election law: an overview
Citizens make choices by voting in elections. Two types of elections exist: general elections and special elections. A general election occurs at a regularly scheduled interval as mandated by law. A special election would be held when something arises that does not arise on a regular basis or routine. For instance, if an elected-office suddenly becomes vacant or a legislature wants to put a referendum before the voters, then they can use a special election.
The electoral process ensures that no leader can take control for an extended amount of time without forcing the elected-official to answer to the will of the people. Nevertheless, government must play an active role in structuring elections and the electoral process. Consequently, individual states carry out the electoral process by following their own state laws. Sections 2 and 4 of Article I of the U.S. Constitution provide states the right to choose their own Representatives and Senators for the United States Congress. The 17th Amendment, however, mandates that the people directly elect the senators, and explicitly bars state legislatures from choosing the state's U.S. Senators.
Presidential Elections: The Electoral College
In Presidential elections, the people of the respective states vote for a Presidential candidate by choosing that candidate's slate of Electors. See Section 1 of Article II of the U.S. Constitution. After the state's citizens have chosen a slate of Electors, the Electors then formally elect the President and Vice-President by casting their respective votes. When all states' slates of Electors arrive to cast their votes, the aggregate group makes up that which has come to be known as "the Electoral College."
The Office of the Federal Register coordinates the Electoral College. Comprised of 538 Electors, the number of total votes equals the aggregate number of Representatives and Senators that currently make up Congress. The number of Electors in a given state's slate equals its number of U.S. Representatives plus two. The number of Representatives that a state has is determined by considering the state's population in proportion to all other states. Accordingly, each state receives a proportional number of Representatives. The government takes the national census every ten years to determine each state's population. When this occurs, a state potentially can gain or lose Congressmen, which affect the number of Electors, known as electoral votes, that the state will have at the Electoral College.
Of the 50 states, forty-eight have a "winner-take-all" system. Washington D.C. follows the same system. A winner-take-all system assigns that state's entire slate of Electors to the candidate who won the popular vote, regardless of how close the popular vote in the state actually was. Maine and Nebraska use different systems in which they divide their states into districts and assign one electoral vote per district. The Presidential candidate who wins a particular district receives that district's electoral vote. Under this system, Maine and Nebraska could potentially split their electoral votes between candidates, although no Presidential election has ever witnessed either state splitting. No federal law exists that binds Electors to vote for a certain candidate. However, twenty-six states 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 1824, 1876, 1888, and 2000, the Electoral College winner lost the popular vote.
States may individually decide how to carry out their elections for Representatives, Senators and electors. Each state differs in structure, with most assigning administrative offices the task of running elections. States also differ on rules concerning when, where and how citizens may vote (see Congressional Districts). While the people of the respective states have always directly elected Representatives, most individual state legislatures chose the U.S. Senators that would represent that state until the ratification of the 17th Amendment in 1913. A product of the Progressive Era's call for more democracy, the 17th Amendment gave citizens more influence over the federal government.
Changes in Election Law
While Amendments to the U.S. Constitution are rare, seven of the twenty-seven Amendments that have passed deal with altering the process of electing the United States Federal Government. The 12th Amendment clarifies that each Elector of the Electoral College must cast two votes - one for President and one for Vice President. The 15th Amendment disallows abridging the right to vote on the basis of race, and the 19th Amendment granted women the right to vote. The 17th Amendment gives the people the right to directly elect their U.S. Senators. The 23rd Amendment granted electoral votes to Washington D.C. The 24th Amendment eliminated Poll Taxes, and the 26th Amendment lowered the voting age to 18.
In 1965, Congress passed the Voting Rights Act protecting minorities' voting rights. Recently-passed federal statutes have created a means for military personnel and overseas citizens to vote and have aided the elderly and disabled citizens' ability to vote. In 1993 Congress passed the "motor voter" law, which enables citizens to register to vote when they apply for driver's licenses.
Some states have recently begun adopting voter identification laws as well in an effort to combat voter fraud. These laws require voters to present identification when they arrive at the polling location to vote. Many felt that Indiana had the most stringent requirement because it required voters to present photo identification. Because some felt that the statute disproportionately burdened the elderly and the minorities, the statute was challenged and went before the U.S. Supreme Court in Crawford v. Marion (07-21). The Supreme Court, however, upheld the law.
In 1971 Congress passed the Federal Election Campaign Act (FECA) to closely regulate federal elections. The law increased necessary disclosure of federal campaign contributions and created the Federal Elections Commission (FEC) to administer federal elections. In 1979 the FEC permitted political parties to spend unlimited amounts of hard money on certain activities, and soft money went unregulated by the FEC. Hard money refers to funding donated directly to a campaign or political party, whereas soft money refers to funding contributed to organizations, often known as 527s, that advocate issues and indirectly advocate a candidate, without specifically advocating for the election or defeat of a particular candidate.
Following the law's passage, the U.S. Supreme Court took up the law's constitutionality in Buckley v. Valeo, 424 U.S. 1(1976), a landmark decision concerning the interplay between campaign regulations and First Amendment rights. In Buckley the Supreme Court ruled that the FEC could regulate and limit donations to campaigns but could not cap the amount of money that a political campaign could spend because doing so violates the First Amendment. Buckley also held that the FEC could not constitutionally regulate soft money.
Over the next three decades, concerns with the increasing costs of conducting a political campaign did not subside, and the popularity of soft money drove much of this concern. In accordance with this concern, Congress passed the McCain-Feingold (Bipartisan Campaign Reform) Act of 2002 (BCRA). The BCRA amended the FECA to add a provision, which disallowed federal candidates from using corporate and union funding to launch television ads on satellite or cable within 30 days of a primary and 60 days of a general election. A second amendment prohibited candidates and political parties at both the national and state levels from spending soft money on federal elections.
Immediately after the President signed the law, members of the U.S. Congress challenged the law's constitutionality before the U.S. Supreme Court. In McConnell v. FEC, 540 U.S. 93 (2003), the Court upheld the Act's key provisions.
However, with two new justices on the bench in 2006, the Supreme Court reengaged the campaign finance debate, striking down a Vermont law because the low campaign expenditure ceiling it implemented was disproportionate to the goal it advanced. See Randall v. Sorrell, 548 U.S. 230 (2006).
Then, in 2007 the Supreme Court handed down a landmark decision in FEC v. Wisconsin Right to Life. 551 U.S. ___. As it applied to Wisconsin Right to Life, the Court struck down the portion of the BCRA that prohibited organizations from running issue ads within a certain number of days of the election because the provision restricted political speech and therefore violated the First Amendment rights of the organization.
The Supreme Court also expounded on the BCRA's provision known as "the Millionaire's Amendment" in the 2008 case of Davis v. FEC (07-320). The Millionaire's Amendment only affected candidates who had spent in excess of $350,000 in personal funds on their own campaign. The BCRA permitted the opponents of these candidates to receive triple the amount of personal contributions typically allowed and permitted the opponents to accept coordinated party contributions without limit, but the BCRA held self-financing candidates to the normal limit. Finding that the provision burdened free speech and associational rights, the Supreme Court struck down the provision as well. The combination of Davis and Wisconsin Right to Life leaves the BCRA in serious limbo.
For more information, see LII's Backgrounder on the Bipartisan Campaign Reform Act Cases.