Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Independent Election Administration

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February 15, 2005

Last week, Ohio Secretary of State Kenneth Blackwell once again found himself on the defensive in connection with his administration of the 2004 election, this time for failing to appear at a congressional hearing. Among his detractors was Representative Bob Ney, a fellow Republican from Ohio and chair of the U.S. House Administration Committee, who is reported to have threatened to come to Columbus to hold the hearing, saying "you can run, but you can't hide." Representative Ney's frustration at Blackwell's absence helps highlight the seriousness of the issues that arise when partisan figures run our election processes.

Ney and his Administration Committee colleagues, who have oversight of federal election procedures, had asked Blackwell to appear before the committee last Wednesday at the first congressional hearing to review the conduct of the 2004 election. Had Blackwell attended the hearing, he certainly would have faced questions about perceived conflicts between his roles as the state's chief elections officer, on the one hand, and as honorary co-chair of the Bush campaign in Ohio (and as leader of the campaign to amend the state constitution to prohibit gay marriage), on the other. The committee's ranking Democrat, Juanita Millender-McDonald of California, had wanted to ask Blackwell about allegations that a number of his official actions had favored Republican candidates. For his part, Ney, who has previously defended Blackwell's conduct of the 2004 election, may have hoped that his testimony would help clear the air.

Instead, two days before the hearing, at the conclusion of their annual meeting in Washington, the National Association of Secretaries of State issued a short statement entitled "Administering Elections in a Nonpartisan Manner." The statement attempts to reassure the public and the Congress that the 39 secretaries of state who serve as their state's chief elections officers are duty-bound to administer elections in a nonpartisan manner, and do just that, notwithstanding their party affiliation. Unfortunately, the statement does little to ease concerns that partisan secretaries of state have an inherent conflict of interest. Nor did the almost simultaneous resignation of former California Secretary of State Kevin Shelley, amidst a deepening scandal over allegations that he misused his authority.

The statement from the National Association of Secretaries of State accurately notes that each of the 39 secretaries who administer their state's election laws has taken an oath of impartiality, that each must abide by statutory laws and court orders, and that each depends on the assistance of thousands of individuals from both parties to conduct elections. Nevertheless, the reality is that these officials occupy incredibly important and influential positions, where subtle and perhaps subconscious biases in their conduct may determine election outcomes. For instance, regardless of the good faith with which a secretary of state acts in overseeing the purging of the voter roles, or the processing of new registrations, it is not hard to imagine how party allegiance might, even unwittingly, influence the secretary's conduct of these processes.

Equally important, the public must perceive its elections to be fair and impartial. Without this perception, citizens will quickly grow skeptical and disillusioned. Of course, we expect our elections officials to care about their community, and to encourage us likewise to get involved, and to vote. Predictably, however, when a state's chief election administrator publicly takes sides on particular candidates and other ballot questions, she will lose the public's trust that her decisions and judgments in implementing a multitude of complex procedural requirements are always impartial.

Consider, for instance, the potential effect on an Ohio voter's trust in Secretary Blackwell's official acts of the following (genuine) telephone message:

"Hi. This is Ohio Secretary of State Ken Blackwell. Voting 'yes' on Issue 1 to keep marriage between one man and one woman is just common sense. . . . This is Ken Blackwell. For the future of Ohio, please join me in voting 'yes' on Issue 1."

A voter's alarm over this advocacy might only be compounded upon hearing another Blackwell phone message a few days later, saying something like this: "Hi. This is Ohio Secretary of State Ken Blackwell. Please perform your civic duty and remember to vote next Tuesday." Yet assuming that this second call went out to all Ohio voters as a message of civic responsibility (rather than only to a selected audience as a partisan get-out-the-vote drive), then these two messages' combined conflation of the roles of advocate and neutral is astounding.

One partial improvement would be for secretaries of state to eschew any public endorsements of candidates or issues. However, this may be expecting too much, given the enormous pressures that all elected politicians face - pressures to support their party, to prepare for their own reelection, and to position themselves for other opportunities. But precisely because of these realities, a paper claim of neutrality, like that which the National Association of Secretaries of State issued last week, similarly is of little comfort.

The preferred remedy is to take election administration out of the hands of partisans. Indeed, independent election administration is recognized around the globe as one of the central elements in the proper conduct of democratic elections. Similarly, a few U.S. states also have chosen to administer their election systems through some independent system. In order to protect the fairness and neutrality that is so fundamental to the strength of democracy, it is past time for other states to do likewise.