‘We Would Be So Cooked.’ Federalism Prevented Trump’s Election Takeover

Under the US Constitution, elections are run by states and localities, and that decentralized way of doing things has come in for a fair bit of criticism over the years. State election law, we heard, well into the 2020s, is an inefficient patchwork. States are parochial, insider-ish, and slow to adopt new ways of doing things. A nationalized system, closer to the ones European democracies use, would bring fairness everywhere and ensure each blue and red state played by the same rules. You know the drill.

But here’s something to think about. Imagine if, as some reformers have long urged, we had set up a federal agency to run elections nationwide.

That agency would have fallen under the thumb of Donald Trump. We would be so cooked.

It’s true that you can like our decentralized election system for other reasons. There’s no way the whole thing can fail at once, so it’s more resilient against hacking or natural disaster. It’s locally accountable. It brings together platoons of neighborhood volunteers for biennial cooperation.

Local officials know their own communities better than Washington does, as we saw this summer when Congress considered requiring everyone to bring their citizenship documents to an election office and officials in the West pointed out that to do that, some of their constituents would have to drive several hours each way or even, in Alaska and Hawaii, get on an airplane.

But let’s face it, the biggest reason of all to be glad we have decentralized elections is one that would have been perfectly familiar to readers of the Federalist Papers: It cuts down on the risk that centralized control of how votes are cast or counted nationwide could fall into the hands of a figure like Donald Trump.

It’s true that Article I, Section 4, of the Constitution gives Congress real power to override state authority. Thus far, however, Congress has been hands-off about using this power (maybe even a bit too hands-off in the case of gerrymandering). Details aside, the outcome has been a genuine if incomplete respect for the decentralized model.

Donald Trump thought he could change that by decree, asserting sweeping power over election administration in a series of blustering executive orders. Sometimes he threatens to jail state and local administrators who ignore his wishes.

After some period of tension and chaos, he almost always loses in court and it once again becomes clear that the genuine power levers at a president’s disposal are few and weak. This is a very good thing.

Here’s a reminder of the dangerous areas where Trump wanted to meddle that federalism prevented:

Demands for voter rolls. Trump appointees have demanded that every state turn over its voter rolls to Washington, along with sensitive information about voters. But the law sees it differently. Twenty-six times in a row federal judges, about half of them appointed by Republicans, have rejected the resulting lawsuits and said that states may or must keep voter information private. (Four cases are still pending.)

It was widely expected that once MAGA officials assembled one big national voter file, they’d start demanding that states set aside the votes of persons the feds considered suspect.

The Trump administration has made a few trial runs at this approach. But its lists of suspected unlawful voters, noncitizen or otherwise, have time and again melted away on closer investigation. The Department of Homeland Security announced that it had found 16,000 potentially ineligible Nevada voters but later narrowed the list by around 99 percent to 185 persons.

Mail ballots. Another Trump scheme, interlocking with the first, would have thrown the midterms into chaos by making the US Postal Service, whose board of governors is appointed by the president, the overseer of voting by mail and directing it to refuse to carry ballots that fully complied with the law of the relevant state but ran afoul of new Trump rules. But the Supreme Court struck down the scheme last month, noting that Congress never authorized the USPS to regulate how states conduct voting by mail.

Voting equipment. Many Trump appointees harbor paranoid fantasies about the supposed role of voting equipment in stealing past elections and have been itching to order states to stop using Dominion, SmartMatic, or whatever other kind they’re fixated on. Surprise! They lack any such power. Some years back Congress did give the feds a modest role in certifying that voting equipment meets certain standards, but it did not require states to use or not use any particular equipment, and it conspicuously refused to give Washington any way to declare any piece of equipment insecure and ban or freeze its use. Had it acted differently, we would almost certainly have witnessed by now a whole line of abuses of power from the Trump administration that would have given it leverage over local governments and stoked its steal narrative.

Monitors at polling places. Laws from the civil rights era empower the US Department of Justice to send monitors to local polling places, and Trump’s DOJ has announced plans to send more than 1,000 this time, hundreds more than the department sent during the last election, when Joe Biden was president. Their impartiality remains to be seen: CNN found that “several DOJ monitors deployed during this year’s primaries helped challenge Trump’s 2020 election loss.” Indeed, during those primaries Wyoming officials complained loudly that the DOJ monitors were pushy and demanding about issues having zero to do with civil rights laws. A Republican county clerk told NBC that the monitors “requested training guides, asked how our new election equipment was acquired, [wanted] to examine our tabulators,” and in general “showed complete disregard for our state laws and administration of our elections.”

Once again the checks of a federalist political culture have kept things from being much worse. Under current law, those federal monitors have no power to enter a polling place without consent from the administrators, much less can they start giving orders. (There used to be a broader geographically defined class of federal inspectors who could enter whether welcome or not, but their power was stripped from them a while back, perhaps ironically at conservatives’ behest as part of the 2013 Supreme Court ruling in Shelby County v. Holder.)

We could march on through other examples, such as voter roll maintenance, in which to the extent there is federal involvement at all, Congress has used a light touch so as to minimize possible hassle for local election administrators.

Trump isn’t about minimizing hassle. His aim is to control. He is drawn to systems of regulation in which the penalties for noncompliance are high yet never really certain, while chaos, ambiguity, or unreasonable deadlines make it hard to be sure you’re complying with all the rules. In systems like this, the regulated parties have more incentive to bow and wheedle and offer unrelated favors to avoid incurring the wrath of the boss man.

Take broadcast regulation by the Federal Communications Commission, for example, where Trump is in his element. FCC rules menace broadcasters with the potential loss of station licenses, which would result in staggering financial losses, if they guess wrong about meeting a vaguely defined public interest obligation. The Trump way is to start an investigation and hold it over broadcasters’ heads for months or years, thus reaping a magical harvest of concessions ranging from pressure on late-night comedians to subtle softening of news coverage.

Trump would love to be able to do the same thing to your state or county elections administrator. Thus a pattern in his schemes to assert control of elections:

Consider his failed push for the so-called Save America Act. Most critical coverage of this elections bill emphasized the way it could pile hassles on people who are in fact citizens but don’t have the right paperwork ready at hand. Less often would it be mentioned that the prescribed timelines for local election managers to comply were wildly unrealistic and that penalties for violating various provisions were hair-raisingly severe.

And hardly ever was it discussed how much discretion Trump appointees would have to set enforcement priorities and interpret the law after it was passed. Would they make an example of administrators in a politically hostile locality who’d tripped over the impossible deadlines? Would they raise or lower the hassle level on particular groups of voters or states based on the president’s political needs of the moment?

Or consider the Postal Service’s mail voting rule. At a point when its legality was still up in the air, Florida was among the states that sought to pre-comply by submitting their ballot mailing materials for USPS review. That was when Leon County, which includes Tallahassee, learned that the service had rejected its outgoing mail ballot envelope — and intended to refuse to carry it in the mail — on the grounds that two fields (placeholders for variable data or prescribed blank space) were 0.014 of an inch too close together. (The county had used the envelopes uneventfully since 2024.) USPS backed down — a good thing since the county said it was too late to print new envelopes and still get the ballots out. “The chaos factor is the real problem,” county election supervisor Mark Earley told the Tallahassee Democrat.

In many cases like these, courts would find it hard to identify selective enforcement and might not intervene in time for it to matter anyway.

This might make a good moment to mention that compliance train wrecks aren’t always engineered by the likes of Trump. Slapdash progressive lawmaking leads to the same place. During the Biden administration, Congress nearly passed a gigantic omnibus election-reform bill called the For the People Act that would have thrust federal power into elections on an unprecedented scale and left enforcement to a Federal Election Commission revamped to be far more responsive to presidential influence.

Writing in The Daily Beast at the time, Jessica Huseman found the bill’s principles “commendable” but said it tried to force states “to rush gargantuan changes on deeply unrealistic time frames” that “administrators cannot possibly meet without throwing their systems into chaos.” Its “alarmingly prescriptive” provisions on voting systems would have been “literally impossible to implement” and also would have prescribed equipment that hadn’t been invented yet, while inviting Washington to harass states that still used the old kind.

Imagine how Trump would have used that power! This skeptical media coverage emerged, by the way, after the House had already passed the legislation on a close party-line vote. (It narrowly died in the Senate.)

Rick Hasen, a well-known election law expert at UCLA, deserves credit for writing an article titled “I Wrote a Book in Support of Nationalizing Elections. Trump Changed My Mind.”

“Our federalist system of administering elections — giving primary responsibility to states, subject to congressional override in congressional elections — turns out to be a strength against would-be authoritarians,” he wrote.

In fact, what Hasen calls the “further diffusion of power by states to the county or sub-county level” complicates the task of a would-be strongman even further. When you think of separation of powers, take a moment to consider the separation we have vertically — between the city, county, state, and national levels — as well as horizontally, between different branches.

This is all worth remembering if progressives gain a 2029 trifecta and begin mobilizing for electoral reform. One important characteristic of such reform is that it does not create new weapons for the next Trump to use.