What is “Double Edged” Federalism? Blog Post
Justin Weinstein-Tull, Associate Professor, Sandra Day O’Connor College of Law
In this “Constitutional Conversations” post, Justin Weinstein-Tull explains that although federalism in the United States is “double-edged,” in that the decentralization of elections creates both benefits and challenges for election administration, it can also afford opportunities for multiple “ports of entry” for electoral reform.
In October, I had the pleasure of moderating a panel at the Conference on Elections and Federalism hosted by the Center for Constitutional Design at Arizona State University and the State Democracy Research Initiative at the University of Wisconsin. The panel I moderated was called “double-edged federalism,” and the panelists had fantastic ideas that ranged from casting doubt on the values of federalism writ large and putting faith in Congress’s ability to create electoral fairness, to promoting the idea that state courts may be our best hope for regulating the elections process.
In this post, I want to explain the meaning of “double-edged” federalism with respect to voting and offer some of my own thinking about which institutions are best able to handle the elections process. In short, I am skeptical that any single institution—whether at the federal, state, or local level—deserves unqualified discretion and support in electoral policymaking, and instead think that we should seek to improve and fortify the electoral system at every level.
Our system of federalism—that is, a structure of governance shared between the federal government and the states—was intended to ensure that no single governmental body held too much power. The states would check the power of the federal government, and the federal government would check the power of the states. Federalism shapes all kinds of policies, from health care to public assistance to immigration.
And federalism very much shapes our elections system. States and their local governments administer all elections, including elections for federal office. The federal government plays a role as well by regulating elections in targeted but important ways. The federal Voting Rights Act of 1965, for example, prohibits vote discrimination on the basis of race or color. Various election administration laws like the National Voter Registration Act, the Uniformed and Overseas Citizens Absentee Voting Act, and the Help America Vote Act all regulate key pieces of the elections process, such as voter registration, some absentee voting, and voting machinery. But overall, the federal government has little to do with the nuts and bolts of running elections.
The deep decentralization of our electoral system is part of what creates the “double-edge” of federalism in elections. On the one hand, the conventional wisdom says that there is value in decentralizing elections: most importantly that it prevents election tampering on a mass scale. No one governmental actor—not at the federal, state, or local level—can single-handedly corrupt a federal election. Even if the President wants to restrict the franchise as much as possible, the damage that they can do is limited by the fact that elections are controlled and administered by thousands of government officials around the country.
But there is a second edge to that sword: placing elections in the hands of state and local actors has drawbacks as well. First, a President who seeks to expand the franchise has as little influence over elections as does a President who seeks to restrict the franchise. Improving election reliability and fairness requires improving it everywhere by getting election workers and administrators on board with reform. And second, it is impossible to monitor elections in every jurisdiction. There are literally thousands of local governments that run elections – far more than the federal government has the capacity to monitor and supervise. And the entities that do have the resources and familiarity to monitor and supervise local government election administration—states—often decline to do so, sometimes because of their own lack of resources and sometimes because they simply do not have good working relationships with the people who administer elections locally.
This “double-edged” sword of federalism poses challenges for protecting elections. Because election administration is so decentralized, there is no single institution that we can reliably turn to as a failsafe. As we have seen, the President of the United States will not always have the best interests of the country at heart, and the Congress—being a fully political body—will not be an independent voice for election fairness. The federal courts performed well in 2020 by dismissing the many nonsensical challenges to the election results, but every case is an unknown, and the Supreme Court was never forced to weigh in in a serious way. On the state and local side, we have seen both state and local executives and legislatures fall prey to false claims about elections. State courts are another possible bulwark against election tampering, but as many state courts are filled with judges that are elected or face retention elections, they are not completely insulated from public passions either.
Rather than searching for one single failsafe institution, we might think in terms of the opportunities that federalism affords for shifting “failsafes.” That is, we can think in terms of the many “ports of entry”—to use Judith Resnik’s phrase—for policy change that federalism allows. Because federalism diffuses power to multiple institutions, it also provides the opportunity for advocacy and change in multiple institutions. As political power shifts—as it always will—so too will the opportunities for electoral protection shift among different institutions. In circumstances where Congress is amenable to protecting elections, Congress can be the failsafe. Where states are amenable to protecting elections, they can be the failsafe. And so it goes, with state courts, federal courts, local government officials, and more.
In other words, the “double edge” of federalism means that democratic backstops exist, but those backstops will shift between institutions as political sentiment shifts. It may not be the ideal solution: perhaps a first best would be one specific institution we could always trust to promote democracy and get things right. But it is the system that we have.