Structural Limitations on the Non-Legislative Regulations of Federal Elections

7 Dartmouth L. J. 260 (2009)

35 Pages Posted: 15 May 2013

Date Written: August 1, 2008


The Election Clauses found in Articles I and II of the United States Constitution limit the authority of state administrative agents to develop rules for federal elections — both congressional and presidential. These two Clauses prohibit non-legislative agents from adding to, changing, or contradicting legislatively enacted rules. The Clauses leave some room for non-legislative agents, but only if a State Legislature has clearly delegated regulatory power to them. Even then, the agent’s rulemaking must be carefully measured by the delegation using an analysis akin to intermediate scrutiny. The Essay uses the Supreme Court’s controversial holdings in Bush v. Gore (2000) and Bush v. Palm Beach County Canvassing Board (2000) as its launch. It then peruses the text of the Constitution, original intent, and historical precedents to build its case. It concludes with three modern problems arising in Ohio, Louisiana and Mississippi to illustrate its thesis.

Keywords: Legislature, Bush v. Gore, elections, ballot access

Suggested Citation

Brown, Mark R., Structural Limitations on the Non-Legislative Regulations of Federal Elections (August 1, 2008). 7 Dartmouth L. J. 260 (2009), Available at SSRN:

Mark R. Brown (Contact Author)

Capital University ( email )

COLUMBUS, OH 43215-3201
United States

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