The True Overseer: Should Congress Regulate Elections Like the Supreme Court?

Election law scholarship often operates under key assumptions: that the Supreme Court functions as an “almighty overseer” determining the scope of power for the other branches, and that the states possess “broad authority over elections” that Congress generally should not disturb. In fact, the historical record reveals that Congress possesses “much more power than many people have thought” when it comes to voting and elections. However, many of these powers have “lain dormant for100 plus years,” causing Congress to lose its “muscle memory” for action in this critical space. Leading election law scholar and Dean of the USC Gould School of Law, Franita Tolson, presents a comprehensive historical reappraisal in her forthcoming book, In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era. The book attempts to determine if the prevailing assumptions regarding congressional limitations are true. Dean Tolson reveals “a lot of gems that we just don’t talk about” by examining overlooked constitutional provisions, including the Guarantee Clause, Article I, Section 5, and Section 2 of the 14th Amendment. Dean Tolson joins Law & Democracy to discuss the imperative of recovering this history, asking whether “we should be talking about Congress the same way we talk about the Supreme Court when it comes to the regulations of voting and elections”. This episode explores how understanding Congress’s forgotten power and historical use of “muscle” is crucial for addressing contemporary challenges to American democracy, which Dean Tolson argues is far more fragile than many assume. Speakers: • Franita Tolson, Dean and Carl Mason Franklin Chair in Law at the University of Southern California Gould School of Law.• Edward Foley, Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law at Ohio State. • Anthony Gaughan, Senior Fellow, Election Law at Ohio State; Professor of Law and Current Family Chair in Law at Drake University Law School. • Terri Enns, James W. Shocknessy Professor of Law; Senior Fellow, Election Law at Ohio State If you enjoy this episode, please give us a boost by liking it, subscribing, and sharing it with your friends. If you’re listening on Apple Podcasts, please give it a five-star rating. Thoughts? Email us at [email protected]. Recorded on December 9, 2025.