Federal Statute

A number of bills have been introduced in Congress over the years to implement a national primary system. In 1972 alone, bills were introduced by Senators Mike Mansfield (D-MT) and George Aiken (R-VT) (S J Res 215), Senator Robert Packwood (R-OR) (S 3566), Senator Thomas Eagleton (D-MO) (S 3655), Representative Gerald Ford (R-MI) (H J Res 1155), Representative Morris Udall (D-AZ) (HR 14904), and Representative Silvio Conte (R-MA) (H J Res 1108). (Congressional Quarterly 1972). More recently, bills were introduced in the Senate by Slade Gorton (R-WA) and Joseph Lieberman (D-CT) in March 1996 and again in October 1999 (SB 1789). (Gorton and Lieberman 1999, Lieberman 1999, Gorton 2000) Representative Sander Levin (D-MI 12th) introduced another bill (HR 4014) in March 2000 (Levin 2000).

In testifying on behalf of his bill before the Senate Committee on Rules and Administration, Senator Gorton stated, “As a former state attorney general, I am absolutely confident that Congress has the constitutional prerogative to direct the presidential election process. The Constitution clearly grants Congress the authority to regulate the time, place and manner of federal elections.” Gorton 2000) The source of congressional authority over elections is Article I, Section 4, Clause 1, which states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” However, this paragraph specifically pertains to the election of senators and representatives, and is in no way relevant to the election of the president. Article II, Section 1, Paragraph 4 gives Congress the power to determine the date of “chusing the Electors” for president and vice president, but this applies to the general election, rather than to state primaries that choose delegates to each national party convention. Finally, the 24th Amendment states, “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax;” it does not explicitly give Congress the authority to regulate the timing of such primaries. Thus any Congressional authority over the timing of presidential primaries is not to be found directly in the Constitution.

Nevertheless, Parshall and Mattei cite a body of case law in which the Supreme Court has asserted federal authority over elections:

According to the Court, “[i]f [the national] government is anything more than the mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends....(Ex Parte Yarborough 1884)” “In presidential elections [where] no parochial interests of the State, county or city are involved (Oregon vs. Mitchell 1970),” these national interest are “greater than that of any individual state (Anderson vs. Celebrezze 1983; Parshall and Mattei 2002, 26).”

Parshall and Mattei also observe that:

Supreme Court doctrine has recognized the interdependency of state and party regulations in the creation of a unified structure of voter choice. Thus, the Court has ruled primary contests to be an integral aspect of the general election. In practical terms, the primaries are critical to shaping general election results (Parshall and Mattei 2002, 33).

Since the Constitution gives clear authority to Congress in regulating federal general elections, by extension it has authority over primary federal elections as well.

With the “[Classic] decision the doubt as to whether or not such primaries were part of ‘elections’ subject to federal control... was erased.” The Court wrote, “[i]t may now be taken as a postulate that the right to vote in such a primary for the nomination of candidates without discrimination by the State, like the right to vote in a general election, is a right secured by the Constitution (Smith vs. Allwright 1944)” Indeed, the Twenty Fourth Amendment’s protection of the “right of citizens of the United States to vote in any primary or other election for President” constitutionally established the nomination process as integral to presidential elections (Parshall and Mattei 2002, 33-34).

Therefore it is not inconceivable that the Court would find such authority for Congress should the legislature choose to regulate the timing of presidential primaries, and should such a regulatory law ever be subjected to legal challenge. In the event that an effort is mounted via this mechanism, a federal bill (adapted from SB 1789 and HR 4014) for implementing the Mod 2A schedule of the Graduated Random Presidential Primary System is provided in Appendix 5.