50 States of Anxiety: Will Federalism Save Democracy in America?

Posted in: Government

On the night of July 6, 1988, Mexico was on the verge of the unthinkable. After six decades in power, the ruling Institutional Revolutionary Party (PRI) appeared to be going down to a crushing electoral defeat. Cuauhtémoc Cárdenas, leader of the left-wing opposition, had taken a strong lead in early returns over the PRI’s candidate, the colorless technocrat Carlos Salinas de Gortari.

As vote totals flowed in from around the country to the Ministry of the Interior in Mexico City, the leaders of the PRI began to panic. “The electoral upset was a political earthquake for us,” PRI’s incumbent President, Miguel de la Madrid, later recalled. “As in any emergency, we had to act because the problems were rising fast.”

The screens at the Ministry of Interior suddenly went blank. The electoral authorities would variously blame a crash of the computer system tabulating the ballots and an “overload of the telephone lines. In any event, they said, it was “a total breakdown of the system.” For hours, no further results were reported across the country.

As midnight approached, with no satisfactory numbers yet concocted, the ruling authorities simply cut to the chase: they declared Salinas the winner. “You have to proclaim the triumph of the PRI,” President de la Madrid later recalled being told by his party’s leader. “It is a tradition that we cannot break without causing great alarm among the citizens.” Several days later, the compliant vote totals were finally announced: Salinas had won 50.3% of the vote, the lowest percentage ever achieved by a PRI candidate, but still 3.6 million votes ahead of Cárdenas, his nearest challenger.

The PRI’s fraud was transparent at the time, and would be frankly acknowledged by the perpetrators in the years to come. Cárdenas and his supporters held months of public protests, but beyond that there was little could do to challenge the official results. The PRI controlled every significant lever of power in the country. To cover their tracks, Salinas and the PRI would later order the burning of the ballots from the 1988 election. The glimmer of hope for multiparty democracy in Mexico seemed to have been snuffed out with them.

Coming to a Democracy Near You?

As Election Day turns into Election Night, do you worry about a similar scenario playing out in the United States?

If so, I have good news. You can scratch this particular horror from your inventory of nightmares. While there is no shortage of things that can go wrong with America’s complex electoral system, this isn’t one of them.

It’s not because the Republican Party is less addicted to power than the PRI. And it’s certainly not because Donald Trump is any more reluctant to defraud the public than his Mexican counterparts were, or that he lacks compliant minions to help him do it.

It’s simply because Donald Trump doesn’t get to count the votes. And neither does any part of the federal government that answers to him. For better and for worse, the U.S. Constitution has always entrusted the administration of our elections—even for federal offices—to the states. As a result, there is no central computer system to crash, no national vote tally to manipulate. Instead, we have 51 distinct elections, in each of the 50 states and the District of Columbia, each of which counts and reports its own votes. So Donald Trump could yank the power cord on every computer and disconnect every telephone owned by the federal government on Election Night and it wouldn’t slow the count by even a minute. The results of the election are simply out of his hands.

A Bug or a Feature?

Let’s not kid ourselves, though. A decentralized election system like ours has massive costs. The various state election laws are confusing, inconsistent and constantly changing. This year has already seen over 300 election-related lawsuits in 44 states, a number than can be expected to substantially increase before the results are final.

Throughout our history, the states have not exactly covered themselves in glory when it comes to voting rights. If they had, it would not have been necessary to amend the U.S. Constitution so many times to prevent states from denying the right to vote—whether on the basis of race (the Fifteenth Amendment), sex (the Nineteenth Amendment), ability to pay a poll tax (the Twenty-Fourth Amendment), or age (for those over 18, the Twenty-Sixth Amendment). It took almost a hundred years, and the 1965 Voting Rights Act, before the federal government finally began pushing states to live up to the Fifteenth Amendment. Many states still engage in shameful voter suppression tactics, a trend encouraged by the U.S. Supreme Court’s lamentable decision in Shelby County v. Holder (2013).

Even when states manage their elections properly, they feed their results into an Electoral College system that is arbitrary and convoluted at best—and an anti-democratic monstrosity at worst.

All these flaws were evident in the epic election meltdown of 2000, which came down to a disputed margin of 537 votes separating Republican George W. Bush and Democrat Al Gore in Florida. The recount struggle revealed long-standing problems in state election administration that most Americans had previously taken little note of: partisan election officials, arbitrary purges of voter rolls, inequitable lines at polling places, poor ballot designs, a mishmash of often unreliable technologies for voting and tabulating results, and a lack of clear standards for determining voter intent on disputed ballots, to name but a few. A majority of the U.S. Supreme Court seized upon the last of these problems as an excuse to halt the recount in Florida while Bush was ahead, on the grounds of the Equal Protection Clause of the Fourteenth Amendment, in effect handing him the presidency. (The majority preemptively disavowed any interest in the equal protection of voting rights in any other context.)

The U.S. electoral system, as revealed by the 2000 election, was hardly exemplary. How could it be explained to a visitor from Mars, or even France? Why, when Gore had won a clear plurality of a half-million votes nationwide, did the outcome depend on a few hundred disputed ballots in Florida? How did that single state’s three-ring political circus manage to hold the fate of the entire nation in suspense for over a month? The U.S. Supreme Court’s 11th-hour intervention, as poorly reasoned and cynical as it surely was, at least put a decision of national importance in the hands of a national authority, instead of the overworked clerks of obscure county courthouses. After Bush v. Gore, it was as hard to defend state control of federal elections as it was to defend the Court’s arbitrary intervention in a matter of state election law.

All this was true in 2000 and remains true today. The American system of decentralized elections is a ramshackle contraption inherited from our ancestors, to which we have added the security vulnerabilities of electronic voting machines and computer networks. Any election could have a Florida, or many Floridas. It is not just an accident waiting to happen. It is an accident that has happened to us, repeatedly, for years.

With that background, it might seem difficult to imagine a worse way to run our elections.

But you can. Close your eyes. Think of an efficient, centralized national election administration, with full power to set uniform election rules for all federal offices, collect the votes, determine the results, and announce them to the world.

Then think of that administration in the hands of Donald J. Trump.

A Fox in Search of a Henhouse

President Trump has made no secret of his beliefs that voter fraud is rampant (though always on behalf of his adversaries), that no one should vote by mail (except his supporters), that the election should be postponable at his will, that ballot counting should stop on Election Night (as long as he is ahead), and that there’s no way he can lose his re-election (unless it is “rigged” by his opponents).

For anyone committed to democracy, these are deeply alarming statements. But consider how much more terrifying they would be if Trump actually had the power to carry them out. Imagine if Trump were the person primarily entrusted to faithfully execute the electoral laws for the entire nation. Imagine if his hand-picked appointees were responsible for culling the voter rolls, deciding who could vote how and when, determining the location and staffing of polling places, selecting the voting software and hardware, and (most ominously) securing and counting the ballots.

The resulting fraud might be subtle, or it might be as obvious as in 1988 in Mexico. But either way, there would be little that Trump’s opponents could do to stop theft of a centrally administered election, short of a general insurrection.

In contrast to this scenario, the Founders’ decision to leave federal election administration in the hands of the states begins to seem less archaic—and more inspired. The framers of the Constitution did not foresee hanging chads or hacked voting machines, but they did spend a lot of time thinking about the damage a would-be despot could do in the office of the presidency. By giving the president no role whatsoever in running the election or counting the votes, they took away some of the most dangerous powers an incumbent could use to stay in power.

Going Postal: Why Trump Went After the Mail

Postmaster General Louis DeJoy, a Trump donor and appointee, began taking steps to hobble the U.S. Postal Service over the summer of 2020: cutting overtime pay, raising rates for ballot delivery, and removing mail-sorting machines from postal facilities around the country. The apparent goal: to create delivery backlogs and to sow doubt about the reliability of mail-in voting. To some extent, the campaign succeeded—piles of mail began to accumulate, and public anxiety increased. However, the moves also triggered a strong backlash. The Postal Service is a popular institution, whose degradation was an appalling price to pay to give Trump a fleeting, marginal advantage in one election. Journalists cast sunlight on DeJoy’s nefarious moves, and lawyers secured court orders to limit their damage. Many states increased the number of official drop-off boxes available for mail-in ballots, reducing dependence on the USPS. Voters adjusted their habits to get ballots returned sooner. Others took the opportunity to cast early in-person votes instead.

The sabotage of the Post Office demonstrates Trump’s willingness to use any available tool, no matter how destructive, to keep his grip on power. But it is also a sign of how little power he has over the voting process. If Trump had a more direct way to block mail-in voting, he would have used it. It is the states, however, that set those rules. Trump’s bluster could do little to dissuade them from expanding mail-in voting in response to the COVID-19 pandemic.

Besides the Post Office, Trump has abused other tools of federal power under his control. Trump was impeached for attempting to leverage aid to Ukraine into an investigation of his prospective opponent, Joe Biden. Despite this experience, he has continued to push the Justice Department to launch bogus prosecutions of Biden’s family and other political enemies, while using his pardon powers to protect his allies (and co-conspirators). He has unlawfully used federal properties for campaign purposes, starting with the White House. He has encouraged his appointees to engage in repeated violations of the Hatch Act while on the government payroll. And, of course, Trump has used the authority of his office to direct a firehose of misinformation and outright lies into the public ear. Yet none of these abuses of power, however serious, comes close to the ability to stop or manipulate the vote count itself.

The Most Dangerous Man and the Least Dangerous Branch

What about Trump’s vaunted 6-3 conservative majority on the U.S. Supreme Court? After all, Trump’s appointment of Amy Coney Barrett was rushed through the Senate for the express purpose of putting her on the Court in time to rule on election disputes, presumably in Trump’s favor. Won’t a stacked SCOTUS simply intervene to stop the vote count (or otherwise manipulate the results) as it did in Bush v. Gore?

It’s a legitimate concern. Bush v. Gore remains a dangerous weapon that can be deployed against the autonomy of states to process their own election results. Justice Brett Kavanaugh’s concurring opinion in last week’s Democratic National Committee vs. Wisconsin State Legislature case took the dusty gun out of the drawer and loaded it. Kavanaugh, who worked on the Bush legal team in 2000 alongside his future SCOTUS colleagues Roberts and Barrett, approvingly cited some of the more extreme statements in Chief Justice Rehnquist’s Bush v. Gore concurrence. He also seemed to channel Trumpian rhetoric in warning of “the chaos and suspicions of impropriety that can ensure if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” (As Justice Kagan retorted in her dissent, ‘[T]here are no results to “flip” until all valid votes are counted.’)

Even the most mercenary and unprincipled U.S. Supreme Court would not find it easy to “flip” the election in Trump’s favor, however. Here the Electoral College offers at least one unalloyed virtue among its many flaws: manipulating the results in one state cannot affect the outcome in any other state. That is no help in an election that comes down to the electoral votes of a single state (like Florida in 2000). But if the margin of victory is built on the results in several states, it will be harder for the Supreme Court to intervene decisively.

But what if instead of one Florida-style dispute in this election, there are five or six? Even this scenario, as horrible as it sounds, would be better than a single central electoral commission under Trump’s control and answerable only to the U.S. Supreme Court. Each state-level dispute would necessarily entangle the state’s particular laws, its courts, election officials, legislature, and citizens, before the Supreme Court could attempt to pluck control away. This process leaves a heavy trail of evidence. The state stakeholders will reach their own judgments about who won and who lost. The likelihood that the Supreme Court could deploy consistent reasoning to nudge the results to one side or the other across a multitude of state cases is doubtful. But what if the Court doesn’t care about consistent reasoning, and only seeks results?

Well, the Supreme Court may have gotten away with such an intervention in Bush v. Gore, but as a constitutional matter it does not have the final word in election disputes. Per the Twelfth Amendment, Congress is responsible for counting the votes of the Electoral College and determining whether a president has qualified. In the presidential election of 1876, Congress used this power to sort out disputed results in state elections and determine the Electoral College winner. No one even asked the Supreme Court for its opinion. Congress later codified this power in the Electoral Count Act of 1877. So any attempt by the Supreme Court to “flip” the election will have to seem credible to the new Congress that will be sworn in on Jan. 2, 2021. If it is not, we could be in for a serious and prolonged constitutional crisis before our teetering institutions are able to settle on the next President. But one thing is clear: the decision won’t be Donald Trump’s—and that’s something to be grateful for.

States of Resistance

A decentralized electoral system is not the only way that the federal structure of the United States has frustrated Donald Trump’s attempts to consolidate his power.

In an era when many of our institutions have failed to restrain President Trump, the states stand in a class by themselves. State autonomy—in fact as much as in theory—has been one of the biggest bulwarks against Trump’s brand of creeping authoritarianism, perhaps second only to public opinion itself.

State officials have refused to assist Trump in carrying out federal policies that they consider illegal or inhumane. The same 1998 Supreme Court decision (Prinz v. U.S.) that delighted conservatives by finding that state governments could not be “commandeered” to enforce federal gun regulations in U.S. is now regularly deployed to defend sanctuary cities and non-cooperation with federal immigration enforcement.

Most of the government that Americans regularly interact with remains in state and local hands. State governments retain the police power to protect the health, safety, and welfare of their citizens—a fundamental power that the federal government simply doesn’t have.

After the killing of George Floyd by Minneapolis police last May, President Trump was visibly itching to send heavily armed federal agents (and even troops) to put down protests in “Democrat cities.” Fortunately, he largely lacked the power to do so. Art. IV, Sec. 4 of the Constitution says that the federal government must protect each of the states “against invasion.” It may also assist the states “against domestic violence” but only “upon application of the legislature, or of the executive (when the legislature cannot be convened)”. In other words, the President cannot use federal forces to quell domestic dissent, even when it tips into disorder and riots, unless the state itself asks for help. When the states made clear that they had no interest in ceding management of the protests to Trump, there was little he could do to keep stoking the fires. The President could and did use federal law enforcement to protect federal property and prosecute violations of federal law. But if his goal was to militarize the streets of America’s cities in the runup to the election, he did not succeed.

The states have also provided some impressive lawyering in resistance to Trump’s rule. State attorneys general have been notably active in challenging the administration’s policies, from the initial “Muslim ban” to rollbacks of the Affordable Care Act and environmental regulations. State prosecutors have also pressed challenges to Trump closer to home. Unlike Special Counsel Robert Mueller and the U.S. Justice Department, Trump has not been able to intimidate state AGs into keeping his finances off-limits. The New York State Attorney General shut down the Trump Foundation for tax fraud and is currently pressing an investigation deep into the President’s dodgy dealings. The Manhattan District Attorney won a U.S. Supreme Court decision to obtain Trump’s tax returns on the same day that Congress essentially lost in its attempt to do the same.

The continued existence of the states as living, sovereign entities has also provided some spiritual breathing room in the suffocating Trump-dominated atmosphere of the last four years. Even in the worst days of Trump’s rule, it has been a comfort for many to live in states that have not yet bowed to his domination, or even to know that such states exist. The presence within our federation of large, “indigestible” mega-states like California, New York, and Texas, each with the resources and weight to chart its own course in many matters, deserves more appreciation.

For a century, liberals and progressives have been skeptical of the claims of federalism. The rhetoric of “states’ rights” was often a thin cloak for racism. Even when sincere about the merits of decentralization, its advocates seemed to have a stunted and retrograde view of the powers of the national government to address national problems. But the experience of the Trump years should provoke a reappraisal. The autonomy of the states has been a significant barrier to many of the authoritarian projects Trump has advanced or mused about. That same autonomy should, with any luck, prevent him from manipulating the election results decisively in his own favor. If so, the survival of American democracy will owe no small debt to its venerable and resilient federalism.

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