By Nathan Cemenska
Web Editor, Election Law @ Moritz
Moritz College of Law
A fundamental assumption underlying the setup of many of our elections institutions is that we cannot necessarily trust administrators to do a good job in one-party environments. Rather, it is better to require that at least one important player in each entity be from each of the largest political parties. This reduces the risk of hanky-panky, and also reduces the risk of mistakes made by people who try to do their best, but who might fail because they do not appreciate the viewpoint of the other side. I do not think we should automatically conclude that every level of election administration must be permeated with bipartisanship, and even think that requiring this could in many cases lead to deadlock, partisan grandstanding, and endless, fruitless debate. Nevertheless, requiring bipartisanship in our elections institutions is a good rule of thumb, and one that we should not deviate from without having specific reasons. Moritz has completed some research on 16 states that suggests that America is following this rule of thumb in some areas, but not in others.
One area where operations are sufficiently bipartisan is the composition of poll workers. Fourteen of the 16 states we researched required at least one member of the minority party to serve in each polling place (one of the states, Oregon, does not use poll workers because it votes entirely by mail). The outlier, Pennsylvania, actually elects its poll workers, and does nothing to ensure that there is representation from both parties (except in the case of filling vacancies by appointment). Pennsylvania should consider reforming its system, but even the other states might want to examine what they are doing to see whether there is a way to improve. One question to consider is whether it is important that poll workers be evenly bipartisan (as is required in New Hampshire), or whether it is sufficient to have just one or two representatives from the minority party. Another question to consider is whether officials who appoint poll workers are actually complying with the requirements of bipartisanship. This can be a problem in jurisdictions where members of the minority party are rare, or in jurisdictions where the requirement simply is not taken seriously. Sometimes officials need to be freed up to recruit younger workers or workers from out of the jurisdiction in order to meet these important requirements. Reforms that made it easier to comply with requirements of poll worker bipartisanship played an important role in ending the massive ballot-box stuffing operations that used to occur in Chicago prior to the early 1980’s.
One area that is potentially, though not necessarily, concerning is local administrators. Only four of the states we researched (Indiana, Ohio, Pennsylvania, and North Carolina) had bipartisan boards administering elections in every local jurisdiction, although two states had this type of board in some jurisdictions but not others (Wisconsin and Missouri). In the rest of the states—Washington, Oregon, Nevada, Colorado, New Mexico, Iowa, Minnesota, Michigan, Florida, and New Hampshire—there is a single individual, elected or appointed, with chief authority over elections at the local level. While it is reckless to suggest that local administrations cannot be trusted just because they are not inherently bipartisan, making them inherently bipartisan would do a lot to quiet those who like to make such reckless suggestions (it also might do some real good). On the other hand, reformers only have so much political capital and this might not be the most cost-effective area in which to spend it. That is particularly true because local administration is an area where it actually might be beneficial to have a single individual in charge who can get things done without having to persuade everyone and reach a consensus. It may turn out that, rather than this being an area where there is a “right” answer, it is one in which there is a trade-off and the decision depends on what one values more: Insurance against iniquity, or insurance against inaction.
An area for real concern is counting of ballots. Unlike the fast-paced decision-making that is sometimes necessary in the actual planning and execution of elections, counting should be a purely ministerial task in which the participants have no real discretion. It is also an area where, despite our eagerness for quick election results, we can afford to go more slowly without offending any substantive rights. For these reasons, there really is no downside to requiring some bipartisanship in the counting process. Despite this, most states leave the counting up to an entity—either the local election official or a counting board—that does not have to have even a single member of the minority party. Washington, Nevada, New Mexico, Minnesota, Iowa, Michigan and Florida count ballots using a canvassing board of unconstrained partisanship, while Oregon and New Hampshire allow the counting to occur under the direction of a single individual. Election officials have admitted to Moritz in the past that it would be possible to manipulate the result of an election by making “mistakes” in aggregating precinct results, something that is more likely when no one from the minority party is required to be present during the process. The situation is even worse in the case of provisional ballots, which are often counted by an entity other than the one that counts regular ballots. Washington, Oregon, Nevada, Colorado, New Mexico, Wisconsin and Michigan count provisionals under the direction of a local election authority that is generally of unconstrained partisanship, while Florida counts them under the direction of a separate, but unconstrained, county canvassing board. This is a problem because the standards for counting provisional ballots in many states are not exactly clear, and it is less likely that they will be applied fairly when representatives of only one party are present during counting. The concern is mitigated by the fact that the laws of most of these states explicitly say that counting must be public or that party observers have a right to be present, but the truth is that in many cases this gives false hope because nobody can be trusted to reliably show up and observe.
With the possible exception of the counting of precinct results and provisional ballots, I would not expect reform in any of these areas any time soon. The required composition of poll workers generally seems fair enough (provided the requirement is observed) and local election administrators have a fairly powerful lobby that can probably prevent overhauling local institutions in most states. However, the case against entities of unconstrained partisanship counting ballots is strong, and it would not take much authority away from local election administrators to require that they share some of the responsibility in this area with members of the opposite party. For that reason, those who are interested in reform should focus their efforts in this area.