Article I, Section 4 of the Constitution provides that the legislature of each state shall prescribe the “times, places and manners” of holding elections for the U.S. Congress, “but the Congress may at any time by law make or alter such regulations.” Congress has long used its override powers sparingly, and Republicans in particular have warned against both micromanaging how states do their job and the specter of a federal takeover. That remains the correct position, for reasons of practicality, election integrity and the safeguarding of the nation’s liberty.
Decentralized election administration is one of the most community-oriented things government does, relying on an army of neighbors as volunteers. Being close to the people helps make it more accountable when something goes wrong. If machines break, supplies run short or there are needlessly long lines at the polls, who will respond faster to your complaints: your elected municipal, county, and state officials, or some distant federal agency?
Decentralized election administration is one of the most community-oriented things government does, relying on an army of neighbors as volunteers.
Local election administration also better fits our nation’s vast diversity. Recently, as Congress has considered bills that would impose one-size-fits-all rules on basic electoral functions – requiring that everyone visit a public office in person to register, for example – there has been pushback from places like Alaska and the rural Southwest where people may live multiple hours away from such an office. Early, mail and lockbox voting play different roles from one community and the state to the next, depending in part on work, commuting and retirement patterns. Why block needed adaptations to local conditions?
Decentralized administration also guards against a catastrophic single point of nationwide failure in election systems. New voting machines and methods spread piecemeal from one jurisdiction to the next rather than by Washington prescribing that everyone adopt them all at once. That means administrators and vendors learn and adjust by others’ experience, and the whole country doesn’t get committed to someone’s flop idea.
And that’s just the glitch side. We are all aware that election systems get targeted by bad actors, domestic and otherwise, seeking advantage or information. Our diverse and decentralized system is much harder to hack than a single nationwide one would be, with the damage limited and compartmentalized.
America has been a great innovator in the realm of elections, introducing many methods new developments from party primaries to early and mail voting. Some innovations fall by the wayside, while others catch on and become standard. Why trade this ferment of democracy for an arrangement where permission from Washington is required for anything new? Why risk foisting a bad method on everyone because someone in Washington liked it?
Why trade this ferment of democracy for an arrangement where permission from Washington is required for anything new?
Above all, the Framers did it this way because they feared that a ruling national faction, whether based in Congress or a White House, might someday gain power over election administration nationwide and use it to entrench themselves in office. America must steer clear of any Venezuela-style National Electoral Council by which those in power could second-guess – and in the end substitute their own preferred numbers for – locally tabulated results.
For a long time, the Democrats were the party infatuated with centralization here. Only a few years ago they promoted an overreaching omnibus bill numbered H.R. 1 that would have invaded the proper province of the states in many ways, heaped massive burdens on local administrators, and put federal bureaucrats in the driver’s seat. Why did the Republicans forget their own former warnings when they took over?
The current push toward central control is based on alarms about supposedly widespread noncitizen voting and voter impersonation that simply aren’t borne out by the evidence, along with theories about the 2020 election that have been uniformly rejected by courts and disproved by impartial investigation. While there is definitely room to improve ID methods, a measure like the SAVE America Act goes far beyond what any state has chosen to enact voluntarily and demands that it all be done on an unrealistically abbreviated timeline.
None of this is to say Congress cannot use its Constitutional authority to make and alter rules in prudent, targeted ways. It could bring a truce to the gerrymandering wars through a few simple rules – compactness of House districts and respect for the boundaries of political subdivisions, no mid-census redistricting except when required by a court – that would check the interstate race to the bottom.
It’s not that states are somehow perfect or above politics in running elections – the record of American history amply documents their sins. But the danger of gathering the reins into one set of hands is greater. Congress has rightly respected the states’ and localities’ lead role, and it should go on doing so.
Walter Olson is a senior fellow at the Cato Institute and co-chaired several commissions on redistricting and gerrymandering under former Maryland Gov. Larry Hogan. He writes often on election law.