Editor's Note: This op-ed originally published on Governing and has been republished on IVN with permission from the author. Photo by Arnaud Jaegers on Unsplash.
Imagine a judge learning that the trial she’s just been assigned involves criminal charges against her husband’s company or a lawsuit against her child. It’s clear what would happen: The judge would recognize that she faces a conflict of interest and recuse herself from the case. State and federal laws, codes of conduct, and judicial training provide substantial guidance on recusal, and court systems are ready to provide needed replacements.
But what about a secretary of state overseeing his own race for governor, or a county clerk running for the state legislature? Shouldn’t they also recuse from decisions that could impact their own races? The answer is … no one really knows. Few states have laws for such circumstances, and none has a roster of qualified replacements to take over a recusing official’s responsibilities. Polls show that most voters support restrictions on such conflicts of interest. Election officials say they want to do the right thing but lack guidelines explaining what the right thing is.
A new report by our organization, the Election Reformers Network, aims to meet that need. The report provides a framework for decision-making about when and how election officials who are candidates should recuse. This framework can enable voluntary recusal by election officials and help state legislators consider new laws.
This November, six secretaries of state or lieutenant governors who play a similar role will be candidates in elections they oversee, either for re-election or for other offices. Hundreds of county clerks and other local officials will be in a similar position. Election laws ensure that these officials can’t manipulate vote counts in their favor, but their decisions can still have an impact — their actions that affect voter turnout could change the outcome of a close race, for example.
For judges, just the appearance of a conflict of interest triggers the requirement to recuse, and arguably the same logic should apply to election officials, particularly in the context of increasing voter skepticism. Election laws mitigate many potential conflicts of interest, but voters can’t be expected to know such details.
The ERN report emphasizes the need for structures that enable recusal. These include:
1. The availability of legal guidance for election officials about conflict of interest, options for recusal and obligations under the law.
2. A roster of qualified former election officials able to step in if officials recuse.
3. Inclusion of recusal as a topic covered in the training of election officials.
Once these structures are in place, the report recommends statutes or codes of conduct that require at least the consideration of recusal by all election officials who are candidates. Specific state guidelines should be shaped by election officials themselves with support from clerks’ associations, state ethics commissions and state departments of elections. Election officials who are candidates should address recusal early in their campaigns and communicate their plans to voters.
Additional recommendations include:
4. 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.
5. Secretaries of state and lieutenant governors who are candidates this year (in Alaska, Missouri, Montana, Vermont and Washington state), along with two who will oversee elections in which close relatives are candidates (California and West Virginia), should consider recusing from decisions that could present a conflict of interest or the appearance of one (as the lieutenant governor of Utah has already done).
6. In the long run, states can reduce this area of concern through reforms that also limit conflict of interest in elections more broadly. One such reform is to appoint rather than elect election officials, as is the norm in other democracies. Recent research indicates that appointed election officials in the U.S. significantly outperform their elected counterparts. A second such reform is to strengthen election administration as a dedicated profession separate from a political career, which should result in fewer election officials running for other offices.
Recusal by election officials who are running for office is a complicated issue. The degree of risk to elections, and to public confidence, depends on the circumstances and should not be overstated. But doing nothing to address situations that understandably worry some voters is unwise in our era of stark polarization and skepticism about the legitimacy of elections.