72 Fla. L. Rev. 1153 (2020)
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Election LawFederal Courts


A lingering provision of a major Reconstruction Era law, the
Enforcement Act of 1870, 28 U.S.C. § 1344, grants federal courts
jurisdiction over election contests arising from alleged Fifteenth
Amendment violations, except for the positions of presidential elector,
member of Congress, and state legislator. Some courts have erroneously
construed this provision as categorically denying the federal judiciary
subject-matter jurisdiction over any constitutional challenges, including
by voters, to the outcomes of presidential, congressional, or state
legislative elections. This pernicious line of authority periodically
re-emerges to wrongly preclude litigants from attempting to vindicate
their right to vote in federal court.

More broadly, § 1344 points to a fundamental indeterminacy at the
heart of the electoral process. The Reconstruction Era Congress sought to
preclude federal courts from adjudicating constitutional challenges
concerning congressional and presidential elections because the
Constitution grants the chambers of Congress themselves the authority to
resolve them. Yet subsequent grants of subject-matter jurisdiction allow
federal courts to adjudicate such disputes. Thus, different branches of the
federal government may come to different conclusions as to whether the
Constitution requires or forbids certain votes to be counted.

Ultimately, it appears that the Constitution enshrines
departmentalism, rather than judicial supremacy, in the realm of federal
elections and voting rights. When federal courts conclude that the
Constitution either requires or forbids the counting of certain votes in
congressional or presidential elections, those rulings are not binding on
the chambers of Congress. Furthermore, the political question doctrine
acts as a modern replacement for § 1344’s jurisdictional restrictions with
regard to federal elections. Once the chambers of Congress have initiated
the process of exercising their constitutional prerogative to determine an
election’s outcome, the federal judiciary should decline to get involved
in all but the most extreme circumstances.