By John Hight John Hight
Election accuracy and integrity are priorities for local, state, and federal governments in order to ensure the voting rights of U.S. citizens. Faith in the government provides people with hope that their vote counts, their voice is heard, and their interests are being represented. Despite strong efforts to maintain this system, many Americans feel frustration, and even distrust, surrounding recent elections. Exit polls from the midterm elections in 2022 reveal that sixty-eight percent of American voters believe democracy in the U.S. is threatened and nineteen percent are not confident that their states are conducting elections fairly and accurately (NBC News & National Election Pool, 2022). Investigating and preventing conflicts of interest could have a large impact on restoring confidence in the voting process.
In forty-seven states, there is a key position within the executive branch known as the secretary of state– only Alaska, Hawaii, and Utah do not have this role. In thirty-five of these states, the position is elected and in the remaining twelve, it is appointed either by the governor or legislature. While the duties of the secretary of state are outlined differently in each state Constitution, the typical duties consist of administrative work, particularly election facilitation, and oversight. For example, the secretary is often responsible for certifying the voting results in their state, ensuring that voting equipment is working properly, and directing election personnel. While their work is often overlooked, it is essential to making sure elections run smoothly and fairly.
Just like many politicians, secretaries of state often decide to run for several different political offices throughout their careers. Two examples of this include; Governor Brian Kemp, R-Ga, and Governor Katie Hobbs, D-Az. Both of these individuals were previously secretaries of state and decided to run for governor in their respective states. Specifically, Kemp ran for governor against Stacey Abrams, D-Ga, in 2018 and Hobbs ran for governor against Kari Lake, R-Az, in 2022. Throughout both of these elections, there was public controversy over the fact that a secretary of state was directly overseeing the election in which they were a candidate. They were candidates with a vested interest in winning but were supposed to be neutral referees at the same time. In any sports competition, a referee cannot also be a player; when the stakes are higher, such as becoming the elected leader of a state, this same principle is not always followed even though the importance of neutrality is even greater.
In both instances mentioned above, the secretaries of state won their elections, despite very tight voting margins. A difference of only 54, 723 votes in Georgia (Briz et al., 2018) and of 17,116 in Arizona (Briz et al., 2022) decided the respective elections, which is a very small gap considering millions of people voted in both elections. Abrams and Lake both filed lawsuits and refused to concede to their opponents. Uniquely, Abrams and Lake are members of opposing parties yet they both agreed that it was unfair for their opponents to regulate and certify these hard-fought races.
While both Lake and Abrams sued their opponents, it was to no avail. In Lake’s case, the court explained that “as for the actions of elections officials themselves, this Court must presume the good faith of their official conduct as a matter of law” (Lake v. Hobbs, 2022). In Abrams’ case, the court wrote that it “agrees with [the] Defendants’ general premise that it is not the place of federal courts to decide complex and subtle questions of election administration” (Fair Fight Action v. Raffensperger, 2022). As a result, it is the legislature or the candidates’ responsibility to address this conflict of interest, not the court, and there are several possibilities for how that could happen.
The first possibility is that if a Secretary of State will be running for a position through an election that they are obligated to oversee, they could recuse themselves voluntarily. They could allow a deputy to take on their responsibilities or request that the state legislature or governor appoint a temporary replacement. The benefit of this solution is that it would not require any additional law yet this is also an issue because it requires individuals to act on their own conscience which was unsuccessful in both 2018 and 2022.
The second possibility is that each state could independently pass a law to address this issue. Since elections are usually left to the state’s purview, this would likely cause the least political controversy. Additionally, each state’s Constitution outlines different responsibilities for their secretary of state, so this method would protect states’ rights and allow them to make policies best suited to their own Constitution. However, this approach would be the most difficult to broadly implement because it would require individual states to pass their own laws. Creating and implementing policy is a long process and states that have not directly experienced this conflict of interest might not be willing to proactively prevent it. As such, comprehensive reform across the country could take years, if it occurs at all, under this method.
The third possibility is that the federal government could step in to make consistent policies across the country. While elections are generally the responsibility of state governments, the Constitution provides Congress with the ability to intercede. The Constitution permits Congress to alter regulations about the manner of elections (U.S. Const. Art. I, § 4). Consequently, Congress could pass a federal law that prohibits a secretary of state, or any election official for that matter, from overseeing a race in which they are running themselves. While there could be resistance to federal regulation on state elections, it’s an alternative that provides a uniform policy.
Despite political polarization and increasing concern about the accuracy and fairness of elections, conflicts of interest could be addressed through bipartisan action. Elections are the bedrock of the United States and being associated with conflicts of interest undermines their integrity. Since this issue has affected both parties, lawmakers could work together to prevent it from happening again, helping maintain American voters’ confidence in the election process.
References
Birz, A., Fisher, T., Jin, B., McClure, J., & Mihalik, L. (2018). Georgia Governor Election Results
2018: Live Midterm Map by County & Analysis. Politico. Retrieved February 20, 2023, from
https://www.politico.com/election-results/2018/georgia/governor/
Briz, A., McGill, A., Bhandari, L. M., & Vestal, A. J. (2022). Arizona Governor Election Results 2022:
Live Map: Midterm Races by County. Politico. Retrieved February 20, 2023, from
https://www.politico.com/2022-election/results/arizona/statewide-offices/
Fair Fight Action v. Raffensperger, Court Listener (United States District Court for the Northern
District of Georgia September 30, 2022). Retrieved February 20, 2023, from
https://www.courtlistener.com/docket/8286682/916/fair-fight-action-inc-v-raffensperger/.
Lake v. Hobbs, Democracy Docket (Superior Court of Arizona December 24, 2022). Retrieved
February 20, 2023, from https://www.democracydocket.com/wp-content/uploads/
2022/12/UA-Ruling-Lake-vs.-Hobbs.pdf.
NBC News, & National Election Pool. (2022, December 29). Live Exit Polls 2022: Election Day Exit
Polls for Democrats vs Republicans. NBCNews.com. Retrieved February 20, 2023, from
https://www.nbcnews.com/politics/2022-elections/exit-polls