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Election Law: An Overview

Elections are processes in which eligible citizens use a ballot to vote for candidates for office, or for or against certain changes. Once cast, votes are tallied to arrive at an official decision. There are two main types of public elections: general elections and special elections. 

  • General elections are elections that occur at regularly scheduled intervals. 
  • In contrast, special elections are held when the need to make certain important decisions arises outside of such regularly scheduled intervals. 
    • For example, if an elected office becomes vacant before the end of the elected official’s term, or if a legislature wants to put a referendum before the voters, then a special election may take place. 

Congressional Elections

The Constitution reserves to the states significant control over elections. As a result, each state must create its own election laws and procedures to carry out elections for federal office. Each state’s system follows its own structure, with most assigning the task of running elections to administrative offices. States also differ on rules concerning when, where, and how citizens may vote. The people of the respective states have always directly elected their representatives, but until the ratification of the Seventeenth Amendment in 1913 (requiring direct elections for U.S. Senate), most states chose their U.S. Senators indirectly, instead using their respective state legislatures.

Presidential Elections: The Electoral College

In presidential elections, the people of each state 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 each state's citizens have voted to select a slate of electors, the electors from all states then meet as the Electoral College and formally elect the President and Vice-President by casting their votes.

The Office of the Federal Register coordinates the Electoral College. Composed 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 each 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, states can potentially gain or lose congressional seats, which affects the number of electors, or electoral votes, that the state will have at the Electoral College.

Of the 50 states, forty-eight have "winner-take-all" systems. The District of Columbia (D.C.) follows the same system (note that the Twenty-Third Amendment, ratified in 1961, granted D.C. citizens the right to vote in presidential elections, but it did not grant the District any voting seats in Congress). A winner-take-all system assigns that state's entire slate of electors to the candidate who won the popular vote in the state, regardless of how close the popular vote in the state was. In contrast, Maine and Nebraska use a different system, instead dividing their states into districts and assigning one electoral vote per district, determined by the popular vote in each district, while granting two electoral votes to the statewide winner. Under this system, Maine and Nebraska may sometimes split their electoral votes between candidates (for example, Maine split its four electoral votes 3-1 in both 2020 and 2016, and Nebraska split its five electoral votes 4-1 in 2020).  There is no federal statute binding electors to vote for the presidential candidate who won their state’s (or state district’s) popular vote. Twenty-six states have, however, adopted such statutes. 

After each state has submitted its electors' votes, the votes are counted, and a President and Vice-President are elected. Usually, the Electoral College result matches the candidate who received the most votes nationwide (i.e., the winner of the “popular vote”). In 1824, 1876, 1888, 2000, and 2016, however, the Electoral College winner - and thus President-elect - lost the popular vote.

Changes in Election Law

While amendments to the U.S. Constitution are rare, seven of the twenty-seven ratified amendments concern changes to the electoral process. The Twelfth Amendment clarifies that each elector of the Electoral College must cast two votes - one for President and one for Vice President. The Fifteenth Amendment granted “citizens” the right to vote regardless of “race, color, or previous condition of servitude,” though this right did not extend to women until the ratification of the Nineteenth Amendment in 1920. The Seventeenth Amendment requires states to directly elect their U.S. Senators. The Twenty-Third Amendment granted electoral votes to Washington D.C. The Twenty-Fourth Amendment eliminated Poll Taxes, and the Twenty-Sixth Amendment lowered the voting age to 18.

As part of civil rights reform in 1965, Congress passed the Voting Rights Act (VRA) to protect minorities’ voting rights. Initially protecting only racial minorities, the Act was expanded in 1975 to extend to members of “language minorities.” It prohibits literacy tests or similar “tests or devices” as a prerequisite to voter registration and requires jurisdictions with significant language minority populations to provide non-English ballots and oral voting instructions. The VRA also protects minorities from vote dilution. Finally, it requires areas with a history of voting discrimination to “preclear” changes to their voting laws.

Section 5 of the VRA prohibits “covered” jurisdictions - states and counties determined by Section 4(b) (now located at 52 U.S.C. § 10303)—from changing their voting laws without first getting preclearance from either the United States Attorney General or a three-judge panel of the U.S. District Court for D.C. Section 4(b) defined covered jurisdictions as those that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Originally enacted for only five years, Section 5 was renewed by Congress and has been continuously renewed ever since. The constitutionality of such renewal was challenged in Shelby County v. Holder, 570 U.S. 529 (2013). In Shelby, the Court held that Section 4(b)‘s coverage burdens, which made sense in the 1960s and 1970s, were no longer responsive to current voting conditions in the covered jurisdictions, and therefore unconstitutionally restricted the power to regulate elections reserved to the states. However, the Court left the remainder of Section 5 intact.

In 1971 Congress passed the Federal Election Campaign Act (FECA) (located at Title 52, Subtitle I of the U.S. Code) to more closely regulate federal elections. The law increased necessary disclosures 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” is funding donated directly to a campaign or political party, whereas “soft money” is funding contributed to organizations, often known as “527s” (because they are tax exempt under 26 U.S.C. § 527), that advocate issues and indirectly advocate candidates, without specifically advocating for the election or defeat of a particular candidate.

Following the law's passage, the U.S. Supreme Court addressed 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. The Court in Buckley also held that the FEC could not constitutionally regulate soft money.

Congress passed the McCain-Feingold Bipartisan Campaign Reform Act of 2002 (BCRA) (located at Title 52, Subtitle III of the U.S. Code). The BCRA amended the FECA, the Communications Act of 1934 (located at 47 U.S.C. § 151 et seq.), and other provisions of the U.S. Code to prohibit 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 (also known as the “electioneering communication” provision in Section 441b of the BCRA, now located at 52 U.S.C. § 30118). Additionally, another provision 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 Congress challenged the law's constitutionality under the First Amendment. In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court initially upheld the Act's “electioneering communication” provision in Section 441b as facially constitutional, “insofar as it restricted speech that was the functional equivalent of express advocacy.” Then in 2007 the Supreme Court handed down a landmark decision in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). As it applied to Wisconsin Right to Life, and speech that was not “express advocacy or its functional equivalent,” the Court struck down the “electioneering communication” provision in Section 441b of the BCRA 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, 554 U.S. 724 (2008). 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 also permitted the opponents to accept coordinated party contributions without limit. Yet the BCRA held self-financing candidates to the normal limit. Finding that the provision burdened free speech and association rights, the Supreme Court struck down that provision as well.

In 2010, the Supreme Court handed down yet another landmark decision in Citizens United v. FEC, 558 U.S. 310 (2010). (For the more detailed Wex entry about the case, see Citizens United v. Federal Election Commission (2010).) In Citizens United, the Court held that the free speech clause of the First Amendment prohibits the government from limiting independent expenditures on political campaigns by groups such as corporations and labor unions. As a result, the Court held Section 441b of the BCRA facially unconstitutional and overruled portions of McConnell. However, the Court upheld the BCRA’s disclaimer and disclosure provisions.

More recently, the Supreme Court addressed the constitutionality of yet another provision of the BCRA in FEC v. Ted Cruz for Senate, 596 U.S. 289 (2022). Section 304 of the BCRA (now located at 52 U.S.C. § 30116(j)), prohibits political campaigns from using more than $250,000 in post-election contributions to repay candidates for pre-election loans the candidates made to their campaigns. The Court held that Section 304 unconstitutionally burdens political speech because, in deterring candidates from making personal loans to their campaigns, it “raises a barrier to entry.”

More recently passed federal statutes have created a means for military personnel and overseas citizens to vote and have aided the elderly and disabled citizens' abilities to vote. In 1993 Congress passed the "motor voter" law, which enables citizens to register to vote when they apply for driver's licenses.

COVID-19 and the 2020 Presidential Election

Since 2020, many states have altered their restrictions on voting access, placing more stringent standards on required voter identification, restricting or expanding access to absentee voting, and increasing or decreasing the penalties for voter fraud. Though voter ID laws have long been an ongoing point of contention, the COVID-19 pandemic drew increased attention to the regulation of absentee voting. Additionally, rejecting the results of the 2020 election, many conservative politicians have introduced stricter voting restrictions, while at the same time triggering counter-movements from the opposition to expand voting access. Accounting only for state legislative sessions from January 1 to May 3 of 2024, 40 state legislatures considered at least 291 restrictive bills; six states enacted seven restrictive laws; and 11 states enacted 14 expansive laws. See Voting Laws Roundup: May 2024, Brennan Center for Justice.

[Last updated in August of 2024 by the Wex Definitions Team]

Federal Material

U.S. Constitution
CRS Annotated Constitution
Federal Statutes
Federal Regulations
  • Code of Federal Regulations: Title 11 - Federal Elections
Federal Judicial Decisions

State Material

State Information

Additional References