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Election Law @ Moritz

Election Law @ Moritz


Commentary

The Persistence of Partisan Election Administration

It has been almost ten years since the disputed election that gave rise to Bush v. Gore, the Help America Vote Act of 2002 (HAVA), and a number of related election reforms in the states. In some respects, this has been a time of great progress. We have eliminated punch card voting machines and moved to statewide registration lists. We offer provisional ballots to voters who registered but don’t find their names on the list when they show up to vote. And the process has been made more convenient, with over 30% of Americans voting before election day through absentee and in-person early voting in 2008.

Notwithstanding these significant changes, a fundamental problem at the heart of the 2000 election debacle has yet to be solved. Ten years ago, many observers suspected bias on the part of election officials responsible for the recount, including Florida Secretary of State Katherine Harris as well as local election officials. Similar concerns surrounded the 2004 presidential election, particularly actions taken by Ohio’s Secretary of State Ken Blackwell – most infamously, the requirement that registration applications be on 80-pound paper weight. More recently, Republicans have raised concerns of partisan bias on the part of Democratic election officials, including Minnesota’s Secretary of State in the contested U.S. Senate election in 2008.

Whether or not these officials have acted based on partisan bias is impossible to know for sure. What can be said with confidence is that conflicts of interest are a pervasive problem in U.S. election administration. In over 30 states, the chief election official – usually the secretary of state – is elected as the candidate of one of the major parties. And in most of the remaining states, the chief election official is selected by a party-affiliated official, usually the state’s governor. Both systems create an inherent conflict of interest between election officials’ duty to discharge their duties to all citizens and their own personal and political interests. The situation is not much better at the local level. Party-affiliated election officials run election in almost half of the local election jurisdictions in the U.S.

This state of affairs is directly contrary to an emerging international consensus that election administrators should be insulated from partisan politics. According to the influential European Commission for Democracy Through Law: “Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results.” For the most part, the persons and institutions running American elections lack such impartiality and independence.

Recognizing this conflict of interest is the easy part; solving the problem is much more difficult. Bipartisan boards can also be dysfunctional too, as my colleague Ned Foley has noted with reference to New York’s recent experience. The best American model is Wisconsin’s Government Accountability Board, which consists of retired judges selected in a way that is designed to promote impartiality. Other countries, including Canada, Australia, and India, have election administration bodies insulated from partisan politics that might also serve as a model for reform in the U.S.

Unfortunately, it is not realistic to expect many states to replace party-affiliated chief election officials with more independent institutions. The party that controls that office – or that is poised to do so – can be expected to oppose such reform. In some states, both major parties will oppose institutional reform, since it takes away an elected office for which their candidates may run.

Moreover, even if we could insulate election officials from partisan politics, the institutions responsible for making election laws are no model of impartiality. While there are a handful of federal laws that govern election, including HAVA, most of the rules regarding voter registration, voting technology, provisional ballots, absentee voting, voter identification, and recounts are the product of state law. When one party controls the state legislative process and enacts laws making it more difficult for some people to vote or have their votes counted, there is reason to worry. The most notable examples in recent years are the Indiana and Georgia laws requiring voters to present government-issued photo ID, despite the paucity of evidence showing voter impersonation to be a serious problem.

Partisanship is thus a spectre haunting the making of election laws, as well as their implementation. With the increased polarization of American politics, these concerns have never been more serious. This year, 23 states will have partisan elections for the state’s chief election official. Control over the state legislature and Governor’s office will also be a stake in a number of states. There has been a fair amount of attention to the impact that this year’s elections will have on the forthcoming round of redistricting. Less noticed is the fact that this election will dictate which party controls the machinery of elections in many swing states.

Of particular concern is that states will move to impose more aggressive proof-of-citizenship requirements that may impede participation by eligible voters. In 2005, Ohio enacted a law requiring naturalized citizens to produce a certificate of naturalization if challenged at the polls. (Disclosure: I was part of the legal team that successfully sued to stop this law.) And long before making news with its recent immigration law, Arizona enacted a stringent proof-of-citizenship law that is the subject of ongoing litigation. More recently, Georgia adopted a controversial voter verification program, to which the U.S. Department of Justice originally objected on the ground that it would have an adverse impact on minority voters – though it ultimately abandoned its objection, perhaps to avoid a constitutional challenge to Section 5 of the Voting Rights Act.

Exaggerating voter fraud, especially when it comes to immigrants, has become a cottage industry in some quarters, and a convenient excuse to make it more difficult for some citizens to register and vote. Overly restrictive rules for voter registration and verification can be expected to have a negative impact on some groups, including Latino and Asian American citizens who already have low turnout rates.

What is the solution? While there are no easy answers, the pervasive partisanship in the making and implementation of election laws necessitates close judicial oversight of elections. Though some have complained that about the increase in election-related litigation since 2000, the reality is that the federal courts are the government institution most insulated from partisan politics. Accordingly, they have a vital role to play in policing election administration. Because access to federal courts is essential, they should be generous in allowing a private right of action in cases alleging a violation of federal election laws, as I argue in a forthcoming article. Courts should also closely scrutinize laws and practices alleged to have a disparate impact on certain groups of voters, including racial and ethnic minorities.

In the long run, the United States needs to move toward electoral institutions that are insulated from partisan politics, as is the norm in most other democracies. In the short run, however, such reforms are not likely. It is therefore essential that courts play an active role in checking partisan election administration, especially when it comes to laws and practices likely to have a disparate impact on poor and minority voters.

Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile

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