Nancy Pelosi and her allies want to aid Vote-By-Mail efforts through funding provisions. But such a unitary approach could be self-defeating.
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If you’ve followed my Twitter feed in recent weeks, you’ll know I’ve been very critical of the President’s continuing blitz against Mail-in Ballots. The idea that Vote-By-Mail initiatives would lead to massive fraud, clueless participation by uninformed voters, and would boost Democratic turnout while suppressing the Republican vote is simply not reflected in any data anywhere. In fact, there are a number of red states, such as my home state of Utah, who have been successfully expanding Mail-in Ballots for over a decade.
So, some people who might not understand my entrenched support of federalism might be surprised to find that I’m equally unhappy with Nancy Pelosi’s attempts to push for federal provisions in support of Mail-in Ballots.
My problem with Pelosi’s efforts has nothing to do with whether or not I support Voting-By-Mail. It has to do with the all-too-important aspect of state sovereignty in our federalist system.
For the past hundred years, the line of separation between federal and state government has increasingly been washed away. This has been accomplished predominantly in two ways: the first by a generous reading of the commerce clause by Congress (enabled by egregious judicial deference) and the second through legislative provisions from Congress that fund state-level initiatives.
Funding provisions provide a sneaky way to overcome the federalist separation of power. By dangling a carrot in the face of state governments, the federal government can require compliance with requirements of the provision for payout.
Take education as an example. The Constitution places education in the purview of the states. So, how did things like Common Core and Michelle Obama’s Lunch Plan show up at your local high school without a state-level ballot initiative or the enactment of locally crafted state law? It happened because the federal government passed these provisions and made them a requirement for crucial Department of Education funds. (This scenario is even more compounded in western states where the federal government owns the majority of public lands, robbing their ability to support education through property and land taxes like eastern states can).
Supreme Court Justice Louis Brandeis once called states “laboratories of democracy.” This is a reference to the idea of localism. Localism purports that government decisions are best made as close as possible to the citizens who will be the most impacted. In a system of localism, success is more likely to be secured because appropriate and immediate perspective is available in the crafting of law. But, even more important, the consequences of poor decisions are much more limited in their impact and far easier to reverse.
I support Mail-in Ballots because I understand the very real possibility of a COVID-19 resurgence. Such a resurgence could thwart the legitimacy of our elections if large swathes of the electorate feel forced to choose between their health and participating in the process.
But every state has unique and singular circumstances they will have to overcome to allow their citizens the ability to vote-by-mail. These hurdles to voting-by-mail are best overcome by decisions at the local level. If the Federal government inserts itself into the Mail-in Ballot process through funding provisions, as they have done in countless other areas, it will thwart the innovative strengths of local flexibility.
If the Democrats fail to check their reflexive desire to direct the whole nation from on high, their efforts may very well end up being self-defeating. After all, voting-by-mail is something we want to get right. Do you want fifty states independently working on vote-by-mail solutions and learning from each other’s failures and successes, or a slow-moving, ponderous federal behemoth of bureaucracy that only gets one shot at this?
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