Options for Secretary of State Reform
Context
In 33 states, the chief election official position is held by the secretary of state or lieutenant governor who is elected in partisan elections and as results has some allegiance to a political party. No other democracy selects its most senior election officials this way. In seven states, the governor or the legislature appoints the secretary of state, which likewise can result in a chief election official with strong ties to a political party. Often secretaries of state are candidates, whether for re-election or for higher office, in elections they oversee.
These structures create conflict between the secretaries’ responsibility to administer elections neutrally and their personal or professional interest in the success of one side. While secretaries do not count ballots or run polling stations, they do shape policies that can impact the results of close elections. For example, in several states, secretaries of state play a part in approving and titling ballot inititiatives, a role that can affect voter turnout, which in turn can impact who wins.
In practice, a large majority of secretaries act impartially based on their own ethical standards, but no state or federal law requires that they do so. A 2019 study found that “No state possessed formal legal structures explicitly preventing CEOs [Chief Election Officers] from taking part in conflicted conduct whether to advance their own electoral interests or to purposefully aid a party, ballot initiative, or other candidate in an election they oversee.”
Concerns have grown about the risks of this system. In 2022, many candidates ran for secretary of state who refused to acknowledge fully verified and audited 2020 presidential election results, and a few such individuals are now in charge of their states’ elections. Some secretaries of state have made policy decisions that appear to undermine the efficiency and security of their state’s elections – such as leaving the Electronic Registration Information Center – seemingly to appeal to the voters, particularly primary voters, from who they would soon seek election.
Initiatives to reform this system have arisen in blue states and red. In Washington, former Secretary of State Kim Wyman, a Republican, urged the legislature to make the position nonpartisan. In Wyoming, the legislature recently debated shifting election responsibility from the secretary of state to a new commission. Large majorities (see page 35 in this report) across the political spectrum support nonpartisan selection of election officials.
Discussing the Options
OPTION 1: ETHICAL GUARDRAILS
A recent report from the Brennan Center highlighted the importance of election official ethics to strengthen election administration and protect election workers against threats and abuse. States can pass legislation to codify ethical standards for the chief election officer (and other senior election officials). Such laws should prohibit:
· public endorsement of a candidate or position on a ballot initiative;
· campaigning or fundraising for a candidate or position on a ballot initiative.
These prohibitions should apply to public acts both within and outside of the secretary’s official function. A judge publicly supporting one side in a case before them would still be sanctioned if that action took place outside of their courtroom, and the same logic should apply here.
Such legislation should also establish under what circumstances secretaries of state who are running for office should recuse themselves, and to whom they should recuse.
States can also consider establishing candidacy requirements. 31 states require that attorneys general have law degrees, and states could make comparable requirements of candidates for secretaries of state. These could include:
· election administration experience or training;
· no recent position of political party leadership.
These requirements would help ensure that qualified election professionals hold these important offices. They also could reduce the degree to which the office is viewed as a steppingstone in a political career. ERN's research (see chapter 2 here) has found that secretaries who subsequently ran for higher office had a higher rate of partisan acts in office than those who did not.
States could also prohibit secretaries of state from running for other elected offices for a number of election cycles after their term, a prohibition also applied to members of independent redistricting commissions in several states. This provision would ensure that partisan considerations involved in planning for future campaigns do not interfere with a secretary of state's neutrality in office.
OPTION 2: NONPARTISAN ELECTION
Most states have some nonpartisan elections, meaning elections where ballots do not list a party next to a candidate’s name, and this option is often discussed for secretaries of state. In practice, parties will likely become involved, as will campaign funding sources allied to one side or the other. In the case of state judicial elections, researchers have found that nonpartisan elections do not lead to less partisanship on the bench. To be effective, any reform to make the secretary of state election nonpartisan should be combined with the ethical standards and candidate qualifications ideas discussed above. Other ideas to consider include:
· A public campaign finance option so that secretary of state candidates do not need party-affiliated sources to fund their campaign.
· A runoff election, via a second round or an instant runoff, to prevent a candidate supported only by a small percentage of voters from winning in a crowded field (a more likely scenario in a nonpartisan election than in a partisan election cycle with party primary).
OPTION 3: APPOINTMENT MODELS, INCLUDING APPOINTMENT BY A NEW, BROADLY REPRESENTATIVE ELECTION BOARD
Having the chief election officer appointed rather than elected has the virtues of insulating the official from the politics of the campaign trail and removing the conflict of interest that arrises when such officers run for re-election or for other offices. The counterargument often made is that being elected makes the secretary of state accountable to the voters. It’s not clear, however, what it means for an election official to be accountable to an electorate that wants its side to win and is vulnerable to conspiracy theories of electoral malfeasance. Also, research on local election administration has found that appointed officials signficantly outpeform their elected counterparts.
As noted above, in seven states the secretary of state is appointed by the governor or the legislature. Such appointment processes on their own do not do much to ensure impartiality in office, but they could if they were combined with the ethical guardrails and candidacy requirements discussed under Option 1.
Another alternative can be found in the way many states appoint judges. In roughly half of U.S. states, a nominating committee vets judicial applications and shortlists nominees from which the governor makes an appointment. In the best version of this model, the nominating committee is carefully designed to prevent control by any party or branch of government. (For more detail on this option, see this report.)
A more comprehensive solution is to establish a new, broadly representative state election board to set election policy and appoint a professional, nonpolitical chief election official. 18 states have election boards, eight of which divide election authority between the board and the secretary of state. None of those boards is designed to meaningfully represent election stakeholders other than the Republican and Democratic parties. That fact is a growing problem in a country where a plurality of the voters do not affiliate with either of those parties. ERN instead proposes a new approach to structuring a diverse, politically neutral state election board that includes representatives of the two parties, the judiciary, independents or 3rd parties, election officials, civil society organizations, and ordinary citizens. (See an example of this structure here).
A CROSS-CUTTING ALTERNATIVE: MOVE ELECTION RESPONSIBILITY AWAY FROM THE SECRETARY OF STATE POSITION
Secretaries of state have a wide range of roles and responsibilities in addition to serving as chief election officer. This combining of roles dates from early in U.S. history when elections were much simpler and there was less need for state-level coordination and control then there is now. With the growing complexity of election administration, and the growing security risks around this critical national infrastructure, it is worth re-evaluating whether the top state election position should be held by someone working on elections part time. In ten states, the chief election officer position is not held by the secretary of state, but instead by an appointee whose only job is elections, usually an appointee of an election board.
Reform Options 2 and 3 discussed above could work with the secretary of state as chief election officer, or could also work in tandem with a newly created chief election officer position separate from the secretary of state. In the latter approach, the state would keep the position of secretary of state as a partisan-elected state constitutional office, retaining all of the office’s non-election functions, as the ten states noted above do. There is a political advantage to this approach in that it means reform would not eliminate a statewide office that parties and candidates see as valuable.
Conclusion
Most of the changes discussed here would require a constitutional amendment in most states. An important exception is the ethics prohibitions summarized at the top of Option 1, which can be implemented by state legislation and could be a good starting point for many states.
Whether via amendment or legislation, secretary of state reform will take work, but protecting elections is worth it. One fairly recent presidential election – in 2000 – was tarnished by a partisan secretary of state, and a repeat has been prevented only by wide margins and individual ethics that can’t be counted on forever. Many good options exist for states to consider, as the discussion above illustrates. Importantly, unlike more hotly-debated reform areas like independent redistricting, none of these reforms would hurt the electoral chances of any political party.
Perfect nonpartisanship is not the goal, just as perfection can never be the goal of any human institution. But moving state election leadership toward greater impartiality is achievable - and increasingly important.
About ERN
Election Reformers Network advances common-sense rules that protect elections from the country’s increasing polarization. Drawing on decades of experience at home and abroad, ERN develops model legislation and regulatory reforms to address long-standing structural problems in the U.S. election ecosystem. A nonpartisan 501(c)(3) organization, ERN was founded in 2017.