The Best Way to Protect Elections From Partisan Manipulation
Election administration is a job for professionals.
Aaron Van Langevelde was probably surprised to find himself in the middle of a battle for the future of American democracy. But at the November 23, 2020, meeting of the Michigan Board of State Canvassers, there he was. A staff attorney for the Michigan legislature’s Republican caucus, he held one of four seats on a board that, as he emphasized that day, was meant to take the certified results from each of the state’s counties, “look at the math, and certify.”
There was no plausible reason for the board to do anything other than “look at the math” from the county results and then certify the winner of the state’s presidential election. But President Donald Trump and his allies were pushing hard for the board’s two Republican members to refuse. Without a majority vote by the board to certify, the state would have been in uncharted terrain—and Trump and his allies would have had a new opening to attack the results before the state’s Electoral College votes were finalized. Van Langevelde’s Republican colleague telegraphed before the hearing his eventual vote to abstain. So as the board took its roll-call vote, it seemed quite dramatic, and even a little bit heroic, when Van Langevelde voted to certify.
One takeaway from the 2020 postelection period is that the fate of our democracy turned on the decisions of a small number of state officials, like Van Langevelde, who resisted pressure to subvert the results. Sometimes the pressure was lurid, such as when Trump turned the screws on Georgia Secretary of State Brad Raffensperger; other times, as with Van Langevelde, the vibe was more C-Span than The Godfather. But the refusal to submit to intense partisan pressure kept the walls from collapsing. Of course, this was the least these officials could do. They simply applied the law or refused to take extraordinary steps to undermine the election results.
We might not be so lucky next time. Van Langevelde’s story is again instructive: Shortly after his pivotal role in 2020, the state’s Republican Party declined to renominate him for the canvassing board. Around the country, proponents of the Big Lie have worked assiduously to take over the machinery of election administration. They have likely set in motion a slow-burn crisis for 2024, because we cannot assume that a critical mass of officials will stave off efforts to undermine unwelcome election results. This means that, in the short term, courts will be presented with cases involving election officials who misuse their authority to subvert election results, and in some circumstances those courts will need to compel those officials to be recused from election-related decisions. But the fact that races for secretary of state or county clerk have come to seem so existential highlights a deeper problem. Partisan officials overseeing elections isn’t inevitable; from a global perspective, it’s not even normal. To shut the door on election deniers who want to run elections, we need to finally retire the notion that partisans should be the ones to administer the electoral process at all.
As many have noted, we are in a boom time for election deniers seeking to run elections. Across the country, an effort is under way to swarm local election positions, like county clerkships or canvassing-board seats, with election deniers. Most visibly, an organized cadre of election deniers seeks to take command of statewide election infrastructure under the banner of a so-called America First Secretary of State Coalition. To understand that coalition, consider Mark Finchem, who wants to run Arizona’s elections as secretary of state. Finchem is a member of the Oath Keepers who was present at the Capitol for the January 6 attacks. He has repeatedly denied the legitimacy of the 2020 election; as a state representative, he introduced legislation that would empower the legislature to overturn election results. He has declared that “we know” Arizona actually went for Trump in 2020, and that if he had been secretary of state in 2020, “we would have won.” A fellow coalition member, Doug Mastriano, who has repeatedly spread disinformation about the 2020 election, is running for governor of Pennsylvania. If elected, he would get to appoint a secretary of state, the official with authority to certify election results and oversee recounts. Mastriano has touted the sweep of this authority, stating that the secretary would be “delegated from me the power to make the corrections to elections, the voting logs and everything.”
In their rhetoric and proposed actions, these candidates draw a connection between denying the legitimacy of the last election and shaping the outcomes of future ones. The north star for these candidates is something much more basic than, say, a commitment to relying exclusively on hand counting ballots (although they like that too). They start from the premise that the last election was stolen, and that the next election, if honestly run, can result in only one outcome: electing Republicans.
Perhaps no candidate has more explicitly linked denial of the 2020 election outcome with a forward-oriented partisan blueprint than Jim Marchant, the Republican candidate for Nevada secretary of state. He’s asserted that he, like Trump, “lost an election in 2020 because of a rigged election.” But now he’s looking to the future. Marchant founded the America First coalition, and he’s fond of touting the national impact of that effort. At a recent rally with Trump, Marchant recited a litany of Republican talking points on issues like inflation, gas prices, and high taxes. The solution to those ills, he said, was electing him secretary of state, “because I [would] oversee the election system.” He continued: “We’re gonna make sure that you have a fair and transparent election system, because if we do, we are a red state, I guarantee you.” He was even more explicit at another Trump rally, promising, “When my coalition of secretary-of-state candidates around the country get elected, we’re gonna fix the whole country, and President Trump is gonna be president again in 2024.”
If Marchant or his coalition members get to administer elections that they have promised to steer in a partisan direction, what’s to stop them from delivering on that vision? A 2018 ruling by a federal judge in Florida may provide a road map. That case challenged actions by then-Governor Rick Scott, who was running for U.S. Senate. Though Florida’s governor is not an “election official,” he does play a role in the postelection certification process. Perhaps most significant in this case, Florida’s governor is in charge of the state’s Department of Law Enforcement—a role that’s not part of election administration, until it is.
In the days following the election, Scott led his opponent, then-Senator Bill Nelson, by a razor-thin margin, within the 0.25 percentage-point threshold that triggers an automatic hand recount under Florida law. As the recount was ongoing, Scott held a press conference at the governor’s mansion. He invoked—without evidence—the specter of “rampant fraud” in Broward and Palm Beach Counties, two Democratic strongholds. He pledged to not “sit idly by while unethical liberals try to steal this election from the great people of Florida,” and announced that he was “asking the Florida Department of Law Enforcement to investigate immediately.” A few days later, Scott tweeted a call for “every Sheriff in the State of Florida to watch for any violations during the recount process.”
A group of voters sued Scott, arguing that he had revealed himself to be incapable of overseeing a fair recount and asking the court to require his recusal from any decisions affecting the ongoing election process. (I was part of the legal team representing the plaintiffs in that case, as well as similar litigation seeking to recuse Georgia’s then–secretary of state, Brian Kemp, from overseeing the postelection process in his 2018 gubernatorial race against Stacey Abrams.)
The judge declined to force Scott’s recusal, saying that Scott had come right up to the constitutional red line but not yet crossed it, and inviting the plaintiffs to return to court if evolving facts showed that the governor had gone too far. In the course of that decision, the judge explained the legal framework that applies to officials who threaten to misuse their election authority in self-serving or partisan ways. The court perceived a “critical line” separating mere bombastic “rhetoric” from official actions to tilt an election. “When a public official acting in his official capacity crosses that line,” the court wrote, “he ventures into a thicket of actual or potential bias. Then, constitutional alarm bells ring.”
The court’s analysis is worth pausing over, because the framework it outlines could constrain future officials from subverting elections. Most significant, the judge drew on principles that the Supreme Court set out in a 2009 case called Caperton v. A. T. Massey Coal Company. In Caperton, the Court considered whether Brent Benjamin, a justice for the West Virginia Supreme Court of Appeals, had violated the Constitution by failing to recuse himself in a high-stakes case involving Don Blankenship, the coal magnate who had bankrolled Benjamin’s judicial election. In the Court’s view, Benjamin violated the due-process rights of Blankenship’s litigation adversary by failing to recuse himself from the appeal of a $50 million jury verdict against Blankenship. In the Scott case, the Florida court drew on Caperton as a touchstone. The key idea is that a government decision maker violates the right to due process when he displays “a serious, objective risk of actual bias.”
The judge in Scott’s case made clear that these principles apply to officials with authority over elections. Due-process principles, the court explained, prevent “an individual involved in the electoral process [from using] his official powers to influence the outcome.” In addition to Caperton, the court drew on decades-old lower-court cases holding that, although federal courts will not intervene in garden-variety errors or isolated instances of unfairness, their job is to get involved where “broad-gauged unfairness permeates an election,” or in those “rare, but serious” instances where a state takes action that “undermine[s] the basic fairness and integrity of the democratic system.”
This is the lens through which courts should consider the rhetoric and action of any election deniers who win their races. Will the campaign statements of Marchant or Finchem or similar candidates, standing alone, lead a court to disqualify them from overseeing the next presidential race? Probably not. But those statements provide a backdrop for assessing future statements and actions if any of these candidates assume control of their state’s election infrastructure. Their campaigns are guided by a chilling syllogism: The job of election officials is to run clean and accurate elections; in a clean and accurate election, only Republicans can win; therefore, the mandate of an election official who prevails on an election-denial platform will be to ensure Republican victories. This moves us quickly to the territory where “constitutional alarm bells ring.” Courts applying these principles may conclude that a combination of rhetoric and action reveals such bias that an official must be forced to recuse himself prior to Election Day, and the period thereafter, when election-subversion efforts may come to a head.
Court intervention may serve as a kind of “break glass in case of emergency” response to the worst abuses. As a long-term protection against hyper-politicized election administration, however, this is a rickety system. So it’s worth asking: How do we protect our elections from being run by those who would hijack them?
The best way to protect elections against partisan manipulation is to take election administration out of the hands of partisan officials. The law professor Richard Hasen proposed such an approach back in 2005, arguing for “nonpartisan, professionalized election administration,” and many others have echoed that call. The idea is to create many layers of separation between the people making decisions about election administration and partisan politics. This means appointing officials in a way that’s insulated from partisan politics (say, by having a panel of retired judges nominate potential election chiefs), securing their budgets against political interference, protecting them from arbitrary removal from office, and then allowing them to hire professional staff and appoint local officials. It also means banning election chiefs from running for elected office (like Brian Kemp in 2018) or otherwise participating in electoral politics (as in 2000, when Florida’s secretary of state, who oversaw the presidential recount process, had served as a campaign co-chair for George W. Bush). In combination, these kinds of institutional features select for people with professional expertise, rather than political ambition or partisan fervor, and create space between their day-to-day decision making and the imperatives of partisan advantage.
Nonpartisan, professionalized election administration is the norm in many other democracies; the American system of allowing partisan politicians to run elections is an outlier. Democracies around the world administer their elections in a host of different ways, reflecting their own histories and systems of government. But they have one thing in common: Outside the U.S., they almost uniformly rely on professionals who have nothing to do with the hurly-burly of elective politics to oversee elections. Some countries rely on a national body; others devolve authority to regional or local governments. None of them vests power over elections in officials who run in partisan races for the job of election chief. The American system of election officials chosen through partisan elections, or appointed based on their affiliation with partisan officials, has not found takers among democracies abroad.
Of course, we should not be naive about the ease with which these (long-standing) reform proposals might become law; the status quo is deeply entrenched. Wisconsin enacted nonpartisan election administration in 2007, which was celebrated as a national model; ultimately, however, it provoked a backlash by the state’s Republicans, who dismantled it less than a decade later. And in many of the most contested states, legislatures may be moving in the opposite direction. Georgia passed a law in 2021 that would allow the legislature to infuse more politics into election administration. Similar bills have been proposed in Arizona and other states, suggesting distressing trend lines.
These sources of inertia are real, but we might find inspiration in another area where partisan politics threatens democratic institutions. In recent years, several states have removed the authority for drawing legislative districts from partisan legislators and created new administrative bodies charged with designing fair maps. Crucially, in several states, these reforms were enacted through voter-led initiatives, bypassing resistant state legislatures. Indeed, since 2000, five states have used voter-led initiatives to wrest control of the redistricting process and place it in the hands of entities designed to be fair and independent. To be sure, the results have been mixed. For example, in 2015, Ohio voters amended their constitution to create an independent redistricting commission, but the work of that commission was essentially torpedoed in 2021 by intransigent Republicans in the state legislature. Those challenges capture the inescapable fact that efforts to depoliticize elections will always be intensely contested. The point is not that there’s a cure-all solution, but that we have some models available to us for creating a better system.
The prospect of committed election deniers seizing control of election administration is deeply unsettling—a little like turning over the fire department to a band of pyromaniacs. It dramatically showcases a basic vulnerability in our system: When partisan officials run elections, elections will be subject to partisan manipulation. The future of our democracy shouldn’t depend on the personal courage of officials in obscure offices.