Congress's Power To Regulate The "Manner" of Presidential Elections

[Kenneth Katkin]

I thank Prof. Goldstein for correctly observing that the statement in my
earlier post is directly contradicted by Justice Black's solo opinion
announcing the judgment of the Court in Oregon v. Mitchell, 400 U.S. 112, 124
& n.7 (1970).  In that opinion, after analyzing Congress's power under Art. II
Sec. 1 to regulate the time place and manner of *Congressional* elections,
Justice Black declared:

   Similarly, it is the prerogative of Congress to oversee
   the conduct of presidential and vice-presidential elections
   and to set the qualifications for voters for electors for
   those offices. It cannot be seriously contended that Congress
   has less power over the conduct of presidential elections
   than it has over congressional elections.  . . .  [I]nherent
   in the very concept of a supreme national government with
   national officers is a residual power in Congress to insure
   that those officers represent their national constituency
   as responsively as possible. This power arises from the
   nature of our constitutional system of government and from
   the Necessary and Proper Clause.

It is noteworthy, however, that *no* other Justice shared Justice Black's
(uncharacteristically non-textual) view of the scope of Congress's power under
Art. II, or under the Sweeping Clause.  Rather, four of the Justices (Douglas,
Brennan, Marshall, White) voted to uphold the Voting Rights Act provision at
issue based solely on the alternative ground of Congress's "Section 5" power
to enforce the Fourteenth Amendment, and the other four Justices (Burger,
Harlan, Stewart, Blackmun) voted to strike down the provision on the ground
that Congress has *no* power to enact it.

Thus, while Justice Black's opinion was certainly decisive to the *judgment*
in Oregon v. Mitchell, I don't think his view of Congress's power to regulate
Presidential elections under Art. II can qualify as good law, given that his
view was rejected by the other eight Justices in the same case.  If it could,
then perhaps the contrary view of Congress's Art. II power that was later
expressed by Justices Rehnquist, Scalia, and Thomas in Bush v. Gore would also
qualify as good law, even though that view was rejected or ignored by the
other six Justices in that case.  After all, the Rehnquist, Scalia, and Thomas
votes were also "decisive" with respect to the Court's ultimate judgment in
*that* more recent case.

--Ken Katkin

>===== Original Message From Leslie F. Goldstein=====
I disagree w/ this claim by Ken, on the basis of Justice Black's fifth
(and decisive) vote in the case that upheld Congress's power to give 18
year olds the vote in Presidential elections.
Leslie F. Goldstein

>Ken Katkin wrote:    First, Congress has no enumerated power to "power
>to make rules concerning the . . . place, and manner of [Presidential]
>elections."  Rather, Congress’s power is limited to controlling the “time,”
>while the State legislatures control the “manner” of Presidential elections"
>See U.S. Const. Art. II.   So I’m not sure what enumerated power Congress
>would rely on to enact such a statute.

Prof. Kenneth Katkin
561 Nunn Hall
Salmon P. Chase College of Law
Northern Kentucky University
Highlands Heights, KY 41099
859-572-5861
katkink at nku.edu