Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections
Michael T. Morley, Barry University School of Law, March 5, 2016, 110 Northwestern University Law Review Online ___ (2016 Forthcoming)
Abstract: Most Americans assume that we have a “unitary” system of elections, particularly for general elections. Although many federal laws govern only federal elections, states have generally chosen to apply them to state and local elections, as well. As a result, a person typically is either a “voter” eligible to vote in general elections for offices at all levels of government, or a “non-voter” who is ineligible to participate at all. The unitary status of American elections has likely evolved into a convention: a principle that lacks the force of formal law that people nevertheless expect to limit government officials’ discretion.
A few states have begun to challenge the convention of unitary elections. These states, such as Arizona and Kansas, have engaged in uncooperative federalism by exercising their power to implement different rules for state and local elections than federal law imposes on federal races. While their actions represent a sharp break from states’ consistent practice over the past decades, it is a valid exercise of those states’ constitutional prerogatives. Moreover, the federal government must share at least some of the blame for undermining the norm against unitary elections. The U.S. Election Assistance Commission has refused exercised its discretion to modify the federal voter registration form to allow states to request documentation confirming that people registering to vote are, in fact, U.S. citizens, as state law requires.
The federal government has adopted a policy heavily favoring the “affirmative” right to vote, by making it easy for people to register to vote and hard for states to remove people from the voter registration rolls. This policy makes it more likely that states will engage in uncooperative federalism and seek to dismantle their unitary election systems by adopting more balanced policies that place equal emphasis on the “defensive” right to vote, protecting the value of eligible voters’ ballots by ensuring they are not diluted or effectively nullified by non-citizens’ votes.
Number of Pages in PDF File: 17 Available at SSRN
[CI] As Morley points out this is an entirely valid application of state Constitutional prerogative – if only states would exercise their prerogatives more extensively. It is arguable that one should “defend” their “right” to vote by taking positive actions, as opposed to automatic registration as is practiced in at least two states.