Designing Guidelines for Recusal by Election Officials
Summary
There’s an oddity in American democracy: officials sometimes administer elections in which they are candidates. In 33 states, the chief election official is an elected secretary of state or lieutenant governor, and in many states, local election officials are also elected. When these officials run for re-election, or for other offices, they oversee their own elections.
Most of the time, no problems arise, but such situations have long raised questions about conflicts of interest. Can election officials help their own chances of winning? Do voters perceive a conflict of interest, and if so, are some less trusting of the results of such contests? How are the answers to these questions changing in today’s era of polarization and partisan conflict over the management of elections?
Two widely noted reports on election ethics released this year have given new prominence to the issue. A bipartisan report published by the American Law Institute entitled Ethical Standards for Election Administration recommends laws to allow election officials “to recuse themselves from decisions that pose a conflict or appearance of conflict.” Similarly, The Election Center’s Standards of Conduct for Election and Registration Officials proposes that “Election officials should establish and implement guardrails when running for office in their own jurisdiction, including to the extent feasible, recusing themselves from decisions that have a direct impact on their races.”
These statements are a call to change the status quo and an invitation to explore new policy options.
At present, few states have laws or codes of conduct addressing election official recusal, and none has a roster of qualified replacements to take over a recusing official’s responsibilities.
This absence of guidelines stands in contrast with a different field where recusal is much better known: the judiciary. Federal law, laws in many states, and several state constitutions require judges to recuse themselves from cases in which they have a conflict of interest. There are similarities and differences between judges hearing cases in which they have a personal interest and election officials overseeing races in which they are candidates. What they have in common is that both judges and election officials make procedural decisions in contests between opposing entities, and both have a duty to function impartially.
Election officials are enough like judges that recusal guidelines should at least exist for elections, but they are different enough that such guidelines should be much more narrowly targeted than those for judges.
The available national and state-level polling suggests that many voters are, in fact, concerned about conflicts of interest for election officials who are running for re-election or higher office. In a 2022 Election Reformers Network national survey, nearly 60% of likely voters said that election officials should not oversee decisions that could impact their own candidacy.
For recusal to become regularized and easily manageable, as it is for judges, will require the involvement of election institutions such as associations of local election officials, state ethics commissions, state departments of elections, and state legislatures. Below are five enabling steps these institutions should work on together in each state:
1. Identify election decisions and actions potentially relevant for recusal.
2. Assess, and if possible, change, restrictions in election law.
3. Build a roster of qualified individuals ready to step in.
4. Include recusal as a topic in election official training.
5. Require consideration of recusal by all election officials who are candidates.
Recommendations
Recusal by election officials running for office is a complicated issue. The degree of risk to elections, and to public confidence, is not clear-cut and varies by circumstance. It is not helpful to voters or election administrators to oversimplify these situations or to overstate the risks involved. At the same time, doing nothing to address situations that understandably worry some voters is unwise in an era of political polarization and skepticism about the legitimacy of elections.
Election officials are looking for guidance and support with recusal. They bear the brunt of increased voter skepticism, and they deserve the tools to help diffuse doubt and uncertainty. In this context, we recommend the steps outlined below. These are particularly important in states where election officials are elected, but election officials overseeing their own race can occur in any state, so these recommendations are worth considering across the country.
- In the near term, the secretaries of state of Missouri, Montana, Vermont, and Washington, and the lieutenant governor of Alaska (all of whom are candidates in elections taking place this November) should make recusal planning a part of their candidacy process this election year, as the Lieutenant Governor of Utah has done already. The same is true of secretaries of state in California and West Virginia, who will be overseeing elections in which close relatives are candidates. Each should publicly release a recusal statement detailing which processes the official will recuse from and how the official would be replaced, or explaining why recusal is not possible or necessary.
- Relevant state organizations—such as associations of local election officials, state ethics commissions, state departments of elections, and pertinent legislative committees--should convene discussions addressing election official recusal.
- These organizations should establish structures that can help enable recusal, including:
- Legal analysis and guidance for election officials about potential conflicts of interest, options for recusal, and obligations under the law;
- A roster of qualified individuals able to take the place of officials who recuse;
- Inclusion of recusal as a topic in election official training program; and
- Modifications of existing laws that prevent recusal.
- States should develop either statutes that require consideration of recusal by all election officials who are candidates, or codes of conduct that strongly encourage such consideration. These statutes or codes of conduct should emphasize communication of recusal plans to voters early in the campaign period. The National Association of Secretaries of State should support requirements that all secretaries who are candidates consider recusal.
- Journalists who cover elections should raise questions about recusal early in the process, when election officials have time to put a viable plan in place, rather than in the heat of election day or the immediate aftermath.
- In the long run, states should consider reducing this area of concern by appointing rather than electing their election officials, as is the norm in other democracies.