This is the fourth of five articles by Professor Brian Glassman on the 2020 General Election. This week has a dual theme: “Free and Fair Elections: Who’s Responsible for Making that Goal a Reality?” and “How Can Voting be Made More Accessible and Secure?”
You can read more about Professor Glassman below.
Important Dates to Track:
10/12/20—early in-person voting in Georgia has begun. For additional voting information, go to https://www.gcvoters.org/vote/
Free and Fair Elections: Who’s Responsible for Making that Goal a Reality?
As I wrote in my second article for GCV, the act of voting is – – or should be – – a nonpartisan non-issue. What are the best ways of achieving that goal?
Given the scale of American elections, conducting them is, by definition, neither simple nor easy. However, the United States has over 230 years of experience in conducting elections, which should assist Congress, election officials, and voters in making smarter decisions about how to hold elections and how to vote in them.
First, who is responsible for creating free and fair elections? In my second article for GCV, I explained that the Constitution directs that elections – – even those for federal offices – – are, at least initially, run according to rules crafted by the states. Significantly, Article 2 of the Constitution, which describes the office of the presidency, affords the president no authority to unilaterally judge how fairly elections have been conducted, or to refuse to abide by the results.
At the state level, the Secretary of State typically has the responsibility for conducting elections. As the chief elections officer, the Secretary of State makes policy decisions about the rules by which elections will be conducted, and also allocates resources at the local level for their implementation.
It is common for the Secretary of State position to be an elective office, and for that office to be held by a person identified as a Republican or Democrat. Notwithstanding that party affiliation, a Secretary of State must conduct elections impartially. Failure to do so casts doubt on the credibility of the election system.
That is why the demonstration of party allegiance by a Secretary of State gives cause for concern. For example, in 2004, the Ohio Secretary of State, Ken Blackwell, a Republican, was an “honorary co-chair” of the 2004 Bush presidential campaign. More recently, and much closer to home for voters in Georgia, the then Secretary of State, Brian Kemp, remained in that role, refusing to recuse himself, as he campaigned for the Georgia governorship in 2018. That created the anomalous situation of the Secretary of State being primarily responsible for counting the votes in this most important statewide race in which he was a candidate. As you know, he won that election, and remains George’s governor since assuming office in January 2019.
In the hierarchical structure of state governments, local Boards of Elections must abide by the Secretary of State’s commands. They must follow the rules for the election that the Secretary of State sets forth, and administer the election to the best of their ability with the resources they are provided. When elections go smoothly, the Secretary of State is entitled to credit for procedures that worked well and resources that were wisely distributed. Conversely, when elections go badly–in the form of voters not being able to cast a ballot, ballots counted incorrectly or not at all, inaccurate information distributed to voters, elections officials who didn’t know how to perform their jobs, etc. – – responsibility for those failures must rest, at least initially, with the Secretary of State.
How Can Voting be Made More Accessible and Secure?
Notwithstanding the complexity of the task, there are several steps that can be taken to better ensure that elections are accessible and secure.
First, information disseminated to voters must be accurate and communicated in a timely manner. When there are changes to existing voting procedures, they must be clearly explained to all voters, and that information must be shared in time for voters to understand and make use of it.
Second, simpler really is better. Shiny new technology might seem attractive, but more technology in the voting system means that there are more opportunities for the system to malfunction. Additionally, such technology might unnecessarily create more access points into the system for those who seek to interfere with our elections. At present, the simplest, most reliable voting method appears to be the hand-marked paper ballot. After marking the ballot, the voter inserts it into a scanner, which reads it. That’s a method with few steps, and has the additional benefit of a paper backup in the event of a machine malfunction.
Third, there have to be adequate resources at every polling location: enough machines, and enough people to operate them.
Fourth, poll workers need to be given adequate training on how to use the voting equipment, and how to fix problems when they arise.
Fifth, there has to be an appreciation that problems will arise, especially when new procedures and/or technology are being used. Those problems need to be anticipated. The voting system needs to be stress tested–and retested–until all the bugs have been worked out.
Ideally, an accessible election means one in which voters can vote by mail, early in person, or on the day of the election. That is especially so during this time of the coronavirus pandemic. As I wrote in article 3 for GCV, early voting will, by spreading out the vote, take pressure off the election system in general and off voting on November 3rd in particular. That means that a sufficient number of absentee ballots must be printed correctly and in a timely fashion, and distributed early so that voters can execute them and return them early. Failure to do so inevitably means that voters will not receive their absentee ballots early enough, or perhaps not at all, and instead will have to vote in person. That’s what I call the “cascading effect,” with voting-related problems compounded.
How to create a secure election? It’s up to the computer scientists to create ‘closed’ systems that are invulnerable to cyberattack. Beyond that, an election system that is run in an entirely non-partisan manner is essential to its security. That means, in part, having representatives from both major parties present at every moment, from receiving ballots, to processing them, to tabulating them. Such procedures, clearly described in writing and entirely transparent, will help to produce elections that are secure, and also help to convince voters of that. Finally, voters themselves need to take responsibility, for reading instructions carefully, getting assistance when necessary, acting promptly, and disregarding misinformation/disinformation.
When all of us – – officials and voters alike – – take these steps, we can feel confident that we’re participating in elections that are free, fair, accessible, and secure.
Professor, Cleveland-Marshall College of Law
Brian Glassman taught full time for 27 years at the Cleveland-Marshall College of Law before transitioning to part-time professor this year. He conceived of, organized, and moderated a conference, “Election Integrity in a Time of Political Polarization: Gerrymandering, Redistricting Commissions, and the 2020 Census Citizenship Question,” hosted by Cleveland-Marshall in October 2019. He also spoke at the Law Dean’s virtual Town Hall on “Elections, Coronavirus, and the 2020 Census” in April 2020. Currently, he is working on voting rights issues for organizations committed to free and fair elections. On September 24, 2020, he co-presented with Allegra Lawrence-Hardy, Esq., legal counsel for the voting rights organization Fair Fight Action, at a Cleveland-Marshall virtual event titled “Racial Discrimination in Voting.”
Prof. Glassman received his B.A. from Connecticut College, and his J.D. from the Boston University School of Law.