Presidential Control of Elections Lisa Marshall Manheim* 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 and subordination of expertise. 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 * Charles I. Stone Associate Professor of Law, University of Washington School of Law. For valuable feedback, I am indebted to Ryan Calo, Wilfred Codrington, Travis Crum, Melissa Durkee, Ned Foley, Steven Huefner, Sanne Knudsen, Kathryn Kovacs, Nina Mendelson, Shannon McCormack, Michael Morley, Jennifer Nou, Elizabeth Porter, Zahr Said, Joshua Sellers, Nick Stephanopoulos, Dan Tokaji, Christopher Walker, Kathryn Watts, and David Ziff. This Article benefited from presentations at the Ohio State University School of Law, the Gonzaga University School of Law, and the annual meeting of the Association of American Law Schools, and it also reflects excellent assistance provided by James Satterberg, Emily Williams, and Alison Johnson, as well as by Cynthia Fester and the outstanding research librarians at the University of Washington School of Law. Finally, I am very grateful to the editors at the Vanderbilt Law Review, who helped to usher this Article to print not only in the middle of a global pandemic, but also during the final stages of a presidential election that, via a steady barrage of breaking news alerts, further illustrated the themes explored in this Article. 385 386 VANDERBILT LAW REVIEW [Vol. 74:2:385 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 challenges 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. INTRODUCTION ................................................................................ 386 I. THE FEDERAL GOVERNMENT’S ROLE IN ELECTIONS ............ 395 A. Federalism in Election Administration ................... 396 B. The Role of the Federal Executive Branch ............... 398 1. Power Running to Executive Agencies ......... 400 2. Power Running to Independent Agencies .... 402 3. Power Running Directly to the President .... 404 II. PRESIDENTIAL CONTROL OF ELECTIONS .............................. 405 A. Executive Agencies: Control Through Priority Setting ........................................................ 408 B. Independent Agencies: Control Through Gridlock ..................................................... 425 C. Direct Grants of Power: Idiosyncratic Control ........ 435 D. The Persistence—and Likely Expansion—of Presidential Control ................................................. 441 1. The Inevitability of Presidential Control ..... 442 2. The Likely Expansion of Presidential Control ..................................... 446 III. WHETHER (AND HOW) TO CHECK PRESIDENTIAL CONTROL.............................................................................. 450 A. The Normative Implications .................................... 451 B. Checking Presidential Control ................................. 458 CONCLUSION ................................................................................... 463 INTRODUCTION Elections ensure accountability in the executive branch. Or, at least, that’s the theory offered in support of the administrative state.1 1. See, e.g., Nina A. Mendelson, Another Word on the President’s Statutory Authority Over Agency Action, 79 FORDHAM L. REV. 2455, 2483 (2011) (“A central argument for the legitimacy of the administrative state, including its priority-setting and resolution of value-laden questions, has been that agencies are accountable to the President, who is in turn accountable to the electorate.” 2021] PRESIDENTIAL CONTROL OF ELECTIONS 387 The trouble comes in what this theory ignores: that the President of the United States is empowered by law to influence election administration.2 By exercising his official powers, a president can affect the rules of the elections that purport to hold him accountable, even when the changes would benefit him personally. This exercise of authority is problematic. It threatens to undermine the democratic will and delegitimize the executive branch.3 This Article investigates this phenomenon, which it calls presidential control of elections.4 It defines this phenomenon as a president’s lawful exercise of power over the interpretation and implementation of election rules.5 The process starts in the legislative branch, where Congress enacts statutes implicating election administration. The executive branch then works to implement these mandates. This arrangement ensures presidential control of some sort, with congressional design shaping the precise form it takes. As this (footnote omitted)); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (offering this electoral connection as a necessary prerequisite to the administrative state and noting that “[o]ur Constitution was adopted to enable the people to govern themselves, through their elected leaders”); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) (explaining that while “agencies are not directly accountable to the people,” the president is accountable); Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2255 (2001) (congressional elections); Kagan, supra, at 2332 (presidential elections); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81 (1985) (discussing delegation to administrators). But see Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 462 (2003) (criticizing these arguments while acknowledging their prominence in administrative theory, which is “fixated on . political accountability”); Nicholas O. Stephanopoulos, Accountability Claims in Constitutional Law, 112 NW. U. L. REV. 989, 992 (2018) (calling into question the empirical basis of these arguments while acknowledging that “the Court’s accountability claims” serve as “pillars of some of the most consequential holdings in all of constitutional law”). 2. See infra Part II (exploring how presidents exercise control in the context of election administration). 3. See infra Part III (discussing the normative implications of presidential control over elections and how, if at all, this phenomenon should be curbed). 4. When referring to “presidential control” in this context, this Article means to include not only control exercised by the president himself, but also control exercised by the president’s high- level staff in the White House and the Executive Office of the President (“EOP”). See Kate Andrias, The President’s Enforcement Power, 88 N.Y.U. L. REV. 1031, 1040 (2013) (relying on similar terminology); id. (“[The President’s White House and EOP advisors] are not the President, and there may, at times, be space between their varying agendas and his. But, as political scientists have shown, the most senior level of the bureaucracy is relatively cabined and controlled.” (footnote omitted)); see also Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 49 (2006) (“Presidential control is a ‘they,’ not an ‘it.’ ”). This Article alternates male and female pronouns when referring generically to the president. 5. This Article uses the term “election rules” in an expansive manner to include, for example, rules governing voter registration, structuring of the voting process, redistricting, voting rights, campaign finance, election crimes, and election security.