State legislatures have the power to fix election processes

OPINION:

 

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.

 

State sovereignty is at the heart of the election system. The Constitution places responsibility for success squarely on the shoulders of state legislators. The Founders’ decision to place elections in the hands of states followed months of debate about the proper balance of power between the states and the national government.

The delegates to the Constitutional Convention knew that neither state nor federal officials, acting on their own, would be reliable guardians of liberty. After all, humans are flawed, and power corrupts. The Founders could see that it would be self-defeating to expect perfection where none exists. Instead, they structured their government to make the imperfections of human nature work in their favor.

The Father of the Constitution, James Madison, described this dynamic, noting that “ambition must be made to counteract ambition.” In other words, the potentially harmful self-interest of one set of officials should be set against the self-interest of other officials. If properly counterbalanced, “opposite and rival interests” can make up for selfish motives. Every man’s “private interest” can be a “sentinel over the public rights.” 

The Constitution fractures power, separating it among many branches of government. The executive, legislative and judicial branches are each given some authority, but then power is divided again. National and state governments each have areas of responsibility, enabling them to act as a check on each other. States can even act as checks on other states.

The Electoral College is part and parcel of this system of checks and balances and separation of powers. Its decentralized nature protects against incumbents in Washington who could otherwise control their own reelections, and it enables states to reflect the priorities of their own citizens. States can handle fraud within their own borders, and they can take any other action necessary to reflect their citizens’ priorities.

Historically speaking, states have used this power liberally. They have rejected national party nominees, putting the names of other candidates on their ballots. They have experimented with different methods of awarding electors. Wyoming allowed women to vote decades before the 19th Amendment was ratified. State legislators have directly appointed electors, on occasion, to ensure their states’ voices weren’t lost.

Unfortunately, we’ve drifted from this understanding. Today, states walk tamely in lockstep with expectations set by national forces. Whether it’s the party’s nomination processes, polling, presidential debates or media headlines, decision-making has become more and more centralized.

Simultaneously, the nation is increasingly divided and angry. Coincidence? The Founders wouldn’t think so.

It’s time for state legislatures to remember their role and to use their power again. They must prevent — or at least mitigate the severity of — future election controversies. The buck stops at state capitols all across this country. Any other solution would upset the delicate balance in our Constitution.
 
Legislatures can amend the manner in which emergency powers are delegated, ensuring that no governor can unilaterally change election law at the last minute. Or perhaps legislatures should enact provisions guaranteeing that they will be called into special session during certain kinds of presidential election disputes. The Constitution specifically grants state legislatures authority over the allocation of electors. If there is a challenge, shouldn’t the legislature be available to calm the storm?

State legislators likely will come up with many other ways of addressing election integrity, such as investigating election software or changing mail-in ballot procedures. They don’t have to accept every decision that the national political parties hand down. The most important point is that each state legislature can and should reach its own conclusions, in accordance with the priorities of its voters.

Was this election year too contentious? Yes, obviously. It may be the only thing that pro-Trump and anti-Trump voters agree on, yet there is more common ground to be found in how we resolve the problem. Let’s look to our shared heritage and learn from our founding principles. In times of turmoil, we need the checks and balances in our Constitution the most. 

Each state legislature has the tools it needs to recover control of presidential elections. The Founders would have expected nothing less.

• Tara Ross is the author of several books about the Electoral College, including Why We Need the Electoral College.