The bipartisan agreement in the Senate to reform the Electoral Count Act is a hopeful sign that the next election for president will be less susceptible to corrupt influence. But even if it passes, there is much work to be done to assure the American people that our democratic elections are safe. “Stop the Steal” has taken hold of large segments of the electorate. Half of state Attorney General races and two thirds of Secretary of State races this year have a candidate running who denies the results of the 2020 election. Thirty-three states are considering 229 bills that would politicize, interfere with, or criminalize the election administration. The threat to democracy is growing and won’t recede until we address the fundamental flaw that makes these attacks on election administration possible.
The United States is the only democracy in the world with a partisan system of election administration — by design.
Parity between the Democratic and Republican parties has been its defining feature. In essence, each party is tasked, by law, with checking the other party’s ability to tinker with the balance of election outcomes. As long as most Americans were members of each party and the parties held some semblance of competition geographically, that worked.
Today, though, the largest group of Americans are independent and genuine competition between the parties exists in less than 25 percent of our country. Many states are run by a supermajority of one party or the other at all levels of government. So, when one party tries to hijack the election system in a particular state, there is little to stand in the way. As professor Edward Foley, director of the election law program at Ohio State University’s Moritz College of Law describes it, “We allow partisans to run the system both in the front end of the process and at the back end, and this is particularly problematic at the back end when you have a close election.”
Testimony before the January 6 Committee has detailed efforts to influence election officials from Georgia to Wisconsin. We’ve seen dedicated efforts to place conspiracy-minded individuals in administrative roles throughout our electoral system. Officials who spoke out against claims of voter fraud and a “stolen election” in 2020 have been challenged this year in primary elections, removed from important or prestigious appointed positions, and even subjected to condemnations by their own party.
This increases the likelihood of a successfully falsified or nullified election. With the growing distrust that exists over the neutrality of elections in our country, how does it make sense to continue to maintain a system where, for example, Secretaries of State or other top election officials run as partisans — making them accountable to their party first, rather than the public?
Unfortunately, top state election officials are not the only ones susceptible to this sort of partisan, conspiracy-fueled tampering. Partisanship is baked into every aspect of American election administration. A recent review we conducted of state electoral laws in the 30 states with partisan voter registration found that 27 states gave preferential treatment to partisans wanting to serve on election boards or as poll workers, and nearly half privileged partisans wanting to serve as election judges. Almost every state code we studied privileged partisan access to the basic tools of electioneering, including voter data and public campaign expenditures.
In other democracies, elections are run by independent commissions or governmental agencies shielded from political influence. Senior election officials who oversee federal, state and local elections are either appointed by neutral bodies or via a neutral nonpartisan selection process, or, if elected, run as nonpartisans. In the wake of these very real threats, a more fundamental rethinking of our system of election administration is necessary and a large-scale reformation in order.
We need a conversation about how we fundamentally restructure election administration in America and move to a more nonpartisan system. That should begin by implementing a nonpartisan status for each state’s chief election official (usually the Secretary of State) and the individuals who staff election boards, locally and at the state level. These officials should be required to swear an oath of impartiality, or face recall or removal. This would help put the process of certifying elections above the partisan divide and protect it from further harm.
America’s system of election administration puts our democracy at risk. We must reform the system at every level, before it’s too late.
Jeremy Gruber is an attorney and the senior vice president of Open Primaries, a national election reform organization.
Thom Reilly is professor in the School of Public Affairs and co-director for the Center for an Independent and Sustainable Democracy at Arizona State University.