It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.
~ Joseph Stalin
By: Ryan McMaken
This article first appeared at Mises.org
The federal government is making a move to move in the direction of further centralizing the administration of elections nationwide. The justification this time around is stated to be danger of Russian hackers who, we are told, will compromise election results. As if so often the case in debates about federal control, it is assumed that the federal government can do things with greater competence and more professionalism than any state government. The refrain is likely to soon be: “Hey states, running elections is so hard. Why not let us do it all for you?” At the moment, the feds are only offering “help” with voter registration systems. Even the feds admit hacking state-level election systems is very difficult. But, none of us should be surprised when the feds in the future start talking about the need to “modernize” election systems by centralizing them.
The Member States Have Historically Controlled Elections
Most Americans probably assume that elections are now and always have been, constitutionally, the domain of the federal government. But, this has never been the case. The Federal Election Commission wasn’t even created until 1975, and even now, the FEC’s power is limited primarily to regulating campaignfinance, and not elections.
The federal takeover of elections, to the extent that it has been successful, has primarily been carried out by the courts, with the Supreme Court and other federal courts handing down decisions to states in regards to how elections must be conducted.
The courts have, for example, long intervened to prevent state governments from requiring that voters provide proof of citizenship or even proof of identity in order to vote. It is, apparently, a human rights violation to require that voters are who they say they are.
The American left has long hated any state-level attempts to regulate voting since it has long been assumed that limitations on voter turnout works to the favor of Republicans. (This claim about turnout is highly debatable.) Thus, it is not surprising to see articles like this one from The Daily Kos which advocates for a total federal takeover of elections.
This thinking is based on the long-worn claim that state governments are reactionary and retrograde — always seeking to disenfranchise populations — while the federal government is magnanimous and open to expanding the franchise.
Historically, this is easily disproved. State governments have long displayed extremely diverse agendas on voting. Indeed, during the 19th century, many Western and Midwestern states had very liberal laws when it came to what is called “declarant alien voting” in which 22 states and territories extended the vote to non-citizens. By doing so, the states also — in effect — lowered the bar for citizenship while encouraging immigration into those states. Western states also were among the first to extend the franchise to women with Wyoming granting women the vote in 1869, a full 50 years before the federal government followed suit.
Montana was the first state to elect a woman to Congress — Jeanette Rankin — before the adoption of the 19th Amendment federalizing policy on women’s suffrage. Today, women comprise a higher percentage of representatives in state legislatures than in the US Congress. (Colorado has the highest percentage with 42 percent of General Assembly members being women.)
The original philosophy behind state control of elections is easy to understand, given the intended — and now ignored —decentralized structure of the United States.
This was explicit in the first Constitution of 1776 (i.e., the so-called Articles of Confederation) but continued in a watered-down form with the new Constitution in 1788. In terms of Congressional representation, states were to elect their representatives in a manner chosen by the state, with state control over who could vote.
State Control of Congressional Elections, in Practice
This even extended to the election of US Senators, although many think that the Constitution mandates that state legislatures appointed US senators prior to the 17th Amendment. While the US Constitution says the state legislatures shall elect the US senators, it does not say how that should be done. For example, must candidates for US Senate receive a majority of legislative votes or will a plurality do? Can those senators be recalled by the legislature? The US Constitution is silent on this. Moreover, in practice, states were free to pass their own state laws creating popular elections for senators that were then binding on members of the state legislature. By 1912, the last election before the adoption of the 17th Amendment, a majority of states employed de facto popular election of US senators. (Indeed, were the 17th Amendment to be repealed today, it is a safe bet that approximately 50 of the states would continue to use popular election to determine the appointment of US Senators.)
States also employed various means of determining who could vote in elections overall. As the 19th century entered the Jacksonian era, the states led the way with significantly liberalizing who could vote. By 1845, nearly all states had removed the land-ownership requirement for voting, resulting in near-universal suffrage for non-slave males. Western states would then expand this with their own extensions to women and foreign nationals.
All the while, the federal government had little-to-no role in dictating to states how elections should be conducted or whom should be granted the right to vote.
Later on, the federal courts would employ the 14th Amendment to begin regulating elections. The racial-politics tail would come to wag the national dog with the federal courts intervening to micro-manage elections even in states with no legacy of slavery and where the racial issues of the Old South were non-existent.
Thus, today, a state like Arizona is prohibited by the courts from requiring that voters be US citizens.
In spite of numerous court diktats, however, elections are still largely controlled by states. State-level Secretaries of State remain the primary election officers. How these elections are conducted essentially determines how federal elections are handled.
One need not employ an immense amount of imagination, however, to guess what would happen were control of elections moved to the national level. Instead of being controlled by elected state officials who must run for re-election, elections would be controlled by a commission with members appointed by the US President. Like the head of the FBI who selectively enforces laws according to his political whims, the elections commissioners would be accountable to no one but the president and insulated from any public outrage. Many of the commissioners might serve for decades in their positions, depending on how the governing federal statutes were written. Large national interest groups would expand their influence at the expense of ordinary taxpayers.
Gone would be the days when states could, on their own initiative, reform voting law as they did during the 19th century.
Practical Benefits of Decentralization
Centralization would eliminate practical benefits of state-level election administration as well.
A single nerve center for election administration would make elections more susceptible to outside hacking, not less. State governments have already been repulsing hacking attempts for years. The alleged threats from Russian hackers — assuming they even exist — would be nothing new.
Moreover, even if one state were compromised, there is practical advantage to limiting the damage to a single-state. That is, if Iowa’s election software were compromised, a recount could be necessary only in Iowa, as opposed to conducting an immense nationwide recount. Indeed, were the results of a national election lopsided enough, the corruption of one state’s election system may not even be enough to sway the election, and would simply be irrelevant to the outcome.
Of course, the practical considerations are of far lesser importance compared to the importance of continuing to maintain decentralized control over elections.
As a remnant of the days when the US was seen as a conglomeration of independent states, decentralized elections are important in heading off even more movement toward converting the US into a unitary state controlled from Washington. As a general principle of decentralization — which should also lend itself toward nullification and secession — keeping control of elections out of the hands of a single centralized government remains of significant importance.
Naturally, the states should be given total control over who can vote, when they vote, and whether or not states could base election outcomes on pluralities, majorities, or supermajorities. States should also be free — contra the US constitution — to set the qualifications for federal representatives. If a majority of California voters elect to send a 12-year-old Iraqi refugee to the US Senate, They should be free to do so. If voters in states wish to vote to recall their US Representatives, they should be free to do that as well. If states want to hold elections every year instead of every two years or every six years, it should not be the business of any federal judge or commission or politician. Every state already has a huge incentive to send representatives to Washington. We don’t need Washington to know or care how that’s done.
This article first appeared at Mises.org