Debunking the Non-Delegation Doctrine for State Regulation of Federal Elections
71 Pages Posted: 20 Aug 2021 Last revised: 1 Jul 2022
Date Written: August 23, 2021
One objection to the conduct of the 2020 election concerned the key role played by state executives in setting election rules. Governors and elections officials intervened to change a host of regulations, from ballot deadlines to polling times, often acting pursuant to legislation granting them emergency powers. Some advocates, politicians, and judges cried foul. They argued that state legislatures may not devolve the power to set the “Times, Places, and Manner” of federal elections under Article I, Section 4 of the Constitution.
This Article contests that view. Drawing on a survey of elections statutes in the thirteen original colonies, I argue that local officials frequently made critical decisions about the time, place and manner of early American elections. Executive officers like sheriffs and local officials like selectmen had enormous discretion to determine the time and place of elections, and sometimes also their manner. That discretion was repeatedly affirmed by Congress. Advocates of the Independent State Legislature (“ISL”) theory must interpret these exercises of local power as evidence that Founding-era legislatures delegated their power under the Elections Clause. As a doctrinal matter, this history suggests that courts embracing the ISL theory ought to accord a broad permission for legislatures to delegate their Elections Clause powers today. For opponents of the ISL theory, the history of local power over federal elections may provide further reasons to question the literal meaning of the term “legislature” in Article I, Section 4.
Keywords: elections clause, elections, constitutional law, founding era
JEL Classification: N41, K19
Suggested Citation: Suggested Citation