Conflicts Of Interest Not Banned In Most States

The global law firm Ropes & Gray, on ERN’s behalf, conducted a first-of-its-kind survey of all conflict of interest laws applicable to elected Secretaries of State (or otherwise titled chief election officers). This groundbreaking research was put together in order to determine what, if any, formal legal structures exist to constrain CEOs in an era of declining political norms. The report finds no U.S.states that both:

• Elect their Secretary of State, and
• Have a conflict of interest policy or law regulating whether those individuals can oversee their own elections, or advance the interests of a candidate or ballot initiative under their oversight.

Instead, the report identified a patchwork of rules that varied by location. The report did find two states, Nevada and Rhode Island, that had some formal legal structures limiting conflicted conduct but even in these states, there is little precedent for enforcement of such claims. In practice, it appears that states have historically resolved conflict of interest issues in the political arena rather than through legal redress. This vacuum of formal controls for Secretaries of State can prove problematic, as states such as Ohio and Georgia have shown in recent decades, but also presents an important opportunity for future research, legal advocacy, and creative policy design.

What to do?

From a legal perspective, the lack of clear precedent for preventing Secretaries of State from undertaking conflicted conduct has hampered the viability of such claims in the limited instances where such suits have been brought. Meanwhile, relying on process arguments leaves room for bad actors to engage in conflicted conduct without reproach so long as they meticulously ensure proper procedures are followed. To ensure the practical constraints on Secretary ofState conduct is not limited to the ballot box, states must begin to examine creative policy solutions. (Note: a separate ERN report, Guardians of the Guardrails, offers such solutions.)

The report was commissioned by the Election Reformers Network and conducted by the law firm Ropes and Gray.