GUARDRAILS FOR THE GUARDIANS Reducing Secretary of State Conflict of Interest and Building More Impartial U.S. Election Administration A REPORT BY THE ELECTION REFORMERS NETWORK GUARDRAILS FOR THE GUARDIANS REDUCING SECRETARY OF STATE CONFLICT OF INTEREST AND BUILDING MORE IMPARTIAL U.S. ELECTION ADMINISTRATION PUBLISHED BY THE ELECTION REFORMERS NETWORK SEPTEMBER 2020 ABOUT ELECTION REFORMERS NETWORK (ERN) The Election Reformers Network is a nonpartisan 501c3 organization founded in January 2017 by experts in democracy promotion and election observation with extensive experience in the United States and overseas. ERN leverages this expertise to develop and support election reforms that can reduce polarization and increase public confidence in U.S. democratic institutions. THE AUTHORS KEVIN JOHNSON is the founder and executive director of Election Reformers Network (ERN). Kevin has 19 years’ experience in election reform programming, including three years with ERN, ten years as a Board Member of Common Cause Massachusetts, and seven years working on overseas democracy promotion with the National Democratic Institute. Kevin is on the Advisory Boards of Fairvote, Issue One, American Promise, and Voter Choice Massachusetts. LARRY GARBER is an independent consultant, with more than 35 years of experience on election related work. Previously, he served on the faculty of the National Defense University, a senior policy-maker at the US Agency for International Development (USAID), mission director for USAID’s West Bank/Gaza program, and as the Chief Executive Officer of the New Israel Fund. EDWARD MCMAHON currently holds a joint appointment as Adjunct Associate Professor of Community Development and Applied Economics, and Political Science at the University of Vermont. He previously served as Dean’s Professor of Applied Politics and Director of the Center on Democratic Performance (CDP) at Binghamton University (SUNY), as Senior Advisor for Democracy and Governance in USAID’s Policy and Program Coordination Bureau and as a Regional Director for the National Democratic Institute. ALEXANDER VANDERKLIPP is the Election Reform Fellow at Election Reformers Network, where he contributes to research and development of the ERN program portfolio. Previously, he worked on redistricting, turnout, and pro-voter election administration projects during internships for the Democracy Fund, the National Democratic Redistricting Committee, and U.S. Senator Gary Peters. Designed by: GUARDRAILS FOR THE GUARDIANS 3 EXECUTIVE SUMMARY In 33 states in the U.S., the interest undermine voter confidence in elec- tions, and they can lead to situations where position of chief election official partisan motivations affect election results. is held by the secretary of state While concerns over secretary of state (or a similarly titled official), who conflict of interest have arisen from time to is elected in partisan elections time, the issue has not been deeply studied, and this report aims to address that gap. and takes office with allegiance Research for this report has focused on to a political party.i No other the structural sources of secretary of state conflict of interest and on the track record of democracy in the world selects partisan acts by secretaries serving over the its most senior election officials past 20 years. This report also evaluates how in this manner. most other democracies in the world restrict partisan behavior by senior election officials In seven states, the governor or the and foster norms of impartial administration. legislature appoints the secretary of state, The research findings and the recommen- which likewise results in a state chief election dations for addressing these issues are official with strong ties to a political party. summarized below. These structures create conflict of interest between the secretaries’ responsibility as chief election officials to administer elections I. STRUCTURE In none of the 50 states is senior election ځ neutrally and their personal and professional interest in the success of a party fielding administration structured to provide the candidates. In states with elected secretar- impartiality that is often considered es- ies of state, these individuals are frequently sential to democratic elections. Impartial candidates themselves, whether for re-elec- election administration often occurs in tion or for higher office. These conflicts of i See Chapter 1 Section I. for a discussion on the use of titles in this report. 4 GUARDRAILS FOR THE GUARDIANS practice, but it is not built into the administra- of state for other major offices such as gover- tive design. nor or senator. Secretaries who were also can- didates have rarely recused themselves from Review of conflict of interest laws at the state ځ involvement in phases of election administra- level finds that such laws do not constrain sec- tion that could benefit their own candidacy. retaries of state from acting to further their Forty percent of secretaries of state serving ځ own interests as candidates or the interests of their party. since 2000 have run for higher office while serving as secretary or after leaving office. This Several factors limit the impact of secretary ځ segment of secretaries has also taken partisan of state conflict of interest on U.S. democracy, positions, such as publicly endorsing candi- including the primary role of local officials in dates, at a much higher rate than secretaries elections and the infrequency of close election who did not run for higher office. results. The personal ethical commitments of Only 26 percent of secretaries of state serving ځ -individual secretaries of state also play an im portant positive role. since 2000 came to the office with a back- ground in election administration or with In normal times, election laws and election ځ some other source of election expertise. litigation can constrain the potential for harm Approximately 20 percent of secretaries of ځ from partisan allegiances of secretaries of state, but in a very close election in which re- state serving since 2000 have lost in court in sults are disputed or in circumstances of dis- lawsuits arising from circumstances where the ruption or emergency, the party allegiance of secretaries’ actions appeared to favor their po- secretaries pose significant risks. litical party. -Public opinion polls show fairly high approv ځ The position of secretary of state is not ideally ځ suited to leadership in state election adminis- al ratings for election officials in general, but tration because of the position’s other respon- also indicate that partisanship among secre- sibilities and political functions. taries of state has a negative impact on voter confidence. A high-profile situation of con- States with election boards or commissions ځ flict of interest in Georgia in 2018 significant- have designed those bodies with an empha- ly undermined voter confidence in that state. sis on representing the two major political Americans have low confidence that a disput- parties, not on achieving impartial election ed election will be handled fairly, particularly administration. voters who do not belong to the party of their secretary of state. -A critical threat to U.S. elections are the signifi ځ II. TRACK RECORD Egregious, highly consequential incidences of cant and divided concerns of Democrats about ځ partisan bias by secretaries of state are rare, but voter suppression and Republicans regarding less dramatic acts of partisanship have taken fraud. Without impartial election administra- place more frequently. For example, of the 137 tion, the U.S. lacks authoritative, respected, elected secretaries of state serving since 2000, neutral voices to address these arguably over- 46 (one-third) have endorsed a candidate run- stated concerns. -Positive trends related to state election ad ځ ning in a race under their supervision, and 12 have served as co-chair (or equivalent) of a ministration include an increase this decade in presidential election campaign. the number of secretaries of state with elec- -Over the last 20 years, a secretary of state has tion backgrounds and fewer partisan endorse ځ simultaneously been a candidate for election ments in the 2020 presidential election cycle. Importantly, many secretaries of state have ځ .and the state’s chief election official 153 times This total includes 52 candidacies by secretaries GUARDRAILS FOR THE GUARDIANS 5 demonstrated significant impartiality in re- from 2007 to 2016), likewise involved active or sponding to the coronavirus. This includes 16 retired judges as board members and in the out of 23 relevant Republican secretaries who selection of board members. pushed in some way to expand voting by The approach to election administration in the ځ mail during primary season. In the context of United States is in part a legacy of the country’s President Trump’s opposition to vote-by-mail, early adoption of democracy and its unusual- these steps are noteworthy examples of sec- ly long-standing constitution. New and young retaries putting voters above party affiliation. democracies, lacking legacy institutions, have been better positioned to take advantage of III. U.S. ELECTION many decades of learning and experimenta- ADMINISTRATION IN tion with election administration. Some older democracies have needed the opportunity of INTERNATIONAL CONTEXT a constitutional reset to implement more im- .The U.S. is the only democracy in the world partial systems ځ The history of systemic racial discrimination ځ ,that