OCTOBER TERM, 1997
Syllabus
FOSTER, GOVERNOR OF LOUISIANA, ET AL.
v.
LOVE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 96-670. Argued October 6, 1997-Decided December 2,1997
The Elections Clause of the Constitution, Art. I, § 4, cl. 1,
invests the States with responsibility for the mechanics of
congressional elections, see
Storer v.
Brown,
415 U. S. 724,
730, but grants Congress "the power to override state regulations"
by establishing uniform rules for federal elections,
U. S.
Term Limits, Inc. v.
Thornton, 514 U. S. 779, 832-833.
One such congressional rule sets the date of the biennial election
for the offices of United States Senator, 2 U. S. C. § 1, and
Representative, § 7, and mandates holding all congressional and
Presidential elections on a single November day, 2 U. S. C. §§ 1,7;
3 U. S. C. § 1. Since 1978, Louisiana has held in October of a
federal election year an "open primary" for congressional offices,
in which all candidates, regardless of party, appear on the same
ballot and all voters are entitled to vote. If a candidate for a
given office receives a majority at the open primary, the candidate
"is elected" and no further act is done on federal election day to
fill that office. Since this system went into effect, over 80% of
the State's contested congressional elections have ended as a
matter of law with the open primary. Respondents, Louisiana voters,
challenged this primary as a violation of federal law. Finding no
conflict between the state and federal statutes, the District Court
granted summary judgment to petitioners, the State's Governor and
secretary of state. The Fifth Circuit reversed.
Held: Louisiana's statute conflicts with federal law to
the extent that it is applied to select a congressional candidate
in October. Pp.71-74.
(a) The issue here is a narrow one turning entirely on the
meaning of the state and federal statutes. There is no colorable
argument that § 7 goes beyond the ample limits of the Elections
Clause's grant of authority to Congress. In speaking of "the
election" of a Senator or Representative, the federal statutes
plainly refer to the combined actions of voters and officials meant
to make the final selection of an officeholder; and by establishing
"the day" on which these actions must take place, the statutes
simply regulate the time of the election, a matter on which the
Constitution explicitly gives Congress the final say. pp.
71-72.
(b) A contested selection of candidates for a congressional
office that is concluded as a matter of law before the federal
election day, with no
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act in law or in fact to take place on the date chosen by
Congress, clearly violates § 7. Louisiana's claim that its system
concerns only the manner, not the time, of an election is at odds
with the State's statute, which addresses timing quite as obviously
as § 7 does. A federal election takes place in Louisiana before
federal election day whenever a candidate gets a majority in the
open primary. pp. 72-73.
(c) This Court's judgment is buttressed by the fact that
Louisiana's open primary has tended to foster both evils identified
by Congress as reasons for passing the federal statute: the
distortion of the voting process when the results of an early
federal election in one State can influence later voting in other
States, and the burden on citizens forced to turn out on two
different election days to make final selections of federal
officers in Presidential election years. Pp.73-74.
90 F.3d
1026, affirmed.
SOUTER, J., delivered the opinion for a unanimous Court with
respect to Parts I, II, and IV, and the opinion of the Court with
respect to Part III, in which REHNQUIST, C. J., and STEVENS,
O'CONNOR, GINSBURG, and BREYER, JJ., joined.
Richard P. Ieyoub, Attorney General of Louisiana, argued
the cause for petitioners. With him on the briefs were
Roy A.
Mongrue, Jr., and
Angie Rogers Laplace, Assistant
Attorneys General.
M. Miller Baker argued the cause for respondents. With him on
the brief were John W Perry, Jr., Daniel
J. Balhoff, Thomas
E. Balhoff, Judith R. Atkinson, and Brian M. Tauscher.
JUSTICE SOUTER delivered the opinion of the Court.* Under 2 U.
S. C. §§ 1 and 7, the Tuesday after the first Monday in November in
an even-numbered year "is established" as the date for federal
congressional elections. Louisiana's "open primary" statute
provides an opportunity to fill the offices of United States
Senator and Representative during the previous month, without any
action to be taken on
*JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join all
but Part III of this opinion.
69
federal election day. The issue before us is whether such an
ostensible election runs afoul of the federal statute. We hold that
it does.
I
The Elections Clause of the Constitution, Art. I, § 4, cl. 1,
provides that "[t]he 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." The Clause is a default provision;
it invests the States with responsibility for the mechanics of
congressional elections, see
Storer v.
Brown,
415 U. S. 724,
730 (1974), but only so far as Congress declines to pre-empt state
legislative choices, see
Roudebush v.
Hartke,
405 U. S. 15, 24
(1972) ("Unless Congress acts, Art. I, § 4, empowers the States to
regulate"). Thus it is well settled that the Elections Clause
grants Congress "the power to override state regulations" by
establishing uniform rules for federal elections, binding on the
States.
U. S.
Term Limits, Inc. v.
Thornton,
514 U. S. 779,
832-833 (1995). "[T]he regulations made by Congress are paramount
to those made by the State legislature; and if they conflict
therewith, the latter, so far as the conflict extends, ceases to be
operative."
Ex parte Siebold, 100 U. S. 371, 384 (1880).
One congressional rule adopted under the Elections Clause (and
its counterpart for the Executive Branch, Art. II, § 1, cl. 3) sets
the date of the biennial election for federal offices. See 2 U. S.
C. §§ 1, 7; 3 U. S. C. § 1. Title 2 U. S. C. § 7 was originally
enacted in 1872, and now provides that "[t]he Tuesday next after
the 1st Monday in November, in every even numbered year, is
established as the day for the election, in each of the States and
Territories of the United States, of Representatives and Delegates
to the Congress commencing on the 3d day of January next
thereafter." This provision, along with 2 U. S. C. § 1 (setting the
same
70
rule for electing Senators under the Seventeenth Amendment) and
3 U. S. C. § 1 (doing the same for selecting Presidential
electors), mandates holding all elections for Congress and the
Presidency on a single day throughout the Union.
In 1975, Louisiana adopted a new statutory scheme for electing
United States Senators and Representatives. In October of a federal
election year, the State holds what is popularly known as an "open
primary" for congressional offices, La. Rev. Stat. Ann. §
18:402(B)(1) (West Supp. 1997), in which all candidates, regardless
of party, appear on the same ballot, and all voters, with like
disregard of party, are entitled to vote, § 18:401(B) (West 1979).
If no candidate for a given office receives a majority, the State
holds a run-off (dubbed a "general election") between the top two
votegetters the following month on federal election day. § 18:481
(West 1979). But if one such candidate does get a majority in
October, that candidate "is elected," § 18:511(A) (West Supp.
1997), and no further act is done on federal election day to fill
the office in question. Since this system went into effect in 1978,
over 80% of the contested congressional elections in Louisiana have
ended as a matter of law with the open primary.l
Respondents are Louisiana voters who sued petitioners, the
State's Governor and secretary of state, challenging the open
primary as a violation of federal law. The District Court granted
summary judgment to petitioners, finding no conflict between the
state and federal statutes, whereas a divided panel of the Fifth
Circuit reversed, concluding that Louisiana's system squarely
"conflicts with the federal statutes that establish a uniform
federal election day."
90 F.3d
1026, 1031 (1996). We granted certiorari, 520 U. S. 1114
(1997), and now affirm.
1 A run-off election has been held on federal election day in
only 9 of the 57 contested elections for United States
Representative and in only 1 of the 6 contested elections for
United States Senator. See
90 F.3d
1026,
1030 (CA5 1996).
71
II
The Fifth Circuit's conception of the issue here as a narrow one
turning entirely on the meaning of the state and federal statutes
is exactly right. For all of petitioners' invocations of state
sovereignty, there is no colorable argument that § 7 goes beyond
the ample limits of the Elections Clause's grant of authority to
Congress.2 When the federal statutes speak of "the election" of a
Senator or Representative, they plainly refer to the combined
actions of voters and officials meant to make a final selection of
an officeholder (subject only to the possibility of a later
run-off, see 2 U. S. C. § 8).3 See N. Webster, An American
Dictionary of the English Language 433 (C. Goodrich & N. Porter
eds. 1869) (defining "election" as "[t]he act of choosing a person
to fill an office"). By establishing a particular day as "the day"
on which these actions must take place, the statutes simply
regulate the time of the
2 The Clause gives Congress "comprehensive" authority to
regulate the details of elections, including the power to impose
"the numerous requirements as to procedure and safeguards which
experience shows are necessary in order to enforce the fundamental
right involved."
Smiley v.
Holm, 285 U. S. 355,366 (1932).
Congressional authority extends not only to general elections, but
also to any "primary election which involves a necessary step in
the choice of candidates for election as representatives in
Congress."
United States v.
Classic, 313 U. S. 299, 320
(1941).
3 Title 2 U. S. C. § 8, which was enacted along with § 7,
provides that a State may hold a congressional election on a day
other than the uniform federal election day when such an election
is necessitated "by a failure to elect at the time prescribed by
law." The only explanation of this provision offered in the
legislative history is Senator Allen G. Thurman's statement that
"there can be no failure to elect except in those States in which a
majority of all the votes is necessary to elect a member." Congo
Globe, 42d Cong., 2d Sess., 677 (1872). In those States, if no
candidate receives a majority vote on federal election day, there
has been a failure to elect and a subsequent run-off election is
required. See
Public Citizen, Inc. V.
Miller, 813 F.
Supp. 821 (ND Ga.), aff'd,
992 F.2d
1548 (CAll 1993) (upholding under § 8 a run-off election that
was held after federal election day, because in the initial
election on federal election day no candidate received the majority
vote that was as required by Georgia law).
72
election, a matter on which the Constitution explicitly gives
Congress the final say.
While true that there is room for argument about just what may
constitute the final act of selection within the meaning of the
law, our decision does not turn on any nicety in isolating
precisely what acts a State must cause to be done on federal
election day (and not before it) in order to satisfy the statute.
Without paring the term "election" in § 7 down to the definitional
bone, it is enough to resolve this case to say that a contested
selection of candidates for a congressional office that is
concluded as a matter of law before the federal election day, with
no act in law or in fact to take place on the date chosen by
Congress, clearly violates § 7.4
Petitioners try to save the Louisiana system by arguing that,
because Louisiana law provides for a "general election" on federal
election day in those unusual instances when one is needed, the
open primary system concerns only the "manner" of electing federal
officials, not the "time" at which the elections will take place.
Petitioners say that "[a]lthough Congress is authorized by the
Constitution to alter or change the time, place and manner the
States have chosen to conduct federal elections[,] in enacting 2 U.
S. C. §§ 1 and 7, Congress sought only to alter the time in which
elections were conducted, not their manner. Conversely, the open
elections system [changed only the manner by which Louisiana
chooses its federal officers; it] did not change the timing of the
general election for Congress." Brief for Petitioners 21.
Even if the distinction mattered here, the State's attempt to
draw this time-manner line is merely wordplay, and wordplay just as
much at odds with the Louisiana statute as that law is at odds with
§ 7. The State's provision for an October election addresses timing
quite as obviously as § 7 does.
4 This case thus does not present the question whether a State
must always employ the conventional mechanics of an election. We
hold today only that if an election does take place, it may not be
consummated prior to federal election day.
73
State law straightforwardly provides that "[a] candidate who
receives a majority of the votes cast for an office in a primary
election is elected." La. Rev. Stat. Ann. § 18:511(A) (West Supp.
1997). Because the candidate said to be "elected" has been selected
by the voters from among all eligible officeseekers, there is no
reason to suspect that the Louisiana Legislature intended some
eccentric meaning for the phrase "is elected." After a declaration
that a candidate received a majority in the open primary, state law
requires no further act by anyone to seal the election; the
election has already occurred. Thus, contrary to petitioners'
imaginative characterization of the state statute, the open primary
does purport to affect the timing of federal elections: a federal
election takes place prior to federal election day whenever a
candidate gets a majority in the open primary. As the attorney
general of Louisiana conceded at oral argument, "Louisiana's system
certainly allows for the election of a candidate in October, as
opposed to actually electing on Federal Election Day." Tr. of Oral
Arg. 6.
III
While the conclusion that Louisiana's open primary system
conflicts with 2 U. S. C. § 7 does not depend on discerning the
intent behind the federal statute, our judgment is buttressed by an
appreciation of Congress's object "to remedy more than one evil
arising from the election of members of Congress occurring at
different times in the different States."
Ex parte
Yarbrough, 110 U.
S. 651, 661 (1884). As the sponsor of the original bill put it,
Congress was concerned both with the distortion of the voting
process threatened when the results of an early federal election in
one State can influence later voting in other States, and with the
burden on citizens forced to turn out on two different election
days to make final selections of federal officers in Presidential
election years:
74
"Unless we do fix some time at which, as a rule, Representatives
shall be elected, it will be in the power of each State to fix upon
a different day, and we may have a canvass going on all over the
Union at different times. It gives some States undue advantage ....
I can remember, in 1840, when the news from Pennsylvania and other
States that held their elections prior to the presidential election
settled the presidential election as effectually as it was
afterward done .... I agree ... that Indiana, Ohio, and
Pennsylvania, by voting in October, have an influence. But what I
contend is that that is an undue advantage, that it is a wrong, and
that it is a wrong also to the people of those States, that once in
four years they shall be put to the trouble of having a double
election." Congo Globe, 42d Cong., 2d Sess., 141 (1871) (remarks of
Rep. Butler).
See also
Busbee v.
Smith, 549 F. Supp. 494, 524
(DC 1982) (recounting the purposes of § 7), aff'd, 459 U. S. 1166
(1983). The Louisiana open primary has tended to foster both evils,
having had the effect of conclusively electing more than 80% of the
State's Senators and Representatives before the election day
elsewhere, and, in Presidential election years, having forced
voters to turn out for two potentially conclusive federal
elections.
IV
When Louisiana's statute is applied to select from among
congressional candidates in October, it conflicts with federal law
and to that extent is void. The judgment below is affirmed.
It is so ordered.
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