Political news in the past few weeks has focused on a debate in Congress over whether to impose national rules on the administration of elections by the states. This proposal was ably discussed in a recent episode of Defending Ideas, which explains the implications of such an effort for our constitutional system of federalism.
A parallel effort by the U.S. Department of Justice “to compel states to surrender their complete, unredacted electronic voter registration databases . . . including full names, dates of birth, residential addresses, and partial Social Security numbers,” raises similar federalism concerns. Utah is one of the states that has been sued to compel disclosure.
Federalism is sometimes misunderstood because of the regrettable shorthand term “states’ rights” that is sometimes substituted for it.
Federalism, however, is not a competition between the state and national governments. It is an arrangement whereby the people of the United States delegate responsibilities in two directions in accordance with principles enumerated in the Constitution. So, for instance, the responsibilities of defending against foreign enemies or regulating commerce among the states are appropriately assigned to the national government, which is uniquely suited to take on these tasks. By contrast, rules of construction specified in the Bill of Rights reserve to the states or the people “powers not delegated” to the national government, and to the people rights not enumerated in the document.
The practice of splitting responsibilities between levels of government is evident in the constitutional provision regarding the election of members of Congress. The basic rule is that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Thus, state legislatures have the primary responsibility to regulate elections. The provision goes on, though, to say that “Congress may at any time by Law make or alter such Regulations.” So, the national legislature also has a role, which it has exercised to “protect the right to vote and the integrity of elections with new legislation.”
The DOJ’s attempt to obtain state voter registration information is hard to square with the constitutional arrangement. That arrangement gives Congress, not the executive, authority to modify state regulations.
The DOJ suggests its authority comes from a federal statute requiring election officials to retain election records for 22 months after elections for federal offices. That statute, though, cannot be reasonably stretched to override state laws regarding voter privacy.
Each presidential administration seems to believe there are good reasons to override state responsibilities for its own purposes. That impulse may be understandable, but it is also shortsighted.
The risk of disregarding federalist principles is the loss to the people of the benefits of the constitutional arrangement, such as responsive government tailored to local needs, “innovation and experimentation in government,” and state protection from federal overreach.
