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Capital Closeup: The ‘curious tension’ of secretaries of state running elections

by Tim Anderson ~ December 2018 ~ Stateline Midwest »
Among the world’s democracies, the use of a single, partisan, elected official to oversee the voting process is an anomaly. But among the U.S. states, it is more the norm: In the Midwest, for example, secretaries of state serve as the chief elections officers in all but Illinois and Wisconsin.
Some election cycles come and go without much notice of what author Jocelyn Benson has called the “curious tension” that comes when the head of the state’s elections got to the position as the nominee of a political party.  vspace=
The year 2018 will not be remembered as one of those election cycles, however. The reason: the race for governor in Georgia. One of the people running for that position was Brian Kemp. He was Georgia’s secretary of state at the time, and in the run-up to the election, decisions on voter-registration applications and complaints about faulty voting machines turned the “curious tension” into a national controversy.
According to Daniel Tokaji, a leading authority on national elections, the events in Georgia were an “excessive example of a common problem.”
“You’re going to have situations of actual bias in elections [oversight] or situations that at least look like bias to the public,” says Tokaji, a professor of constitutional law at The Ohio State University’s Moritz College of Law.
“Either way, it’s a problem, especially today when you hear more and more talk about elections being rigged and people questioning the legitimacy of democracy.”
In her book “State Secretaries of State: Guardians of the Democratic Process,” Benson acknowledges the conflict of interest, but also notes the countervailing influence of democracy itself — “the tremendous power of voters to provide the ultimate ‘check’ on the neutrality of their election officials.” In part, Benson’s book sought to show the positive work that secretaries of state have done to promote a healthy democracy.
How much does she believe in the office? So much so that Benson decided to seek it herself — and in November, Michigan voters elected her their next secretary of state.
But Tokaji believes states should consider alternative models that turn over elections authority to independent entities.
Wisconsin once led the nation in this approach, he says, through the use of a Government Accountability Board. Established by the Legislature in 2007, the board was made up of six nonpartisan former state judges appointed by the governor and confirmed by the Senate. Legislators did away with the board eight years later, however, following a dispute over the handling of an investigation involving then-Gov. Scott Walker’s campaign and outside political groups.
Tokaji says the board worked well during its brief stint as a state entity, but notes that this type of independent entity “can be hard to design and implement, and very hard to keep in place.”
The overseer of Wisconsin’s elections is now a six-member commission: four are appointed by the state’s legislative leaders (two Democrats and two Republicans) and two are appointed by the governor, who must select one Democrat and one Republican.Similarly, Illinois’ eight-member State Board of Elections has an equal number of people from the two major parties. (They are appointed by the governor.)
“The problem with bipartisan boards is there can tend to be a lot of stalemate when it comes to making important decisions,” Tokaji says.
He adds that there hasn’t been much movement to replace the secretary-of-state model in place in most states. In 2005, a ballot proposal in Ohio would have moved administration of state elections from the secretary of state’s office to a nine-member appointed board — four Democrats, four Republicans and one independent (the latter being appointed by the chief justice of the Ohio Supreme Court). This proposed constitutional amendment was rejected by 70 percent of Ohio voters.
Two states in the Midwest, Indiana and South Dakota, do employ a hybrid approach. While the secretaries of state oversee elections, some of their powers are shared with appointed boards.

 


Capital Closeup is an ongoing series of articles focusing on institutional issues in state governments and legislatures.