Election Day: An example of creative federalism

Article I, Section 4 of the Constitution 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.” This is an example of creative federalism: The states can choose election days, but the Congress can override their decisions.

Long ago, but more than half a century after the first presidential election, in 1845, Congress set a uniform day for the selection of presidential electors — the first Tuesday after the first Monday in November. That date provided time for voters — or in South Carolina in those years, state legislators — to cast their votes for presidential electors in time for them to be counted according to the timetable set forth in the Constitution.

But states retained the option of voting on other days for members of Congress and for state and local offices. In the politically turbulent 1850s, when politicians grappled with the issues which would threaten to tear the Union apart in 1861, “There were elections, somewhere.” writes historian Roy Franklin Nichols, “in every month of every year, save January, February, June and July.”

Today, the uniform election day is used for all congressional elections, with the proviso that in Louisiana, if no candidate receives 50 percent of the votes in the all-party first election Nov. 6, a runoff between the top two vote-getters is held Dec. 8.

But federalism continues to prevail in primary elections for congressional and state office and in the presidential delegate selection process. This year, for example, the first state primaries were held on March, and the last are scheduled for Sept. 13 — if one does not include the Louisiana contests.