Electoral Federalism: Centralized or Decentralized Elections?

A symposium of essays on the subject of federalism and elections

Richard Hasen and Kevin Kosar are both concerned about the polarizing partisan divide in American political life.  Hasen believes that “rampant conspiracism leads to contagion, not containment.” He argues that in the future “Federalism and decentralization will not save us from an attempt at election subversion.” Kosar is wary of centralizing elections authority at the national level, and argues that “By assigning authority to conduct federal elections to the states, the US Constitution makes it far less likely that any president or cabal of legislators can control the elections. This strikes me as a critical bulwark for our representative democracy.” 

Read their exchange below.

Richard Hasen is Professor of Law at UCLA School of Law Director and Director of the Safeguarding Democracy Project.

Kevin Kosar is a Senior Fellow at the American Enterprise Institute

The Case for Centralized Elections- Hasen

In one understanding of the tumultuous 2020 election season, it was the decentralization of American elections that saved us from the attempt by former President Donald Trump and his allies to overturn the results of the November 2020 presidential election. The United States stands nearly alone among modern democracies in the world in having such a decentralized system for running national elections, with over 8,000 different election jurisdictions simultaneously conducting the election with their own machinery, rules, and policies. Decentralization supposedly helps against election subversion by containing problems to a single county or state, and the lack of a national authority running elections deprives a would-be authoritarian incumbent from targeting that national authority and manipulating election results.

I will save for another time my full argument against the thesis that federalized decentralized election administration is a bulwark against the risk of election subversion in the contemporary United States. In this brief post, I want to push back on one aspect of the argument favoring decentralization: the idea, advanced by Walter Olson, that decentralized systems promote containment of election risks. Rather than containment, however, we have the risk of contagion.

In the election context at least, it is no longer true, if it ever was, that what happens in Vegas stays in Vegas.

Olson writes that decentralization: “is a source of deep resilience. Part of this is practical: with dozens of voting systems in use, if a newly introduced machine is overly subject to breakdown, at least it isn’t causing havoc everywhere at once. If some states adopt a bad or inefficient practice (as by discouraging the processing of mailed ballots before Election Day, which slowed counts in states like Michigan and Pennsylvania) they can profit from the example of states like Florida that have implemented more efficient methods after their own costly experience. Far more important, it prevents a power from being centralized that would be dangerously tempting to demagogues and authoritarians. “We are so lucky that elections have never been federalized. . . No one in Washington can give orders to fire local election board officials.”

Olson also quoted economist Steve Landsburg, writing in a Wall Street Journal oped about “a future presidential election in which the incumbent refuses to concede and enlists the full power of the federal government to overturn the apparent democratic outcome.”

“Now imagine that the election in question is actually run by a federal agency or by some nationwide quasigovernmental authority charged with collecting and aggregating the results from all 50 states. I don’t know about you, but I might worry a bit about the pressure that could be brought to bear on that single authority.”

Recent events, however, demonstrate that election subversion risks are not mitigated, and today are magnified, by our hyperpolarized election system.

Meet the members of the “America First Secretary of State Coalition,” comprised of four secretary of state candidates: Arizona’s Mark Finchem, Michigan’s Kristina Karamo, Nevada’s Jim Marchant, and New Mexico’s Audrey Trujillo. According to a September 2022 Associated Press report, these four candidates, who are election deniers falsely claiming that the 2020 election was stolen from Trump, have their own election subverting platforms. “Eliminating voting machines, mailed ballots and early voting are among their goals. The coalition also supports hand-counting of all ballots and a single day of voting for all Americans with few exceptions. . . . Many of their ideas are based on unfounded claims that voting machines are being manipulated.”

Today, the threat of election subversion and election denialism is not confined within one state’s borders. Indeed, many people have both a financial and political incentive to spread false claims of a 2020 stolen election and to put into office cadres of people who either believe that the election was stolen or who are at least willing to say that the 2020 election was stolen. Think for example of Mike Lindell’s conferences around the country perpetuating the lie of a stolen election, or the actions of True the Vote or other so-called voter integrity organizations, which rally around false or exaggerated claims of fraud and seek to carry the mantle of election integrity into putting poll watchers in areas with heavy concentrations of minority voters. In fact, these groups do the opposite of promoting election integrity.

Some people have gotten very rich off election lies. In addition to personal enrichment, the claims of a stolen election can serve political goals, from delegitimating Democratic candidate victories as the product of fraud and destabilizing the election system to more nefarious goals in creating the conditions for actual election subversion: changing election losers into winners.

But the biggest problem is the insider threat, when the people running our elections believe—or say they believe—election lies. So, let’s imagine back in 2020 that Brad Raffensperger, the Secretary of State of Georgia, had less fortitude and a weaker moral compass than he actually showed. You may remember that Raffensperger refused to “find” 11,780 votes as Trump demanded to flip the election results in Georgia from Biden to Trump.

In this alternative scenario, Raffensperger declares that because of certain vaguely- described irregularities, he could not consider the close vote count in Georgia for President to be an accurate one. He calls upon the Georgia legislature to convene and choose an alternative slate of electors, which they do for Trump. Such a move, if successful, would have changed a Biden victory from a 306-232 victory into a 290-248 victory. The pressure on Republican legislatures in other states would have been enormous to make up the now-42-vote difference.

Arizona’s 11 + Pennsylvania’s 20 + Wisconsin’s 10 would have made it a 1-vote margin. Nebraska splits its electoral college votes in part by district. All they would need is some excuse to overturn that result and the election would have been in the House of Representatives. If not Nebraska, it could have been Michigan, which could have handed victory to Trump. In an era of election denialism and rampant false claims and conspiracy theories about elections, we can no longer count on the state-by-state (or county-by-county) system as a bulwark against contagion. Especially now—as we see the infiltration of election denialists as poll workers, it is easy to imagine in a future election some ginned-up controversy perhaps driven by a poll worker not understanding an election procedure and believing it is the result of fraud. The claim could get seized upon by those who want to overturn election results and use this as a pretext.

Rampant “conspiracism” leads to contagion, not containment. Federalism and decentralization will not save us from an attempt at election subversion.

The Case for Decentralized Elections- Kosar

How we conduct elections is normatively important. It is an inherently value-laden exercise. And this is one reason the politics around election reforms often is so intense---because values like fairness are involved. Certainly, I have many times found myself morally outraged by the recent machinations of policymakers and politicos to bend, break, and change the rules of elections.

Nonetheless, elections also are a competition with participants who monomaniacally pursue victory. Hence, I suggest there is value in setting aside our passions and trying to view these partisan machinations as a sort of game that has gone bad. I suggest we think of these partisan contests as an interactive prisoner’s dilemma generating ruinous competition. Doing so both highlights the logic of the scrum and suggests some ideas for reforms that are win-win. Having said that, I want to be clear that I am not here suggesting moral equivalence among the various actors and actions. Some are worse than others—far worse.

For certain, I am glad we do not have a centralized, federally administered system of elections for the presidency and Congress. To see the danger of such a system, one need only look to Russia, which has a Central Election Commission. That agency is one of the tools President Vladimir Putin uses to maintain his iron grip on the nation. By assigning authority to conduct federal elections to the states, the US Constitution makes it far less likely that any president or cabal of legislators can control the elections. This strikes me as a critical bulwark for our representative democracy. Yet a federal system comes with its own challenges. Such a system yokes together disparate entities in pursuit of collective goods. By nature, there will always be tensions between the good of the individual unit and that of the whole. At any moment, a state may see an interest in pursuing a course that it views as self-advantageous but that negatively affects other states or that can scuttle national objectives. The founders foresaw some of these perils and built in some constitutional curbs. Article I, section 10 of the Constitution, for example, expressly forbids any state from signing a treaty with a foreign nation or imposing duties on shipments arriving at its ports.

But the founders left most authority to conduct elections for federal offices to the states. Article I, section 4 famously declares, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Allowing each state to mostly craft its own policies for presidential and congressional elections means relying upon 50 separate entities to produce a collective result that the nation accepts as valid. And today, unfortunately, we see more and more state-based actors attempting to pursue their own electoral interests at a cost to the collective good. Certainly, we saw the problem on January 6, 2020, when senators and representatives from various states sought to throw out states’ electoral slates under a spurious interpretation of a 130-year-old statute.

Across America, we are seeing sharp red-state-blue-state election policy divergences. Republican-led states are moving to alter elections rules to combat purported fraud; Democrat-led states are making permanent the emergency COVID access rules (e.g., drop boxes). In each case, the party operates under the assumption that these changes are advantageous. Republicans often imagine higher turnout increases the odds of Democratic victories. Democrats also believe that. Never mind that this operating assumption is highly questionable if not outright wrong. And, of course, both parties engage in aggressive gerrymandering that often generates lawsuits.

Why is this happening? The causes are many, but my view is that increased partisan competition for the presidency and Congress over the past few decades has fomented a zero-sum concept of federal election politics. Each party thinks it has a good chance to win the presidency or chambers of Congress. Therefore, the parties and their candidates see greater and greater incentives to heighten the brand differences between Democrats and Republicans. Those holding office see utility in actively thwarting the success of the other party’s elected officials on electorally salient issues and busting norms and rules around the conduct of elections. Whether it is altering access to the ballot or having one’s congressional representatives and senators object to states’ electoral slates, the “rational” strategy in this game is to break or alter the rules. Of course, all this jockeying carries with it a collective cost: loss of faith in election results and increased distrust between partisans that seeps into the electorate.

The situation is akin to a prisoner’s dilemma, wherein competitors choose selfish strategies that leave them both worse off. As classically analogized, imagine two individuals are arrested for a crime, separated from each other, and asked to confess. Under the punishment terms offered by the police, if each refuses to confess, they each get the shortest possible term, or maybe they are set free. If they both confess, they each get long prison terms. But if one confesses and the other does not, the one who rats out the other gets a short stay in prison and the other gets a longer lockup. In short, participants, especially if they have low trust for each other, have strong incentives to pursue their self-interest, and when both do so, they each end up worse off.

Although an imperfect analogy, this game does illuminate the logic of partisan election competitions to control the presidency and Congress. Candidates and campaigns face a choice: Pursue victory while upholding the existing rules (cooperation) or pursue victory by breaking or changing the rules (defecting). Seeing a reasonable chance to win and utterly distrusting their opponents’ willingness to follow the rules, competitors increasingly choose the latter course. This game is repeated every couple of years, and each previous misdeed increases the distrust between the competitors and further fuels their incentives to engage in rule-bending, rule- breaking, and rule-rigging. But unlike for the prisoners in the dilemma, mutual defection in the election game creates spillover costs for Americans collectively. These come in the form of decreased citizen trust in federal elections and a rising “us versus them” mentality among partisans that leaches into the public generally. This is deeply problematic, as representative government is predicated on a belief in a fair competition for office that establishes elected officials as the legitimate trustees for the public. So, here we are.

Thinking of the relentless feuds over election rules in this way can provide some insights on what can be done to improve matters. If we are fortunate, in some instances the ruinous competition will create incentives for the participants to negotiate a truce and remove certain dangerous machinations from the game. We are seeing this occur with the ongoing bipartisan efforts  to reform the Electoral Count Act (ECA). Both parties recognize that at some point the other party’s vice president will be the presiding officer. Hence, they aim to amend the law to make it clear the presiding officer has no independent authority to refuse to count states’ electoral slates. So, too, the proposed amendments recognize legislators’ incentives to object to states’ slates but would decrease the probability of a disrupted count by raising the evidentiary bar and limiting the bases for objections. And like in any game, there is good sense in firmly inserting an umpire (i.e., the judiciary) to render prompt, definitive rulings on aspects of the ECA game where controversies are likely.

Similarly, it is possible the participants in the elections game may rethink their strategies if the evidence continues to mount that toggling ballot access to affect turnout is of limited utility for producing partisan wins in federal elections. Unfortunately, both parties seem deeply bought into this notion, but we can remind them of the evidence to the contrary often and perhaps hasten their learning.

Partisan competitors in the elections game also are experiencing costs from lawsuits. Adverse court decisions and the attendant legal and reputation costs can alter the incentives to choose particular strategies and, if repeated, could dampen the perceived payoffs of rule bending, breaking, and changing. While few Americans are naturally fans of lawyers, the apparently never-ending suits around the November 2020 elections generally are beneficial.

Certainly, conceiving of partisan election policy fights as a game should dampen our hopes that appeals to fair play and high principles will correct behavior. The players simply believe too much is at stake and fear unilateral disarmament and being played for a sucker. Nonetheless, there is no harm in escalating the costs associated with behaviors with significant collective costs. For example, “Nobody likes a sore loser” has long been part of the American ethos. We need to find ways to restore this nonpartisan “losers’ consent” expectation to all candidates and heap scorn on those who do not abide by it and corrode public trust.

We also should remind players in the voting wars that winning a dominant majority in control of all three branches is exceedingly unlikely, and, even if achieved, it will provide limited payoffs. Our system of separated powers makes divided government the norm, and federal politics is never a winner-takes-all effort. Congress and presidents make bipartisan policy with remarkable regularity, which is a win-win.

Lastly, we can reduce the incentives fomenting a race to the bottom by working to remove certain maneuvers from partisans’ playbooks. It will not be easy, but it could be achieved by bargaining out a federal framework for election policies that enhances the brands adopted by each party. Democrats pride themselves on access, Republicans on security. Too often, the parties portray these two goods as mutually exclusive. They are not, as Republican-dominated Utah’s easy-to-vote, hard-to-cheat model demonstrates. The Bipartisan Policy Center and various groups released a framework for reform earlier this year that proposes federal standards for both ballot security and access. The same senators who led the efforts to reform the ECA might be well positioned to lead the process to develop this into legislation.

Indubitably, other insights and implications for conceiving of our nation’s political fights over election policies can be gleaned from conceptualizing the disputes in terms of a game of ruinous competition. As scholars love to declare, further study is warranted.

Assuredly, the high stakes of failing to arrest a race to the bottom should encourage us all to direct our minds to solutions. We all might be mindful that like the prisoners in the dilemma, we will not escape this ruinous game until we transcend intense mutual distrust.