03 Nov States of Anxiety: Will Federalism Save Democracy in Americ…
On the night of July 6, 1988, Mexico was on the verge of the unthinkable. After six decades in power, the ruling Institutional Revolutionary Party (PRI) appeared to be going down to a crushing electoral defeat. Cuauhtémoc Cárdenas, leader of the left-wing opposition, had taken a strong lead in early returns over PRI’s candidate, the colorless technocrat Carlos Salinas de Gortari.
As vote totals flowed in from around the country to the Ministry of the Interior in Mexico City, the leaders of the PRI began to panic. “The electoral upset was a political earthquake for us,” PRI’s incumbent President, Miguel de la Madrid, later recalled. “As in any emergency, we had to act because the problems were rising fast.”
The screens at the Ministry of Interior suddenly went blank. The electoral authorities would variously blame a crash of the computer system tabulating the ballots and an “overload” of the telephone lines. In any event, they said, it was “a total breakdown of the system.” For hours, no further results were reported across the country.
As midnight approached, with no satisfactory numbers yet concocted, the ruling authorities simply cut to the chase: they declared Salinas the winner. “You have to proclaim the triumph of the PRI,” President de la Madrid later recalled being told by his party’s leader. “It is a tradition that we cannot break without causing great alarm among the citizens.” Several days later, the compliant vote totals were finally announced: Salinas had won 50.3% of the vote, the lowest percentage ever achieved by a PRI candidate, but still 3.6 million votes ahead of Cárdenas, his nearest challenger.
The PRI’s fraud was transparent at the time, and would be frankly acknowledged by the perpetrators in the years to come. Cárdenas and his supporters held months of public protests, but beyond that there was little could do to challenge the official results. The PRI controlled every significant lever of power in the country. To cover their tracks, Salinas and PRI would later order the burning of the ballots from the 1988 election. The glimmer of hope for multiparty democracy in Mexico seemed to have been snuffed out with them.
Coming to a Democracy Near You?
As Election Day turns into Election Night, do you worry about a similar scenario playing out in the United States?
If so, I have good news. You can scratch this particular horror from your inventory of nightmares. While there is no shortage of things that can go wrong with America’s complex electoral system, this isn’t one of them.
It’s not because the Republican Party is less addicted to power than the PRI. And it’s certainly not because Donald Trump is any more reluctant to defraud the public than his Mexican counterparts were, or that he lacks compliant minions to help him do it.
It’s simply because Donald Trump doesn’t get to count the votes. And neither does any part of the federal government that answers to him. For better and for worse, the U.S. Constitution has always entrusted the administration of our elections—even for federal offices—to the states. As a result, there is no central computer system to crash, no national vote tally to manipulate. Instead, we have 51 distinct elections, in each of the 50 states and the District of Columbia, each of which counts and reports its own votes. So Donald Trump could yank the power cord on every computer and disconnect every telephone owned by the federal government on Election Night and it wouldn’t slow the count by even a minute. The results of the election are simply out of his hands.
A Bug or a Feature?
Let’s not kid ourselves, though. A decentralized election system like ours has massive costs. The various state election laws are confusing, inconsistent and constantly changing. This year has already seen over 300 election-related lawsuits in 44 states, a number than can be expected to substantially increase before the results are final.
Throughout our history, the states have not exactly covered themselves in glory when it comes to voting rights. If they had, it would not have been necessary to amend the U.S. Constitution so many times to prevent states from denying the right to vote—whether on the basis of race (the Fifteenth Amendment), sex (the Nineteenth Amendment), ability to pay a poll tax (the Twenty-Fourth Amendment), or age (for those over 18, the Twenty-Sixth Amendment). It took almost a hundred years, and the 1965 Voting Rights Act, before the federal government finally began pushing states to live up to the Fifteenth Amendment. Many states still engage in shameful voter suppression tactics, a trend encouraged by the U.S. Supreme Court’s lamentable decision in Shelby County v. Holder (2013).
Even when states manage their elections properly, they feed their results into an Electoral College system that is arbitrary and convoluted at best—and an anti-democratic monstrosity at worst.
All these flaws were evident in the epic election meltdown of 2000, which came down to a disputed margin of 537 votes separating Republican George W. Bush and Democrat Al Gore in Florida. The recount struggle revealed long-standing problems in state election administration that most Americans had previously taken little note of: partisan election officials, arbitrary purges of voter rolls, inequitable lines at polling places, poor ballot designs, a mishmash of often unreliable technologies for voting and tabulating results, and a lack of clear standards for determining voter intent on disputed ballots, to name but a few. A majority of the U.S. Supreme Court seized upon the last of these problems as an excuse to halt the recount in Florida while Bush was ahead, on the grounds of the Equal Protection Clause of the Fourteenth Amendment, in effect handing him the presidency. (The majority preemptively disavowed any interest in the equal protection of voting rights in any other context.)
The U.S. electoral system, as revealed by the 2000 election, was hardly exemplary. How could it be explained to a visitor from Mars, or even France? Why, when Gore had won a clear plurality of a half-million votes nationwide, did the outcome depend on a few hundred disputed ballots in Florida? How did that single state’s three-ring political circus manage to hold the fate of the entire nation in suspense for over a month? The U.S. Supreme…