Congressional Authority to Protect Voting Rights After Shelby County and Arizona Inter Tribal

This essay attacks the narrow view of congressional authority to regulate voter qualifications adopted by the U.S. Supreme Court in Shelby County v. Holder and Arizona v. Inter Tribal Council, and argues that Congress has significant authority over voter qualifications under Article I, Section 5, which allows it to judge the elections of its members. Although Congress exercises its authority under this provision after the election has taken place, it remains a source of authority that the Court should have considered in its attempt to craft competing paradigms of state and congressional power over elections in these decisions. By examining election contests from the 47th Congress, the argument herein sheds light on the scope of congressional authority over elections by analyzing Congress's willingness to intervene in state level disputes over congressional seats. A review of the historical record reveals that the House of Representatives often overturned elections in which state or federal law was not complied with in determining the winner, even in disputes that dealt primarily with the qualifications of electors. Both Shelby County and Arizona Inter Tribal tell a woefully incomplete story about congressional authority over elections, ignoring that the House's authority to resolve election contests under state and federal law can be just as powerful as the state's authority to determine the qualifications of electors ex ante.