Elections, Regulation of

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Defining "democracy," Henry B. Mayo has argued that the "one institutional embodiment … universally regarded as indispensable in modern democracies is that of choosing the policy-makers [representatives] at elections held at more or less regular intervals." In addition to their central democratic function of providing a mechanism for popular choice of officials, parties, and policies, elections have also been credited with two other important democratic functions: offering a forum for public participation and education in politics; and legitimizing the state's coercive authority and peacefully resolving social conflicts, because the public will generally accept officials and policies selected through fair, participative processes.

The Constitution, by its terms, mandates elections only for members of the House of Representatives and of the Senate. Article I, section 2, provides that members of the House shall be elected by the people of the respective states, and the seventeenth amendment provides similarly for senators. Persons meeting the qualifications necessary to vote for members of the larger house of the legislature in each state are constitutionally eligible to vote for representatives and senators. The Supreme Court, in wesberry v. sanders (1964), held also that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's." Subsequently, the Court has reaffirmed, in Kirkpatrick v. Preisler (1969), that in drawing congressional district boundaries states must "make a good-faith effort to achieve precise mathematical equality."

Characterizing its previous decisions, the Supreme Court, in Rivera-Rodriguez v. Popular Democratic Party (1982), said that it has "rejected claims that the Constitution compels a fixed method of choosing state or local officers or representatives." The guarantee clause of Article IV, section 4, has been construed to raise only political questions within the exclusive jurisdiction of Congress and does not, therefore, make state methods for selecting officials subject to constitutional adjudication in the federal courts. Nonetheless, every state employs popular elections to select presidential electors and its governor and legislature. Other state executive, administrative, and judicial officials, and all manner of local officials are also elected. In all, about 540,000 federal, state, and local offices are filled by election. In addition, the prevailing method of selecting political party nominees and of choosing final contenders in nonpartisan elections is the primary election.

Thirty-seven states provide for popular review of policymaking by the use of referenda, and twenty-one states allow popular instigation of policy through initiative elections. Referendum elections are also widely used in local governments throughout the nation, especially to review tax levies and charter revisions; and initiative elections are available in some local jurisdictions.

Although the Constitution prescribes elections only for Congress, virtually all elections have gradually been constitutionalized and therefore in some degree nationalized. The fifteenth amendment prohibits the states from impairing the franchise on the basis of race, color, or previous condition of servitude. The nineteenth amendment forbids discrimination in electoral qualification based on sex; and the twenty-fourth amendment prevents the states from imposing "any poll tax or other tax" as a condition of voting for a candidate for federal office. The twenty-sixth amendment effectively grants the right to vote to all eligible citizens at eighteen years of age.

In the modern era, the right to vote has been declared a "fundamental right" under the fourteenth amendment, in reynolds v. sims (1964), because it is "preservative of other basic civil and political rights." The Supreme Court has therefore declared, in kramer v. union free school district (1969) and harper v. virginia board of elections (1966), that every classification defining the right to vote in elections must be subject to strict judicial scrutiny and can be sustained only by independent judicial examination which finds "important," "compelling," or "overriding" state interests justifying restrictions on voting rights.

Mayo has argued that elections effectively promote democracy only if two conditions obtain. First, there must be "political equality in which [each] person should have one vote … and each vote should count equally." Second, citizens must have the "freedom to oppose," consisting of "formal rules … of effective choice—secret ballot, freedom to run for office, and freedom to speak, assemble, and organize for political purposes." It is these conditions for effective elections that the Supreme Court has generally promoted by declaring the vote a fundamental right and by rejecting poll taxes, residence requirements of extended duration, race and sex qualifications, limits on campaign spending, wide deviations from the one person, one vote principle, and impediments to candidacy that significantly narrow voters' choices.

David Adamany

(see also: Brown v. Socialist Workers '74 Campaign Committee.)


Mayo, Henry B. 1960 An Introduction to Democratic Theory. New York: Oxford University Press.

Note 1975 Developments in the Law—Elections. Harvard Law Review 88:1111–1339.