I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The fifth contribution is from Rebecca Green:
In the 2024 presidential election, the “election administrators’ prayer” was answered: wide margins in the vote count kept otherwise-readied lawyers and lawsuits at bay. After the tumult (to put it mildly) of the 2020 post-election season and plummeting public trust in outcomes that has metastasized since, many feared partisans at various levels of election administration would instigate turmoil in 2024. In the lead up to November 5, reports of bad faith mass voter challenges, planned commando-style poll watching, and certification refusals portended trouble.
But as I argued in my Oxford Handbook chapter, “Partisan Parity in U.S. Election Administration,” the U.S. system of elections is carefully designed to absorb—and purposely leverage—partisan passions. In 2024, the system not only worked, but it sparkled. Despite understandable departures of election officials from their posts following unprecedented threats and harassment since 2020, thousands of partisan election officials and observers across the country nevertheless took up their posts and ran towards the problem.
Indeed, American election administration is partisan by design—a feature, not a bug. Throughout this country’s history, election designers have advocated for populating U.S. election administration with rival partisans for a deeply American reason: our system relies on checks and balances of rival actors. Just as adversarialism plays a central role in the U.S. judicial system, U.S. elections embed rival partisan actors at every level to ensure transparent, accountable, and reliable results.
As my chapter documents, and I explore more fully in Adversarial Election Administration, every state in the country injects elections with rival partisans through partisan parity statutes. Despite reformers’ constant calls for “nonpartisan” election administration, it’s hard to see where truly nonpartisan actors might be found in a country in which partisan passions run deep. Instead, partisan parity statutes (variations of which have been in place for hundreds of years) are a means of putting partisan passion to work. Here, for example, is a partisan parity statute from Arizona:
There shall be an equal number of inspectors in the various precincts in the county who are members of the two largest political parties. In each precinct where the inspector is a member of one of the two largest political parties, the marshal in that precinct shall be a member of the other of the two largest political parties.
Even when one party may have the upper hand (for example, an election board with one Republican and two Democrats, or vice versa), the presence of a rival partisan nevertheless provides transparency, accountability, and even serves a moderating function.
The system is not perfect. As I describe in my chapter, partisan parity requirements suffer from a number of weak links. First, some states consolidate too much power in the hands of a single partisan election administrator. Second, geographic polarization—towns, cities, and whole states dominated by a single party—makes recruiting rival partisans to staff elections in many areas of the country quite difficult (more data would be helpful to learn just how difficult). And third, partisan parity requirements assume that rival partisans will act in good faith. When partisan actors refuse to follow the law or otherwise seek to undermine elections, adversarial election administration cannot function as designed.
These caveats aside (unless significant evidence emerges to the contrary in the next several weeks), we can rejoice that election administration did not headline in this year’s presidential election. Even though wide margins, not partisan parity requirements, can be credited this time around, Republicans and Democrats across the country fulfilled their vital role of impartially administering this election, doing their part to ensure open access to every eligible voter and—just as importantly—keeping each other in check.