State Conflicts, State Challenges
State Conflicts, State Challenges
By Tammy Patrick, Chief Executive Officer for Programs at the Election Center (the National Association of Election Officials)
In this week’s “Constitutional Conversations” essay, Tammy Patrick points out that the complexity of the American election system has “disadvantages and advantages.” The challenge, she argues, is to reduce the disadvantages, while bolstering the advantages. Checks and balances throughout the federal, state, and local levels of government can reduce the impact of “any single intrusion in the system.” But dispersion of responsibility and insufficient funding can undermine “security and access,” both of which are necessary for healthy election administration systems.
Introduction
When discussing the roles and responsibilities of states in our election system, we face several complications that we must first address in order to ensure that we are starting from the same place of understanding. Yes, our system is overly complex when compared to other countries; this construct has both disadvantages and advantages. The goal is to reduce one while bolstering the other. Potential lack of uniformity, ambiguity in the law, and enforcement powers (or lack thereof) compete with checks and balances in the system and the dispersion of potential vulnerabilities across a larger number of threat vectors. Similarly, providing voters with a variety of opportunities with regard to when and where they register, and when and where they vote allows for a reduction of impact for any single intrusion in the system—from a microscopic pandemic to a large-scale weather event.
Uniformity
One of the first challenges when discussing election administration is terminology. Election officials with responsibility over at least some portion of our election system have many titles: Supervisor, Registrar, Clerk, Recorder, Auditor, Judge, Assessor, etc. The patchwork created by thousands of election jurisdictions1 can create difficulty when discussing administrative roles and policies as well as complicating the assurance of equal protection for voters and uniform understanding and implementation of the law across a state. States like Michigan or Wisconsin, where elections are conducted at the township and municipal level, have a different set of challenges than states where the responsibilities rest in the hands of fewer officials. Wisconsin has over 1,900 election officials with 72 counties and 1,851 municipalities2–compare that to a state such as Arizona with only 15 counties and the added benefit of a statutorily-required Procedures Manual that sets forth established practices and procedures.
The dispersion of administrative responsibilities is an additional complication. In a state such as Florida you have a single official, the Supervisor of Elections, overseeing the full process from voter registration to the canvass of the election. Other states, such as Alabama, divide those roles over multiple departments: Circuit Clerks, Probate Judges, Registrars. Statutes are often silent on what is to occur if there is a breach of responsibility, for example, if one branch fails to provide information or materials necessary for voting with another branch.
Research has validated what we knew intuitively: that election offices grapple with different challenges due to the size of the population they serve, geography, and funding. In fact, we know that 75% of our election offices serve 8% of the Nation’s voting population, while 8% of our election offices serve 75% of the voting population; this is driven by the fact that 2% of the election offices serve 50% of the voting population. 3
The smaller, mostly rural jurisdictions have the same legal obligations as larger, better staffed and better funded counterparts, in addition to fulfilling many other job duties related to the other roles they play in their communities. This results in roughly a third of our election offices not having a full-time employee (this increases to 53% for jurisdictions serving 5,000 or fewer registered voters ).4 This disparity is exacerbated in the states where the duties are conducted at the most local level.
The consistency of understanding and implementation of the law can be improved statewide with trainings, certifications, and established standards or administrative rules. Often, these responsibilities fall on state associations in addition to the State government, and those states with vibrant associations have demonstrated the value of those relationships.5 All jurisdictions need to be able to withstand the scrutiny of process and performance that can arise in close races and contested elections. Any variation can be cause for litigation and cast doubt on the system.
Ambiguity & Enforcement
Not only do we face linguistic challenges when discussing who our election officials are, but also when discussing the election system itself. The national discussion of absentee voting, voting by mail, voting at home, is challenging because for most, but not all, states those terms all refer to the same opportunities for voters. Similarly, “Early Voting” may equate to “in-person absentee” or a state may use that term only if the voter is casting their ballot directly into the scanner/tabulator. These idiosyncrasies create ambiguity in national discussions around the election system—often we need to look past the term being used to understand if we are discussing the same process, or not.
Since the 2020 election cycle, we have learned of numerous democratic norms on which state and federal laws are either vague or silent. The lack of clarity around what happens when there is an abdication of certification duties, either a deficiency of specificity around what remedial action to take to allow for the process to proceed, or about consequences for the offending official, is one blatant example where we would benefit from clarification.
Then, there is the question of enforcement. Federal laws6 often task the “chief election official” in a state with certain responsibilities, but more often than not those officials have no enforcement power over the local election officials (who are frequently constitutionally elected or appointed). Court action is often the only recourse.
Checks & Balances
The system we have is one of checks and balances that run both horizontally as well as vertically throughout the system. At the polls, in the tabulation centers, on canvassing boards, we find representatives of diverse political affiliations: Democrats, Republicans, unaffiliated officials doing the work of the election. In addition, there are observers, watchers, challengers, and, in some cases, the media present as well. Vertically, the ability to review, remedy, and recover exists. Local officials have oversight of poll workers and staff actions; state officials have the responsibility to review local results upon certification.
At every stage, in every state, there exists the opportunity for individual challenge of results and process if evidence exists of criminal activity or malfeasance. But there must be evidence. It is not appropriate for any election official to intercede in the process based on conjecture, conspiracy theories, or personal or partisan motivation.
Conclusion
There are things that we can do to strengthen and improve the election system in the United States. States should do a full review of statute and clarify the ambiguity around what have long been established norms: that certification will occur, that observers will behave, that officials and poll workers will do their duties without outside influence and motivations.7 The review should also include a report about what in statute is outdated, irrelevant, and even counterproductive. Are there some functions that could be consolidated or modernized to improve voting efficiencies? Consolidated election dates, online and automated voter registration, ballot creation and mailing to voters are all areas of election procedure to contemplate. This should be done in consultation with state and local election professionals, who are the real experts on our election systems—yet they are too frequently not included in these critical conversations.
We should also conduct a comprehensive analysis of the training and certification of election officials, poll workers, and observers with an eye on the initial training they receive, especially given the influx of new administrators expected prior to the 2024 election cycle. Collaborations with state universities and state associations have proven beneficial and are a replicable model.8
Ultimately, we need to address the funding of our elections to ensure election officials have the training and tools they need irrespective of the size of their jurisdiction and of the populations they serve. As the saying goes, there is the desire for “fast, cheap, and accurate elections--but we only get to pick two.” I would add that the “accurate” piece is non-negotiable and that “fast” only comes into question when races are too close for the media to comfortably project a winner on Election Day. More than one in four election officials say that lack of funding prevents them from doing their job well.
Episodic federal funding, usually after a triggering event like the close 2000 Presidential Election or the declaration of elections as Critical Infrastructure9 after the 2016 cycle, is untenable. We need to invest in our election system with the same fervor and energy as the rhetoric around fraud and suppression: security and access both require resources and are not mutually exclusive in a healthy system at any level of governance.
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Election jurisdictions as defined by Election Data Services tallies 50 states, 3140 counties, 1620 New England Townships, 5312 Midwest Townships for a total of 10,072.
As of November, 2022 and reported by the Wisconsin Election Commission. The number of municipalities can vary due to annexations and incorporations. https://elections.wi.gov/elections.
“State of Election Administration in 2022”. Paul Gronke, Paul Manson, and Tammy Patrick. 2022 Democracy Fund/Reed College Survey of Local Election Officials. The State of Election Administration in 2022 - Democracy Fund
Ibid
In their chapter on “The Evolution of Professionalism” authors Dr. Mitchell Brown and Dr. Kathleen Hale use training and certification requirements as one of three proxies for measuring professionalism in a state. (The other two being officials from the state having a significant presence on national bodies and discussions of election administration and who have received election administration certification.) The Future of Election Administration. Brown, Hale, and King Editors. Pages 109-111. (2020)
The major federal laws governing election administration all include this tension: National Voter Registration Act (NVRA), Voting Rights Act (VRA), Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and the Help America Vote Act (HAVA).
The State of Colorado did such a review and passed legislation in 2022 to clarify concerns around insider threats and access to integral election management systems (SB22-153) and protections for state and local election officials (HB22-1273).
This has been done in Ohio with the Ohio State University https://oaeo.us/wp-content/uploads/2022/01/21-01-06_OREO_FAQ.pdf, in Connecticut with University of Connecticut https://citi.business.uconn.edu/programs/registrar-of-voters/, and in Utah with Weber State University https://weber.edu/walkerinstitute/elections-certification.html, as a few examples.
The Department of Homeland Security declared elections as critical infrastructure in January of 2017: Statement by Secretary Johnson on the Designation of Election Infrastructure as a Critical Infrastructure Subsector | Homeland Security (dhs.gov)