The Election Law Connection and U.S. Federalism

50 Pages Posted: 17 Jul 2012 Last revised: 5 Aug 2013

See all articles by Kirsten Nussbaumer

Kirsten Nussbaumer

Rutgers University-Camden; Stanford University

Date Written: July 17, 2012

Abstract

Addressing the comparative-federalism literature, this article offers a sketch of how the unique character of U.S. election law may have shaped U.S. federalism as a whole -- hypothesizing that the extent to which each level of government has controlled the other's electoral arena may have partly determined each government's relative policy autonomy, and thereby impinged upon the direct constituency relationship between each level of government and its voters.

The article proposes that we view "the election-law connection" between state and federal officials as a central field where 'federalism happens' -- where the making and implementing of a shared election law has given rise to linked electoral incentives and intergovernmental networking, expressed most notably in strategic relationships that are keyed to state and local decision-making forums. Over time, the law of U.S. federal elections has exhibited complex patterns of mutual dependence between federal and state officials, but the dominant pattern has been a state-tilted story of subnational control over federal election law -- to the extent that it may be meaningful to conceptualize the election-law connection as a 'constituency relationship' that tends to work to the benefit of the state and local actors who exercise control over the federal electoral arena. This electoral dependency of federal officials may have created a tendency towards greater federal respect for the institutional prerogatives of state and local governments, though the relationship is dynamic and contingent, interacting with other interests and factors such as the prevalence of divided or unified party government at the national and state levels.

The argument -- while offered as an exercise in deductive theory-building more than empirical conclusion -- is illustrated with recent election-law examples, especially intergovernmental communications about congressional redistricting that exhibit patterns of federal-to-state lobbying (a decentralized or 'downward' pattern not previously considered in the scholarly literatures). The election-law connection is also explored through a reading of two canonical texts in the literature on "political safeguards of federalism", joining Herbert Wechsler's and Larry Kramer's insights about constitutional history and political parties with the election-law-focused account here (itself, a friendly amendment to that theory), while contending that the "political safeguards" explanation of U.S. history is more plausible when combined with a relational, strategic understanding of election-law incentives.

Finally, the constituency conception of the election-law connection gains added plausibility through a consideration of the large gap between, on the one hand, Congress's arguable preemption power over federal elections and, on the other hand, the historical patterns of relative congressional abstention in formal law-making, and the federal legislative tendency to de-centralize many partisan and factional conflicts about election law.

Keywords: federalism, election law, U.S. constitutional history, political parties, preemption, comparative law, Elections Clause history

Suggested Citation

Nussbaumer, Kirsten, The Election Law Connection and U.S. Federalism (July 17, 2012). Publius: The Journal of Federalism, Vol. 43, No. 3, June 2013; APSA 2012 Annual Meeting Paper; APSA 2013 Annual Meeting Paper. Available at SSRN: https://ssrn.com/abstract=2110776

Kirsten Nussbaumer (Contact Author)

Rutgers University-Camden

Camden, NJ 08102
United States

Stanford University ( email )

Dept. of Political Science and Law School
Stanford, CA 94305
United States

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