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Analysis

Election Officials As Regulators of Voting Access

Legislative backlash against election officials poses serious implications for democracy.

Last Updated: October 20, 2021
Published: October 20, 2021

This article was origin­ally published in the Regu­lat­ory Review.

Elec­tion offi­cials play an essen­tial role in Amer­ican elec­tion­s—not only by facil­it­at­ing the cast­ing of ballots, but also through their use of regu­lat­ory discre­tion.

In response to the COVID-19 pandemic, elec­tion offi­cials across the coun­try used their discre­tion construct­ively to protect voters from unpre­ced­en­ted threats. Their faith­ful and brave service to Amer­ican demo­cracy’s most funda­mental act should be applauded. Instead, in many states, the reac­tion has resul­ted in legis­lat­ive back­lash—a warn­ing shot to the future of demo­cracy.

In many ways, the role of an elec­tion offi­cial is regu­lat­ory. As the primary offi­cials imple­ment­ing elec­tion laws passed by legis­latures, their respons­ib­il­it­ies extend beyond setting up rooms and count­ing ballots. Elec­tion offi­cials make decisions about a wide range of resource alloc­a­tion issues, such as polling place sitinginform­a­tion distri­bu­tion, and recruit­ing and train­ing poll work­ers. All 50 states have laws that grant elec­tion offi­cials some form of rule­mak­ing author­ity.

But to protect voting rights and voter access, these stat­utory grants of author­ity appro­pri­ately constrain elec­tion offi­cials in certain ways—­for example, by limit­ing polling place clos­ures or mandat­ing that certain regis­tra­tion oppor­tun­it­ies be avail­able. It is equally import­ant, however, that elec­tion offi­cials have some discre­tion to adopt best prac­tices that protect voter access within the scope of the law.

Elec­tion offi­cials use this stat­utory author­ity to protect voter access in a vari­ety of ways. The Montana Secret­ary of State, Christi Jacob­sen, has used rule­mak­ing author­ity to issue regu­la­tions ensur­ing polling place access­ib­il­ity for elderly voters and voters with disab­il­it­ies. The North Caro­lina State Board of Elec­tions has used its rule­mak­ing author­ity to issue poll watcher conduct regu­la­tions that ensure watch­ers cannot impede or harass voters. 

Beyond formal rule­mak­ing author­ity, elec­tion offi­cials use their discre­tion to protect voting access in more informal ways. During the 2020 elec­tion cycle, some elec­tion offi­cials changed their poll worker recruit­ment prac­tices to focus on younger people at the lowest risk for COVID-19. Other offi­cials provided pre-paid ballot post­age to registered voters in response to the increased reli­ance on mail voting.

The need for regu­lat­ory discre­tion to protect voter access is best high­lighted through disaster response plan­ning. During times of uncer­tainty, local elec­tion offi­cials possess the expert­ise and know­ledge of condi­tions on the ground to preserve voting access. For 150 years, elec­tion offi­cials have moved the demo­cratic process forward in the face of warterror­ist attacks, and hurricanes.

Most recently, the COVID-19 pandemic has strained elec­tion admin­is­tra­tion in unpre­ced­en­ted ways and presen­ted a compel­ling example of the import­ance of elec­tion offi­cial regu­lat­ory discre­tion. Some states success­fully passed emer­gency legis­la­tion to protect the elec­tion process during COVID-19. Four­teen states passed substant­ive legis­la­tion affect­ing elec­tion admin­is­tra­tion during COVID-19, includ­ing laws to extend mail ballot receipt dead­lines, expand early voting hours, and affirm­at­ively distrib­ute mail ballot applic­a­tions.

Despite these posit­ive meas­ures, emer­gency legis­la­tion is an imper­fect form of disaster response. The legis­lat­ive process is inten­tion­ally delib­er­at­ive and requires substan­tial time to draft bills, estab­lish quorum, debate, amend, broker deals, and vote. In addi­tion, legis­latures often require large numbers of people to work in close quar­ters, which can be danger­ous during a public health emer­gency.

In many states, elec­tion offi­cials have been able to use their regu­lat­ory author­ity either to comple­ment emer­gency legis­la­tion or step in to protect voters where no emer­gency legis­la­tion passed. For example, in 2020, Harris County, Texas, Clerk Chris Hollins tripled

 the number of early voting loca­tions in his county, sent mail-in ballot applic­a­tions to voters 65 and older, and insti­tuted drive-through voting to allow at-risk people to vote safely from their cars. These actions came despite intense oppos­i­tion from statewide offi­cials.

In Geor­gia, Fulton County Elec­tions Director Rick Barron expan­ded early voting hours to cut down on long lines. In Flor­ida, 20 counties used their exist­ing author­ity under Flor­ida elec­tion law to offer addi­tional days of early voting, and 19 counties opened addi­tional early voting loca­tions. North Caro­lin­a’s State Board of Elec­tions Exec­ut­ive Director Karen Brin­son Bell used her emer­gency author­ity to expand early voting, mandate health and safety proto­cols at polling places, and require all counties to seek approval before moving or consol­id­at­ing polling places.

Rather than hold up these efforts as models of effect­ive and nimble elec­tion admin­is­tra­tion and regu­la­tion, many states have embarked on a legis­lat­ive back­lash campaign seek­ing to restrict elec­tion offi­cials’ emer­gency and regu­lat­ory power. Legis­lat­ors in at least 23 states have intro­duced at least 37 differ­ent bills seek­ing to curtail elec­tion offi­cial discre­tion or punish or restrict elec­tion offi­cials for taking certain actions. Many of these bills are directly targeted at actions local elec­tion offi­cials took to protect voters in response to the COVID-19 pandemic.

In Texas the legis­lature recently banned drive-through voting and made it a crime for elec­tion offi­cials to distrib­ute mail ballot applic­a­tions affirm­at­ively. Texas Senate Bill 1 also bars public offi­cials from creat­ing, alter­ing, modi­fy­ing, waiv­ing, or suspend­ing any elec­tion stand­ard, prac­tice, or proced­ure. This law will make it more diffi­cult for elec­tion offi­cials in Texas to protect voters in future disasters.

In Geor­gia, Senate Bill 202 directly limits some emer­gency actions that elec­tion offi­cials took to provide safe options for voting during COVID-19 by restrict­ing mail ballot drop boxes and banning mobile polling places. The Geor­gia law also limits elec­tion offi­cial discre­tion by stand­ard­iz­ing early voting hours.

Although at first glance these restric­tions may not seem as oppress­ive as other elements of the current wave of state voter suppres­sion bills, they could have massive rami­fic­a­tions.

Restrict­ing elec­tion admin­is­trat­ors’ regu­lat­ory author­ity for retali­at­ory reas­ons harms voters by deter­ring the most know­ledge­able and capable offi­cials from making the decisions neces­sary to ensure full and fair access to the ballot.

At a moment when elec­tion offi­cials have demon­strated their crit­ical role in Amer­ica’s demo­cracy, many state legis­latures across the coun­try are embark­ing on a national campaign to restrict their author­ity to protect voters. This legis­lat­ive back­lash against elec­tion offi­cials is an urgent warn­ing sign to anyone concerned about the resi­li­ency of Amer­ican demo­cracy.