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Some state legislators aim to give elected officials control over the administration and election results.

At the last count, 18 laws had been passed in 30 states, making it more difficult to vote. According to the Brennan Center, “more than 400 bills containing provisions restricting access to the vote were introduced in 49 states during the legislative sessions of 2021”. Many of these restrictions directly involve voting; others have a more indirect effect on the vote. Some laws are uniformly restrictive; others restrict the vote in some respects and extend it to others.

Overall, these bills sparked lawsuits, congressional hearings, corporate condemnation and a boycott, public outrage and protest, leaked state lawmakers, and memories of Jim Crow. .

Much of the criticism leveled at these bills has focused on the ways in which they seek to restrict voters to vote in 2022 and beyond. Of equal importance are the ways in which these bills seek to restrict election administrators to do their job in 2022 and beyond. Some of these bills seek to downplay the authority of election administrators – people whose work depends on the vote count – and to extend the authority of elected officials – people whose work depends on winning the vote. It doesn’t matter to reduce voter turnout by a few percentage points when you can just certify which winner you prefer!

America’s redistribution process has been criticized as one where politicians can choose their constituents instead of the other way around. In one case, for example, a court ruled that lawmakers were targeting certain voters – in this case, African Americans – with “almost surgical precision.”

The same backward process – elected officials choosing their voters instead of the other way around – could also describe recent attempts to politicize election administration. And in the extreme, politicizing elections could take voters out of the equation altogether.

Consider the following three bills.

  • Georgia Senate Bill 202, enacted on March 25, 2021, authorizes the state legislature to appoint the majority of members of the state electoral council and authorizes the state council to remove and temporarily replace superintendents local elections responsible for certifying the election results. .
  • Texas Senate Bill 1, passed by Texas House on August 27, would make it a crime to distribute mail-in ballot requests to voters who do not request them, and it would expose election officials to jail time. ‘They enter false information on a provisional ballot or remove a partisan poll observer from a polling station.
  • Arizona House Bill 2720, introduced by Arizona State Legislator Shawnna Bolick (R. District 20) in May 2021, would allow the state legislature, through a vote in the simple majority, to revoke the certification by the secretary of state of a presidential election and to choose the president of the state. voters unilaterally, regardless of the preferences of voters in Arizona.

Each of these bills could allow election administration decisions that are normally isolated from state-level politics to be exposed to strong partisan winds.

Despite a long history and culture of partisan election administration, post-2020 attempts to politicize local decisions regarding voter eligibility and constituency-level voting certifications are unprecedented. The fallout has already begun as dozens of election officials resign amid death threats for their past work and potential criminal penalties for their future service. If these roles are filled by die-hard supporters, the mission of politicizing the election administration would be accomplished without further intervention.

Finding the right balance between political accountability and effective, legitimate and neutral expertise in the administration of government programs is always a challenge. Unfortunately, these decisions about delegation and oversight are too often based on a determination of political expediency and not on effective public administration. Election administration is no different, although it should be.

Elections are not a typical government program. By politicizing election administration, state lawmakers are unlikely to increase accountability for controversial decisions. Aside from the complexity of political accountability in general, state lawmakers are unlikely to be faced with the heat of their controversial electoral decisions when the very purpose of such controversial decisions is to shield them from political accountability.

The wave of restrictions on voting and the administration of elections is driven by similar concerns about partisanship and racial prejudice. It is still unclear whether electoral restrictions will lead to voter suppression. Empirical literature is mixed because restrictions often target people who are unlikely to vote in the first place and could trigger a counter-mobilization that offsets the effects of those restrictions.

It is also unclear how aggressively state legislatures will take over the administration of elections and whether the most serious encroachments on local control, such as criminal sanctions against election officials and the revocation of duly voted vote totals. certified, will garner enough support to be enacted into law.

What is clear, however, is that focusing only on the constitutionally prescribed “times, places, methods” of voting risks missing the forest for the trees to understand how badly these electoral reform bills are. alarming for the future of democracy. To claim that the politicization of the US election administration will strengthen its legitimacy and accountability is not only naive, it is dangerous.

Doug spencer is Associate Professor of Law at the University of Colorado.

This essay is part of a seven-part series entitled Regulation of elections in the United States.