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OPINION

How vote-counting became the states’ job

By CASS R. SUNSTEIN | Bloomberg Opinion | Published: November 6, 2020

The current confusion and anxiety surrounding presidential vote-counting, with different states using different rules and procedures, make it natural to wonder: Wouldn’t it have been better to let the federal government oversee the process?

The framers of the U.S. Constitution didn’t think so, for reasons of principle. Some of the foundations of their thinking can be found in the Federalist Papers, written mostly by Alexander Hamilton and James Madison (with a few by John Jay), among the greatest works in all of political science and the most important contemporaneous explanation of the framers’ thinking.

Federalist No. 51, written by Madison, may be the best of the 86 essays, and it speaks, with great specificity, to the situation following this past week’s national election. The least famous passage in that essay, and the most relevant today, is about one thing: federalism. It tells us a lot about how to think about vote-counting — and about the role of the president and Congress in that process.

The essay is mostly a celebration of the system of checks and balances. As Madison put it, “Dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” The system of separated powers — Congress, the president, the judiciary — provides some of those precautions.

But that was not nearly enough. Madison drew attention to “considerations particularly applicable to the federal system of America.” Ours is a “compound republic,” he wrote, in the sense that “the power surrendered by the people is first divided between two distinct governments.” There is the national government, and then there are the states, and this division creates essential security for “the rights of the people.” In important cases, “the different governments will control each other.”

These are abstract ideas, but they bear directly on presidential elections, and they help explain the constitutional provisions that govern them.

Under Article II, the states are plainly in charge. A central goal was to ensure the integrity of the election process, which would be badly endangered if a sitting president, or his allies in Congress, could engage in self-dealing. The 12th Amendment, ratified in 1804, says more about the process, but similarly ensures that the fundamental questions will be settled by state officials and state law.

Madison had this to say in The Federalist No. 10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Under the Constitution, the president has no power at all over the electoral process. The role of Congress is narrowly circumscribed.

It is true that the Constitution leaves many open questions. To answer them, much of the governing law is now provided by the Electoral Count Act of 1887, which maintains continuity with the idea of a “compound republic,” and whose principal goal was again to reduce the role of national authorities.

As one member of Congress said during the legislative debates, “The political conscience is a flexible and elastic rule of action that readily yields to the slightest pressure of party exigencies.” He added that when “the great office of President is at stake ... it would be expecting too much of human nature, under the tyranny of party, to omit any opportunity to accomplish its ends, more especially under that loose code of morals which teaches that all is fair in politics, as in war or in love.”

This is not the place to describe the technicalities of that 19th-century election law, which may or may not prove to be relevant to the 2020 presidential contest. The larger point is that under the act, state law is what governs, whether it is Nevada’s, Arizona’s, Pennsylvania’s or Georgia’s. Congress has the authority to intervene only under narrowly defined circumstances (as, for example, when a state’s electors vote for someone who is too young to be eligible for the presidency).

The president’s own power is weaker still. He has none at all. (Pause over that, if you would.) The reason is again clear: He cannot be allowed to pick his successor — and if his own job is at stake, he cannot be trusted at all.

People don’t march under banners these days that cry out, “Compound republic!” But for national elections, the allocation of authority to state officials is a crucial safeguard against bias, self-dealing and corruption. We’re seeing that now. It’s hardly perfect, but it is creating, in real time, some security for “the rights of the people.”

Bloomberg Opinion columnist Cass R. Sunstein is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”