The confusion and anxiety surrounding counting the votes cast in last week’s US presidential election, with different US states using different rules and procedures, make it natural to wonder: Would it not have been better to let Washington oversee the process?
The framers of the US Constitution did not 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, might be the best of the 86 essays, and it speaks, with great specificity, to the situation following the 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 the role of the US president and Congress in that process.
The essay is mostly a celebration of the system of checks and balances.
“Dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions,” Madison wrote.
The system of separated powers — Congress, the president, the judiciary — provides some of those precautions. However, that was not nearly enough. Madison drew attention to “considerations particularly applicable to the federal system of America.”
Ours is a “compound republic,” in the sense that “the power surrendered by the people is first divided between two distinct governments,” he wrote.
There is the national government and then there are the states, and this division creates essential security for “the rights of the people,” Madison wrote.
In important cases, “the different governments will control each other,” he wrote.
These are abstract ideas, but they bear directly on presidential elections and help explain the constitutional provisions that govern them.
Under Article 2 of the constitution, the states are plainly in charge. A central goal was to ensure the integrity of the electoral process, which would be badly endangered if a sitting president, or his congressional allies, could engage in self-dealing.
The 12th Amendment to the constitution, ratified in 1804, says more about the process, but similarly ensures that the fundamental questions would be settled by state officials and state law.
Madison had this to say in 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 US 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 might or might not prove to be relevant to this year’s 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).
However, the president’s own power is weaker. 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 do not march under banners these days that cry out: “Compound republic!”
However, for national elections, the allocation of authority to state officials is a crucial safeguard against bias, self-dealing and corruption.
We are seeing that now. It is hardly perfect, but it is creating, in real time, some security for “the rights of the people.”
Cass Sunstein is a Bloomberg Opinion columnist and author. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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