The Constitution designs American presidential elections as a series of state contests. It delegates the administration of those contests to state governments and then aggregates state winners in the Electoral College. Once states have reported their Electoral College slates to the federal government, however, the aggregation of Electoral College votes and the certification of a winner remains in the hands of Congress. By design and by historical evolution, this system excludes the president and federal executive departments. Setting aside the debate over the Electoral College, our hope as citizens is that the ultimate result reflects what James Madison called “the republican principle,” that is, state electoral majorities freely expressed, faithfully reported, and accurately counted.
This mixed system brings both blessings and curses to elections. State-run election administration opens the way for discrimination, as Black America experienced with Jim Crow laws — and continue to experience in various voter-suppression strategies — as well as the kind of administrative failure we saw with Wisconsin’s political primaries this past spring. Despite the best efforts of the Republican-controlled legislature and state supreme court to suppress the vote by refusing to reschedule the election during stay-at-home orders, a report by the Wisconsin Elections Commission found absentee voting was largely successful. Nonetheless, as a result of such tactics, many observers have called for a greater federal role in election administration, arguing that democracy requires uniform election machinery.
That’s debatable. An important strength of the current system is that an authoritarian president can’t use the levers directly under his control to shape election administration. If elections were run not by the secretaries of state and secretaries of elections (many of them elected separately from governors in their jurisdictions), then they would be run by some kind of federal Department of Elections, itself managed by a presidential appointee. If you don’t think this is a threat, consider the US Postal Service’s spike in mail delays under the mismanagement of Postmaster General Louis DeJoy.
This mixed system still leaves openings for nefarious activity. What might happen if Democratic presidential nominee Joe Biden wins enough majorities in the states to give him the Electoral College, but allies of Trump try to undo it? Some worry that state officials or state legislatures might try to claim Article II powers to report their own Electoral College slates and bypass their voters (South Carolina reported electors this way until 1868). If state legislatures try to do this, it is an unresolved question whether the governor has to be involved in this process.
If there is no clear Electoral College winner and the election is thrown to the House under the 12th Amendment, the vote will occur by a majority of state delegations, a majority currently held by Republicans even as Democrats have a majority of members. In that case, House Speaker Nancy Pelosi could use the powers of delegation seating and contested elections that are well recognized by long-serving members of Congress to reconstitute the delegations to deliver the presidency “back” to Biden. Beyond that, the nuclear game gets pretty dire. The Electoral College vote isn’t final. It has to be certified by Congress and, as president of the Senate, Pence could, in theory, manipulate that certification, while Pelosi could counter and call off the certification altogether. If that happened and the clock ran out on Jan. 21, 2021, Pelosi would become president.
Is all of this war-gaming just giving into hysteria? Shouldn’t the defenders of democracy focus on turnout and polling places and not worry about these institutional machinations? We don’t have that luxury. With the president having floated the idea of an election delay, with his attorney general making evidence-free claims to undermine confidence in mail ballots, and with his longtime Trump confidant and presidential pardon-recipient Roger Stone calling for seizure of ballots and mass arrests of political opponents, we cannot assume that some Trump allies will respect the republican principle in state elections. Nor can we assume, in the wake of Bush v. Gore, that federal courts will abstain from intervention.
What we need most, among politicians and the public, are two virtues that rest in tension but are in fact complementary. The first is respectful restraint, a humble deference to the people’s voice and the republican principle in the states. Under our Constitution, allowing the “people” in the states to freely express their will, and then faithfully reporting those expressions (votes), is absolutely necessary for our free system of government to survive.
The second virtue is vigilance. Those who game out and prepare for the worst outcomes — similar to the efforts of the bipartisan Transition Integrity Project — are in fact fulfilling their duties of citizenship by being on guard for our democratic republic. The ultimate goal is to avert violence and assure a smooth transition of powers, which is exactly why Americans should be prepared.
Let’s hope this kind of hardball doesn’t take place, then, and that the Electoral College is truthfully populated by electors reflecting the genuine state majorities as determined by fair electoral processes. But let’s also remember that the best insurance policy against hardball is to be prepared for it.
Daniel Carpenter is the Allie S. Freed Professor of Government at Harvard University.