An Untapped 'Arsenal of Power': The Elections Clause, A Federal Election Administration Agency, and Federal Election Oversight

Abstract

The United States’ election administration system is hyper-decentralized, often overseen by partisan officials, lacks meaningful federal oversight, and is frequently litigated in eleventh-hour disputes before busy federal courts. This imperfect structure does not have to remain this way. Between 1870 and 1894, the federal government regulated elections in an unprecedented fashion. Though riddled with inadequacies, these Enforcement Acts rooted out racially motivated voter suppression and urban voter and election fraud with varying degrees of success. These nineteenth century laws can help inform future pathways of electoral reform. This Article examines how the federal government can constitutionally take a more proactive role in election administration by harnessing the expansive authority the Constitution grants Congress in the Elections Clause and the Fifteenth Amendment. Through the lens of a Modern Enforcement Act (“MEA”) and a Federal Election Administration Agency (“FEAA”), this Article envisions a centralized federal election agency, administrative adjudication of election administration disputes, and citizen-initiated federal election oversight. To varying degrees, these proposals have historical antecedents. Even more, they are constitutional and may provide antidotes to today’s hyperpartisan era of election administration.

Keywords: Legal History, Election Law, Federalism, Elections Clause, Fifteenth Amendment, Administrative Law