Editor’s Note: Joshua A. Douglas is a professor at the University of Kentucky College of Law who specializes in election law, voting rights and constitutional law. He is the author of the forthcoming book Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.
American democracy is exceptional for many reasons. One of the most concerning but least understood is that partisan, elected officials run our elections. Instead of having nonpartisan, professional election administrators – the norm in most other democracies – self-interested politicians dictate the rules of the game.
Elections should be won on ideas, not election rules. Having election officials dictate the rules for the very elections where they are on the ballot is like allowing an umpire in a baseball game to hit cleanup for his or her preferred team while also calling balls and strikes.
Three secretaries of state are running for higher office this year while still administering the elections where they appear on the ballot. Republican Brian Kemp of Georgia and Republican Kris Kobach of Kansas are both running for governor in their respective states while also serving as secretary of state. Ohio Secretary of State Republican Jon Husted of Ohio is running for lieutenant governor.
These officials have used their offices to promulgate rules that could affect their elections.
The latest partisan abuse has come from Georgia’s Kemp, whose office on Sunday indicated that it had opened an investigation into state Democrats for “possible cyber crimes.” Even if there is any merit to the allegations – and it’s impossible to know from the secretary of state office’s brief statement, though indications are that it’s actually Kemp’s office that has been lax in the security of its system – it is highly improper for a politician to use his official office to attack his political foe in this way, all while in a heated race for the state’s top job.
This action follows Kemp’s office potentially disenfranchising thousands of voters by placing their registrations in a “pending” status because the voter registration forms did not “exactly match” other information in the state’s databases, such as when a last name had a hyphen on the voter registration form but not in the DMV database. The rule disproportionately affects racial minorities, which is particularly concerning given that Kemp is running against Stacy Abrams, who seeks to become the nation’s first African-American female governor. A court last week ruled that Kemp must allow thousands of these individuals, flagged for potentially being noncitizens, to vote if they can prove their citizenship at the polls.
Kansas’s Kobach, too, has used the power of his office to increase his electoral chances. After the August primary, when the count was exceedingly close between Kobach and incumbent Governor Jeff Colyer, Kobach initially refused to recuse himself from overseeing the recount of that election. Kobach was going to be in charge of a recount that would determine the winner in an election in which he was a candidate! He later agreed to recuse, but only after public outcry.
Kobach has also used unsupported fears of voter fraud, with zero evidence, to advocate for stricter election measures that would make it harder for many people to vote. Not surprisingly, those most affected by these voter restrictions are those who would likely oppose him at the ballot box. But advocating for certain election rules is one thing; dictating the rules in an election when he is a candidate presents a whole different set of ethical concerns.
Ohio’s Husted has been less overt in using election rules to affect his election, but he did fight a lawsuit that challenged the state’s aggressive voter purge system, winning a case at the Supreme Court this past June. However, a court last week ruled that the state must count provisional ballots from some voters who did not receive proper notice that the state was purging them from the rolls, and Husted did not appeal the decision given how close it was to Election Day.
For a public servant, the line not to cross is clear: Election officials should not determine rules that would affect their own elections. If Kemp and Kobach were to look over their shoulders, they would see that line far behind them.
Yet the problem is not limited to these two Republican election officials. More than half of the states choose their chief election official (most often the secretary of state) in a partisan election. Most local election officials, who actually run the elections in their localities, are also partisan and elected. These officials are typically highly professional and simply want to run a fair election. But the very nature of their office as being partisan and elected opens the door to potential bias.
No wonder a majority of the public supports election officials to be nonpartisan.
To maintain the fairness and sanctity of our elections, Kemp, Kobach and Husted must all agree, before Election Day, that they will recuse themselves from any electoral issues, including recounts, involving their own elections. As the European Commission for Democracy Through Law (Venice Commission) notes, “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.”
Moving forward, states and localities should change their laws so that secretaries of states and local election officials are explicitly nonpartisan officials not subject to elections where they can dictate the rules for their own elections.
Voters, too, can play an important role. Regardless of party, vote for secretary of state candidates who pledge to be nonpartisan champions of voting rights. There are individuals who, if elected, will put the needs of voters and their role as public servants above their partisan and personal gain. That’s who should run our elections.