................................. 2

Power as Regards Different Types of Elections............................................................................... 3

House Elections ......................................................................................................................... 4

Senate Elections......................................................................................................................... 4

Presidential Elections ................................................................................................................ 5

Party Primaries .......................................................................................................................... 7

Authority to Prevent Disenfranchisement in All Elections .............................................................. 8

Fourteenth Amendment and Equal Protection ........................................................................... 9

Fifteenth Amendment and Race Discrimination...................................................................... 11

Federalism and Election Regulation .............................................................................................. 13

Tenth Amendment.................................................................................................................... 13

Spending Power ....................................................................................................................... 15

Contacts

Author Contact Information........................................................................................................... 16

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Congressional Authority to Direct How States Administer Elections

Background

In the United States, states have traditionally exercised primary responsibility for the

administration of elections for federal and state offices. Because of this decentralized authority,

there is often significant variation in how different states regulate elections. For instance, states

are likely to use different methods to establish boundaries for electoral districts, to register voters,

to administer elections, to report election results, and to otherwise regulate the electoral process.

The federal government, however, also has significant authority to regulate how elections are run,

and in many instances it has directed how states are to administer the election process.

For instance, in 1986, Congress passed the Uniformed and Overseas Citizens Absentee Voting

Act.1 This act was intended to ensure that members of the uniformed services and U.S. citizens

who live abroad are able to register and vote in federal elections. The law was enacted to improve

absentee registration and voting for this group of voters.2 Similarly, in 1993, Congress passed the

National Voter Registration Act (“Motor Voter Act”)3 with the intention of making it easier for all

citizens to register to vote. The Motor Voter Act requires that, for federal elections, states must

establish procedures so that eligible citizens are afforded the opportunity to register at the time

they apply for or renew a driver’s license, by mail, or in person.4

Congressional interest in the process of holding elections increased even more as a result of the

disputed 2000 presidential elections. In 2002, Congress passed the Help America Vote Act of

2002 (HAVA).5 HAVA provides federal requirements for several aspects of election

administration, including voting systems, provisional ballots, voter information, voter

registration, and the provision of identification by certain voters. For instance, HAVA requires

that voting systems used in federal elections provide for error correction by voters (either directly

or via voter education and instruction), manual auditing for the voting system, accessibility to

disabled persons (at least one fully accessible machine per polling place) and alternative

languages, and a method to meet federal machine error-rate standards.6 Systems are also required

to maintain voter privacy and ballot confidentiality, and states are required to adopt uniform

standards for what constitutes a vote on each system.7 HAVA also provides extensive regulation

of the manner in which states maintain voter registration lists.8

4 U.S.C. §§1973ff–1973ff-6, 39 U.S.C. §3406, 18 U.S.C. §§608–609.

CRS Report RS20764, The Uniformed and Overseas Citizens Absentee Voting Act: Overview and Issues, by (name red

acted).

42 U.S.C. §§1973gg et seq.

CRS Report R40609, The National Voter Registration Act of 1993: History, Implementation, and Effects, by (name

redacted). States that had no voter registration requirements or that allowed citizens to register to vote at polling places

on election day were exempted from the act.

42 U.S.C. §§15301 et seq. See CRS Report RS20898, The Help America Vote Act and Election Administration:

Overview and Issues, by (name redacted) and (name redacted).

42 U.S.C. §15301(a)(1)-(5).

42 U.S.C. §15301(a)(6).

42 U.S.C. §15483(a)(4). Under these provisions, a chief state election official must create a uniform centralized,

computerized statewide-voter registration list, which must be coordinated with other agency databases within the state.

The state election system must include systems to ensure that voter registration records in the state are accurate and are

updated regularly. HAVA also requires that the chief state election official and the official responsible for the state

motor vehicle authority enter into an agreement to match information in the database of the statewide voter registration

system with information in the database of the motor vehicle authority to verify the accuracy of the information

(continued...)

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Congressional Authority to Direct How States Administer Elections

Various proposals have been made that would further this enhanced level of federal control over

the administration of election procedures. For instance, suggestions have been made that state

agencies be required to share information to facilitate accurate registration lists; to standardize

mail-in and absentee balloting; to establish a uniform closing time for polls; to provide for

multiple-day elections; and to standardize the number and accessibility of polling stations. Other

suggestions include standardizing the supervision of voting; how votes are counted, compiled,

and published; and how to allocate electoral votes within a state based on popular votes.

Congress could also decide to regulate even more fundamental aspects of federal elections. For

instance, some states utilize commissions to establish the size and shape for electoral districts,9

and Congress might require that states adopt some form of commission to inform this process. Or

Congress might choose to regulate the primary process. For instance, it has been suggested that

Congress could require states to hold “top-two” primaries, in which all candidates run on one

slate, and the top two vote getters then oppose each other in a general election.10 Further,

suggestions have been made that the federal government could determine what form of voter

identification can be required at the state level.11

This report focuses on Congress’s constitutional authority to regulate how states establish and

implement election procedures.12 In evaluating any such proposals, an initial question to be asked

is which elections will be affected. As noted, state and local authorities have a significant role in

regulating state and federal elections. Congress, however, also has authority to regulate elections,

and that authority may vary depending on whether the election is for the Presidency, the House,

the Senate, or for state or local offices. Further, there may be variation in whether a particular

aspect of an election, such as balloting procedures, is amenable to congressional regulation.

Consequently, evaluating the authority of Congress to establish standardized election procedures

would appear to require a consideration of a variety of different proposals and scenarios.

Relevant Constitutional Provisions

The authority of Congress to legislate regarding these various issues in different types of elections

would appear to derive principally from four constitutional provisions:

(...continued)

provided on applications for voter registration.

See Justin Levitt, All About Redistricting, at http://redistricting.lls.edu/who.php.

Senator Chuck Schumer, End Partisan Primaries, Save America, The Opinion Pages, New York Times (July 21,

2014), available at http://www.nytimes.com/2014/07/22/opinion/charles-schumer-adopt-the-open-primary.html?_r=2.

Barbara Taylor, California Senator Mounts Fight To Counter Voter Photo ID Laws, CBS San Francisco (October 23,

2014), available at http://sanfrancisco.cbslocal.com/2014/10/30/california-senator-mounts-fight-to-counter-voter-photoid-laws/.

The report does not address Congress’s authority to regulate nonstate actors in regard to elections. Although

Congress has significant authority to regulate the behavior of private individuals, organizations, or corporations as

regards elections, such regulations may raise First Amendment free speech and free association issues that are beyond

the scope of this report. See, e.g., CRS Report R43719, Campaign Finance: Constitutionality of Limits on

Contributions and Expenditures, by (name redacted).

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The Elections Clause

The Times, Places and Manner of holding Elections for Senators and Representatives, shall

be prescribed in each State by the Legislature thereof; but the Congress may at any time by

Law make or alter such Regulations, except as to the Places of chusing Senators.

U.S. Const. Article I, §4, cl. 1.

Day of Chusing Presidential Electors Clause

The Congress may determine the Time of chusing the [Presidential] Electors, and the Day on

which they shall give their votes; which Day shall be the same throughout the United States.

U.S. Const. Article II, §1, cl. 4.

Fourteenth Amendment Equal Protection Clause

No State shall make or enforce any law which shall ... deny to any person within its

jurisdiction the equal protection of the laws.

....

The Congress shall have power to enforce, by appropriate legislation, the provisions of this

article.

U.S. Const. XIV, §§1 & 5.

Fifteenth Amendment

The right of citizens of the United States to vote shall not be denied or abridged by the

United States or by any State on account of race, color, or previous condition of servitude.

The Congress shall have power to enforce this article by appropriate legislation.

U.S. Const. XV, §§1 & 2.

Power as Regards Different Types of Elections

Although the Constitution is silent on various aspects of the voting process, the Constitution

seems to anticipate that states would be primarily responsible for establishing procedures for

elections. Federal authority to direct how states administer these regulations, however, is also

provided for in the Constitution. Congress’s power is at its most broad in the case of House

elections, which have historically always been decided by a system of popular voting.13 Its power

may be more limited in elections for Senators or President, and is at its narrowest as regards state

elections.

U.S. Const. Art. I, Section 2, cl. 1 states “[t]he House of Representatives shall be composed of Members chosen

every second Year by the People of the several States....”

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House Elections

As noted above, Article I, Section 4, cl. 1 states that Congress may determine “the Times, Places

and Manner” for such elections. The Supreme Court and lower courts have interpreted the above

language to mean that Congress has extensive power to regulate most elements of a congressional

election.

For instance, the Supreme Court has noted that the right to vote for Members of Congress is

derived from the Constitution and that Congress therefore may legislate broadly under this

provision to protect the integrity of this right.14 The Court has stated that the authority to regulate

the times, places, and manner of federal elections:

embrace[s] [the] authority to provide a complete code for congressional elections, not only as

to times and places, but in relation to notices, registration, supervision of voting, protection

of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors

and canvassers, and making and publication of election returns; in short, to enact the

numerous requirements as to procedure and safeguards which experience shows are

necessary in order to enforce the fundamental right involved.... [Congress] has a general

supervisory power over the whole subject.15

Consequently, it would appear that Congress has broad authority to further enhance its level of

federal control over the administration of House election procedures.

Senate Elections

Unlike House elections, Senate elections were, until ratification of the Seventeenth Amendment,

decided by a vote of the state legislatures, not by popular vote. This helps explain why

congressional power over Senate elections, while almost as broad as it is for House elections,

contains one exception—that Congress may not regulate “the Places of chusing Senators.” As

originally implemented, this language would have limited the authority of Congress to designate

where state legislatures would meet for such votes. This deference to the prerogatives of state

legislatures would appear to be obsolete now that all Senate elections are decided by popular

vote. However, nothing in the Seventeenth Amendment explicitly repealed this restriction, and the

meaning of the clause could arguably apply to congressional regulation of sites for popular

voting.

Smiley v. Holm, 285 U.S. 355 (1932) (Congress may delegate authority to draw member districts to state

legislatures, exclusive of governor’s veto). For a history of congressional regulation of federal elections, see

Congressional Research Service, Constitution of the United States, Analysis and Interpretation 127-131 (2012)

(available at http://www.crs.gov/conan/details.aspx?mode=topic&doc=Article01.xml&t=1&s=4&c=1).

Smiley, 285 U.S. at 366. See Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972) (state’s authority to regulate recount of

elections); United States v. Gradwell, 243 U.S. 476, 483 (1917) (full authority over federal election process, from

registration to certification of results); United States v. Mosley, 238 U.S. 383, 386 (1915) (authority to enforce the right

to cast ballot and have ballot counted); In re Coy, 127 U.S. 731, 752 (1888) (authority to regulate conduct at any

election coinciding with federal contest); Ex parte Yarbrough, 110 U.S. 651, 662 (1884) (authority to make additional

laws for free, pure, and safe exercise of right to vote); Ex parte Clarke, 100 U.S. 399, 404 (1879) (authority to punish

state election officers for violation of state duties vis-a-vis congressional elections). See also United States v. Simms,

508 F. Supp. 1179, 1183-1185 (W.D. La.1979) (criminalizing payments in reference to registration or voting does not

offend Tenth Amendment); Prigmore v. Renfro, 356 F. Supp. 427, 430 (N.D. Ala.1972) (absentee ballot program

upheld as applied to federal elections), aff’d, 410 U.S. 919 (1973); Fowler v. Adams, 315 F. Supp. 592, 594 (M.D.

Fla.1970), appeal dismissed, 400 U.S. 986 (1971) (authority to exact 5% filing fee for congressional elections).

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Congressional Authority to Direct How States Administer Elections

Arguably, if Congress attempted to establish legislation regulating where states must establish

polling sites for Senate elections, such legislation might run afoul of textual limitations of this

provision. On the other hand, for practical purposes, most states, if subjected to federal regulation

for House elections establishing the location of polling places, would be likely to follow such

directions for Senate elections occurring at the same time, if no other reason than administrative

convenience.

Presidential Elections

The power of Congress to regulate presidential elections is not as clearly established as the power

over House and Senate elections. First, the text of the Constitution provides a more limited power

to Congress in these situations. Whereas Article I, Section 4, cl. 1 allows regulation of the “time,

place and manner” of congressional elections, Article II, Section 1, cl. 4 provides only that

Congress may determine the “time” of choosing presidential electors. Further, despite modern

state practice providing for popular voting for electors, the appointment of presidential electors

was historically and remains today a power of the state legislatures.16 Consequently, principles of

federalism might incline the Supreme Court to find the appointment of presidential electors less

amenable to federal regulation. The major exception to this would be congressional authority

under the Fourteenth and Fifteenth Amendments; these powers are addressed infra.

The case law on this issue is ambiguous, although Congress’s regulatory authority over

presidential elections does seem to be more extensive than it might appear based on the text of the

Constitution. For instance, the Court has allowed congressional regulation of political committees

which seek to influence presidential elections, arguing that such legislation is justified by the

need to preserve the integrity of such elections. In Burroughs v. United States,17 the Supreme

Court reasoned that

[w]hile presidential electors are not officers or agents of the federal government, they

exercise federal functions under, and discharge duties in virtue of authority conferred by, the

Constitution of the United States. The President is vested with the executive power of the

nation. The importance of his election and the vital character of its relationship to and effect

upon the welfare and safety of the whole people cannot be too strongly stated. To say that

Congress is without power to pass appropriate legislation to safeguard such an election from

the improper use of money to influence the result is to deny to the nation in a vital particular

the power of self protection. Congress, undoubtedly, possesses that power, as it possesses

every other power essential to preserve the departments and institutions of the general

government from impairment or destruction, whether threatened by force or by corruption.18

A question arises, however, whether Burroughs, which involves the regulation of third parties to

elections, can be distinguished from the regulation of states directly regarding their administration

of presidential elections. In Burroughs, the Court distinguished the legislation under consideration

U.S. Const. Art. II, Section 1, cl. 2 provides that “Each State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may

be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the

United States, shall be appointed an Elector.”

290 U.S. 534 (1934). See also Buckley v. Valeo, 424 U.S. 1, 67, 91 (1976) (upholding regulation of campaign

financing by the Federal Election Campaign Act of 1971).

Burroughs, 290 U.S. at 544-545.

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(regulation of political committees) from legislation more directly dealing with state appointment

of electors, noting that

[t]he congressional act under review seeks to preserve the purity of presidential and vice

presidential elections. Neither in purpose nor in effect does it interfere with the power of a

state to appoint electors or the manner in which their appointment shall be made. It deals

with political committees organized for the purpose of influencing elections in two or more

states, and with branches or subsidiaries of national committees, and excludes from its

operation state or local committees. Its operation, therefore, is confined to situations which,

if not beyond the power of the state to deal with at all, are beyond its power to deal with

adequately. It in no sense invades any exclusive state power.19

Under this language, procedures within the province of states, such as the allocation of electors

by a state, would appear to fall outside of the doctrine established in Burroughs. Although the

Court was not asked to evaluate whether Congress had the power to establish the manner in

which the presidential electors were appointed, the language above would appear to indicate that

the Court in Burroughs had not intended its decision to extend Congress’s authority to regulate

presidential elections so that it was coextensive with the power to regulate congressional

elections.

Surprisingly, however, three U.S. Courts of Appeals, relying on Burroughs, reached precisely the

opposite result. In upholding the validity of congressional regulation of registration procedures

for federal elections under the National Voter Registration Act of 1993 (Motor Voter Act),20 three

federal circuits appeared to find that Congress had the same authority to regulate presidential

elections as it did House and Senate elections.21 However, of the three opinions, two made only

passing references to the issue, and only the U.S. Court of Appeals for the Seventh Circuit

(Seventh Circuit) discussed it at any length. In ACORN v. Edgar, Chief Judge Posner of the

Seventh Circuit wrote that

Article I, section 4 [providing authority over congressional elections] ... makes no reference

to the election of the President, which is by the electoral college rather than by the voters at

the general election; general elections for President were not contemplated in 1787.... But

these turn out not to be [a] serious omission[] so far as teasing out the modern meaning of

Article I, section 4 is concerned. Article II provides [congressional authority over the Time

of choosing Electors.] Article II, section 1 ... has been interpreted to grant Congress power

over Presidential elections coextensive with that which Article I, section 4 grants it over

congressional elections. Burroughs v. United States, 290 U.S. 534 (1934).22

It should be noted that the federal registration standards developed under Motor Voter could

probably have been decided under Congress’s power over congressional elections, so that the

reasoning of these cases would not appear essential to their holdings. These broad holdings,

however, do stand as some of the few modern interpretations of Article II, Section 1, cl. 4 and

Id. at 543-544.

42 U.S.C. §§1973gg et seq.

ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995); Voting Rights Coalition v. Reno, 60 F.3d 1411, 1414 (9th Cir. 1995);

ACORN v. Miller, 129 F.3d 833, 836 n.1 (1997).

Edgar, 56 F.3d at 793.

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Congressional Authority to Direct How States Administer Elections

Burroughs.23 Those cases’ interpretations, however, would appear to be at odds with the limiting

language of Burroughs quoted previously.24

Resolution of this issue may ultimately be important to any determination of whether proposals to

standardize election procedures could be specifically applied to presidential elections. Where

congressional and presidential election procedures are likely to overlap, such as requirements for

absentee balloting, uniform closing times, multiple-day elections, number and accessibility of

polling stations, etc., regulation of congressional elections may be for practical purposes

sufficient. However, where the issue at hand is unique to presidential elections (e.g., allocation of

electors based on popular vote), the resolution of this issue may become essential.

Party Primaries

Political parties in the United States serve several functions, including, in most states, choosing

nominees to stand for congressional elections and choosing state delegations to national party

conventions that choose presidential nominees. As noted previously, Article I, Section 4, cl. 1 and

Article II, Section 1, cl. 4 address Congress’s authority over, respectively, congressional and

presidential elections, and the Fourteenth Amendment supplies additional authority over state

elections. In addition, it does appear that Congress’s authority over a particular type of election

may extend to the primaries for such election.

For a time, the Supreme Court held that congressional power over the selection of congressional

and presidential candidates did not reach political parties.25 Then, in United States v. Classic,26 the

Court reversed itself. In Classic, the Court considered federal indictments issued against

Louisiana election commissioners for ballot fraud while conducting a primary election to

nominate a candidate of the Democratic Party to be a Representative in Congress. Louisiana law

mandated that party nominations for Congress be established by primaries, and limited the ability

of candidates defeated in such primaries from running in the general election.27 State law also

mandated that the party primaries be conducted by the state at public expense, and be subject to

numerous statutory regulations as to the time, place, and manner of conducting the election.

Based on this election scheme, the Court found that engaging in ballot fraud in connection with

the Louisiana Democratic primary was interference with the choice of the voters at a stage of the

election procedure when their choice could have a practical effect on the ultimate decision of who

would represent the district. In effect, the Court found that the primary in Louisiana was an

integral part of a two-step process that was created by the state to determine who was the most

Further support for this position is seen in Oregon v. Mitchell, where Justice Black wrote “... it is the prerogative of

Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications for voters

for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of

presidential elections than it has over congressional elections.” 400 U.S. 112, 124 (1970) (upholding federal statute

lowering minimum age for voters). Although Justice Black wrote the opinion of the Court, no other Justice joined this

portion of his opinion, as the other Justices instead focused on Congress’s power under the Fourteenth Amendment.

In fact, a careful reading of Burroughs reveals that the opinion is not even an interpretation of Article II, Section 1 at

all (as presumed in the ACORN case and by Justice Black in Oregon v. Mitchell), but rather an interpretation (albeit

uncited) of Article I, Section 8, cl. 18, the Necessary and Proper Clause. See quoted text accompanying note 14.

Newberry v. United States, 256 U.S. 232 (1921) (plurality opinion holding that Congress did not have the authority

to extend federal statutes limiting campaign expenditures to primary elections).

313 U.S. 299 (1941).

Classic, 313 U.S. at 311.

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popular choice to serve in Congress.28 Noting the power of Congress under the Necessary and

Proper Clause “to make all laws which shall be necessary and proper for carrying into execution

the foregoing powers ... ,” the Court held that it was within the authority of Congress (and the

states) to regulate the manner in which primaries were to be held.

For instance, the Court has held that political parties may be limited by a state to one candidate

for each office on the ballot, and that persons affiliated with such party not seek an office outside

of the party process.29 Further, under state law, the Court has held that smaller parties can be

directed to choose their nominees by convention rather than by primary election.30 This latter case

was decided in the context of an Equal Protection Clause challenge, based on the fact that major

parties were permitted to choose their candidates by primary election. While noting that the

procedures were different, the Court found that the convention method was not inherently

burdensome on minority parties, while providing a state-sponsored primary for all parties would

be burdensome on the states.31

It should be noted, however, that not all activities of political parties may be subject to state or

congressional control. For instance, lower courts have rejected constitutional challenges to party

rules based on the one person, one vote requirement under the Equal Protection Clause.32 Or, in

Bachur v. Democratic National Party,33 the U.S. Court of Appeals for the Fourth Circuit rejected

a challenge to a Democratic National Committee rule requiring proportional representation of

women among delegates. The court reasoned that because primary votes are so removed from the

choice of presidential party nominee, and because delegates perform a number of internal party

functions besides choosing a nominee, rules applicable to general elections need not apply.34

Authority to Prevent Disenfranchisement

in All Elections

Congress does not have general legislative authority to regulate the manner and procedures used

for elections at the state and local level. Nor, as noted above, does it appear to have complete

authority to regulate presidential elections. Congress does, however, have extensive authority to

prevent voter disenfranchisement by a state or locality. For instance, the Civil War

Id. at 313-316. “Unless the constitutional protection of the integrity of ‘elections’ extends to primary elections,

Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of

its constitutional protection save only as Congress, by taking over the control of state elections, may exclude from them

the influence of the state primaries.... The words of §§ 2 and 4 of Article I, read in the sense which is plainly

permissible and in the light of the constitutional purpose, require us to hold that this primary election, which involves a

necessary step in the choice of candidates for election as representatives in Congress, and which in the circumstances of

this case controls that choice, is an election within the meaning of the constitutional provision and is subject to

congressional regulation as to the manner of holding it.” Id. at 319-320.

Storer v. Brown, 415 U.S. 724, 730-736 (1974) (upholding state law providing that a candidate who has been

defeated in a party primary may not be subsequently nominated as an independent or a candidate of any other party).

American Party of Texas v. White, 415 U.S. 767, 781 (1974).

White, 415 U.S. at 781-782.

See, e.g., Ripon Society, Inc. v. National Republican Party, 525 F.2d 567, 581-587 (D.C. Cir. 1975).

836 F.2d 837 (1987).

Richard L. Hasen, “Too Plain for Argument?” The Uncertain Congressional Power to Require Parties to Choose

Presidential Nominees Through Direct and Equal Primaries, 102 Nw. U. L. Rev. Colloquy 253, 295 (2008).

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Amendments,35 the Nineteenth Amendment,36 the Twenty-fourth Amendment,37 and the Twentysixth Amendment38 all seek to prevent discrimination in access to voting, and authorize Congress

to exercise power over federal, state, and local elections to implement these protections.39 The

most significant of these provisions is Congress’s enforcement authority under the Fourteenth

Amendment to provide for equal protection and under the Fifteenth Amendment to prevent

disenfranchisement based on race.

Fourteenth Amendment and Equal Protection

The Fourteenth Amendment provides, among other things, that states shall not deprive citizens of

equal protection of the laws, and Section 5 of that amendment provides that Congress has the

power to legislate to enforce its provisions. This power has been used by Congress to expand

access to the polls. For instance, in Katzenbach v. Morgan,40 the Court held that Section 5 of the

Fourteenth Amendment authorized Congress not just to enforce the doctrine of equal protection

as defined by the courts, but also to help define its scope. In Katzenbach, the Court upheld a

portion of the Voting Rights Act of 1965 which barred the application of English literacy

requirements to persons who had reached sixth grade in a Puerto Rican school taught in Spanish.

In Flores v. City of Boerne,41 however, the Court limited the reach of Congress’s Section 5

authority in a way that may have implications for election law. The Flores case arose when the

City of Boerne denied a church a building permit to expand, because the church was in a

designated historical district. The church challenged this action, asserting that the city had not

demonstrated a compelling interest in applying its zoning legislation to the church as required by

Religious Freedom Restoration Act (RFRA).42 RFRA, passed in response to the 1990 Supreme

Court case of Employment Division v. Smith,43 was an attempt by Congress to reinstate the

compelling governmental interest test which had been used to challenge the application of

generally applicable laws to religious institutions. In Flores, the Court struck down this

application of RFRA as beyond the authority of Congress under Section 5 of the Fourteenth

Amendment.44

In striking down this RFRA application, the Supreme Court held that there must be a “congruence

and proportionality” between the injury to be remedied and the law adopted to that end. RFRA

focused on no one area of alleged harm to religion, but rather broadly inhibited the application of

all types of state and local regulations to religious institutions. Since the Court found no pattern of

U.S. Const., Amend. XIII (prohibiting slavery), Amend. XIV (due process and equal protection) and Amend. XV

(voting rights).

“The right of citizens ... to vote shall not be denied ... on account of sex.”

“The right of citizens ... to vote ... shall not be denied ... by reason of failure to pay any poll tax....”

“The right of citizens ... to vote shall not be denied ... on account of age.”

See, e.g., Voting Rights Act of 1965, P.L. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§1971, 19731973bb-1 (1992)).

384 U.S. 641 (1966).

521 U.S. 507 (1997).

42 U.S.C. §§2000bb et seq.

494 U.S. 872 (1990) (neutral generally applicable laws may be applied to religious practices even if the law is not

supported by a compelling governmental interest).

It should be noted that RFRA may still be constitutionally applied to the federal government. Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

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the use of neutral laws of general applicability to disguise religious bigotry and animus against

religion, it found RFRA to be an overbroad response to a relatively nonexistent problem.

Similarly, it might be difficult to justify an overall regulation of state and local elections based on

the Fourteenth Amendment, absent a strong showing of systemic disenfranchisement of voters.

Rather, Flores would seem to dictate that Congress would need to establish narrow proposals

showing that particular voting procedures threatened constitutional rights, and that the legislation

was a congruent and proportional response to such threat.

For instance, the question has been raised as to whether the case of Bush v. Gore,45 which found

Equal Protection concerns regarding the disparate treatment of voters, would support

congressional legislation to standardize voting technologies and procedures in all elections,

including presidential, state, and local. In Bush v. Gore, the Court found that a failure to provide a

standard procedure for resolution of ballot disputes raised equal protection issues. A close

examination of that case, however, would seem to indicate that the Supreme Court did not intend

to significantly extend the application of the Equal Protection Clause, and consequently the Court

may not be amenable to the expansion of congressional authority in this area.

In Bush v. Gore, a dispute arose regarding, among other things, how to count punch-card election

ballots where the paper “chads” had not been fully dislodged. The Supreme Court held that the

failure of the Florida Supreme Court to set standards for evaluating these ballots violated the

Equal Protection Clause of the Fourteenth Amendment. On its face, this would appear to make it

more likely that Congress could pass legislation under Section 5 of the Fourteenth Amendment to

avoid these or similar problems. Under Flores, such laws would be valid only if Congress could

establish that disparity in the use of voting technologies and procedures has historically resulted

in violations of the Equal Protection Clause.46

In fact, it would be likely that Congress could establish a record of disparity in the application of

voting technologies and procedures, as states have historically delegated authority over elections

to lesser subdivisions such as electoral districts. These subdivisions, in turn, choose voting

methods and procedures appropriate to their size, density and budget, with only general guidance

from the state legislatures. Thus, significant variations in voting technologies and procedures

probably do occur in most states. There is language in Bush v. Gore, however, which would make

it unlikely that such variations would be found to be a violation of the Equal Protection Clause. In

essence, this language appears to limit the holding in Bush v. Gore to only those election

procedures that are under the control of a judicial officer.

The recount process, in its features described here, is inconsistent with the minimum

procedures necessary to protect the fundamental right of each voter in the special instance of

a statewide recount under the authority of a single state judicial officer. Our consideration is

limited to the present circumstance, for the problem of equal protection in election processes

generally presents many complexities.... The question before the Court is not whether local

entities, in the exercise of their expertise, may develop different systems for implementing

elections. Instead, we are presented with a situation where a state court with the power to

assure uniformity has ordered a statewide recount with minimal procedural safeguards.

531 U.S. 98 (2000).

See, e.g., Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 369-370 (2001) (historical

incidents of disparate treatment of disabled individuals did not rise to the level of constitutional violations).

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When a court orders a statewide remedy, there must be at least some assurance that the

rudimentary requirements of equal treatment and fundamental fairness be satisfied.

Based on the above language, disparity in voting procedures is only likely to rise to the level of

constitutional violation when such disparate procedures are under the authority of single judicial

officer, such as during a recount. It is not clear that Congress could establish a history of voting

discrimination in these circumstances. Nor is it likely that the Court would find significant

intrusions on state or local election district authority to set technology or procedure standards to

be proportionate and congruent to such violations as have existed. Consequently, it would appear

that the impact of the case of Bush v. Gore on the issue of congressional authority over elections

would be minimal.

Fifteenth Amendment and Race Discrimination

Congress also has authority under the Fifteenth Amendment to address the narrower issue of voter

discrimination based on race, although the Court has also established limits on this power. The

Fifteenth Amendment was ratified in 1870, in the wake of the Civil War, with the intent of

ensuring the enfranchisement of former slaves. After nearly a century of continued voting

discrimination, however, Congress passed the Voting Rights Act of 1965 (Voting Rights Act),47

which is designed to prevent discrimination in voting.48 The passage of this act was initially

upheld by the Court as being within Congress’s authority to enforce the Fourteenth Amendment.49

In the case of Shelby County v. Holder,50 however, the Supreme Court imposed limits on the most

stringent part of the act, Section 5.

Section 5 requires certain states and jurisdictions with a history of voting discrimination to obtain

preclearance approval from either the U.S. Attorney General or the U.S. District Court for the

District of Columbia before implementing any change to a voting practice or procedure. Section

4(b) defined the jurisdictions subject to or “covered” by Section 5 as ones that had a voting test

(such as a literacy test) or device (such as a poll tax) in place as of November 1, 1972, and less

than 50% turnout for the 1972 presidential election. In 2006, Congress amended the act to extend

the applicability of the preclearance requirements until 2031.51

In order to be granted preclearance, jurisdictions had the burden of proving that a proposed voting

change would have neither the purpose nor the effect of denying or abridging the right to vote on

account of race, color, or membership in a language minority group. A proposed change to voting

procedures would be determined to have a discriminatory effect—and accordingly, preclearance

would be denied—if it would lead to retrogression in minority voting strength.52 In Shelby

County, the Court found that the application of this scheme under the current formula for

42 U.S.C. §§1973 et. seq.

For background on the Voting Rights Act, see CRS Report R42482, Congressional Redistricting and the Voting

Rights Act: A Legal Overview, by (name redacted), and CRS Report R43626, The Voting Rights Act of 1965:

Background and Overview, by (name redacted).

See, e.g., South Carolina v. Katzenbach, 383 U.S. 301 (1966); City of Rome v. United States, 446 U.S. 156 (1980).

133 S. Ct. 2612 (2013).

P.L. 109-246, codified at 42 U.S.C. §1973b(a)(8).

For background on the Voting Rights Act, see CRS Report R42482, Congressional Redistricting and the Voting

Rights Act: A Legal Overview, by (name redacted).

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determining which jurisdictions are “covered” exceeded Congress’s authority under the Fifteenth

Amendment.53

In Shelby County, the Court noted that, except for the limited circumstance of admission to the

union,54 the federal government is not generally prevented from treating different states

differently. The Court, however, also pointed out that the federal government does not have a

general right to reject individual state enactments before they go into effect,55 and that the states

retain broad autonomy in structuring their legislative priorities. Thus, the Court applied a

“fundamental principle of equal sovereignty” analysis to the Voting Rights Act, requiring that a

“statute’s disparate geographic coverage [be] sufficiently related to the problem that it targets.”56

In Shelby County, the Court found that the coverage provisions of Section 4(b) were based on

decades-old data and the prior existence of practices that had long been eradicated. For instance,

the formula was based on whether states had literacy tests and low voter registration and turnout

in the 1960s and early 1970s, despite the fact that such tests have been banned nationwide for

over 40 years. Further, the Court found that voter registration and turnout numbers in the covered

states had risen dramatically in the years since. Finally, the Court concluded that the specific

racial disparity in voter participation that had justified the preclearance remedy and the coverage

formula no longer existed.57 Thus, the Court struck down the coverage formula, finding that the

disparate treatment of states in the context of election regulation was not sufficiently related to

the apparent governmental concern.

As regards the Voting Rights Act, Shelby County would appear to preclude the application of

Section 5 unless Congress can reformulate Section 4(b) to more closely reflect current aspects of

voter participation in various jurisdictions. It is not clear, however, whether Shelby County has

significant implications for election regulations in other contexts. Most election law is national in

scope, and does not contain geographical variations based on historical practice. Thus,

“fundamental principle of equal sovereignty” may have limited impact outside of the Voting

Rights Act context.

Before Shelby County was decided, the Supreme Court had signaled that Section 5 was vulnerable to constitutional

challenge. In its 2009 decision of Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, the

Court cautioned that the VRA’s preclearance regime and coverage formula “raise serious constitutional questions.” 557

U.S. 193, 204 (2009). According to the Court, the voting discrimination that Section 5 was designed to address may not

be concentrated in the covered states and jurisdictions that were currently subject to preclearance. Furthermore, the

Court warned that the coverage formula was based on data that were more than 35 years old, and therefore failed to

account for current political conditions. Id. at 203-204.

Under the equal footing doctrine, Congress may not impose conditions on states upon admission that otherwise

exceed Congress’s authority. Coyle v. Smith, 221 U.S. 559 (1911) (Oklahoma not bound by the federal Oklahoma

Enabling Act, which mandated the location of the state’s capital). But see South Carolina v. Katzenbach, 383 U.S. at

328-329 (equal footing doctrine does not apply outside the context of conditions on state admission).

The Court noted that a proposal to grant such authority was considered at the Constitutional Convention, but rejected

in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause. See 1 Records of

the Federal Convention of 1787, pp. 21, 164-168 (M. Farrand ed. 1911); 2 id., at 27-29, 390-392.

Shelby County, 133 S. Ct. at 2622, quoting Northwest Austin, 557 U.S. at 203.

Shelby County, 133 S. Ct. at 2627-2628.

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Federalism and Election Regulation

Tenth Amendment

As noted, modern election law is mostly regulated at the state level, but there are a variety of

federal laws that direct how states will implement certain aspects of elections. While concurrent

jurisdiction between the states and federal government over a particular issue area is relatively

common, it is less common for the federal government to direct how the states will exercise its

authority in such area. In other contexts, the directing or “commandeering” of states to implement

federal programs can raise Tenth Amendment concerns. This, however, does not appear to be the

case with election laws.

The Tenth Amendment provides that “powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

people.” Initially, the Supreme Court interpreted the Tenth Amendment to have substantive

content, so that certain “core” state functions would be beyond the authority of the federal

government to regulate. Thus, in National League of Cities v. Usery,58 the Court struck down

federal wage and price controls on state employees as involving the regulation of core state

functions.59 The Court, however, overruled National League of Cities in Garcia v. San Antonio

Metropolitan Transit Authority.60 In sum, the Court in Garcia seems to have said that most

disputes over the effects on state sovereignty of federal commerce power legislation are to be

considered political questions, and that the states should look for relief from federal regulation

through the political process.61

The Court soon turned, however, to the question of how the Constitution limits the process by

which the federal government regulates the states. In New York v. United States,62 Congress had

attempted to regulate in the area of low-level radioactive waste. In a 1985 statute, Congress

provided that states must either develop legislation on how to dispose of all low-level radioactive

waste generated within the state, or the state would be forced to take title to such waste, which

would mean that it became the state’s responsibility. The Court found that although Congress had

the authority under the Commerce Clause to regulate low-level radioactive waste, it had only the

power to regulate the waste directly. Here, Congress had attempted to require the states to

perform the regulation, and decreed that the failure to do so would require the state to deal with

the financial consequences of owning large quantities of radioactive waste. In effect, Congress

sought to “commandeer” the legislative process of the states. In the New York case, the Court

426 U.S. 833 (1976).

In National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the

wages and hours of certain state and local governmental employees, was undoubtedly within the scope of the

Commerce Clause, but it cautioned that there are attributes of sovereignty attaching to every state government which

may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach

the matter, but because the Constitution prohibits it from exercising the authority in that manner.

469 U.S. 528 (1985). Justice Blackmun’s opinion for the Court in Garcia concluded that the National League of

Cities test for “integral operations” in areas of traditional governmental functions had proven impractical, and that the

Court in 1976 had “tried to repair what did not need repair.”

See also South Carolina v. Baker, 485 U.S. 505 (1988).

505 U.S. 144 (1992).

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found that this power was not found in the text or structure of the Constitution, and it was thus a

violation of the Tenth Amendment.63

Thus, the question arises as to whether Tenth Amendment challenges can be brought when the

federal government directs states on how to implement elections. For instance, there have been

several challenges to the Motor Voter Act.64 The Motor Voter Act provides that a state driver’s

license application contain information enabling it to also serve as an application to register to

vote in federal elections; requires states to create a mail-order form for registering to vote; and

provides that states designate all offices that dispense welfare or provide benefits to the disabled

as voter registration agencies. In addition, the law requires that states assist voting by persons in

certain vulnerable populations.

These provisions of the Motor Voter Act have been found to fall within the power of Congress.65

As noted, Congress has the authority under Article I, Section 4, cl. 1 to provide for the “The

Times, Places and Manner of holding Elections for Senators and Representatives.” In ACORN v.

Edgar,66 for instance, the Seventh Circuit observed that the language of Article I, Section 4, cl. 1

“is broadly worded and has been broadly interpreted.” The court noted that the phrase “Manner of

holding Elections” has been interpreted to include registering voters,67 and the power under the

section has been held to extend beyond general federal elections to include even regulation of

primaries.68 Further, the court noted that such authority as is found in Article I, Section 4, cl. 1 is

supplemented by the Necessary and Proper Clause.69

As noted, one might ask whether the principles of the Tenth Amendment would apply in this

circumstance, so that directing state agencies to implement federal regulations would violate the

“anti-commandeering” requirements of the Tenth Amendment. However, such a Tenth

Amendment argument was rejected in Edgar. The court in that case noted that the Tenth

Amendment has no application to Article I, Section 4, cl. 1 which clearly contemplates that states

will have the burden of administering federal elections. Thus, this clause, unlike most other

A later case presented the question of the extent to which Congress could regulate through a state’s executive branch

officers. This case, Printz v. United States, 521 U.S. 898 (1997), involved the Brady Handgun Act. The Brady Handgun

Act required state and local law-enforcement officers to conduct background checks on prospective handgun

purchasers within five business days of an attempted purchase. This portion of the act was challenged under the Tenth

Amendment, under the theory that Congress was without authority to “commandeer” state executive branch officials.

After a historical study of federal commandeering of state officials, the Court concluded that commandeering of state

executive branch officials was, like commandeering of the legislature, outside of Congress’s power, and consequently a

violation of the Tenth Amendment.

42 U.S.C. §§1973gg et seq. The Motor Voter Act is discussed supra.

ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995); Voting Rights Coalition v. Reno, 60 F.3d 1411, 1414 (9th Cir. 1995);

ACORN v. Miller, 129 F.3d 833, 836 n.1 (1997).

56 F.3d 791 (7th Cir. 1995).

Smiley v. Holm, 285 U.S. 355, 366, (1932); Ex parte Siebold, 100 U.S. 371 (1879); United States v. Original

Knights of the Ku Klux Klan, 250 F. Supp. 330, 351-355 (E.D. La. 1965) (three-judge court).

United States v. Classic, 313 U.S. 299 (1941) (“Where the state law has made the primary an integral part of the

procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his

ballot counted at the primary is likewise included in the right protected by [federal law].”).

Edgar, 56 F.3d at 794. U.S. Const., Art. I, §8. “Let the end be legitimate; let it be within the scope of the

Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but

consist with the letter and spirit of the Constitution, are constitutional.” McCulloch v. Maryland, 17 U.S. (4 Wheat) 316

(1819).

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Congressional Authority to Direct How States Administer Elections

provisions of the Constitution, is direct authority for Congress to regulate states as to the “Times,

Places and Manner” of elections.70

The court in Edgar did note that there may be some theoretical limits to how Congress exercises

its power under Article I, Section 4, cl. 1. For instance, the court contemplated that if Congress

attempted to use that power to “destroy state government” by deeming all employees of the state

full-time federal voting registrars in order to make sure that every eligible federal voter in every

state was registered, then the limits of the authority might be considered. However, the court

found that requirements imposed by the Motor Voter Act or similar proposals did not represent an

extraordinary financial or administrative burden on the state.

Spending Power

The Spending Clause grants Congress the authority “to pay the debts and provide for the common

defense and general welfare of the United States....” Under this power, Congress has expansive

authority to spend money for the general welfare, which could encompass making monies

available to state and local governments to modify their election procedures.71 Further, the

allocation of such grant monies could be conditioned on compliance by state or local officials

with national standards for election procedures.72 Such grant conditions need not be limited by the

authority of Congress discussed above to directly legislate on the issue, but could address election

procedures regardless of whether they were for the House, Senate, presidential, state, or local

elections.73 Considering the number of federal programs and the amount of federal funds

provided to the states, this represents a significant power for Congress to exercise.74

Although most grant conditions by Congress are constitutionally uncontroversial, the Supreme

Court has suggested that there are limits on the Spending Clause authority. In South Dakota v.

Dole, Congress enacted the National Minimum Drinking Age Amendment of 1984, which

directed the Secretary of Transportation to withhold a percentage of federal highway funds from

states in which the age for purchase of alcohol was below 21 years. The state of South Dakota,

which permitted 19-year-olds to purchase beer, brought suit, arguing that the law was an invalid

exercise of Congress’s power under the Spending Clause to provide for the “general welfare.”

The Supreme Court held that, as the indirect imposition of such a standard was directed toward

the general welfare of the country, it was a valid exercise of Congress’s spending power.

The Court did, however, note some limits to this power. First, a grant condition must be related to

the particular national projects or programs to which the money was being directed. In Dole, the

56 F.3d at 796.

U.S. Const., Art. I, Section 8, cl. 1 provides that “The Congress shall have Power To lay and collect Taxes, Duties,

Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United

States....”

South Dakota v. Dole, 483 U.S. 203 (1987) (Congress may condition grants to states based on criteria related to the

underlying grant scheme).

Dole, 483 U.S. at 208-209.

For instance, in HAVA (discussed above), states and territories were eligible to receive $2.3 billion in federal

requirements payments once each jurisdiction had published a “state plan” in the Federal Register, followed by a 45day public comment period and the filing of a certification with the Election Assistance Commission. See CRS Report

RS20898, The Help America Vote Act and Election Administration: Overview and Issues, by (name redacted) and

(name redacted), at 7.

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congressional condition imposing a specific drinking age was found to be related to the national

concern of safe interstate travel, which was one of the main purposes for highway funds being

expended. Second, the Court suggested that in some circumstances, the financial inducements

offered by Congress might be so coercive as to pass the point at which “pressure turns into

compulsion,” which would suggest a violation of the Tenth Amendment. In Dole, however, the

percentage of highway funds that were to be withheld from a state with a drinking age below 21

was relatively small, so that Congress’s program did not coerce the states to enact higher

minimum drinking ages than they would otherwise choose.75

In the context of election regulation, it would appear that any proposed legislation to influence

state behavior regarding elections would, under Dole, have to involve federal funds that are in

some way related to the funding of elections. It is not clear, however, that the coercion analysis of

Dole would be applicable in all cases. For instance, as noted previously in ACORN v. Edgar, the

Supreme Court had found that Tenth Amendment commandeering limitations were not applicable

to congressional authority over congressional elections, as the Constitution contemplates that

Congress can dictate the manner in which the states administer such elections. Thus, it would

appear that the Tenth Amendment limitations found in the coercion doctrine would apply only to

those election contexts where Congress did not already have legislative authority to regulate that

state.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

The more recent case of National Federation of Independent Business (NFIB) v. Sebelius seems to suggest an

alternative line of analysis regarding coercion. In 2010, Congress passed the Patient Protection and Affordable Care

Act (ACA), which, among other things, required states to expand Medicaid eligibility or lose Medicaid funding. The

Court, in a controlling opinion by Chief Justice Roberts, found that the enforcement mechanism for the ACA Medicaid

expansion, withdrawal of all Medicaid funds, was a violation of the Tenth Amendment. Justice Roberts’s opinion in

NFIB, however, addressed a slightly different question than Dole: whether a grant condition attached to a “new and

independent” program (here, the Medicaid expansion) that threatened the funding of an existing program (here,

Medicaid) violated the Tenth Amendment. Justice Roberts’s opinion in NFIB held that, in the case of existing program

funding being conditioned on the adoption of a “new and independent” program, the amount of federal funds at issue

cannot represent a significant portion of a state’s budget, or its withdrawal will be found to be unconstitutionally

coercive under the Tenth Amendment. Justice Roberts concluded that withdrawal of federal program funds which made

up 10% of an average state’s budget, such as Medicaid, was unconstitutional because it represented a “gun to the head”

and was a form of “economic dragooning.”

Congressional Research Service

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