A vote for federalism: Trump could not stop the counting

A vote for federalism: Trump could not stop the counting
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Now we know, Joe BidenJoe BidenBiden to meet House Dems before Europe trip: report 21 House Democrats call for removing IRS bank reporting proposal from spending bill Overnight Health Care — Presented by Altria — Vulnerable House Dems push drug pricing plan MORE is the winner of this election — but, surprisingly, so is federalism. President Donald TrumpDonald TrumpOvernight Defense & National Security — Presented by Boeing — Milley warns of 'Sputnik moment' for China WSJ publishes letter from Trump continuing to allege voter fraud in PA Oath Keeper who was at Capitol on Jan. 6 runs for New Jersey State Assembly MORE’s refusal to concede, along with his early morning declaration that “We want all voting to stop,” has forcefully demonstrated the value of our federal system of government.

In the United States, authority is allocated between states and the national government. In deciding which powers should be exercised by which level of government, analysts often weigh functional considerations. Is this an area, like land use or recreation, in which local variation is to be expected and welcomed? Or is this an area, like defense or international relations, in which the need for uniformity and expertise makes national control appropriate?

When it comes to elections, it may appear that these kinds of arguments do not match the governing reality in the United States. We have a state-based system for counting votes even in national elections, like those for president.


It would seem that in this area many arguments favor national supervision. Everyone shares the same goal: getting a secure and accurate count. State-level debacles relating to voting technology and procedures, most notably in Florida in 2000, have demonstrated how state lapses can cause national breakdowns.

Fears of foreign hacking have amplified concerns that states are not up to the task of providing election security. These problems might suggest that elections, at least elections for president, should be moved from state to national control.

Yet the most basic argument in favor of federalism focuses less on functional expertise and more on fear of centralized power. The framers of the United States Constitution believed that dividing power between states and the national government would limit the opportunity for tyranny at the national level, the kind of tyranny that the former colonists believed had been exercised by King George in London.

What would tyranny look like today?

Perhaps a president trying to shut down the tabulation of ballots before all votes are counted. If the election system functioned as a national bureaucracy, the president could exercise great control over the timing and process for counting votes. Under the current federalist arrangement, the president has no power over state election procedures. He can demand that vote counting be stopped or that results be undone, but he has no authority to order it.

The current electoral system in the United States is far from ideal. Greater national regulation over registration and voting practices to safeguard the right to vote would be sensible. States have a history of systematically denying access to the voting booth to certain groups, and national voting rights legislation has been and remains an important antidote.

However, when it comes to the basic issue of whether the national government should control all voting in the United States, the current election demonstrates the wisdom of federalism.

The independence of states provides a valuable check against a president who may wish to entrench himself in office.

Robert Schapiro is the Asa Griggs Candler Professor of Law at Emory University.