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The Election Isn't 'Rigged,' but It's Going to Be Messy as Hell

"If you look at other democracies, they think the way we run elections is crazy, with a partisan secretary of state."

by Joel Mathis
22 October 2016, 12:00am

Photo by Gage Skidmore via Wikimedia Commons

Photo by Gage Skidmore via Wikimedia Commons

This week, Donald Trump's long-standing complaints about the vote being "rigged" against him reached a crescendo when on the debate stage he refused to say whether he'd accept the election results.

This sparked an outrage against Trump in the media, and it's true that it's unprecedented for a presidential candidate preemptively denouncing the mechanism by which he wants to win the White House. But it's also true that the American electoral process is something of a mess.

One issue is that the US voting system is actually a bunch of smaller systems stapled together. The states all have different rules for when and where voters can register and even who is eligible, with some places allowing felons to cast ballots and some excluding them. Some states conduct elections entirely by mail, some states use voting machines, and still others use in-person paper ballots. And maybe most controversially, most states' elections are overseen by an elected secretary of state—a Republican or Democrat with a rooting interest—whose choices about which policies to promote and implement can decide whether thousands of citizens ever get to vote.

This doesn't mean any secretaries of state ever do anything illegal or improper, but these men and women—there are 37 elected secretaries serving as chief election officers in their states—can make decisions that influence the outcome of elections, generally by increasing or depressing turnout. Kansas Secretary of State Kris Kobach, a Republican, has been in a running legal battle with the ACLU over whether voters in his state should be required to offer proof of citizenship in order to cast a ballot. In Oregon, where the secretary of state is a Democrat, voters are automatically registered at the DMV and all the ballots are sent in by mail, making it easy to vote.

And when an election is close, the partisan nature of the office makes it easy for disgruntled folks on the losing side to spin theories. Katherine Harris, the Florida secretary of state during the infamous 2000 presidential election, was not just a Republican but a state co-chair of George W. Bush's campaign; she remained a villain in the minds of many liberals for years. After a razor-thin margin gave Democrat Al Franken a Senate seat in Minnesota in 2008, Republicans blamed loose rules and illegal votes allowed under Secretary of State Mark Richie.

Like many odd features of American democracy, this system is unique to the US.

"We are one of the few advanced democratic countries that allow partisans to run our election process," Richard Hasen, a professor at the University of California, Irvine, and author of the 2012 book, The Voting Wars, told me.

To get a sense of why this is discomfiting, try this thought experiment: You're about to play a basketball game. But the other team has hired the ref, plans to help him get an even better job in the future—and, oh yeah, in his spare time the referee runs the other team's fan club. Would you trust that ref to call the game fairly?

Like many odd features of American democracy, this system is unique to the US.

"It's certainly not a best practice," Daniel P. Tokaji, an Ohio State University professor and expert in election law, told me. "If you look at other democracies, they think the way we run elections is crazy, with a partisan secretary of state. There's an inherent conflict of interest between a responsibility to run elections fairly and their partisan interest in helping the party that helped her get elected to office."

None of this justifies the idea that fraud and deceit decides elections. Politicians across the spectrum have denounced Trump's "rigged" rhetoric. (The fact that many election officials are partisans is actually a defense in some cases—Senator Marco Rubio pointed out in his defense of Florida's system that it was run by Republicans who weren't going to steal the contest to Hillary Clinton.) The simple truth is that it's very, very hard to actually rig an election.

"Even if we were the most nefarious, evil, and astute criminals, we'd have a hard time pulling stuff off," Oregon's former secretary of state, Phil Keisling, a Democrat, told me. "There are so many eyeballs that are applied to an election, it would be career-ending, and they'd put you in jail.

"What you've seen is a number of secretaries of state be at the forefront of what I consider odious, unnecessary laws like voter ID laws," Keisling went on. Critics say such laws disproportionately burden African Americans, and thus disadvantage Democrats at the polls, while proponents say they're necessary to fight voter fraud. "There's no real problem to be solved, but real risk of disenfranchisement as a result."

The power of the office has not gone unnoticed. Politico reported in 2014 on the rise of three political action committees aimed at capturing secretaries of state offices across the country: SOS for SoS, which aimed to spend up to $10 million in nine states to support Republicans; and on the left, super PAC SoS for Democracy and PAC iVote.

And secretaries of state admit there is some pressure to use their offices to partisan advantage. Sam Reid, a Republican who served three terms as Washington's secretary of state, recalled overseeing one extremely close election that went to recount in 2004. (Democrat Christine Gregoire ended up winning by a margin of 129 out of 2.7 million votes cast; her Republican opponent challenged the result in court but eventually lost.)

"I will say that Dems were very hostile, were sure that this Republican secretary of state was going to put his fingers on the scale. Republicans, some of them, thought I should be putting my fingers on the scale," Reid told VICE. "There are expectations, but that goes with the office."

Reid says he tried his best to conduct business fairly, and that despite being partisan, "once you walk through the door of that office, you have a job to do."

Still, many experts say that elections—and public confidence in them—might be enhanced if they were overseen on a nonpartisan or bipartisan basis instead of letting individuals from a party run the show. One state, Wisconsin, had such a board, but the Republican-dominated legislature voted last year on strict party lines to dissolve it, to be replaced by boards with partisan appointees.

Which points to another problem. Any solution to the apparent conflict of interest presented by partisan secretaries of state would have to be approved and initiated by state legislatures, which, of course, are dominated by partisan interests.

"We've never viewed it as a realistic possibility," Reid said.

"I don't think we are going to get to that [nonpartisan oversight] in the near term," Hasen added. "But we can take steps, such as increasing transparency, that can help deal with the greatest concerns."

Everyone I spoke to for this article rejected Trump's preemptive "rigging" declarations as nonsense. "You're impugning the premises of the democratic system that's relied on peaceful transfers of power for 200 years," Keisling said. "Until you can prove there's a problem, shut up."

Still, Trump is obviously either tapping into widespread skepticism about elections or worse, creating it—a poll out Monday from Surveymonkey/NBC showed that only 53 percent of Republican voters would definitely or probably accept the election result if their candidate lost.

"I think [nonpartisan election officials] may inevitably be necessary, in part because of the accusations made, but also because of the reality of polarized politics," Keisling said. "I think going forward, when the dust clears, the states are going to have to take a look at it."

Follow Joel Mathis on Twitter.

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