By Chad Vickery, Vice President of Global Strategy and Technical Leadership at the International Foundation for Electoral Systems, and Bailey Dinman, Research Coordinator at the International Foundation for Electoral Systems (see full bios at the end of the article).
The views expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of their employers.
As Louis Brandeis noted in New State Ice Co. v. Liebmann, in the United States’ federal system,individual states are intended to “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”[1] This innovation at the state level – for example in education, infrastructure, and public health – is enabled by the Tenth Amendment of the United States Constitution, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[2] When this decentralized system works well, innovation is supported and successful policies and approaches are replicated throughout the country. However, when this system does not work well – for example, when minimum standards for government service provision are not defined or respected – citizens experience stark differences in public administration and the quality of services they receive. This holds true for the decentralized U.S. electoral system, which is rooted in this constitutional deference to each state’s autonomy. However, elections are unique in that they determine governance at the local, state and federal level, and ultimately who is in power underpins everything else; motivations for election ‘innovation’ may differ from other areas of public administration, such as education or health. As illuminated by the COVID-19 crisis, this system, that does not define or mandate minimum standards, is increasingly undermining electoral integrity and legitimacy and the fundamental principle of one person one vote, especially when held up to international standards.
As the COVID-19 global crisis – and therefore a federal imperative – has revealed, the “laboratory” approach does not always work when it is decoupled from national-level leadership and inconsistent application of internationally accepted public health standards. The United States federal government did not adopt a national strategy for testing, tracing or physical distancing, and delegated the response almost entirely to the states. A strong, coordinated federal response to this specific national crisis does not have to undercut state autonomy more generally with respect to public health. However, without a national strategy and common standards for the pandemic response, elected state leaders are divided about the threat COVID-19 poses and, in some cases, have not responded in line with internationally accepted best practices for managing the pandemic, as established by the World Health Organization.[3] As a result of this patchwork response, the United States quickly became the “epicenter” of the global outbreak (meaning it had the most cases of any country globally).[4]
Alexander Hamilton warned of the inherent weaknesses of this interdependent structure with respect to elections, writing in the Federalist Papers that “[n]othing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it.”[5] The constitutional mandate for individual states to administer federal elections is defined in the Election Clause in the Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”[6] The idea that states must retain great autonomy in administering elections, and that they can effectively function as “laboratories” of innovative public administration, has become an entrenched feature of the American canon. It is increasingly clear, however, that this approach runs counter to internationally accepted good practices in election administration and undermines fundamental notions of fairness and equality in the democratic process.
This is particularly true with respect to the election of national representatives, including the president and House of Representatives, where the processes in each state contribute to a national outcome. However, even certain elements of state ‘innovation’ – such as secretaries of state overseeing their own elections (discussed below) – are also against accepted principles and potentially harm the integrity of state and local election outcomes. Although the Constitution gives Congress the power to intervene in election administration when it suits the national interest, the deliberative body has largely chosen not to use this mandate in a material way over the past twenty years, despite ample evidence that the electoral process does not ensure fair and effective federal election administration, and that it undermines the fundamental principle of “one person, one vote.”[7];[8] This inaction can be largely attributed to the politicized nature of the electoral process – the political benefits of structural deficiencies prevents Congress as a whole from acting in the national interest, as the result may be the loss of individual political power.[9]
The decentralized U.S. structure is highly unusual when viewed in a cross-national comparison, as the overwhelming majority of countries have a single centralized election commission to oversee federal elections.[10] Although decentralized election administration can have some benefits in terms of transparency and inclusiveness, the International Institute for Democracy and Electoral Assistance emphasizes some downsides of this model: “Devolving electoral powers and responsibilities to local authorities without appropriate oversight may make it more difficult to maintain electoral consistency, service, quality and—ultimately—the freedom and fairness of elections.”[11]
The Election Assistance Commission (EAC), established after the controversial 2000 United States presidential election, provides guidance and support to state election administrators, but most of their guidance is voluntary or tied to funding requests.[12] Despite minimal efforts to address election administration weaknesses (for example, the 2013 Presidential Commission on Election Administration), little has changed since 2000, voter trust in the process is eroding, and politicians are taking advantage of the weak links in the system.[13] The November general elections are likely to further expose the vulnerabilities in our system.
This decentralization of election administration in the United States is characterized by inconsistent procedures, partisan composition, and a lack of oversight.[14] This undermines electoral integrity. Few states have effective provisions for dealing with election-related emergencies; in only six states election officials have the authority both to delay an election and shift the location of polling places.[15] This structure forces elected Governors and Legislators, the majority of whom have no experience running elections, to make these decisions. Though the structure of election administration varies by state, it is often politicized; in 24 states, the elected secretary of state (who generally belongs to a major political party), serves as the chief election official.[16] As political divisions have grown more severe in the United States, this partisan leadership structure is likely contributing to declining trust in election outcomes, as the mere act of voting itself has become highly politicized.[17] Since 2010, 25 states have enacted new voting restrictions, “including strict photo ID requirements, early voting cutbacks, and registration restrictions”.[18] In the 2013 case Shelby County v. Holder, the Supreme Court ruled that the federal government was using an outdated and unconstitutional process to determine which states were required to have their voting rules approved by the government; as a result of this decision, a number of states quickly implemented changes to their laws and procedures, and many commentators believe that this has resulted in disparate approaches to key election administration issues and widespread disenfranchisement of minority voters, particularly Black Americans, without a federal check.[19]
Yes, the pandemic has illuminated the challenges of decentralized election administration in the U.S, though the electoral process in the U.S. did not become a crisis due to COVID-19 – structurally, it was already a house of cards. Elections held in recent months have been plagued with widespread technological deficiencies, confusing procedures, and likely thousands of disenfranchised voters. These issues plague both Democratic and Republican-led election administrations. Even before the pandemic hit, in California, the use of new election technology to check-in voters in Los Angeles County, operated by untrained poll workers with limited oversight, caused long lines and delays. In Wisconsin, a partisan legal battle over postponing the primary election led to widespread confusion about whether the election would be held on its scheduled date. In Wisconsin, Georgia, and Kentucky, the number of polling stations was dramatically reduced in an effort to limit the spread of the coronavirus; these reductions disproportionately impacted districts predominantly populated by Black and Latinx voters.[20] These decisions and unnecessary fumbles have been enabled by a lack of federal oversight and guidance; the EAC did not release guidance for managing elections during the pandemic until June 2020, despite consistent requests from state officials for several months prior.[21] Even then, this guidance is optional; states are not required to follow accepted election standards.
In an effort to protect the safety of voters, many states have sought to expand mail-in voting; however, this approach to voting has been deeply politicized. Although there are claims of misfeasance, countless investigations have not found evidence of widespread fraud related to mail-in voting, however, many state leaders have been using the alleged risk of fraud as a justification for their policy decisions, prohibiting the expansion of mail-in voting.[22] Though many health experts believe this expansion is necessary to limit the spread of COVID-19, states are ill-equipped to properly administer the process and the U.S. Postal Service is severely under-resourced, further compromising the ability to deliver, receive, and count all mail-in ballots in an expedient manner.[23] In primaries held in Georgia and Washington D.C., mail-in ballots failed to reach thousands of voters, and in California, more than 102,000 ballots were rejected largely due to signature errors and delayed returns.[24] New election technologies have not been updated in many states due to a lack of resources and, in some instances, political will; as a result, many states lack the infrastructure to count an influx of mail-in ballots. For example, it took more than three weeks to count and announce results of the June New York state primary election.[25] These experiences may foreshadow what is to come this fall, further eroding trust in the electoral process and potentially delegitimizing the results of the November general election.[26] To be clear, these issues are preventable, and the inability or unwillingness of officials to address them effectively prior to election day will likely lead to a slew of malpractice – the breach by an election professional of his or her relevant duty of care, resulting from carelessness or neglect – that will be labelled “fraud” – deliberate wrong-doing by election officials or other electoral stakeholders, which distorts the individual or collective will of the voter – in the public narrative.[27]
Public confidence in the fairness of the electoral process and the accuracy of election results depends in large measure on both the actual and the perceived impartiality of the electoral administration process. Evidence suggests that trust in the integrity of U.S. elections has deteriorated – a recent Gallup poll found that only 40 percent of Americans have confidence in the honesty of elections.[28] This is compared to 66 and 62 percent confidence in elections in Canada and Australia, respectively, both countries with largely decentralized systems that benefit from a strong federal election body. While there are a multitude of factors that determine levels of trust, it is clear that the U.S. electoral system is at a critical juncture, especially when compared to other federalist democracies.
As we are learning through the U.S. response to COVID-19, an inconsistent approach to major crises does not work, and neither does an inconsistent and decentralized electoral process operating without common accepted standards to preserve electoral integrity, which are rooted in international principles. Although time is short before the November elections, there are important measures that state and federal officials should enact to strengthen trust in the electoral system, before we find ourselves in a national electoral crisis. Though it is plagued with inefficiencies, the EAC must be empowered and funded to support states to procure the necessary sanitary equipment for in-person voting, while expanding the number of polling stations and cadre of poll workers available. Mail-in and drop-off voting should be expanded by replicating best practices from states such as Colorado and Washington that have years of experience sending and counting mail-in ballots. As with the coronavirus pandemic, states should model their election protocols after the successes of other countries, such as by adopting the expanded early-voting provisions used in South Korea and strict sanitary guidelines enforced in Singapore.[29] Finally, federal legislation, such as the Natural Disaster and Emergency Ballot Act, which requires states to establish and publish a contingency plan to enable voters to vote in federal elections during an emergency, and the John Lewis Voting Rights Act, which restores full protections of the 1965 Voting Rights Act, should be passed and signed into to law to ensure that election officials and voters are equipped for future elections. Beyond November, the decentralized “laboratory” approach must be critically re-evaluated. In the absence of equally applied and administered minimum standards of fairness among all states that instill confidence in the electoral process and electoral outcomes, trust in elections and democracy will continue to decline in the United States.
About the Authors
Chad Vickery, Vice President of Global Strategy and Technical Leadership at the International Foundation for Electoral Systems (IFES), has extensive legal and international election administration experience with an emphasis on strengthening democracy and governance in transitioning societies. He manages IFES’ global applied research, technical leadership and strategic innovations initiatives. He specializes in designing and managing electoral integrity initiatives; election complaint adjudication programs; providing comparative legal analysis; working on elections; and rule of law programs throughout South Asia, Southeast Asia, Eurasia and the Middle East.
Vickery’s specific programmatic experience includes leading electoral integrity assessments and projects designed to ensure the development of impartial legal frameworks for elections, increasing professionalism of election management bodies, establishing effective election dispute programs, and increasing political participation of historically disenfranchised groups into the electoral process.
Vickery has also spearheaded the development of new methodologies for assessing the integrity of elections in countries around the world, with a focus on electoral fraud and malpractice and the investigation and adjudication of electoral complaints. He is a member of the Advisory Board to the Electoral Integrity Project, based at the University of Sydney and the John F. Kennedy School of Government at Harvard University. He is also a member of the Washington State Bar and has been appointed to the American Bar Association’s (ABA) Advisory Committee to the Standing Committee on Election Law and is co-Chair of the Task Force on International Election Law within the ABA Section of International Law.
He holds a master’s degree in international relations from Georgetown University; a Juris Doctorate from the Catholic University of America with a concentration in comparative and international law; and a bachelor’s degree in political science from the University of Washington.
Bailey Dinman is a Research Coordinator at the International Foundation for Electoral Systems (IFES), where she supports applied research related to democratic transitions and electoral operations, and leads updates to the IFES online ElectionGuide website. Before joining IFES, she worked for the UN Foundation, Freedom House, and Amnesty International. She holds a bachelor’s degree in Government and Politics from the University of Maryland.
Footnotes
[1] New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).
[2] U.S. Const. amend. X.
[3] For example, Georgia Governor Brian Kemp issued an executive order forbidding municipal officials from setting mandatory face-covering policies, despite CDC recommendations that people wear masks in public settings. After Atlanta Mayor Keisha Lance Bottoms attempted to require face masks within her jurisdiction, Governor Kemp filed suit against her and the Atlanta City Council. See Vanessa Romo, Georgia Gov. Brian Kemp Sues Atlanta Mayor Keisha Lance Bottoms Over Face Mask Order, NPR (July 16, 2020, 7:19 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/07/16/892109883/georgia-gov-brian-kemp-sues-atlanta-mayor-keisha-lance-bottoms-over-face-mask-or.
[4] Center for Systems Science and Engineering, Coronavirus Resource Center: COVID-19 Dashboard, Johns Hopkins University, https://coronavirus.jhu.edu/map.html (last visited Aug. 19, 2020).
[5] The Federalist No. 59 (Alexander Hamilton).
[6] U.S. Const. art. I, § IV.
[7] Dave Roos, When the Founding Fathers Settled States’ vs. Federal Right — and Save the Nation, History (Apr. 30, 2020), https://www.history.com/news/federalism-constitution-founding-fathers-states-rights (citing U.S. Const. art. IV).
[8] This is demonstrated most clearly through the malapportionment of single-member district sizes between states, which is a clear violation of international standards as outlined in the Venice Commission and, as it is ensured by statute, a significant vulnerability to systemic manipulation. See Chad Vickery & Heather Szilagyi, America in Comparative Perspective, in Electoral Integrity in American: Securing Democracy 191, 194 (2018), https://www.ifes.org/sites/default/files/america_in_comparative_perspective.pdf.
[9] Notable exceptions include the 2002 Help America Vote Act (HAVA), which addressed improvements to voting systems and voter access following the 2000 general election, and the 2007 re-authorization of the Voting Rights Act, however, this was effectively gutted by the Supreme Court’s decision in Shelby County v. Holder (2013). See U.S. Electoral Assistance Comm’n, Help America Vote Act (2019), https://www.eac.gov/about_the_eac/help_america_vote_act.aspx.
[10] Robert A. Pastor, The United States Administration of Elections: Decentralized, Pre-Modern and Contented, ACE Electoral Knowledge Network, Electoral Management, https://aceproject.org/ace-en/topics/em/annex/electoral-management-case-studies/the-united-states-decentralized-to-the-point-of (last visited August 11, 2020).
[11] Catt et al., Electoral Management Design, Electoral Knowledge Network 17 (2014), http://www.eods.eu/library/IDEA.Electoral-Management-Design.pdf.
[12] Robert A. Pastor, The United States Administration of Elections: Decentralized, Pre-modern and Contented, Electoral Knowledge Network, https://aceproject.org/ace-en/topics/em/annex/electoral-management-case-studies/the-united-states-decentralized-to-the-point-of (last visited July 4, 2020).
[13] Pam Fessler, American Distrust of the Voting Process Is Widespread, NPR Poll Finds, NPR (Jan. 21, 2020), https://www.npr.org/2020/01/21/798088827/american-distrust-of-the-voting-process-is-widespread-npr-poll-finds.
[14] Vickery and Szilagyi, supra note 8.
[15] Election Emergencies, Nat’l Conf. State Legis. (Apr. 7, 2020), https://www.ncsl.org/research/elections-and-campaigns/election-emergencies.aspx.
[16] Election Administration at State and Local Levels, Nat’l Conf. State Legis. (Feb. 3, 2020), https://www.ncsl.org/research/elections-and-campaigns/election-administration-at-state-and-local-levels.aspx.
[17] Lee Rainie, et al., Trust and Distrust in America, PEW Research Center (Jul. 22, 2019), https://www.pewresearch.org/politics/2019/07/22/trust-and-distrust-in-america/.
[18] New Voting Restrictions in America, Brennan Ctr. For Justice (Oct. 1, 2019), https://www.brennancenter.org/our-work/research-reports/new-voting-restrictions-america.
[19] P.R. Lockhart, How Shelby County v. Holder Upended Voting Rights in America, Vox (June 25, 2019, 7:49 PM), https://www.vox.com/policy-and-politics/2019/6/25/18701277/shelby-county-v-holder-anniversary-voting-rights-suppression-congress.
[20] In a recent publication, IFES electoral operations experts suggest that amid the coronavirus pandemic, the number of polling stations should in fact be increased to reduce the number of voters in each facility at the same time. See Fernanda Buril et al., IFES COVID-19 Briefing Series: Safeguarding Health and Elections, Int’l Found. Electoral Sys. (May 2020), https://www.ifes.org/publications/ifes-covid-19-briefing-series-safeguarding-health-and-elections.
[21] Michelle Ye Hee Lee, In New Guidance, CDC Recommends Alternatives in Addition to In-Person Voting to Avoid Spreading Coronavirus, Wash. Post (July 7, 2020, 4:57 PM), https://www.washingtonpost.com/politics/in-new-guidance-cdc-recommends-alternatives-to-in-person-voting-safety-precautions-for-in-person-voting/2020/07/07/5b62cbba-c078-11ea-b178-bb7b05b94af1_story.html.
[22] Debunking the Voter Fraud Myth, Brennan Ctr. For Justice (Jan. 31, 2017), https://www.brennancenter.org/our-work/research-reports/debunking-voter-fraud-myth.
[23] Michael D. Shear, et al., Mail Delays Fuel Concern Trump is Undercutting Postal System Ahead of Voting, N.Y. Times (July 31, 2020), https://www.nytimes.com/2020/07/31/us/politics/trump-usps-mail-delays.html.
[24] Jane C. Timm, States Reject Tens of Thousands of Mail Ballots in this Year’s Primaries, Setting off Alarm Bells for November, NBC News (July 18, 2020, 4:30 AM), https://www.nbcnews.com/politics/2020-election/states-reject-tens-thousands-mail-ballots-year-s-primaries-setting-n1233833.
[25] Adam K. Raymond, Why are We Still Waiting for New York Primary Results, New York Magazine (July 16, 2020), https://nymag.com/intelligencer/2020/07/new-york-primary-results-still-waiting.html.
[26] Laura Curlin & Bergen Smith, Election in Peril: Procedural Risks to the 2020 Presidential Election, Maplight (July 2020), https://s3-us-west-2.amazonaws.com/maplight.org/MapLight_ElectioninPeril.pdf.
[27] Chad Vickery and Erica Shein, Assessing Electoral Fraud in New Democracies: Refining the Vocabulary, Int’l Found. Electoral Sys. (May 2012), https://www.ifes.org/sites/default/files/assessing_electoral_fraud_series_vickery_shein.pdf.
[28] R.J. Reinhart, Faith in Elections in Relatively Short Supply in U.S., Gallup (Feb. 13, 2020), https://news.gallup.com/poll/285608/faith-elections-relatively-short-supply.aspx.
[29] Elections Held and Mitigating measures Taken During COVID-19, Int’l Found. Electoral Sys. (July 15, 2020, 1:45 PM), https://www.ifes.org/sites/default/files/elections_held_and_mitigating_measures_taken_during_covid-19.pdf.
