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May 06, 2024 ABA Task Force for American Democracy

Keeping the Administration of Our Elections from Becoming Politicized

Edward B. Foley

This Working Paper identifies and discusses a variety of ideas for steps to keep the administration of our elections from becoming politicized. In developing the following set of possibilities, a premium has been placed on bold “outside the box” proposals, which currently are not at the forefront of public conversation on electoral reform but which over time might gain traction and salience and once adopted would make a major impact. Given this approach, it is inevitable that some, if not all, of the proposals listed below cannot realistically be adopted before the November 2024 general election. In principle, however, new policies and practices to increase the impartiality of election administration could be implemented before the 2026 midterms.

Problem Statement

To what extent is the administration of our elections becoming politicized? How is that happening and what can be done to ensure the administration of elections remains apolitical?


Many Americans believe politics has entered the nation's vote-counting process, with potentially big ramifications for the next election. According to a CBS News/YouGov poll conducted in August of 2022, 67% of Americans feel it is “very likely” or “somewhat likely” that some election officials will refuse to certify election results.  Only 10% of Americans feel it such a refusal is “highly unlikely” to happen. Given that the administration of elections is handled by each state as contemplated by the Elections Clause of the U.S. Constitution, there is no consistent approach to how elections are administered around the country, which in turn, gives rise to a varied hodgepodge of processes and procedures.   Moreover, several states have recently been taking legislative action that have the appearance of (if not in reality) overtly politicizing elections.  Georgia, for example, has recently passed legislation that gives the state legislature far more power in administering elections, ranging from appointment of the members of the state elections board to the right to suspend county election officials and insert their own persons in those roles. Moreover, the recent history of state legislatures that considered overturning their state’s vote in the 2020 presidential election and submitting their own slate of electors is fresh in the minds of most Americans.  Given that a recent YouGov poll found that 62% of Americans believe that U.S. Supreme Court decisions are based on the politics of the justices and not on the law, only reinforces the concerning trend that many Americans view our democratic institutions and processes, regardless of the branch of government, as serving the needs of politics and politicians and not the people. 

Innovations and Policies Aimed at Keeping the Administration of Elections Apolitical

Code of Ethics for Election Administrators

Just as lawyers and other professions have ethical standards applicable to their conduct, so too is it possible for election administrators to be subject to a code of professional ethics.  In 2020, the National Association of Secretaries of State adopted a resolution on the need for nonpartisan election administration. The National Association of Election Officials has also adopted a statement of principles concerning standards of conduct. The Michigan Association of Municipal Clerks also has a more detailed code of conduct.

Recently, several organizations (like the Election Reformers Network, Protect Democracy, and the Carter Center) have undertaken a campaign to promote the adoption of these ethical codes.  The success of any such code depends, however, on how specific the code’s provisions are and, equally important, how those provisions are enforced. Vague aspirational language without any enforcement mechanism is unlikely to make any difference. Each state’s legislature could be adopting this kind of code. In some states, the Secretary of State may have the authority to adopt something like this for local election officials within the state. More work could be done to develop a model code.

Professionalization of Certified Election Administrators (like CPAs)

 Ever since Bush v. Gore and the problem of hanging chads, there has been a concerted effort to modernize and professionalize the field of election administration, so that it is based on fact-based scientific principles and practices. One aspect of this effort is to develop educational standards and programs for the training of professional election administrators, so that an individual who completes the requisite training could be certified as properly trained. This development would be analogous to the field of accountants being populated by Certified Public Accountants.

It would be a significant step forward simply to have more election administrators become certified in this manner. It would be an even greater step forward if state laws required the state’s election administrators (at both the state and local levels) to have this kind of certification to hold a position in government that participates in the administration of elections. Even if some of these election administrators were still elected to their government position, like an elected secretary of state, a requirement that the official have received professional certification as an election administrator would reduce the politicization of the position. Just as elected prosecutors and judges are held to the standards of the legal profession, including its well-developed ethical mandates, so too would elected as well as appointed election administrators be held to the standards of their profession if indeed their profession fully developed such standards as part of a certification or licensing process.

According to the National Conference of State Legislatures, two universities (Auburn and University of Minnesota) offer certification programs in the field of election administration. In addition, the MIT Election Data Science Lab plays a leading role in the development of election administration as a fact-based scientific discipline. Currently, however, no state requires its election administrators to receive this kind of professional certification or education. Requiring professional certification of election administrators would create a common set of professional expectations for the performance of their work. This professional culture would impose a constraint on the politicization of election administration. Officials who deviated from professional standards would risk losing their license, just as attorneys who breached their profession’s ethical standards in pursuing partisan aims at the expense of honest election administration have suffered professional discipline as a consequence.

 If additional funding were available, perhaps from Congress to create more educational programs like those at Auburn University and the University of Minnesota, the number and reach of these programs could expand. It will be more difficult to convince a state legislature to require certification for election administrators, but it is a goal worth pursuing in one or more states. Perhaps Utah, given its history of good government practices, could become convinced to be a “red” state that takes a lead on this front.

Citizens Elections Oversight Boards (Like Citizens Police Oversight Boards)

 If we think of citizen assemblies (see discussion below) as playing a legislative role in the domain of election law, then we can also think of citizen oversight boards as playing an administrative role. Elections need to be administered by professionals (as discussed above), but there is no reason why their conduct cannot be supervised or monitored—or at least advised—by appropriately constituted citizen boards. Such citizen boards are used in other contexts, most notably with respect to policing. While no one would want professionally trained police officers to be replaced by ordinary citizens, there is growing recognition of the value of monitoring the police by elected politicians and by specially constituted boards of ordinary citizens. These citizen oversight boards are empowered to hold hearings, write reports, or otherwise take actions regarding police practices. The same point applies to election administrators. No matter how professional their training, they too would benefit from supervision by not only elected politicians but also by specially constituted boards of ordinary citizens, with oversight powers comparable to their police-specific counterparts.

These citizens boards would need to be well-selected, like citizens redistricting commissions, in order to avoid being captured by partisan politics. But if they are truly a representative cross-section of the citizenry in the same way that juries are, then they would be a useful check on partisan oversight of election administrators. As we have witnessed recently in Wisconsin, partisan oversight of election professionals can lead even to the dismissal of officials who do their job properly, just because the partisans dislike the result of fair and professional administration. Citizen, instead of partisan, oversight of election administrators would tend to be more balanced and serving the public, rather than partisan, interests.

Election Officials Appointed by Independent Citizen Commissions

This reform would be a more aggressive version of the previous one. Instead of citizen boards having some oversight of election officials, this reform would make election officials directly subordinate to a citizens’ commission with the power to appoint and remove these election officials. The model for these citizen commissions would be independent redistricting commissions.  This idea is currently being pursued by the Election Reformers Network.  If adopted, it would have the potential to remove partisan politics from election administration.  This could be adopted in some states by means of ballot initiative. Otherwise, it is likely to encounter resistance from politicians in power.

Appointed Rather than Elected Secretaries of State

This is a variation of the previous proposal, which focused on the appointment of local election administrators. The chief elections officer of a state, usually the Secretary of State, could also be an appointed rather than elected official, and could be appointed by a nonpartisan board. The appointing board could be modeled as either an independent citizen’s commission or a more deliberately bipartisan body with some sort of tiebreaking mechanism.

Some states have Secretaries of State appointed by the governor, but that does not provide adequate nonpartisanship. Wisconsin used to have an independent statewide election administration authority, but the state legislature has since changed its system to increase, rather than decrease, the level of political control over election administration. States with ballot initiatives would be the only ones where this reform likely could occur before 2026.

Arbitration Recount Boards with Arbiter and Equal Representation of Parties

There’s a widely accepted model for equally representative three-member arbitration panels: labor-management arbitration. Each side picks one member of the panel, and then two panel members pick the third member, who is necessarily neutral by virtue of being jointly chosen by the other two.

This same model can work for the resolution of election disputes—and indeed has worked in the few instances in which it has been applied in that context.  Minnesota successfully employed this method for the resolution of its disputed gubernatorial election in 1962 and did so again (in a slightly different form) for its disputed US Senate election in 2008. Oklahoma also used a version of this model for a disputed U.S. Senate election in 1974.  In each case where it has been used, it was the state’s judiciary who adopted this method.

Of course, there is always the danger of a candidate refusing to accept defeat even when the process for adjudicating a dispute over the outcome of the election was demonstrably fair to that candidate. Nonetheless, there is a greater chance of the losing candidate accepting defeat and persuading their supporters to do so as well, if the institution empowered to settle a dispute over the election’s outcome is clearly structured to be equally fair to both parties. A three-member panel where each side has a representative, and those two representatives jointly select the third—and, if necessary, tiebreaking member—is the fairest possible institutional structure for both sides. An attempt to make all three panel members neutral is more dangerous, because each side will want to have a voice on that body to look out for its interests.

This simple idea has been suggested from time to time throughout American history for especially high-stakes elections. It is often defeated when one side is in a position of greater power and thus able to dictate greater than equal representation on whatever adjudicatory tribunal is authorized to resolve the electoral dispute. But when these unbalanced tribunals reach results favoring the dominant party, the perception of unfair bias is unavoidable and has occasionally led to significant civil unrest. Although it is unlikely that this innovation can become a permanent method for presidential elections—it was not seriously considered by Congress during the recent reform of the Electoral Count Act—it could be adopted by states for the resolution of their own electoral disputes, including disputes over the appointment of a state’s presidential electors before the stage where Congress considers the electoral votes sent from the states.

A Separate “Citizens Assembly” for Legislation Governing Electoral Processes

A citizen’s assembly (rather than a state’s legislature) could be used for purposes of determining a state’s election laws, while the regular state legislature would make all the state’s other kinds of laws. One could consider this proposal an extension of the use of citizen redistricting commissions, which are a kind of citizens assembly—a small one—for the even narrower purpose of drawing the legislative district lines. A citizens assembly for all of the state’s election laws—encompassing the rules for the casting and counting of ballots, along with other aspects of election administration—would be based on the same justification as used for citizen redistricting commissions: the members of the state’s regular legislature have an inherent conflict of interest when it comes to adopting the procedures by which their own elections are conducted. Therefore, this one category of legislating should be put in the hands of a different body, which lacks this same inherent conflict of interest.

Even if a citizens’ assembly did not entirely replace a state’s regular legislature with respect to enacting election laws, a citizens’ assembly could be given a special supplementary role for this specific category of laws. For example, the regular legislature could be required to adopt only election laws submitted to it by a citizens’ assembly.  Or conversely the citizens assembly could be required to give its assent to any election laws adopted by the regular legislature. An even weaker version of the same basic idea would be to make the citizens assembly advisory only, with the hope that the regular legislature would be shamed into adopting the election laws that the citizens assembly recommended.

In a way, this idea is a very old one. Constitutional conventions, of the kind used to propose and ratify the Constitution, were understood at the time to be assemblies of citizens distinct from ordinary legislatures. They were convened for the special purposes of enacting foundational rules and procedure for the operation of the government itself, including for election to the legislature. At the same time, Thomas Jefferson proposed that new constitutional conventions be held every 20 years to revisit these foundational rules and procedures—a principle that has been written into some state constitutions, including Ohio’s.

It can be argued that election laws need to be updated more frequently than every twenty years and not always on a fixed schedule. While some aspects of election laws are suitable for imbedding into a constitution, others need more flexibility. Voting technology changes, as do cultural circumstances relevant to such issues as what sort of identification is appropriate to cast a ballot. Instead of having a permanent constitutional convention available for updating a state’s election laws as needed, a citizens’ assembly could be convened at the beginning of each biennial election cycle to consider whether any changes to the state’s election laws are necessary in light of the last cycle’s experience or other relevant developments.

A major advantage of this idea is that it would avoid the hyper partisan “voting wars” that have increasingly plagued America’s elections for the last twenty years. Partisan legislatures attempt to secure a self-interested advantage by changing the rules of the game. If all these rules—like those involving voter registration, voter identification, and vote-by-mail, for example—were set by citizens assemblies, not by the partisan politicians, the ferocity of these “voting wars” would largely disappear. There might still be some reasonable disagreements among citizens over exactly what these rules should be, but that debate would not be tainted by the avaricious self-interest—the lust for power—of the politicians themselves. 

This document has been submitted to the Task Force for American Democracy for consideration and has been posted and/or circulated for information purposes only. The views expressed herein represent the opinions of the author(s) and not those of the Task Force or the ABA. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. This publication is freely available to download, copy and distribute provided there is attribution to the ABA Task Force for American Democracy, and provided this notice is reproduced on all copies.

    Richard H. Pildes

    The Ohio State University

    Edward B. Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. He is a contributing opinion columnist for the Washington Post, and for the 2020 election season, he served as an NBC News election law analyst.


    His most current book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work, as revised by the Twelfth Amendment to the U.S. Constitution, and then uses this historical analysis to provide a feasible basis for reform of state laws that would enable the Electoral College to operate according to majority-rule objectives it was designed to achieve.


    His book Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016) was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice”.


    As Reporter for the American Law Institute’s Project on Election Administration, Foley drafted Principles of Law: Non-Precinct Voting and Resolution of Ballot-Counting Disputes, which provides nonpartisan guidance for the resolution of election disputes.  He has also co-authored Election Law and Litigation: The Judicial Regulation of Politics (Wolters Kluwer 2014).


    During his fellowship at Stanford University’s Center on Democracy, Development, and the Rule of Law, Foley wrote Due Process, Fair Play and Excessive Partisanship: A New Principle of Judicial Review of Election Law, 84 U. Chicago Law Review 655-758 (2017), which was cited in briefs in Gill v. Whitford and Benisek v. Lamone (the Supreme Court gerrymandering cases). In addition to his Washington Post opinion columns, his op-eds and other essays have appeared in the New York Times, the Atlantic, Politico, and Slate, among other publications, and he frequently writes online commentary on election law issues of public interest.


    Foley clerked for Chief Judge Patricia M. Wald of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry Blackmun of the United States Supreme Court.  He has also served as State Solicitor in the office of Ohio’s Attorney General, where he was responsible for the state’s appellate and constitutional litigation.


    Professor Foley is a graduate of Columbia University School of Law and Yale College.