Should Congress have the last word over the rules for congressional elections?

THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: "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 choosing senators."(1) This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system.

By section 4, article I, the Congress are authorized, at any time, by law, to make, or alter, regulations respecting the time, place, and manner of holding elections for senators and representatives, except as to the places of choosing senators. By this clause the right of election itself, is, in a great measure, transferred from the people to their rulers. — One would think, that if any thing was necessary to be made a fundamental article of the original compact, it would be, that of fixing the branches of the legislature, so as to put it out of its power to alter itself by modifying the election of its own members at will and pleasure. When a people once resign the privilege of a fair election, they clearly have none left worth contending for.

I think we are all sufficiently acquainted with the progress of elections to see, that the regulations, as to times, places, and the manner merely of holding elections, may, under the constitution, easily be made useful or injurious. It is important then to enquire, who has the power to make regulations, and who ought to have it. By the constitution, the state legislatures shall prescribe the times, places, and manner of holding elections, but congress may make or alter such regulations. Power in congress merely to alter those regulations, made by the states, could answer no valuable purposes; the states might make, and congress alter them ad infinitum: and when the state should cease to make, or should annihilate its regulations, congress would have nothing to alter. But the states shall make regulations, and congress may make such regulations as the clause stands: the true construction is, that when congress shall see fit to regulate the times, places, and manner of holding elections, congress may do it, and state regulations, on this head, must cease: for if state regulations could exist, after congress should make a system of regulations, there would, or might, be two incompatible systems of regulations relative to the same subject.

Among the many evils that are incorporated in this new system of government is that of congress having the power of making or altering the regulations prescribed by the different legislatures respecting the time, place and manner of holding elections for representatives, and the time and manner of choosing senators. If it is enquired in what manner this regulation may be exercised to your injury, the answer is easy. By the first article the house of representatives shall consist of members, chosen every second year by the people of the several states who are qualified to vote for members of their several state assemblies; it can therefore readily be believed, that the different state legislatures, provided such can exist after the adoption of this government, will continue those easy and convenient modes for the election of representatives for the national legislature that are in use for the election of members of assembly for their own states; but the congress have, by the constitution, a power to make other regulations or alter those in practice, prescribed by your own state legislatures; hence, instead of having the places of elections in the precincts and brought home almost to your own doors, congress may establish a place, or places, at either the extremes, center or outer parts of the states; at a time and season, too, when it may be very inconvenient to attend; and by these means destroy the rights of election. But in opposition to this reasoning, it is asserted, that it is a necessary power, because the states might omit making rules for the purpose, and thereby defeat the existence of that branch of the government; this is what logicians call argumentum absurdum; for the different states, if they will have any security at all in this government, will find it in the house of representatives, and they, therefore, would be very ready to eradicate a principle in which it dwells, or involve their country in an instantaneous revolution. Besides, if this was the apprehension of the framers, and the ground of that provision, why did not they extend this controlling power to the other duties of the several state legislatures? To exemplify this, the states are to appoint senators and electors for choosing of a president; but the time is to be under the direction of congress. Now, suppose they were to omit the appointment of senators and electors, though congress was to appoint the time, which might well be apprehended, as the omission of regulations for the election of members of the house of representatives, provided they had that power; or suppose they were not to meet at all; of course, the government cannot proceed in its exercise. And from this motive or apprehension, congress ought to have taken these duties entirely in their own hands, and, by a decisive declaration, annihilated them, which they in fact have done by leaving them without the means of support, or at least resting on their bounty. To this the advocates for this system oppose the common, empty declamation, that there is no danger that congress will abuse this power; but such language, as relative to so important a subject, is mere vapor, and formed without sense. Is it not in their power, however, to make such regulations as may be inconvenient to you? It must be admitted, because the words are unlimited in their sense. It is a good rule, in the construction of a contract, to suppose that what may be done will be; therefore, in considering this subject, you are to suppose that in the exercise of this government, a regulation of congress will be made for holding an election for the whole state at Poughkeepsie, at New York, or, perhaps, at Fort Stanwix; who will then be the actual electors for the house of representatives? You ought certainly to have as much or more distrust with respect to the exercise of these powers by congress, than congress ought to have with respect to the exercise of those duties which ought to be entrusted to the several states, because over them congress can have a legislative controlling power.