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Defending the Electoral College and the Constitution since 2009

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Some election reforms would make disasters worse
Trent England • Apr 27, 2021

Democrats in Congress want to give themselves more control over elections, taking power away from the states. Surprisingly, some states have joined the National Popular Vote interstate compact, which would reduce state influence in presidential elections. An unintended consequence of these attempts to centralize power would be a less resilient democracy.

Last year, at least 21 states changed election timelines due to the pandemic. In 2012, Hurricane Sandy interfered with elections from North Carolina to New York. Human error in Florida counties in 2000 stirred up doubts and litigation. The National Conference of State Legislatures has created data visualizations showing that every state is vulnerable to natural disasters and how such unexpected events, political motives, and election laws interact.

Disasters and mistakes happen and can have profound effects on elections. Questions for policymakers—and voters—include whether disasters can be contained, whether officials have adequate flexibility (coupled with accountability), and whether we can learn and improve policy based on experience.

Consider that if the human body was made of just one cell, an infection would have just one outcome: death. Instead, the human body has trillions of cells, providing redundancy. And cells can learn, developing immunity that improves resiliency. In a system like this, stress can produce strength—what scholar and author Nassim Taleb calls “antifragility.”

The Constitution creates this kind of system. It establishes a framework but leaves states free to work out the details. State and local officials can represent the diversity and desires of their own communities. Smaller units of government are more agile and adaptable as conditions change. And each unit becomes an experiment from which everyone can learn.

This is particularly true in elections. The Constitution leaves election policy and administration to the states. As long as states abide by basic civil rights rules—freedom of speech and equal treatment, for example—they can run their elections as they see fit. Congress only has the power to regulate the “Time, Places and Manner of holding Elections” for members of Congress.

Because each state holds its own elections, a disaster or mistake in one state is contained there. And a state subject to hurricanes can have different election laws than a state more subject to wildfires or earthquakes. This kind of diversity in public policy is a strength, not a weakness.

Unfortunately, the current push in Congress for House Resolution 1 and Senate Resolution 1 seeks to centralize power in Washington, DC. If passed, this massive package of election law changes would give Congress and federal agencies more power at the expense of state and local authorities—people who are closer to voters, have more local knowledge, and are best suited to deal with local emergencies.

The Electoral College is another constitutional provision that keeps elections within the states. Even when choosing the president, voters act within each state in a two-step democratic process. States remain in charge and issues are contained within individual states. Unfortunately, the National Popular Vote interstate compact tries to change all this with state laws that give away a state’s electoral votes based the national popular vote result.

While it sounds simple, this backdoor attempt to hamstring the Electoral College is especially dangerous. It relies on everything, in every state, going smoothly in every election. Each compact state would collect vote totals from every other state, certify which candidate received the most votes, and then appoint presidential electors. What if there was an election delay somewhere? Or the need for a recount? Or partisan distrust between state officials? The compact says nothing about any of these scenarios.

The Constitution creates a balance between federal and state power. Keeping states in charge of elections is an important part of that balance and helps protect elections from natural and man-made disasters. Efforts to centralize control in Washington and minimize the role of states—whether HR1/SR1 or National Popular Vote, would upset this balance in ways that would be disastrous.