Nationalizing election mechanics?

Noting what is increasingly obviously the theft of the Minnesota Senate race, Eli Blake suggests that we might do well to adopt India's approach to elections. Indian elections "have two computers counting every vote. One locally, which also has a paper tally that can be handcounted if necessary, and the other in Delhi, where the votes are transmitted instantaneously. ... This is the 21st century, and we could fully automate the system and have the Federal Elections Commission install a computer backup in Washington that would record every vote (at the very least every vote in races for Federal offices) as it was cast just as easily as the Indians installed theirs."

Blake anticipates one obvious response: "I know, I know. Federalism. But do you really want to continue to propagate a system in which congressmen, senators and even Presidents can be elected by corrupt and highly partisan local officials in various states (beginning with the secretary of state, a partisan elected position itself)?" I am not sold on Blake's suggestion,1 but I suggest in this post that federalism is not necessarily a fatal obstacle here, at least in the context of Congressional elections.

Our Federalism is not a synonym for "states' rights."2 Rather, "[a]lthough we usually think of federalism in the modern age as protecting state prerogatives against federal incursion, this is really but a shorthand for saying that the prerogatives of both the states and federal governments ought to be respected the one by the other...." Viewed through this lens, elections are tricky (although not uniquely so); they fit neatly into neither the federal nor the state sphere. Traditionally, "the states are given, and in fact exercise, a wide discretion in the formulation of a system for the choice by the people of representatives in Congress." United States v. Classic, 313 U.S. 299, 311 (1941). Nevertheless, despite this broad role as primary actors in the election process, elections are not one of the "realm[s] ... left open to the States by the Constitution ... [in which they] may act free of federal interference." Garcia v. San Antonio Transit Auth., 469 U.S. 528, 581 (1985) (O'Connor, J., dissenting). Article I § 4 authorizes federal regulation of Congressional elections: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof," it says, "but the Congress may at any time by law make or alter such regulations...." Congress has both legitimate interests in federal elections and ample powers to oversee them.

Still, to concede that Congress has a particular power is not to say how or whether it should be used. "The true 'essence' of federalism is that the States, as States, have legitimate interests which the National Government is bound to respect even though its laws are supreme." Garcia, supra, at 581 (O'Connor, J., dissenting). On the other hand, "[t]here are situations in which the nature of the federal interest advanced may be such that it justifies state submission." Hodel v. Va. Surface Mining & Recl. Assn., 452 U.S. 264, 288 n.29 (1981). As a matter of normative federalism, a strong, practical, precisely-defined concern about the integrity of the election process might outweigh the traditional prerogatives of the states to independently organize elections, at least when it can fairly be said that the problem can only be efficaciously resolved by uniform national standards. Although I would maintain that "the federal government should use as light a touch as possible" to attain its goals, imposing nationalized process standards on the states could, in abstracto, be done consistently with that standard. It's also quite different to, and does not implicate the same federalism concerns as, proposals to functionally nationalize the Presidential election, for example.3

Obviously this would not by itself apply to state elections, including elections for Presidential electors should a state legislature in its grace decide to hold them.4 If it was thought necessary or desirable to federalize these, the necessary and proper clause might allow Congress to require compliance; at any rate, practical considerations would strongly encourage voluntary compliance by the states, and if all else failed, Congress could simply resort to outright bribery (i.e. compliance in exchange for federal funding).

In sum, neither federalism nor subsidiarity are outright bars to Blake's proposal. Both are implicated, however, which suggests treading carefully, and I by no means endorse the proposal. To the extent that federalism concerns are a problem, they are normative federalism problems rather than structural limits - Congress almost certainly has the power to do it, but may or may not have the right. I mean only to say, for today, that federalism concerns should not forestall developing specific analyses and proposals that can be examined in more detail.

Post facto:
Regulation (4/6/2009)

1. 1. See SF: Sub nomine curiae (8/23/07).
2. 2. See Younger v. Harris, 401 U.S. 37, 44 (1971); Ann Althouse, Why Talking About "States' Rights" Cannot Avoid the Need for Normative Federalism Analysis, 51 Duke L. J. 363 (2001).
3. 3. Cf. SF: Say goodbye to the Electoral College (6/15/08); SF: A less perfect Constitution, 2 (10/18/08). Subsidiarity poses no obstacle, either. It counsels that we "allocate policy responsibilities to the lowest level of government at which the objectives of that policy can best be achieved," The Encyclopædia of Public Choice 110 (Charles Rowley & Friedrich Schneider, eds. 2004) (see also Wallace Oates, An Essay on Fiscal Federalism 37 Am. J. of Ec. Lit. 1120, 1122 (1999)); that is sometimes a useful guide, but becomes virtually tautologous in this context. Yes, "[p]olicies should be delegated to the lowest [practical] level of government, unless it is proven that the latter cannot fulfill the tasks connected with it satisfactorily," Jürgen von Hagen, Fiscal Federalism and Political Decision Structures in Federalism in a Changing World 379 (Raoul Blindenbacher & Arnold Koller, eds. 2003), but Blake's point is precisely that state governments are not satisfactorily executing their role.
4. 4. As the court explained more than a century ago, the appointment of Presidential electors is "placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of congress.... This power ... cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated." McPherson v. Blacker, 146 U.S. 1, 34-5 (1892).