Two recent events have cast a bright spotlight on America’s fairly unique arrangement of delegating most details of federal elections to the states. First, Gov. Chris Christie issued a writ for an October special election to fill the late Sen. Frank Lautenberg’s Senate seat, rather than holding it during the November general election. Then the U.S. Supreme Court struck down Arizona’s requirement of proof of citizenship for voter registration as pre-empted by the federal “motor voter” statute.
In a recent article, “The Election-Law Connection and U.S. Federalism” [Publius: The Journal of Federalism, Summer 2013], Stanford-trained political scientist and lawyer Kirsten Nussbaumer writes that our system of relying on states to decide most questions about federal elections is unusual among federal systems. She says that because of costs and political factors, most states piggyback their elections on federal elections. She also notes that, despite constitutional authorization for the Congress to pre-empt state decisions about federal elections, it rarely does so.
With respect to New Jersey’s Senate vacancy, the Seventeenth Amendment (which replaced state legislative election of U.S. Senators with popular election) provides that in the case of a Senate vacancy, “the executive authority of such State shall issue writs of election to fill such vacancies; Provided that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
The New Jersey Legislature has, inexplicably, implemented this federal delegation of authority in two separate statutes. Because Lautenberg’s term would expire more than six months after the vacancy, N.J.S.A. 19:27-4 authorizes the governor to issue a writ of election. This statutory structure continues in N.J.S.A. 19:27-6 to provide that the election to fill the Senate vacancy is to be held during the first or second regularly scheduled primary and general elections following the vacancy “unless the governor of this State shall deem it advisable to call a special election.” The same language appears in N.J.S.A. 19:3-26.
The New Jersey Democratic Party filed an emergent application in the Appellate Division to block the governor’s call for a special election, arguing there was a conflict between these two statutes. They relied on the placement of a comma in N.J.S.A. 19:3-26, which they contended limited the governor’s discretion to call a special election only when a vacancy occurs within 70 days of the next general election (which did not happen in this case).
A unanimous Appellate Division panel rejected the challenge based on principles of statutory interpretation favoring the reconciliation of more than one statute applying to the same circumstance, and rejecting the absurd result of one statute authorizing the governor’s action and the other statute prohibiting it. Finally, the court relied on the well-established principle that statutes should be interpreted to favor voter participation. Our Supreme Court has declined to review that decision, and the special election will now go forward.
This controversy reflects the breadth of discretion that states are given under the Seventeenth Amendment, which involves both state legislative and gubernatorial decision-making with respect to the conduct of elections for federal officials.
In Arizona v. The Inter Tribal Council of Arizona, the question for the Supreme Court was whether the 1993 National Voter Registration Act’s requirement that states “accept and use” a federal form for voter registration for federal elections pre-empted Arizona’s requirement of proof of American citizenship to register for state and federal elections.
In a 7-2 decision by Justice Antonin Scalia, the court found the Arizona law pre-empted under the federal Constitution’s Elections Clause, art. I, § 4, cl. 1, which allows Congress to alter state regulations on time, place and manner of election of senators and representatives.
The two dissenters contended, not without substantial logic, that the case turned not on the Elections Clause but rather on the Voter Qualifications Clause, art. I, § 2, cl. 1. That provision, as well as the Seventeenth Amendment, provides that voters in elections for the U.S. Senate “shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.” These provisions also delegate broad authority to the states to decide the qualifications of voters in federal elections, subject only to the limitation that they impose the same qualifications on elections for their state house of representatives. Therefore, the more difficult question in the case was whether Arizona’s requirement of proof of American citizenship dealt with the time, place, and manner of holding federal elections, or with qualifications for voters in federal elections, where Congress is not authorized to pre-empt state law. The majority saw the matter as affecting the former.
The original design for federal elections, modified by the Seventeenth Amendment, clearly relies on the states to fill in most of the details, with Congress authorized to pre-empt most of those details as it sees fit. This arrangement, as we have seen in many instances across the country, enables state legislatures and governors to exert major influences on our federal government. The Arizona case, however, underlines the importance of congressional authority in this area, particularly after the U.S. Supreme Court’s recent ruling in the Voting Rights Act case.