What does the U.S. government have to do with elections for federal office?
The answer might be surprising – not much, at least at the ground level. In our time-honored system, states and local governments administer elections. State and local officials are the main enforcers of election law.
The federal government plays second fiddle, for the most part. It’s not their job to police the polls or to keep public order around Election Day.
Not only is it not their job – they’re actually prohibited from interfering. They don’t have the responsibility or the power. That baseline rule, which is encoded in federal law and grows out of our constitutional system of dual sovereignty, has important implications for this year’s election season.
In the runup to the election, recent comments and actions by some federal officials have raised concerns of the possibility of unprecedented federal involvement – and potentially unlawful interference – with the conduct of elections and enforcement of election laws at the state and local level. We’ve seen the Department of Justice announce a new policy allowing criminal investigations that could interfere with elections. And, not so long ago, we saw federal agents and National Guard troops deployed in the streets of our cities, raising fears about the possible misuse of federal forces around Election Day.
In that context, it’s important to remember how our elections system is set up to work.
State governments are in charge of election administration – they run the polling places, count the votes, and ensure free, fair, and orderly elections. They’re also the front line of election law enforcement, protecting the right of every eligible voter to vote safely and securely, and making sure that every vote is counted.
The federal government, by contrast, has a limited role, traditionally confined to two areas: (1) Enforcing the protections of the Voting Rights Act to ensure that every eligible citizen has the right to vote, and (2) after an election is concluded, prosecuting federal election crimes.
That system is mandated and defined by our constitution; by federal statutes; and by longstanding norms embedded in formal and informal agency policies. And the system is validated by a long history of peaceful transitions and federal restraint.
That’s why the VPP is releasing a set of resources that we developed to help state attorneys general and their allies ensure that the federal and state governments stay in their lanes before, during, and after Election Day. The resources include:
- A memorandum analyzing the laws and constitutional rules that forbid the federal government from deploying troops or armed agents to the polls. The memorandum also explains why the government can’t invoke the Insurrection Act, under the guise of quelling civil unrest, in the election’s aftermath.
- A memorandum explaining the proper role of the National Guard in and around elections: The Guard can be deployed by states to assist with election logistics, but it can’t be used by the federal government to intrude on state control of everyday law enforcement functions.
- A bullet-pointed list of practical steps that state attorneys general can take to ensure that the federal Department of Justice hews to its traditional limited role of after-the-fact election law investigation and prosecution, if needed.
With these tools, state attorneys general and their allies will be better prepared to ensure that the 2020 election will be safe, fair, and secure against all interference. Every eligible voter must be able to vote, and every vote must be counted.