Academic journal article Harvard Law Review

Toward a Greater State Role in Election Administration

Academic journal article Harvard Law Review

Toward a Greater State Role in Election Administration

Article excerpt

Well, everybody knows that election officials never cheat, and after

all, nobody can prove they cheat. The only thing that we know is that

they're all from the same political party. And nobody would ever think

that they would dare violate their oaths of office. And if I sound

cynical about it, I am. (1)

The presidential election of 2000, which climaxed in Bush v. Gore, (2) provided endless fodder for legal academics (3) and struck fear in the hearts of election administrators. Even after countless vows of "we will not be the next Florida," (4) the 2004 elections produced several winners in the Sunshine State impersonation contest, including Montana, New York, Ohio, Puerto Rico, Washington, and San Diego. (5) Each of these jurisdictions' controversies echoed the questions at the heart of Bush v. Gore: What is the most accurate method of counting votes? What constitutes a valid vote? When should federal courts intervene in state processes? Despite the best efforts of phalanxes of lawyers, judges rarely unseat a victor declared by a state election process. (6) Therefore, the hue and cry in the courts is largely futile: state and local bureaucrats single-handedly translate voter action into virtually final electoral outcomes. Indeed, Katherine Harris may have been more important to President Bush than the Supreme Court was.

Having digested this lesson of 2000, interested parties placed tens of thousands of lawyers at polling places and canvassing boards on Election Day 2004 to watch for fraud. (7) It did not take long for them to think that they had found it: Matt Drudge reported early on election morning that "[b]efore voting even began in Philadelphia--Republican poll watchers believed they found nearly 2000 votes already planted on machines scattered in heavy-minority locations throughout the city." (8) Although Drudge's report ultimately proved untrue, (9) it highlighted the environment of distrust surrounding election administration.

The absence of outright fraud does not mean that the election was "fair." In the weeks leading up to the vote, lawyers scoured election codes for every potential advantage. Moving early voting locations far from disfavored populations, (10) lengthening wait times, and challenging reticent voters can cause them to give up. The 2004 efforts by both parties reflected a fundamental realization: election administrators exercise discretion. And like any actor with discretion, an election administrator can, within limits, help a cause or kill it.

But scholarly research and political advocacy have largely focused in two other directions: federal intervention and substantive rule definition. In the wake of Bush v. Gore, scholars have written extensively about federal intervention into election administration. Doubtless, election administrators conduct their duties in the shadow of court intervention, (11) but court intervention merely sets wide boundaries within which local officials have broad discretion. Some have suggested full federalization of election administration. But full federalization is unnecessary, infeasible, and undesirable. Other commentators, eschewing the structural debate, have focused on cabining administrative discretion through precisely designed rules (12)--like crafting a precise definition for what constitutes a valid vote. (13) But any delegation of power grants a measure of executive discretion that even the most meticulously detailed rules will not eliminate entirely. Moreover, when administrators are not held accountable for rule violations--as is likely, given courts' reluctance to intervene in electoral disputes--the rules do little to curb discretion. (14)

Election administration reformers should shift their focus to the structures of state election administration. They should seek centralization of election administration at the state, not federal, level and the corresponding removal of election administration from the exclusive control of partisan county politicians. …

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