election law: an overview

The ability to vote for one's government is one of the most sacred and important rights given to a citizen of the United States of America. The electoral process has assured that no leader can take control for an extended amount of time, and assures that if a Representative or Senator is not making decisions that please his or her constituency, the people can choose a new one that will.

Largely, the electoral process is carried out by the individual states based on state law. The right to select Representatives and Senators is given to the states by Sections 2 (http://www.law.cornell.edu/constitution/constitution.articlei.html#section2) and 4 (http://www.law.cornell.edu/constitution/constitution.articlei.html#section4) of Article I of the Constitution. Section 1 (http://www.law.cornell.edu/constitution/constitution.articleii.html#section1) of Article II gives the states the right to choose Electors in Federal elections for President and Vice-President. These Electors make up the Electoral College: the body that formally elects the leaders that the people have chosen.

Congressional Elections

States may individually decide (http://www.nass.org/electioninfo/laws&admin.htm) how to carry out their elections for Representatives, Senators and electors. Each state may have a different structure of administrative offices running the elections, and may have different rules as to when, where and how citizens may vote (see Congressional Districts). Representatives have always been elected directly by the people, however, it was not until the 17th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxvii.html) was passed that the election of Senators was passed from the state government to the people.

Presidential Elections: The Electoral College

In presidential elections, the people vote for Electors, who formally elect the President and Vice-President.

The Electoral College (http://www.archives.gov/federal_register/electoral_college/) is coordinated by the Office of the Federal Register. It is comprised of 538 Electors, equal to the number of Representatives and Senators that currently make up Congress. The Electors are divided up by the amount of Senators and Representatives that each state currently has, and the divisions are amended every 10 years with the analysis ofthe national Census.

Voters in each state vote for slates of Electors. 48 of the 50 states and D.C. have a "winner-take-all" system, with Maine and Nebraska being the exceptions. There is no federal law that states that the electors are bound to a certain candidate, however 26 states (http://www.cnn.com/interactive/allpolitics/0012/electors/content.c.html) have developed laws for this purpose. After each state has submitted their Electors' votes, the votes are counted and a President and Vice-President are named. Usually, the Electoral College emerges with a winner identical to the U.S. popular vote. However, in 2000, Vice-President Al Gore won the popular vote and President George W. Bush won the Electoral College vote.

Changes in Election Law

Since the ratification of the Constitution, election law has been clarified and changed to an extremely large extent. Seven amendments have been passed that in some way alter the process of electing leadership in the United States. The 12th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxii.html) clarifies the procedure to follow if an outcome of a Presidential election is not easily obtained. The 15th (http://www.law.cornell.edu/constitution/constitution.amendmentxv.html) and 19th (http://www.law.cornell.edu/constitution/constitution.amendmentxix.html) Amendments assured that people could not be denied the right to vote based on race or gender. The 17th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxvii.html) gives the privilege of choosing Senators to the people as opposed to State Legislatures, where it was previously held. The 23rd Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxxiii.html) created a process of voting in the Presidential election for citizens of Washington D.C; the 24th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxxiv.html) eliminated Poll Taxes and the 26th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxxvi.html) set the voting age at 18.

More recent developments have created regulations for military personnel and overseas citizens (http://www.law.cornell.edu/uscode/html/uscode42/usc_sup_01_42_10_20_20_I-G.html) to vote, in addition for providing help for elderly and disabled voters (http://www.law.cornell.edu/uscode/html/uscode42/usc_sup_01_42_10_20_20_I-F.html). In 1993, the "motor voter" law (http://uscode.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001973--gg003-.html) was created, enabling citizens to register to vote when they are applying for their drivers license.

Campaign Reform

Members of both major parties have been working in recent years to change the way campaign funds are collected and used. In 2002, the Bipartisan Campaign Reform Act (http://www.law.cornell.edu/background/campaign_finance/bcra_txt.pdf) was signed into law. Immediately following the laws signing, the Constitutionality of the law was challenged, and was subsequently brought through the Judicial system to the Supreme Court. In 2003, the Court upheld and struck down different parts of the Act.For more information, see LII's Backgrounder on the Bipartisan Campaign Reform Act Cases.

menu of sources

Federal Material

U.S. Constitution

• Article I, Section 2 (http://www.law.cornell.edu/constitution/constitution.articlei.html#section2) - House of Representatives
• Article I, Section 4 (http://www.law.cornell.edu/constitution/constitution.articlei.html#section4) - Elections of Senators and Representatives
• Article II, Section 1 (http://www.law.cornell.edu/constitution/constitution.articleii.html#section1) - Election, Installation and Removal of the President and Vice-President
• 12th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxii.html) - Election of President and Vice President
• 15th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxv.html) - Right to Vote Not Denied on Account of Race
• 17th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxvii.html) - Election of Senators
• 19th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxix.html) - Women's Right to Vote
• 23rd Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxxiii.html) - Presidential Vote in D.C.
• 24th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxxiv.html) - Eliminating Poll Taxes
• 26th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxxvi.html) - Right to Vote at Age 18
• CRS Annotated Constitution:
• Article I: Federal Legislation Protecting the Electoral Process (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/art1frag18_user.html)
• Article I: Elector Qualifications (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/art1frag15_user.html)
• Article II: Tenure and The Electoral College (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/art2frag4_user.html)
• First Amendment: Government as Regulator of the Electoral Process (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt1cfrag7_user.html)
• Fourteenth Amendment: Fundamental Interests: The Political Process and Voter Qualifications (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt14hfrag4_user.html)
• Fourteenth Amendment: Access to the Ballot (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt14hfrag5_user.html)
• Fifthteenth Amendment: Right of Citizens to Vote (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt15frag1_user.html)
• Seventeenth Amendment: The Popular Election of Senators (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt17_user.html)
• Twenty-Third Amendment: Presidential Electors for the District of Columbia (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt23_user.html)
• Twenty-Fourth Amendment: Expansion of the Right to Vote (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt24_user.html)
• Twenty-Sixth Amendment: The Eighteen-Year-Old Vote (http://www.law.cornell.edu/anncon/search/display.html?terms=elections&url=/anncon/html/amdt26_user.html)

Federal Statutes

• U.S. Code: Title 2, Chapter 1 - Election of Senators and Representatives
• U.S. Code: Title 2, Chapter 12 - Contested Elections
• U.S. Code: Title 2, Chapter 14 - Federal Election Campaigns
• U.S. Code: Title 3, Chapter 1 - Presidential Elections and Vacancies
• U.S. Code: Title 42, Chapter 20 - Elective Franchise
• The Voting Accessibility for the Elderly and Handicapped Act of 1984 (http://www.law.cornell.edu/uscode/42/ch20schI-F.html)
• The Uniformed and Overseas Citizens Absentee Voting Act of 1986 (http://www.law.cornell.edu/uscode/42/ch20schI-G.html)
• National Voter Registration Act of 1993 (http://www.law.cornell.edu/uscode/42/ch20schI-H.html)
• Bipartisan Campaign Reform Act (http://www.law.cornell.edu/background/campaign_finance/bcra_txt.pdf)
  • See also BCRA

Federal Regulations

• Code of Federal Regulations: Title 11 (http://cfr.law.cornell.edu/cfr/cfr.php?title=11) - Federal Elections

Federal Judicial Decisions

• U.S. Supreme Court:
  • Historic Election Law Decisions (http://supct.law.cornell.edu/supct/search/search.html?scope=onlysyllabi&query=elections)
  • McConnell v. Federal Election Commission (2003) (http://supct.law.cornell.edu/supct/search/display.html?terms=elections&url=/supct/html/02-1674.ZS.html)
  • Bush v. Gore (2000) (http://supct.law.cornell.edu/supct/search/display.html?terms=Gore&url=/supct/html/00-949.ZPC.html)
• U.S. Circuit Courts of Appeals: Election Law Cases (http://www.law.cornell.edu/usca/search/index.html?query=election)

State Material

State Statutes

• National Association of Secretaries of State: State Election Laws and Administration Issues (http://www.nass.org/electioninfo/laws&admin.htm)

State Judicial Decisions

• 2000 Presidential Election Resources (http://election2000.stanford.edu/)
• Legal Challenges to the California Recall (http://www.igs.berkeley.edu/library/htRecall2003.html#Topic6)

State Information

• Election Day and Voting Procedures FAQ (http://www.uselections.com/faq_electday.htm)
• State Voter Registration Deadlines (http://www.eac.gov/register_vote_deadlines.asp)
• Administration Structure of State Election Offices (http://www.eac.gov/election_resources/tech3.htm)
• Combined Federal/State Disclosure and Election Directory (http://www.fec.gov/pubrec/cfsdd/cfsdd.shtml)

Other References

• Federal Agency: Federal Election Commission (http://www.fec.gov/)
• The Electoral College (http://www.archives.gov/federal_register/electoral_college/)
• Political MoneyLine (http://www.fecinfo.com/)
• The Reform Institute for Campaign and Election Issues (http://reforminstitute.org/)
• Recall in California (http://www.igs.berkeley.edu/library/htRecall2003.html)
• Election Law Blog (http://electionlawblog.org/)
• Presidential Elections and the Electoral College (http://memory.loc.gov/ammem/amlaw/lwec.html)
• Law Library of Congress: Election Law (http://www.loc.gov/law/guide/elections.html)
• Ben's Guide to U.S. Government: Election Process (http://bensguide.gpo.gov/9-12/election/index.html)

other topics

• Category: Governmental Organization, Power, and Procedure
• Definition: Gerrymander

Related LII Resources

• LII Backgrounder on Election 2000 (http://www.law.cornell.edu/background/election/)
• LII Backgrounder on the Bipartisan Campaign Reform Act Cases
• LII Backgrounder on the Help America Vote Act of 2002
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