There is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: Does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. Article I, Section 4 of the Constitution gives Congress the power to override a state’s choices about the “times, places, and manner” of congressional elections held in the state. Article II, Section 1 gives each state legislature the power to determine the “manner” in which its presidential electors are appointed but grants no additional authority to Congress or the states to regulate presidential elections themselves. Congress plainly has the power to regulate many aspects of these elections under the enforcement clauses of the Reconstruction Amendments. But what power, if any, does Congress have under the original Constitution to regulate those elections once a state legislature has opted to use popular elections to appoint the state’s presidential electors? The Supreme Court has upheld congressional authority to regulate presidential elections under the original Constitution in several contexts, but the issue has gained new salience in recent years because of a long running dispute in Arizona about whether the state can require voter registrants to present documentary proof of citizenship, contrary to federal law. This dispute has presented the current Court with an opportunity to reconsider those earlier opinions and reshuffle the division of power between states and Congress in this realm. This Essay approaches this issue through a new lens. It begins by exploring the conflict in Arizona that has brought the issue back to the Supreme Court. It then explains the background or “default” rules governing the distribution of power between Congress and the states, and why those rules are inapplicable in this context. It does so by examining both the 1787 Constitution’s division of power over federal elections and several judicial opinions discussing and applying the resulting constitutional provisions. It concludes by arguing that this history, as well as multiple precedents of the Supreme Court, affirm that Congress has ample authority to regulate presidential elections once a state has chosen that method of appointing its electors.

In this research letter, we examine whether gender and racial bias affect interruption rates at one of the most visible events in American politics: US Supreme Court confirmation hearings. Using original data from 1939 to 2022, we find that male and white participants are more likely to interrupt women and person of color speakers, respectively, relative to male and white speakers. This finding holds for both senators and nominees as interrupters. Our results provide evidence that biased interruptive behavior occurs in even the most public and salient of political settings and that it can be mitigated (or intensified) by shared (or opposite) partisanship among speaking pairs. We also find interruption inequalities are not isolated to women as the interrupted, revealing that people of color in political and legal settings are subject to heightened rates of interruptions as well.

Previous articleNext article No AccessSymposium on the Supreme CourtConstructing the Supreme Court: How Race, Ethnicity, and Gender Have Affected Presidential Selection and Senate Confirmation HearingsChristina L. Boyd, Paul M. Collins Jr., Lori A. Ringhand, and Karson A. PenningtonChristina L. BoydUniversity of Georgia Search for more articles by this author , Paul M. Collins Jr.University of Massachusetts, Amherst Search for more articles by this author , Lori A. RinghandUniversity of Georgia Search for more articles by this author , and Karson A. PenningtonUniversity of Georgia Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Polity Volume 55, Number 2April 2023Buttered Bagels The Journal of the Northeastern Political Science Association Article DOIhttps://doi.org/10.1086/724163 Views: 113Total views on this site Citations: 2Citations are reported from Crossref HistoryPublished online February 28, 2023 KeywordsSupreme Courtjudicial diversitySenate Judiciary Committeepresidentgenderrace© 2023 Northeastern Political Science Association. All rights reserved.PDF download Crossref reports the following articles citing this article:Alyson Cole, Robyn Marasco, and Charles Tien Buttered Bagels, Polity 55, no.22 (Mar 2023): 241–247.https://doi.org/10.1086/724222Susan Liebell The Politics of Law: Capricious Originalism and the Future of the Supreme Court, Polity 55, no.22 (Feb 2023): 356–362.https://doi.org/10.1086/724164

Americans do not want the Supreme Court to be just another political institution. This is apparent in the lukewarm response to even modest proposals to change the structure of the Court, such as limiting the terms of its justices or changing its size. The partisan overlay of this reaction is obvious, but the purpose of this Essay is to highlight an additional barrier to change: the dominance of originalist rhetoric in American constitutional discourse. The rhetoric of originalism has successfully tapped into many Americans' deeply held expectations about the role of the Court and the Constitution as a unique and law-based actor. In doing so, it has crowded out alternative and more realistic stories of the value the Supreme Court actually adds to our system of self-government, making it difficult for proposals to change the Court to get traction in the public imagination. But the Constitution itself positions the Court within our system of checks and balances, not outside it. Reminding Americans of the ways the Constitution balances judicial independence and judicial accountability to constrain judicial overreach enables Supreme Court-reform advocates to reclaim the narrative -and, perhaps, the initiative-in the ongoing American debate about the Court and Constitution's role in our system of self-government.

The confirmation hearings of U.S. Supreme Court justices held by the Senate Judiciary Committee have been the subject of substantial criticism. Yet, critics typically fail to outline exactly what they want the hearings to accomplish. This article critically examines the purpose and history of confirmation hearings in an effort to shine light on the value that the hearings can add to the Supreme Court selection process. It also discusses three changes that can be made to help the confirmation hearings achieve their promise as an important venue for vetting future members of the Supreme Court and reaching a shared understanding of constitutional meanings among the American public.

Efforts by foreign entities to influence domestic elections have shaken democracies around the world. The use of propaganda and misinformation to interfere in the internal affairs of other countries is not new, but events since 2016 have heightened awareness across the globe of how changes in social media platforms, political norms, and campaign financing rules have enabled foreign actors to influence elections on an unprecedented scale. This special issue of theElection Law Journalexplores how six nations have perceived and responded to this threat. These six nations-Canada, the United Kingdom, the Netherlands, Northern Ireland (as a constituent nation of the UK), Australia, and New Zealand-have faced their own challenges and forged ahead with their own solutions. As the contributions to this issue make clear, in doing so these nations have struggled with similar questions and have worked their way toward a common set of solutions. These efforts have varied in their details-which is what makes comparative review of them valuable-but they have consolidated around the same general set of ideas: better educating citizens about the perils of cyber speech, increasing transparency about who is promoting online communications, building better barriers to exclude foreign funding of electoral communications, and trying to remove the most egregiously false statements from political discourse. The hope of this research is that shedding light on how different nations have operationalized these efforts will demonstrate to election law scholars, regulators, and policy makers around the world the value of comparative work in this area. There is a great deal at stake, and much to learn from the experiences of others.

Assembling publicly available databases for use in sociolegal research is an exciting endeavor, but it also presents a number of challenges. In this chapter, Paul Collins and Lori Ringhand, the architects of the US Supreme Court Confirmation Hearings Database, discuss the process of putting this database together. They begin by recounting their early, individual efforts at systematically understanding the confirmation hearings of Supreme Court nominees held before the Senate Judiciary Committee. Next, they discuss their collaborative efforts and review the major decisions that needed to be made before commencing on a data collection process that would take years to complete. Following this, they examine what they would have done differently in hindsight, and current efforts to expand the database for wider adoption. This chapter provides researchers with guidance over key challenges associated with the production of largescale databases.

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides of the Atlantic. This is especially true in regard to the regulation of political campaigns. This article challenges that assumption, and argues that America’s more libertarian approach to the legal regulation of political speech does not pose a barrier to fruitful comparative work in this area. It does so by comparing the law of the US to that of the UK. Specifically, it organizes reform proposals being considered in the US and UK into a common taxonomy, and sets out the legal standard governing each type of proposal in each country. Considering each country’s law through this organizational structure allows us to see that the legal differences between the US and UK, while significant, rarely bar the types of changes being considered in either nation. Indeed, the two countries have much to learn from each other’s efforts in this area, and lawmakers, regulators, and scholars should not hesitate to engage with the experiences of their transatlantic peers. In reaching this conclusion, the paper makes three distinct contributions. First, by clustering reform proposals into a taxonomy, it provides a structure for comparative work that will be useful not just in the US and UK, but in all countries working to bring their election laws fully into the internet era. Second, by providing an in-depth yet accessible guide to the legal structures undergirding election law in the US and UK, it provides a useful tool for scholars attempting to understand these systems. The US system in particular is often quickly dismissed by other nations, but without a deeper understanding of how and why US law has ended up as it has those nations risk inadvertently following in its footsteps. Finally, it identifies several concrete areas where the US and UK can benefit from each other’s expertise, thereby providing a roadmap for regulators, lawmakers, and reform advocates in both countries.