Ask any kid who's played Monopoly—if the banker isn't a fair one, the whole outcome of the game can change. That can lead to two different conclusions: either the kids come up with a fair set of rules or everyone fights to be banker the next game.
When it comes to elections, partisans have long struggled with a similar problem: Who should set the rules governing elections? Rather than investing in a nonpartisan solution, for the most part, the parties have fought to be the banker—or in this case, the secretary of state. In 33 states, an elected, partisan secretary of state is responsible for running elections. In eight others, the chief election official is appointed by a partisan elected official.
This election cycle has furnished plenty of evidence why that can be a problem: Ohio's secretary of state has come under intense fire for limiting early-voting hours, while in Florida and Colorado, attempted purges of the voting rolls raised concerns that legitimate voters could be disenfranchised. In Minnesota, the Democratic secretary of state tried to rewrite the title of a referendum banning gay marriage, leading to allegations of partisanship. Voter-ID laws may be getting most of the attention, but much of the rule-making falls to election officials, and many of them are rooting for one party or the other.
"This is a big part of the reason why we have such grave and serious complaints about our political process from people across the political spectrum," says Dan Tokaji, a law professor at the Ohio State University and a specialist in election reform. "People don't trust the partisan officials who are running our elections and not without good reason. Virtually all of our state authorities have a conflict of interest because they are party-affiliated."
Ten states have bipartisan election boards, but Tokaji says they don't do enough to alleviate the problem—the members are acting as advocates for their party, rather than creating election rules based on the laws and what's best for voters in general. Seven of those ten states have an uneven number of members, meaning one party has the majority.
What's needed, according to Tokaji and other reform advocate, is a nonpartisan entity to administer elections. And of all 50 states, there's only one example—Wisconsin's Government Accountability Board.
The state legislature created the GAB in 2008, in what the current chair of the board calls "a moment of rare enlightenment." The GAB combined the state's elections board and ethics board, in an effort to make election law more predictable and less dependent on partisan politics. To ensure the board would be nonpartisan, the structure for appointing its six members is complicated. A panel of four state appeals court judges nominates several former judges, and the governor then makes his or her appointments. From there, the selection must be confirmed by the state senate. There's also a good deal of turnover; the six ex-judges all serve staggered terms, meaning one member's term expires each year. Judges in Wisconsin cannot be affiliated with a political party, and a judge must have served at least six years to be nominated for the GAB. That means anyone on the board has spent years away from partisan politics.
That doesn't mean the members have no party affiliations, of course. Judge David Deininger, the current chair, served as a Republican legislator from 1986 and 1994, before he became a circuit court judge. Others on the board are former lawmakers or district attorneys. But Deininger says it's important that such partisan activity is years in the past. "The most relevant and most recent public service that [we] came from was that of the judiciary," he explains. Judges are "used to and trained in making decisions based on the facts and the law as opposed to some sort of agenda."
So far, it seems, the board has made a variety of common-sense decisions that in many other states would have gotten tangled up in political fights. For instance, the board ruled that election officials would have to accept electronic documents in addition to physical ones for proof of residence. That means a voter can show her utility bill on a laptop or iPad, instead of having to print it out—a ruling that will particularly help young voters. The GAB also sent out a letter to the groups who are organizing volunteer poll watchers, like the controversial True the Vote, reminding them of the rules governing poll-watching. Since many allege that poll watchers can intimidate voters, the language forbidding them from communicating with voters was highlighted in boldface.
In both cases, the GAB's decisions might have been seen as helping Democrats, because young voters and those most likely to be targeted by poll watchers (nonwhite and poor voters) are all more likely to vote Democratic. But the board has also upset some on the left. During the state's gubernatorial recall this year, the GAB spent a long time verifying the petitions that could prompt a recall; with nearly one million signatures turned in, the board had to extend the time mandated by state law. Some Democrats complained that the decision gave Governor Scott Walker more time to fundraise without an opponent, but the board argued that such time was necessary because the number of petitions was so vast. On the whole, the GAB came out of the recall election without much criticism—quite a feat, given that the election was a tinderbox of controversy at times.
The most controversial decision about Wisconsin elections was made by Republican lawmakers who passed a strict voter-ID law, requiring that voters show a government-issued photo ID in order to vote. The GAB can't do anything about that; it only interprets the law. But as Deininger points out, "the board has to balance [the voter-ID law] against the right to vote and access to the polls." The law has been blocked by the courts and won't be enforced in November. If it ever goes into effect, Deininger said the board would commit considerable resources to educating voters about what they would need to bring to the polls. That's particularly relevant given that in states like Pennsylvania, much of the controversy has been around whether the law has been implemented with partisan goals in mind.
Tokaji points out that many other democratic countries specifically insulate their election administration from the partisan jockeying that occurs in the legislative chambers. By avoiding the inherent conflicts of interest that are so pervasive among American election officials, he says, the elections are fairer. In one article, Tokaji called the GAB "the best American model ... designed to promote impartiality."
Now if other states would only take notice.