The Volokh Conspiracy
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Donald Trump Makes the Case for Decentralized Control of Elections Great Again
Trump's call to "nationalize elections" leads prominent election law scholar Rick Hasen to reverse his longstanding support for such a policy.
Donald Trump's recent calls for Republicans to "nationalize elections" have led UCLA law Prof. Rick Hasen - one of the nations leading election law scholars - to reconsider his longstanding support for such nationalization. In an insightful recent article in Slate, Hasen explains the reasons for this change of heart:
If you look around the world at advanced democracies from Australia to Canada, they have an independent governmental body in charge [of] all national elections. The body imposes uniform standards for registration, ballot access, voting machinery, and much more….
In The Voting Wars [a 2012 book], I argued that by joining other advanced democracies we could decrease the amount of partisan fighting and litigation over election rules, increase the competence of election administration, and assure we have a system run with integrity and fair access to voting….
Donald Trump has caused me to abandon this argument. As I wrote in the New York Times last summer, when the president tried to impose his authority over various aspects of American elections via an executive order: "What I had not factored into my thinking was that centralizing power over elections within the federal government could be dangerous in the hands of a president not committed to democratic principles." At this point, American democracy is too weak and fragile to have centralized power over elections in the hands of a federal government that could be coerced or coopted by a president hell-bent, like Trump, on election subversion. Courts have ruled that parts of Trump's executive order are unconstitutional because the president has no role to play in the administration of elections.
Trump's comments on nationalizing elections ironically prove the point that we should not nationalize elections. He apparently wants to target the administration at blue states, doing who-knows-what to make it harder for people to vote for Democrats. He desperately fears a Congress controlled by Democrats that could check his and his administration's power…..
Hasen adds that the Supreme Court's turn towards unitary executive theory magnifies these risks:
The Supreme Court provides another reason for not nationalizing our elections. The court could soon fully embrace that "unitary executive" theory that there can be no exercise of executive power by the federal government that ultimately does not report to the president. (It's an argument with an exception likely to be applied to the United States Federal Reserve, in order to protect the value of the justices' 401(k)s.) The unitary executive theory, if adopted, would mean that presidential control over an election body might be constitutionally required. The Trump experience shows why that would be far too risky.
If, as is likely, the Supreme Court makes an exception for the Federal Reserve, I think the main motive for that will be maintaining the integrity and independence of the monetary system, not just protecting the justices' retirement accounts. That said, Hasen is right that unitary executive theory magnifies the risks of nationalizing elections.
I myself am a longtime advocate of decentralizing most functions of government as much as possible, primarily because it increases opportunities for people to "vote with their feet," enhances and protects diversity, and reduces the dangers of political polarization. I have never been as enthusiastic about decentralization of election administration as about most other policies, because I think few if any people engage in foot voting based on the former. Many people decide what jurisdiction to live in based on such factors as taxes, job opportunities (heavily influenced by government policy), crime, education, and housing policy. Very few move because State A is better at election administration and vote counting than State B. Also, like Hasen, I recognize that some other federal democracies, such as Canada, do reasonably well with centralized election administration.
That said, as Hasen now recognizes, there are serious dangers to election centralization in our system, ones having little to do with foot voting. For these types of reasons, I have never been a supporter of election centralization, though I wasn't as strongly opposed to it as I am on many other issues. Hasen is right to note that Trump's actions make the dangers of centralization greater and more obvious than they might have been in the past. Thus, it is clear that I, too, underrated the benefits of electoral decentralization, albeit perhaps not as much as Hasen did.
As Hasen notes, Article 1, Section 4 of the Constitution the Constitution gives states primary responsibility for election administration, subject to override by congressional legislation. It is unlikely that Congress will enact any significant legislation along those lines anytime soon, and any such effort should be opposed. Unless and until Congress does act, courts should strike down Trump's efforts to nationalize elections by executive fiat, as several have already done in response to his attempts to change voter ID rules by executive order and gain access to state voter rolls.
Finally, kudos to Hasen for his willingness to publicly reverse a position he had prominently advocated in the past, when the evidence warrants doing so. Many academics and other public intellectuals either stick to their guns no matter what the evidence indicates, or shift without ever acknowledging that they previously held the opposite view.
I myself have shifted a few positions over the years, but none of these reversals were on issues as central to my work or my worldview as nationalizing election administration was for Hasen. For example, it wasn't hard for me to change my view on unitary executive theory, because UET was never a central commitment for me to begin with. Other academics and intellectuals can learn from Hasen's example.
