Presidential Control of Elections

81 Pages Posted: 24 Jun 2020 Last revised: 29 Jul 2021

See all articles by Lisa Marshall Manheim

Lisa Marshall Manheim

University of Washington - School of Law

Date Written: June 1, 2020

Abstract

In recent decades, Presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, Presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment, subordination of expertise, and disillusionment of the electorate. These harms, in turn, threaten to compromise election outcomes. By extension, they also threaten the electoral connection purportedly underlying the administrative state, and therefore the legitimacy of the work of the modern executive branch.

This Article identifies, defines, and examines this phenomenon — presidential control of elections — and explores its broader implications. It demonstrates that, across the executive branch, this phenomenon manifests differently, and sometimes counterintuitively, in ways that tend to track how Congress has structured the relevant grant of power. Three forms dominate, with Presidents influencing election administration primarily through priority setting (for grants of power running through executive agencies), promotion of gridlock (for grants of power running through independent agencies), and idiosyncratic control (for grants of power running directly to the President). This analysis reveals that congressional efforts at insulation at times can backfire, with Presidents able to exercise particularly problematic forms of control over agencies that Congress designed in blunt ways to resist presidential influence. To that end, this Article proposes that Congress and the courts avoid trying to eliminate or otherwise indiscriminately curb presidential control of elections — a quixotic endeavor that would give rise to its own constitutional hurdles and normative harms. Instead, the legislative and judicial branches should identify specific areas where the President’s control over election administration lacks an effective check, and seek to empower other political actors in those spaces.

Keywords: Congress, President, separation of powers, elections, administrative agencies, administrative law, voting

Suggested Citation

Manheim, Lisa Marshall, Presidential Control of Elections (June 1, 2020). Vanderbilt Law Review, Vol. 74, No. 2, Pp. 385-464 (March 2021), Available at SSRN: https://ssrn.com/abstract=3616390

Lisa Marshall Manheim (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=603

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