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How vote-counting became a job for the states

The current confusion and anxiety surrounding presidential vote-counting, with different states using different rules and procedures, make it natural to wonder: Wouldn’t it have been better to let the federal government do it?

The framers of the U.S. Constitution didn’t think so, for reasons of principle. Some of the foundations of their thinking can be found in the Federalist Papers, written mostly by Alexander Hamilton and James Madison (with a few by John Jay), among the greatest works in all of political science and the most important explanation of the framers’ thinking.

Federalist No. 51, written by Madison, may be the best of the 86 essays, and it speaks, with great specificity, to the situation following this week’s national election. It talks about how to think about vote-counting, and about the role of the president and Congress.

The essay is mostly a celebration of the system of checks and balances. The system of separated powers — Congress, the president, the judiciary — provides some of those precautions.

Madison drew attention to “considerations particularly applicable to the federal system of America.”

Ours is a “compound republic,” he wrote, in the sense that “the power surrendered by the people is first divided between two distinct governments.” There is the national government, and then there are the states, and this division creates essential security for “the rights of the people.” In important cases, “the different governments will control each other.”

Under Article II, the states are plainly in charge. A central goal was to ensure the integrity of the election process, which would be endangered if a sitting president, or his allies in Congress, could engage in self-dealing. The 12th Amendment, ratified in 1804, says more about the process, but similarly ensures that the fundamental questions will be settled by state officials and state law.

Madison had this to say in The Federalist No. 10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Under the Constitution, the president has no power at all over the electoral process. The role of Congress is narrow.

It is true that the Constitution leaves many open questions. To answer them, much of the governing law is now provided by the Electoral Count Act of 1887, which maintains continuity with the idea of a “compound republic,” and whose principal goal was again to reduce the role of national authorities.

As one member of Congress said during the legislative debates, “The political conscience is a flexible and elastic rule of action that readily yields to the slightest pressure of party exigencies.” He added that when “the great office of President is at stake ... it would be expecting too much of human nature, under the tyranny of party, to omit any opportunity to accomplish its ends, more especially under that loose code of morals which teaches that all is fair in politics, as in war or in love.”

Under the act, state law is what governs, whether it is Nevada’s, Arizona’s, Pennsylvania’s or Georgia’s. Congress has the authority to intervene only under narrowly defined circumstances (as, for example, when a state’s electors vote for someone who is too young to be eligible for the presidency).

The president’s own power is weaker still. He has none at all.

People don’t march under banners these days that cry out, “Compound republic!” But for national elections, the allocation of authority to state officials is a crucial safeguard.

Cass R. Sunstein is a Bloomberg Opinion columnist.

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