Democracy’s Frontline Domestic Defenders

By Spenser Mestel

Tagged DemocracyElections

The secretary of state role—not the Cabinet official who flies around the world trying to put out international fires, but the one at the state level—is perhaps the most nebulous, poorly understood job in American politics.

On one hand, it’s a powerful political steppingstone. After serving as secretaries of state, many have gone on to become governors—Kate Brown in Oregon, Brian Kemp in Georgia, Jan Brewer in Arizona—as well as U.S. senators: Joe Manchin (West Virginia), Roy Blunt (Missouri), and Sherrod Brown (Ohio). Secretaries of state often out-earn lieutenant governors, and in three states, they’re first in the line of succession if the governor can no longer serve.

And yet, few people understand what the secretary of state actually does—and for good reason. Their responsibilities are often hodgepodge and unique to the state. In Idaho, the secretary is also a member of the State Board of Land Commissioners. In Michigan, she maintains a database of abandoned vehicles and administers the tests for mechanics. In South Carolina, he registers livestock brands and controls commissions for railroads, street railways, and steamboats.

However, across 37 states there is one general throughline: The secretary is the chief election officer with ultimate oversight over state elections and voter registration. For that reason, as election administration has become hyper-polarized, these positions are now visible like never before.

In November, 27 states will elect a secretary, and the money and attention these races have attracted are unprecedented. This election cycle, the Democratic Association of Secretaries of State and its affiliated groups have raised at least $10 million and say they’re on track to surpass $15 million before the midterms—ten times what they collected four years ago.

For Democrats, these secretaries are “the last line of defense for democracy,” says Kim Rogers, the group’s executive director. “We shouldn’t trust people who don’t believe in fair elections to run them. If we do, our democracy may die.”

Meanwhile, the forces of the right see the office as critical to preventing the mistakes they incorrectly believe were committed in 2020. Jim Marchant, who’s running for the position in Nevada, has said he would have refused to certify that year’s presidential election, and has proposed decertifying Dominion voting machines if he takes office. Marchant easily won his June primary and has a decent chance of winning the general election in November. There are many more like him.

As of June 6, 2022, at least 20 election deniers are running for secretary of state in 16 states, including battlegrounds like Michigan, Arizona, and Nevada, according to the States United Action, a nonpartisan organization advancing free, fair, and secure elections. At least eight have won their primaries so far.

These “America First” candidates have falsely claimed that Trump won in 2020, spread lies or conspiracy theories about the legitimacy of that election, or called for a “forensic audit” of the results after they were certified and resolved in court.

But for all the controversy now surrounding this previously obscure position, what exactly does it mean to be the chief election official? Are they bureaucrats fulfilling a largely ministerial role, or do they have real power to push legislation, purge voters from the rolls, and initiate investigations?

And if an election denier like Marchant does win office, could he really implement his conspiracy-laced agenda and decertify all of Nevada’s voting machines? Or initiate a statewide recount regardless of the vote margin? Or even refuse to certify a presidential slate of electors?

The short answer is that it’s complicated.

The long answer is that secretaries of state are both constrained by checks and balances and also given discretion over election laws and processes that are often ambiguous. If one were hell-bent on disrupting how elections are run, he or she would likely succeed.

American democracy is unique in that we both elect our election officials (the case with the secretary of state in 35 states) and that many of them are openly affiliated with a political party.

“Just about everyone recognizes that it’s inherently unfair for the umpire in our elections to be also a player on one of the two teams, Democrat or Republican,” Dean of University of Wisconsin-Madison Law School and elections law professor Daniel Tokaji told NPR in 2018 (he was at Ohio State at the time).

During rare moments, that unfairness becomes almost impossible to ignore. In Florida in 2000, Republican Secretary of State Katherine Harris refused to allow counties to continue recounting their votes, delivering George W. Bush a 537-vote victory in the state and the presidency. At the time, she was reportedly working directly with the Bush campaign.  

Harris’s blatant conflict of interest isn’t uncommon. Of the 137 elected secretaries of state serving since 2000, one-third have endorsed a candidate running in a race under their supervision. Twelve have served as co-chair (or equivalent) of a presidential election campaign, according to Election Reformers Network, a nonprofit, nonpartisan organization working to reduce polarization and increase public confidence in U.S. democratic institutions.

The potential to abuse the office for political gain became apparent again in 2018. That year, Brian Kemp refused to recuse himself as secretary of state while running to be Georgia’s governor. He wasn’t an outlier. Over the last 20 years, a secretary of state has simultaneously been a candidate for election and the state’s chief election official 153 times, according to ERN. However, his conduct was especially provocative.

Two days before the election, Kemp’s office announced an investigation into the state’s Democratic Party for what it described as an attempted hack of Georgia’s voter registration system. (The investigation quietly disappeared after Republicans won both the races for governor and secretary of state). With that in mind, the seemingly recent hyper-polarization of election administration isn’t really recent at all.

And yet, the current environment feels different, with even the most routine election functions devolving into petty litigation for no obvious reason. In Arizona, for example, the secretary writes the elections procedure manual for county, city, and town election officials, but it needs approval from both the attorney general and the governor. That had never been an issue until last year, when the attorney general, Republican Mark Brnovich, refused to approve Democrat Katie Hobbs’ manual. Brnovich sued, but not even a judge could figure out exactly what his criticisms were. “We are left with objections that no one can decipher,” the judge said during an April hearing. The court eventually sided with Hobbs.

This dysfunction is especially troubling because secretaries typically share their election authority with several other entities.

Consider the actual, boots-on-the-ground administration of elections. Local election officials are typically the ones who register voters, distribute, process, and tabulate absentee ballots, manage election budgets, hire election staff, and recruit and train poll workers. In many states, like Florida, Georgia, and Michigan, the secretary can’t even change the location and hours of poll sites during an emergency.

However, secretaries can issue guidance to these officials. “We definitely seek advice,” says Phil McGrane, the current county clerk in Ada County, Idaho, the state’s largest county and home to Boise. “It’s things that either are ambiguous or we want to make sure we’re staying consistent with the rest of the state.” But, that doesn’t mean the advice is always good, says McGrane, who recently beat two election deniers in the Republican primary for secretary of state and will likely win the office in November.

For example, say a county clerk discovers that they’ve committed an error that could change an election’s outcome. “Under the current secretary, he would advise the clerk as a private citizen to sue themselves as an official entity,” he says. “I’m a lawyer, and that’s nonsense.”

Increasingly, tension between counties and the secretary of state is becoming common. Recently, the county commission in Otero, New Mexico refused to certify the result of their June primary over unfounded concerns about Dominion voting machines.

The secretary sued to force them to follow the law. They did, but in Pennsylvania, where the secretary of state has far less election authority, the opposite result is unfolding. Three of the state’s counties are defying the Department of State and refusing to certify results that include absentee ballots without a date written by the voter. “The Department of State can ask, encourage, beg, and bully counties to do what it wants,” writes The Philadelphia Inquirer, “but with most elements of election administration, the department can’t do much else.”

A federal court has already ruled that the undated ballots should be counted, so if the Secretary is can’t compel the counties to include them in certification, legitimate votes will be disenfranchised.

Adding fuel to the fire is the fact that many election laws were written by state legislators with no experience administering elections. “Laws could always stand more clarity, not less, particularly in this area,” says Steve Simon, who served in Minnesota’s House of Representatives for a decade before being elected as Secretary of State in 2014. He points to the state’s statute on drop boxes in 2020.

“The law in essence said, ‘You can have ballot boxes,’ but that’s it. Nothing about standards, nothing about security,” he says. As absentee ballot use surged during the pandemic, Simon offered counties best practices. Then, he worked with the legislature to create clear rules. Simon’s office is one of several that can and do write and advocate for specific pieces of legislation, along with secretaries in Alabama, Hawaii, Massachusetts, and Missouri.

But not all secretaries can so actively influence the process. In some states, like Rhode Island and Oregon, the secretaries write laws but need a legislator to introduce them. In others, like Missouri, they do so only when requested. And in Texas, state rules specifically prevent them from using government money to attempt to influence the passage or defeat of a legislative measure.

However, even though secretaries are constrained by state and federal laws, they can still find ways to exert their influence. For example, when it comes to maintaining voter rolls, they typically can’t decide when and how to remove voters–but they may control who is at risk of being purged,  a non-negligible power, particularly in this age of razor-thin electoral margins in so many races.

In 2005, the Kansas Secretary of State initiated the Interstate Voter Registration Crosscheck Program, a database that aggregated voter registration records to identify potentially duplicate entries between states. At its peak, the program was used by 29 states and analyzed nearly 100 million registrations.

But Crosscheck had a fundamental flaw: because it flagged entires with the same first name, last name, and full date of birth—even if the last four digits of the social security number didn’t match—it returned false positives 99 percent of the time. Until the program was shut down in 2017, at least thousands of voters were mistakenly purged from the rolls.

Today, there’s a similar—but significantly more accurate—program, the Electronic Registration Information Center (ERIC), currently used by 31 states and Washington, D.C.

Though a few states require membership, like Wisconsin and Massachusetts, that choice is otherwise left up to the secretary of state. They can choose to join—or leave, as Louisiana’s secretary decided in February following disinformation that the organization is a front for voter fraud funded by George Soros. To withdraw, the secretary only needs to provide written notice to ERIC’s executive director 91 days beforehand. Wes Allen, a candidate for secretary of state in Alabama who just won the Republican primary, says he’ll do so “the minute” he takes office.

Controlling who is on the rolls isn’t a trivial responsibility—but it’s not exactly the democratic meltdown we’ve been warned of. To that end, could a secretary make a truly earth-shaking decision? For example, could they commission a study of the state’s voting machines, conclude that some of them were “too flawed to be widely used,” and immediately decertify them for general use—six months before the presidential primary?

That’s what happened in California in 2007 following a two-month review of the state’s voting equipment conducted by the University of California. If Jim Marchant wins office in Nevada, he will have the same power, as do secretaries in other states, including Oregon, Massachusetts, Wyoming, and Washington.

Such a decision would be catastrophic. In large jurisdictions, counting ballots by hand would be impractical if not functionally impossible. Last year’s “audit” of Maricopa County’s 2.1 million ballots lasted months and cost nearly $9 million, $5.2 million of which was spent just on labor alone. In addition, all jurisdictions must have disability-accessible voting machines per federal laws like the Americans with Disability Act. So, would someone like Marchant really follow through on his promise to decertify? “People are saying things because they sound great,” says McGrane, “but I don’t think—I’m guessing—that any of these candidates have ever even thought of the ADA or any of that.”

And what about the truly nuclear option—delaying, preventing, or overturning the certification of election results, another idea that’s still regularly floated?

None of the secretary of state offices contacted by Democracy Journal indicated that this was a possibility. Results are typically certified at the local and county level before they reach the state, at which point the secretary typically plays only a ceremonial role in the process. However, that doesn’t mean that they couldn’t make the process as chaotic as possible.

In four states—California, Georgia, Oregon, and Wyoming—the secretary can unilaterally order a recount under certain conditions. And in the other states, the office provides a powerful platform to communicate with the public, says Alex Curtas, Director of Communications for the New Mexico Secretary of State’s Office. “I think that can have almost a bigger impact than any kind of policy prescription,” he says.

More fundamentally, though, what a secretary can and can’t do is never fixed. After Georgia Secretary Brad Raffensperger refused to “find” 11,780 votes for Donald Trump following the 2020 election, the legislature passed a law removing the secretary of state as the chairperson of the State Elections Board. Instead, that position is now filled by someone appointed by the Georgia General Assembly. This is part of an ongoing trend.

Legislatures across the country are now attempting to assume more control over elections, and they could soon have their wildest dreams come true. The Supreme Court recently agreed to hear a case concerning the “independent state legislature” theory, a fringe doctrine arguing that the courts have no oversight over election laws passed by state legislatures—even if they violate the state’s constitution.

If the court endorsed such a power grab, it could functionally eliminate the secretary of state from election administration altogether. “The legislature’s preferences about all those things”—certifying machines, cleaning the voter rolls, initiating recounts—“would have to be respected,” says Vikram David Amar, Dean of the University of Illinois College of Law.

Short of such a supremely anti-democratic decision, the responsibility for administering elections will still be split between the secretary of state, local election officials, state legislators, the governor, and the courts. It’s a confusing, byzantine system, but it may help thwart election deniers should they succeed in making it into office.

“I don’t really know what kind of policies they even think they would be implementing,” says Curtas. “When they say, ‘Oh, we need audits.’ We already have mandatory post-election audits. ‘We’ve got to have paper ballots.’ Well, we have 100 percent paper ballots in New Mexico in every single election,” he says. “The checks and balances that are in place work well still, thankfully.”

But even if these election deniers can’t enact their agendas, their presence in office is still humiliating for our democracy. The latest one to win his primary is state Rep. Chuck Gray in Wyoming, who has called the 2020 election “illegitimate” and railed against how “the woke, big tech left has stolen elections with ballot drop boxes.” Because no Democrat is running for the position, Gray will be unopposed in November.

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Spenser Mestel is an independent journalist and poll worker based in New York City. His newsletter is Spenser's Super Tuesday, and his bylines have appeared in the New York Times, the Guardian, the Atlantic, BuzzFeed, VICE, the Intercept, the Appeal and Bolts.

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