Walter Olson
In a Monday interview with former FBI Deputy Director Dan Bongino, President Donald Trump said, “The Republicans should say, ‘We want to take over.’ We should take over the voting, the voting in at least many—15 places. The Republicans ought to nationalize the voting.”
Cato asked me to write a press statement responding to this, and I wrote the following:
Even coming from an ordinary politician, this federal takeover would be a terrible idea. The Constitution entrusts the administration of federal elections to the states and localities, subject to Congress’s passage of laws regulating the manner of election. Congress has rightly respected the states’ and localities’ lead role, and it should go on doing so.
We also start with a big red flag if such laws do not apply consistently across states but single out some states for an overlay of federal control. The US Supreme Court in the 2013 Shelby County v. Holder decision said that such two-tier schemes breach a “fundamental principle of equal sovereignty” among the states and can be justified, if at all, only by rigorously documented current (not just historical) evidence of serious voting denial by the states or localities in question. Here, such evidence is grossly absent.
All of this would be bad enough even if floated by an ordinary lawmaker as a bill in Congress. But this trial balloon for a federal takeover is not coming from any ordinary official. It is coming from a man who already once tried to overturn a free and fair election because it went against him, employing a firehose of lies and meritless legal theories, and who repeatedly pressed his underlings, many of whom in those days were willing to say “no,” about schemes such as sending in federal troops to seize voting machines.
Any federal takeover bill is exceedingly unlikely to pass Congress this term. But as courts have now repeatedly found, Trump has been willing to use the purported power of executive orders to command election changes that Congress has never mandated and that the Constitution gives him no power to command. We should be properly vigilant against any repeated such attempt before, during, or after the approaching midterms.