Ilya Somin: Growing Menace to Federalism and Separation of Powers

Note: this piece was originally published in Reason, and was written by Checks & Balances member Ilya Somin. 

Earlier today, President Trump threatened to withhold federal grants from the states of Michigan and Nevada if they proceed with plans to expand vote-by-mail options in order to make it safer to vote in the midst of the ongoing coronavirus pandemic. It isn’t clear what specific funds Trump has in mind, or even whether he has any meaningful plan to make good on the threat at all. Still, the danger that the White House can use the threat of withholding grants to bully the states should be taken seriously. If the president is able to impose his own new conditions on federal grants to states and localities, it would be a serious threat to both federalism and separation of powers. The vast expansion of federal spending and state dependence thereon during the coronavirus crisis has made this an even more serious danger than before.

To my knowledge, there are no federal grants to Michigan, Nevada, or other states that Congress has conditioned on forbidding or severely restricting voting by mail. The extent of mail voting is one of of many aspects of election administration that the Constitution largely leaves to state governments.

In my view, expanding vote by mail makes excellent sense at a time when in-person voting could risk spreading a deadly disease, particularly among elderly voters and poll workers, who are especially vulnerable to the coronavirus. Empirical evidence undercuts claims that postal voting is particularly prone to fraud, or that it necessarily advantages one party over the other. In this 2014 post, I criticized claims that allowing early voting by mail exacerbates the problem of political ignorance.

Continue reading at Reason.