Congressional Elections: Law

Article I of the US Constitution regulates congressional election law by provisions defining political representation (Sections 2 and 3) and outlining the manner in which elections are held (Section 4). The intent of these provisions is to diffuse power in a separation of powers and federalism framework while affording rights of political representation. In other words, congressional elections are an important check on abusive governmental power because they preserve the right of the people to select elected officials that will best govern their interests. The US Supreme Court monitors congressional elections in reapportionment and redistricting, campaign financing, and voting rights cases.


Article I, Section 2 of the Constitution specifies that representatives are chosen by the states every two years to serve in the US house of representatives. Singlemember districts were uniformly established by Congress's enactment of the Apportionment Act of 1842. As a result, representatives are chosen from a single electoral district instead of at-large or from the entire state. After every census state legislatures must reapportion the number of seats for US House of Representative elections to reflect population changes. After reapportionment, redistricting allows each state to redraw its congressional district lines. In part because of shifting immigration patterns and increasing urbanization, many state legislatures became malapportioned at the turn of the twentieth century. The number of legislative seats held in specific districts became disproportionate to the population, thus undermining the integrity of each person's vote. In Colegrove v. Green, 328 U.S. 549 ( 1946 ), the Court held that redistricting is a nonjusticiable political question, thus giving state legislatures complete authority to make apportionment decisions. However, Baker v. Carr, 369 U.S. 186 ( 1962 ), declared that legislative malapportionment is justiciable, overruling Colegrove. Baker ushered in the Warren Court's ( 1954–1969 ) egalitarian revolution and signaled that the Supreme Court would expand the scope of the Fourteenth Amendment's equal protection clause. Wesberry v. Sanders, 376 U.S. 1 ( 1964 ), and Reynolds v. Sims, 377 U.S. 533 ( 1964 ), thereafter established the voting rights principle of “one person, one vote” in congressional and state legislative elections.

After the Warren Court new controversies arose in racial and political gerrymandering cases. Racial gerrymandering is a redistricting process that state legislatures use to create districts composed of a majority of racial minority voters in an effort to increase the political representation of those voters. Political gerrymandering is a process whereby one political party, either Republican or Democratic, redraws district lines in its favor to diminish the other party's control. Although redistricting plans seeking to disenfranchise African American voters were disallowed under the Fifteenth Amendment in Gomillion v. Lightfoot, 364 U.S. 339 ( 1960 ), in Shaw v. Reno, 509 U.S. 630 ( 1993 ), the Rehnquist Court ( 1986–2005 2001 ), with few exceptions most majority-minority restricting plans created after Shaw have been struck down unless the Court determined that there was a compelling interest to comply with the federal Voting Rights Act of 1965 (79 Stat. 437).

In Davis v. Bandemer, 478 U.S. 106 ( 1986 ), the Burger Court ( 1969–1986 ) ruled that political gerrymandering cases are justiciable, but a majority of justices could not agree on the legal standards governing their judicial evaluation. In Vieth v. Jubeliver, 541 U.S. 267 ( 2004 ), the Rehnquist Court returned to the issue but likewise could not agree on justiciability or standards. Whereas four justices argued Davis must be overruled, five thought otherwise and insisted that the Court could ultimately find a manageable judicial standard to apply in political gerrymandering cases. The absence of clear and judicially manageable standards led to League of Latin American Citizens v. Perry, 548 U.S. 399 ( 2006 ). In Perry a badly divided Roberts Court ( 2005– ) sustained Texas's decision to replace in mid-decade a court-ordered redistricting plan that aimed to achieve a Republican congressional majority. New challenges to political redistricting plans are likely to emerge after the 2020 census.


Congress's regulation of political money can be traced to federal legislation in the early nineteenth century. Whereas the Tillman Act of 1907 (34 Stat. 864) prohibited contributions to federal campaigns from corporations and national banks, the Federal Corrupt Practices Act (FCPA) of 1910 (36 Stat. 822) required disclosure of expenditures of national party committees in congressional elections and for the first time established spending limits. Between 1911 and 1972 political scandals led to other federal laws placing stricter controls on the way in which individuals, political action committees, and labor unions either contributed to or spent money in national campaigns ( FCPA of 1911 [37 Stat. 25]; FCPA of 1925 [3 Stat. 1070] ). Increased campaign spending led to the Federal Election Campaign Act (FECA) of 1971 (86 Stat. 30). Although FECA aimed to curb campaign spending, in 1974, following the Watergate scandal during the Nixon administration, Congress amended FECA by strengthening disclosure, contribution, and spending restrictions. The FECA amendments gave the Federal Election Commission (FEC) enforcement powers. In Buckley v. Valeo, 424 U.S. 1 ( 1976 ), the Court supported disclosure requirements but also interpreted the First Amendment's free speech clause to mean that only contribution limits, not spending limits, are permissible in congressional elections.

The distinction Buckley created between contribution and spending limits is problematic, especially insofar as it regulates hard and soft money. Although the FECA regulates hard money contributions (funds given to support or oppose candidates directly), the spending of soft money (funds given to party organizations for partybuilding activities) is unregulated. Congress addressed this problem by enacting the Bipartisan Campaign Reform Act (BCRA) of 2002 (116 Stat. 81). The BCRA banned soft money contributions, imposed restrictions of issue advertising by corporations and labor unions, and raised contribution limits. Although the Supreme Court upheld most of the BCRA in McConnell v. FEC, 540 U.S. 93 ( 2003 ), it undercut McConnell in FEC v. Wisconsin Right to Live, Inc., 551 U.S. 449 ( 2007 ), and Davis v. FEC, 554 U.S. 724 ( 2008 ). In an “as applied” challenge in Wisconsin, the Court struck down the BCRA provision banning corporate or labor union spending on preelection advertisements run by special interest groups. In Davis the BCRA's “Millionaire's Amendment” provision (which set contribution limits for those running against self-financed candidates) was also nullified.

With Citizens United v. FEC, 558 U.S. 310 ( 2010 ), the Supreme Court upheld the BCRA's disclosure and contribution requirements but struck down its ban on independent spending by corporations and labor unions in elections as a violation of the First Amendment's protection of political speech. Citizens United has generated record levels of campaign spending by special interests and increases the likelihood the justices may overrule Buckley in future litigation.


The Fifteenth Amendment ( 1870 ) and its prohibition of denying voting rights on account of race, color, or servitude was enacted at a time of universal white male suffrage. Although women suffrage was achieved through the Nineteenth Amendment ( 1920 ), after the Civil War many southern states diminished the voting rights of newly freed blacks and poor whites through Jim Crow laws, literacy tests, and poll taxes. The passage of civil rights laws in 1957 and 1960 enhanced suffrage but did not curb increasing social unrest due to civil rights violations in the 1960s, prompting Congress to enact the Voting Rights Act (VRA) in 1965. VRA's intent was to protect minorities from racial gerrymandering and discriminatory voting practices that effectively disenfranchised minorities.

Although the VRA's constitutionality was upheld in South Carolina v. Katzenbach, 383 U.S. 301 ( 1966 ), in Oregon v. Mitchell, 400 U.S. 112 ( 1970 2013 ), invalidated the coverage formula and jurisdictional predicate for VRA preclearance as a violation of federalism principles.

A Senatorial candidate on the 2010 campaign trail gives a speech at a Minnesota rally.

A Senatorial candidate on the 2010 campaign trail gives a speech at a Minnesota rally.

With preclearance no longer in place, some states have begun to enforce voter identification laws, restricting voting to those who can produce specified forms of picture ID. According to federal officials and other critics, imposing voter ID restrictions is discriminatory because it discourages or prevents citizens who fail to produce an ID from exercising their fundamental right to vote. In response, the Department of Justice under Attorney General Eric Holder announced its intention to use litigation to counter the states' efforts and push for reinstatement of preclearance practices. As a result, the Supreme Court will continue to grapple with the interpretative issue of what Shelby means as a precedent in subsequent VRA challenges.

Since Baker v. Carr, 369 U.S. 186 ( 1962

SEE ALSO Article I, United States Constitution ; Campaign Finance Laws ; Federal Powers: General ; Justiciability ; Regulation of Federal Elections ; Voting Rights Act .


Banks, Christopher P. “The United States Supreme Court's Response to American Political Corruption: The Failure of Constitutional Law or the Success of Republican Liberty?” In Superintending Democracy: The Courts and the Political Process, edited by Christopher P. Banks and John C. Green, 13–50. Akron, OH: University of Akron Press, 2001.

Chapin, Doug. “Voting Rights After Shelby County: Bring on the Election Geeks.” Election Law Journal 12, no. 3 (2013): 327–28.

Lowenstein, Daniel Hays, Richard L. Hasen, and Daniel P. Tokaji. Election Law: Cases and Materials. 5th ed. Durham, NC: Carolina Academic Press, 2012.

O'Brien, David M. Constitutional Law and Politics: Struggles for Power and Governmental Accountability, Vol. 1. 9th ed. New York: Norton, 2014.

Christopher P. Banks
Kent State University