The Enforcement Act of 1870, Federal Jurisdiction Over Election Contests, and the Political Question Doctrine

58 Pages Posted: 7 Oct 2020 Last revised: 19 Nov 2020

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: September 18, 2020

Abstract

A lingering provision of a major Reconstruction Era law, the Enforcement Act of 1870, 28 U.S.C. § 1344, grants federal courts jurisdiction over election contests arising from alleged Fifteenth Amendment violations, except for the positions of presidential elector, member of Congress, and state legislator. Some courts have erroneously construed this provision as categorically denying the federal judiciary subject-matter jurisdiction over any constitutional challenges, including by voters, to the outcomes of presidential, congressional, or state legislative elections. This pernicious line of authority periodically re-emerges to preclude litigants from attempting to vindicate their right to vote in federal court.

More broadly, § 1344 points to a fundamental indeterminacy at the heart of the electoral process. The Reconstruction Era Congress sought to preclude federal courts from adjudicating constitutional challenges concerning congressional and presidential elections because the Constitution grants the chambers of Congress themselves the authority to resolve them. Yet subsequent grants of subject-matter jurisdiction allow federal courts to adjudicate such disputes. Thus, different branches of the federal government may come to different conclusions as to whether the Constitution requires or forbids certain votes to be counted.

Ultimately, it appears that the Constitution enshrines departmentalism, rather than judicial supremacy, in the realm of federal elections and voting rights. When federal courts conclude that the Constitution either requires or forbids the counting of certain votes in congressional or presidential elections, those rulings are not binding on the chambers of Congress. Furthermore, the political question doctrine acts as a modern replacement for § 1344’s jurisdictional restrictions with regard to federal elections. Once the chambers of Congress have initiated the process of exercising their constitutional prerogative to determine an election’s outcome, the federal judiciary should decline to get involved in all but the most extreme circumstances.

Keywords: elections, federal elections, voting rights, courts, congress, judiciary, subject-matter jurisdiction, justiciability, Article III, Reconstruction, Enforcement Act, Civil Rights Act, 28 U.S.C. 1344, congressional election, presidential election, Fifteenth Amendment, Cruikshank, political question

Suggested Citation

Morley, Michael, The Enforcement Act of 1870, Federal Jurisdiction Over Election Contests, and the Political Question Doctrine (September 18, 2020). Florida Law Review, Vol. 72, 2020, Available at SSRN: https://ssrn.com/abstract=3694839

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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