864
Thomas, J., dissenting
Of course, the second part of the Times, Places and Manner Clause does grant a power rather than impose a duty. As its contrasting uses of the words "shall" and "may" confirm, however, the Clause grants power exclusively to Congress, not to the States. If the Clause did not exist at all, the States would still be able to prescribe the times, places, and manner of holding congressional elections; the deletion of the provision would simply deprive Congress of the power to override these state regulations.
The majority also mentions Article II, § 1, cl. 2: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of [Presidential] Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . ." But this Clause has nothing to do with congressional elections, and in any event it, too, imposes an affirmative obligation on the States. In fact, some such barebones provision was essential in order to coordinate the creation of the electoral college. As mentioned above, moreover, it is uncon-tested that the States enjoy the reserved power to specify qualifications for the Presidential electors who are chosen pursuant to this Clause. See supra, at 861-862.
Respondent Thornton seeks to buttress the majority's position with Article I, § 2, cl. 1, which provides:
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
According to respondent Thornton, this provision "grants States authority to prescribe the qualifications of [voters]" in congressional elections. Brief for Respondent Congressman Ray Thornton 4. If anything, however, the Clause limits the power that the States would otherwise enjoy. Though it does leave States with the ability to control who may vote
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