by Caitlin Cater

In an era of attenuated public confidence in the electoral process, it’s not reassuring when a state’s chief election official becomes the subject of criminal and ethics investigations on the eve of a major election. Alas, that is what happened in Colorado this year, when, on November 5, both the Denver District Attorney’s Office and the Colorado Independent Ethics Commission announced that they are independently looking into whether Secretary of State Scott Gessler “violated the law by using state funds to attend a partisan event.”

This issue first came to light in October, when Colorado Ethics Watch, a left-leaning nonprofit watchdog organization, filed a request for investigation with the Denver District Attorney and the Denver Police Department, alleging that Gessler misused public funds when he submitted reimbursement forms for expenses incurred while attending the Republican National Convention and a Republican-sponsored election law training in August. Ethics Watch contends that “the Secretary’s Florida trip was manifestly personal and political, in which he participated only in partisan events, not in pursuit of state business.” Ethics Watch characterizes the group that sponsored the election law training, the Republican National Lawyers Association, as “a private organization of lawyers dedicated, among other things, to ‘advancing Republican ideals.’” Gessler was not a delegate to the 2012 Republican National Convention.

Gessler has denied Ethics Watch’s accusations. Through his spokesman, Gessler defended the public nature of the RNLA-related expenses, asserting that he received “thorough continuing legal education on current election issues” at the training. He also stated that  no public money was used for the RNC event.

Gessler further argued that the accusations constitute a baseless partisan attack from a group well-known for its animosity toward Republicans. To be sure, this is not the first time a liberal organization has taken aim at Gessler’s activities as Secretary of State. Broadly, critics contend that Gessler’s ostensible efforts to prevent voter fraud—such as checking voter rolls for non-citizens and refusing to automatically mail ballots to inactive voters—ultimately amount to partisan-motivated vote suppression, as they disproportionately target demographics that are more likely to vote Democratic.

The secretary has not demonstrated any inclination to rise above partisan politics, either. Gessler has previously represented himself and his party as chronic targets of vitriol from the left. Recently, he asserted that the Denver Post is on a “jihad” against him, and in a speech before the Conservative Political Action Conference in Denver, he claimed that the left intentionally tries “to sort of manipulate people to get them angry against a make-believe enemy that doesn’t exist in an effort to win votes, to demonize, frankly, people who are conservative and believe in limited government.” Gessler ended his CPAC speech with the following remarks:

“The people who oppose election integrity are on the left and they are never going to change their minds. They’ve really sort of dug their heels in. But the broad mass of people in America have common sense and they agree with us. So I think we have to remain steadfast in our efforts to use solid evidence, persuasion, and patience and, ultimately, we will prevail in this battle.”

Thus, however the current allegations against Gessler are eventually resolved, the incident reflects a broader controversy: whether our elections can be fairly administered by partisan officials. Daniel P. Tokaji, a law professor at Ohio State University, notes that there is empirical evidence that “partisan election officials sometimes act to benefit their parties, rather than discharging their responsibilities evenhandedly.” In a recent interview, Columbia Law School professor Nate Persily identified partisan administration at the state level as one of the three major problems with United States’ election administration. In the same interview, Wendy R. Weiser, Director of the Democracy Program at the Brennan Center for Justice, observed:

“We have really witnessed an increasing politicization of our rules of election administration, starting from Florida 2000 and      really hitting overdrive this past year…One of the reasons is that Florida 2000 taught people that the rules of election administration can make a difference to the outcomes; it opened the door to this kind of politicization. And as a nation we have not exercised the will to set clear national standards, so that at the state level, at the local level, we can avoid these kinds of temptations to manipulate the rules for political advantage.”

What can be done about this? One possibility, detailed in a report by the Commission on Federal Election Reform, and endorsed by many others, is assigning responsibility for election administration to an individual or commission that is either nonpartisan or bipartisan. This solution would be consistent with election administration practices elsewhere in the world and could “minimize the chance of election meltdown and…build public trust in the electoral process.”

Such a transition would implicate a variety of subsidiary issues, including how to select the election officials and how to ensure their neutrality. Of course, perhaps the biggest problem would be that the components of this new institutional structure would ultimately be crafted by partisan policymakers….


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