Who Should Manage Elections?
A conversation on the subject of the separation of powers in election administration
This week’s “Constitutional Conversations” authors:
Joshua Douglas argues that consultation with county clerks and perceiving local election administrators as partners can help state legislators craft voting policies that are “both pro-voter and pro-election security.” Quinn Yeargain fears, however, that a hostile takeover of the American system of election administration is possible because local and state administration are too fractured. Yeargain concludes that “the result of this distribution is that we have too many officials with overlapping powers and responsibilities, the contours of which are set more by partisan impulses than by good governance.” Yeargain argues that the separation of powers creates challenges that allow “for malevolent actors to disrupt the process.” While Douglas would bring professional local election officials to the policy making table to make the sort of good laws necessary for efficient election administration, Yeargain proposes making election officials non-partisan civil servants.
Joshua A. Douglas is the Ashland, Inc.-Spears Distinguished Research Professor of Law at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting.
Quinn Yeargain Assistant Professor, Widener University Commonwealth Law School
Running in an Election Doesn’t Mean You Know How to Run Elections: The Case for Including Local Election Administrators in Voting Policy Debates
By Joshua A. Douglas
In summer 2019, I received an interesting request from Michael Adams, a Kentucky Republican who was running for Secretary of State: if he won, would I serve on his Transition Team? I was skeptical, in part because Adams’s number one campaign promise was the implementation of a photo ID requirement for voting, which I strongly opposed. When I told him that I was against his primary policy initiative, he replied, “that’s why I want you on my Transition Team!”
The Transition Team also included several county clerks. County clerks in Kentucky, like in many states, are the primary officials in charge of running elections. From them I learned an important lesson: to achieve the best election policy—laws that both ease access to the ballot and improve election security—we need to include local election administrators in the discussion. Election professionals can provide a perspective on how a new rule will work in practice and even help to temper proposed bad laws. State legislators think they have expertise because they have run for office. But running in an election doesn’t mean one knows how to run an election. If we want the best voting policies, we should bring county clerks or other local election officials into the discussion.
Consider the debate over the voter ID law in Kentucky. Secretary Adams and state legislators initially proposed a restrictive law. The kinds of IDs that would suffice were limited. Student IDs would require an expiration date, even though the identifications at Kentucky universities don’t have them. A voter who showed up to the polls without an ID would have to fill out an affidavit as to why they didn’t have an identification and then cast a provisional ballot, which would be set aside and not counted unless the voter took additional steps, such as going to the county clerk’s office within a few days after the election. States with the strictest ID laws, such as Texas and Indiana, have these kinds of onerous requirements. Those hurdles can lead to disenfranchisement, particularly within minority communities given that minorities are less likely to have a compliant ID.
Kentucky, however, went a different way, in part because of the advocacy of the state’s County Clerk’s Association. The clerks explained that the new ID requirement, as initially introduced, would cause significant problems for their administration of an election, in addition to the potential for disenfranchisement. Allowing only certain kinds of IDs to count would likely increase the lines at the polls as election workers handle voters without an ID. Provisional balloting creates additional administrative hurdles. The law, moreover, would not address any problem the county clerks were experiencing given the evidence that in-person impersonation hardly ever occurs.
State legislators listened—perhaps, in part, because the county clerks (and others) offered alternatives instead of simply opposing the idea altogether. The clerks—along with other advocates and organizations—asked for the law to allow more kinds of IDs to count and to remove the expiration date requirement. That tweak would allow students to use their university IDs. In perhaps the most significant change, the law now provides that if a voter shows up without an ID, they can fill out the affidavit (under penalty of perjury) and then cast a regular ballot, just like everyone else. This difference eliminates the onerous and unnecessary provisional ballots that would take election officials a long time to process.
The final law was a product of compromise, with county clerks playing a key role in the negotiation. They offered their expertise on how the law would operate on the ground, pointing out unintended consequences—such as longer lines and administrative headaches—that were probably not obvious to state legislators. Kentucky’s voter ID law is one of the mildest photo ID requirements in the country. Secretary Adams was able to fulfill a campaign promise, while the details of the law include numerous fail-safe mechanisms to protect most voters.
I still don’t support photo ID laws for voting, as they can disenfranchise some people for no good reason given that in-person impersonation—the only kind of fraud an ID law can prevent—simply doesn’t occur. But I’m comfortable with Kentucky’s version given its various permutations, which are attributable in part to the advocacy of county clerks.
Kentucky also made national news in 2021, when many other states enacted voter restrictions, as a “red” state that implemented pro-voter enhancements. Once again, county clerks were important partners in helping the state craft these voting policies that were both pro-voter and pro-election security. The law passed with overwhelming bipartisan support. The state adopted three days of no-excuse-required early voting, up from zero. Part of the argument for this reform was that early voting can ease the lines on Election Day, which helps election officials better oversee the voting process. The state also adopted an online absentee ballot request form. The ability to request an absentee ballot online obviously makes the process more convenient for voters. It also helps to enhance election security by ensuring that election officials can track each mailed ballot through the system. Similarly, allowing voters to verify their identity online through this secure portal minimizes the amount of paper that county clerks must process.
To be sure, Kentucky is not a model for election administration. The state’s rules are still too restrictive, such as a voter registration deadline that is four weeks before Election Day and a requirement to provide an excuse for voters who wish to vote absentee. But it’s also one of the few Republican-controlled states that have made its election processes better over the past few years. Its ranking on the nonpartisan Election Performance Index, which measures the quality of each state’s election administration using various metrics, jumped over ten spots between 2018 and 2020, in part because of these policies. One reason for the success is that county clerks have been “in the room where it happens” to help craft that policy.
The question remains whether local election officials should have full discretion to implement voting policies or if the state should limit the kinds of decisions they can make when administering an election. They are the experts, after all, and Kentucky showed that their professional expertise can help to improve voting policy. Kentucky’s model provides valuable insight on the discretion question, as well. County clerks generally have discretion to adopt local processes, with oversight from the bipartisan State Board of Elections. One of the 2021 statewide voting expansions is to allow counties to implement vote centers, which are countywide precincts which any voter can use regardless of where they live in the county. Vote centers increase convenience for voters, because they can go to the center closest to their home, work, school, or wherever else they may be. They also help election administrators, who can consolidate their efforts in fewer (but larger) vote centers. But they can pose a problem if counties do not set up enough of them or don’t put them in the right neighborhoods. So, in Kentucky, counties can promulgate a proposal for their vote centers and must submit that plan to the State Board of Elections for review. The county clerks have the first cut at a plan and the State Board will generally approve it unless there is strong evidence that the plan will cause problems for voters or the election process. The important point is that local election administrators remain part of the conversation on election policy. When their ideas work—such as when several local election officials (including in Kentucky) contracted with sports stadiums to use as vote centers—then other county clerks will take notice and emulate the best ideas. Localism, coupled with reasonable oversight from a state-level entity, can produce strong election rules.
The message for other states is that they should bring their county clerks or other local election administrators into the conversation about voting policy. Kentucky’s success on this front is no doubt in part due to the state’s County Clerks Association, which hired a former secretary of state to serve as its lobbyist to the legislature. Florida also has a strong professional membership organization, which offers meaningful expertise on election rules. Local election administrators in other states without these kinds of organizations should create them to facilitate the dissemination of professional election advice to state legislators and the public.
Most importantly, state legislators must be willing to listen to local election administrators in their state when crafting voting rules. They must stop attacking local election administrators or threatening to criminalize their conduct. Virtually all local election workers are dedicated public servants with the noble goals of serving their voters and running a fair and smooth election. Most do not use the office for partisan purposes; state-level oversight can help to root out the anti-democracy bad apples. State legislators must remember that they are not the experts in election policy. They should seek the advice of those who are the professional experts before enacting rules about the administration of elections.
Election Integrity and the Vulnerability of State Governments
Quinn Yeargain
The 2020 presidential election demonstrated the unique vulnerability of our deeply decentralized systems of election administration and vote-counting. Quiet processes that normally hummed in the background were the focus of a great deal of unwanted and harmful attention—including conspiracy theories and death threats—brought on by Donald Trump and his allies. In the aftermath of the election, attention has rightly focused on the ongoing threat posed by Trump to American election administration. Many of his allies, most prominently Steve Bannon, have organized nationwide efforts to take over local election administration offices. Trump-aligned, election-denying candidates have won Republican primaries around the country, including for offices central to election administration, like secretary of state. And though most of these candidates lost their elections in crucial swing states like Arizona, Michigan, and Nevada, several Big Lie proponents were elected as secretary of state in states like Indiana and Wyoming.
One of the reasons that a hostile takeover is even possible is that our country’s system of election administration has a blend of very old institutions and newer offices, each with constitutionally, statutorily, and judicially protected powers—and the conflicts and threats to democracy come from both of them. This is certainly true with respect to local administration, but it is especially true with respect to state administration. An oversaturation of entities, and the excessive overlap of their powers, have created a Rube Goldberg-like process, wherein a successful execution of an honest election depends on each piece working exactly as it should. In this short piece, I intend to briefly explore the history of state-level election administration in the United States as a means of contextualizing the threat faced today by bad-faith actors.
In the early days of the United States, there were relatively few statewide elections. Many states did not have directly elected governors (instead, they were elected by legislatures) and few states have any other statewide elected offices (like lieutenant governor, treasurer, secretary of state, etc.). As a result, there were few democratically accountable officers available to supervise elections—much less to receive and canvass election results. In most of the states with directly elected governors, the legislatures reviewed county election returns and declared winners. Separately, legislatures also had the power to resolve challenges to contested elections—which some courts have characterized as a “judicial” power that was incapable of review.
During the nineteenth century, dissatisfaction with state governments’ disconnection from the electorate led to the democratization of governments around the country, including the creation of statewide elected offices. Newly created (and elected) secretaries of state played a central role in election administration and vote canvassing. As many other statewide elected offices were established, so were state canvassing boards—frequently a combination of the state’s elected officers doing double-duty on the board. Legislatures usually retained their power to canvass gubernatorial election results, so these canvassing boards were either responsible for other offices or simply transmitted their calculation of the results to the state legislature for final disposition.
Changes to these processes continued in the twentieth century as states streamlined their administrative processes and pursued efficiency. In some states, explicitly partisan canvassing boards, populated, no less, by partisan elected officials who were responsible for canvassing the results for the offices that they held were viewed with skepticism. Several states created bipartisan canvassing authorities, which were frequently populated by representatives of the major political parties. Similarly, secretaries of state saw their powers to supervise election administration recede somewhat. Many states created election boards or commissions to work alongside the secretary of state in jointly administering elections.
It’s possible that both of these changes, which remove key functions of election administration and vote-counting from partisan elected officials, may have depoliticized some parts of the process. But both changes have serious flaws. For one, the creation of new canvassing authorities has done little to alter states’ frequently duplicative canvassing processes. In some states, there may be several different entities responsible for canvassing state election results: Mississippi, for example, the legislature canvasses results for state executive officers, the State Board of Election Commissioners canvasses judicial election results, and the Secretary of State canvasses results for Congress and constitutional amendments.
This kind of fractured authority is a problem in election administration, too. The balance of power between elected secretaries of state and appointed election boards is something of a moving target. In some states, the relative power enjoyed by each depends on how the legislature feels about them. For example, when Kentucky Secretary of State Alison Lundergan Grimes attempted to administratively introduce automatic voter registration to the state, the legislature responded by removing her supervision of the state Board of Elections and restructuring the Board itself. Earlier this year, when election denier Chuck Gray won the Republican nomination for Wyoming Secretary of State, many members of the legislature—concerned about Gray overseeing the state’s elections—proposed removing the Secretary of State’s power over state election administration.
The result of this distribution is that we have too many officials with overlapping powers and responsibilities, the contours of which are set more by partisan impulses than by good governance. This creates both opportunities for malevolent actors to disrupt the process and some natural concerns relating to separation of powers that elude easy resolution. Vertical and horizontal decentralization of power would not be a problem if both major parties were equally committed to the norms and values of democracy. But today, they aren’t.
Diagnosing the problem is easy enough. Coming up with a solution is much harder. To be honest, I’m not sure that I have one. The problem that our system of election administration faces is, yes, one that could be characterized as a problem of separated powers, but it is more a social problem. Simply put, too many Americans hold the false belief that the 2020 election was stolen, increasingly demand that their elected officials parrot that idea back to them, and engage in threats of violence to act out their beliefs.
My tentative solution is to cloister election administration within the protections of the civil service, as Michigan has done in part. While election administration is vitally important, I’m not confident that it’s benefited by significant public input—perhaps ever, but definitely not at this point in American history. Ensuring that neutral, impartial administrators are able to do their jobs without facing the threat of re-election, and with strong protections against politically motivated hirings and firings, will be key in safeguarding American democracy should election deniers come to power.