Partisan Elected Election Officials Still A Bad Idea

In Colorado, statewide election administration is vested in Secretary of State Scott Gessler, a Republican elected to the office in 2008.  Now, he is considering running for Governor in 2014.

Thus, in the hypothetical race of incumbent Governor Hickenlooper, a Democrat, v. Scott Gessler, a Republican, in 2014, the winner will be officially determined by the certification of Scott Gessler, acting with the counsel of the incumbent Republican Secretary of State.

No appearance of impropriety there, no siree!

Then again, suppose Scott Gessler, to avoid an appearance of impropriety, resigns.  This creates its own problem.  Because, if he resigned, his replacement would be appointed by the other candidate in the same race, Governor Hickenlooper.


This is not an academic problem.  Instances of partisan elected officials screwing up election administration in a manner that favors their party, from Florida's Bush v. Gore election to both the 2008 and 2012 elections in Ohio, for example, are legion.

Seriously.  When the United States State Department and international pro-democracy organizations see other countries enact election administration structures like these, they object strenuously.

This system, despite being ubiquitous in American state and local government, is obviously and profoundly flawed and almost no other country in the world has such a system. 

Then again, many countries, some with free and fair elections, and some witthout them, are organized as parliamentary systems in which the current majority in parliament is sovereign, and has the power to abrogate all aspects of the election laws by mere majority vote. This is true in particular of the United Kingdom (at least for most of its history, long after fair elections had become normative in the U.K., some of its international obligations including the E.U. and Council of Europe have given rise to some external constraints).  So, opposition forces rely on their good graces to keep the electoral system free and fair with no meaningful checks and balances.

Institutional checks on election impropriety

I'll admit that the reality of impropriety is often far less serious than the appearance of impropriety in cases like these.  The partisan leanings of elected chief election officials does have a real impact on some marginal issues that can swing election outcomes in close races. 

But, it would be wrong to seriously worry that Scott Gessler's control of election administration in Colorado, if he retains it, would have a realistic chance of changing outcomes in an environment where early polls show Governor Hickenlooper leading Gessler 50-40 in early polling.  Control of a Secretary of State's office is very important in races where the winner's margin in a fair election would be 0.5 percentage points (the usual threshold for an automatic recount), and discernable when the winner's margin in a fair election would even be as much as 2 percentage points.  But, it is not so great that it can change electoral outcomes in races where one candidate is favored over another by a margin that would be even 3 to 4 percentage points in a fair election.

A whole host of factors help the rule of law overcome partisan biases in election administration.

Rule of law as a consequence of bureaucracy

One big factor is the bureacratization of large government programs like election administration.  Detailed statutes and rules that bureaucrats take seriously and try to follow govern election administration.  The instructions of partisan election administration officials are implemented by civil servants hired on a merit basis who make up a cast of thousands who are insulated from retribution from their bosses when they attempt to implement election laws in good faith.

Divided government

Another big factor is divided government.  Many key functions connected to election administration are housed outside the Colorado Secretary of State's office.  A separately elected clerk and recorder in each county actually prints, mails, collects and counts the ballots.  This official is elected on a partisan basis in every county but Denver, where there is a nominally non-partisan clerk and recorder who is in practice always a Democrat.  So, Republican leaning counties have votes counted by Republican clerks and recorders for the most part, and Democratic leaning counties have votes couunted by Democratic clerks and records for the most part.  During the election itself, the Colorado Secretary of State is mostly left with the very ministerial task of tallying up totals from individual county clerks.  The Colorado Secretrary of State's more discretionary tasks involve administering campaign finance regulations, coordinating voter registration databases, and enacting and interpreting election law rules.

State level redistricting is handled by an appointed reapportionment commission with a more even partisan balance.  Congressional districts are drawn by the Colorado General Assembly, or if they cannot agree, by the federal courts.  Election laws are passed by the Colorado General Assembly with the approval of the Governor (or over his veto).  Legal interpretation of election laws  and litigation of election law lawsuits is a task that the Colorado Secretary of State shares with the Colorado Attorney General who also owes some obligations to the Governor in addition to being a partisan elected official in his own right.  An independent ethics commission in Colorado has authority to investigate corruption for private gain by all government employees in the state (and in particular, elected officials) which is co-extensive with the authority of independently elected partisan prosecuting attorneys and the state attorney general.

Federal law enacted by Congress and the President, and the U.S. Constitution, as enforced by private litigants and the U.S. Attorney-General acting at the direction of the President, allow federal officials to intervene in the improprieties of state and local election administration officials.

Supervision by independent judges

The final word in election disputes typically rests with the state and federal courts.  In American politics, the independent courts have a proud tradition as the least partisan branch of government (which is not to say that political bias in judicial decision making does not exist at all) which judges are keen to uphold the appearance of in their actions.

In Colorado, both federal and state judges are appointed. 

Federal judges, of couse, are appointed by the President subject to ratification by the U.S. Senate and have tenure for life subject only to removal via impeachment.  These appointments have some partisan character, but appointed judges are far less partisan than elected officials.

State judges in Colorado are appointed by the Governor on a merit basis for de facto life terms (subject to a mandatory retirement age and periodic retention elections that retain judges 99% of the time, as well as some regulation by a commission on judicial conduct and the specter of impeachment proceedings).  The Governor's selection of which of three finalists to appoint is partisan, but this is a highly restained species of partisan influence.

Equally important when it comes to the question of resolving election disputes in Colorado, judges deciding election disputes are almost never appointed by someone who is currently a partisan state or local level elected official or candidate in a race for a state or local office, and have full autonomy from any partisan elected official who had a role in appointing them.

A Historical Perspective

It also matters immensely that the United States has had more than two centuries in which to develop ever increasingly non-corrupt norms on the acceptability of improper election practices.  For all the controversy that we see over election administration today, in substance, the situation was much, much worse for much of the history of the United States.

Congress routinely resolved disputed in federal elections on a partisan basis without respect for the merits for almost all of the 19th century.  As recently as 1876, lack of clarity over how electoral votes from some Southern states as a result of corruption in the state level election process there during Reconstruction had been cast led to a constitutional crisis, resolved by an ad hoc bipartisan electoral commission and a negotiated settlement of the dispute (ending Reconstruction in exchange for giving the election to the Republican rather than the Democrat).

Local election procedures in large cities were controlled by partisan and grossly corrupt "political machines" throughout most of the Progressive era (basically at least though World War I), and in some major cities even into the 1950s and 1960s.  Secret ballots were also introduced around that time.

Until the passage of the Voting Rights Act in the 1960s and for at least a decade or so therafter, blatant racial discrimination in election administration was rampant in large swaths of the South.  These areas remain the most problematic in terms of modern Voting Rights Act violations although they are far less corrupt than they were half a century ago.

The last decade has dramatically improved the quality of voting machines and voting counting machines in response to the 2000 election.

For a majority of U.S. history, elections in many of its states and localities would not meet modern international standards for free and fair elections.  The norms about political tactics that have emerged over the past two centuries are probably more important than the institutions and laws in place standing alone, to the fair administration of modern elections despite the obvious flaw of having partisan elected officials run the process.

Indeed, a contrarian would argue that the blatant peril presented by having partisan elected officials run the process has driven both sides to develop the norms, institutions and laws that make free and fair elections the norm in the United States in the fact of this always clear and present threat to their integrity.