Originally published in Utah News Dispatch.
America’s highly polarized politics can pressure public officials to pursue partisan interests at the expense of constitutional principles. This mutation of principle is playing out now in the brewing legal fight between the U.S. Department of Justice and dozens of states across the country. The Justice Department lawsuits undermine both the constitutional principle of federalism and the election integrity the agency says it is protecting. States and the courts should push back.
The Justice Department initially tried, unsuccessfully, to persuade almost 30 states to divulge private identifying information on every voter for a centralized federal voter database. States have rightfully pushed back, citing state laws that such divulgement would violate. Now, the Justice Department is taking these states to court. The agency argues that the Civil Rights Act of 1960 requires states to submit to these requests, arguing that they are charged with ensuring that federal elections are transparent and secure. Three federal judges in the West and Midwest so far have said that the Justice Department is wrong.
The U.S. Constitution agrees with the judges. Article 1, Section 4 of the Constitution says that the “times, places, and manner of holding elections … shall be prescribed in each state by the legislature thereof.” It also says that Congress can alter state election laws, with some exceptions.
Clearly, our Constitution envisions federalism in elections: States are in charge, except where the federal government is given specific, enumerated powers. The purposes for which the Justice Department is collecting private voter data have not been enumerated as legitimate in federal law.
For example, in some states that are turning over private voter data, the states are signing agreements with the Justice Department that empower it to single out individual voters for removal from the voter rolls. The Justice Department has also publicly stated that it will use the centralized voter database to assist immigration enforcement efforts. Regardless of the policy considerations of these actions, neither of these powers exists in federal law. Bullying states with threats and lawsuits into breaking state laws in order to take unconstitutional actions undermines the Constitution’s vision of federalism in elections.
The Justice Department’s actions also weaken election integrity. Federalism in elections actually protects election integrity by making widespread voter fraud impossible in practice.
In our existing system, local governments administer elections, state governments oversee compliance with state election laws, and the federal government sets basic standards to help states keep elections secure. This distribution of duties is actually one of the greatest protections against widespread election fraud. Because election policies and administration are not centralized, would-be fraudsters would have to get thousands of officials at the local, state, and federal levels on board with their schemes to perpetrate the widespread fraud needed to sway election outcomes. The dual motivations of civic duty and the desire to secure the well-being of our republic that drive most election officials make such complicity with election fraud impossible.
But doing an end-run around the security of federalism in elections, if information and election administration authority gets centralized in a single federal agency, would become much more feasible than it is now. This less secure centralization is exactly what the current Justice Department lawsuits would lead to with private voter data, and start to do with voter roll maintenance.
A centralized federal voter database is a dream come true for those across the world who want to see the integrity of American elections undermined. Rather than being forced to hack 50 voter databases across the states to get voter data, they can get it all in one convenient location. The Justice Department lawsuits, if successful, will simplify election fraud in ways that fraudsters could never accomplish on their own.
Rather than unwittingly undermining election integrity by weakening federalism in elections, the Justice Department (and the states cooperating with it) should recognize and embrace how election integrity is secured by federalism. Then we can use that shared principle to rise above the partisan polarization of election integrity and focus instead on the ways to make American elections even more secure than they already are.
