#MSSEN and the New Transparency Onslaught

The following is a guest post from Rebecca Green of William and Mary:

 For those watching what’s unfolding in Mississippi, there’s more going on than fiery partisan intrigue. What’s increasingly at stake is election transparency and specifically how far election officials should go in letting outside groups pore over election materials to satisfy themselves that outcomes are correct. On one hand, democracy will not function if elections are not fully transparent. Especially in a country in which partisan officials often preside over election administration, any attempt to hide how elections are run will certainly delegitimize outcomes. On the other hand, we may be deeply worried about outside groups accessing election information when they have strong political agendas of their own. When it comes to contesting election outcomes, such groups and individuals invariably populate the losing side and are therefore single-minded in their goal: delegitimizing the outcome. Since the point of transparency in the election context is to ensure legitimacy, this could be a problem.

In the old days, we didn’t have to worry about this problem very much. Most states limited election oversight to candidates and their appointed representatives (many still do). Much like courts relying on the adversarial system to ensure just outcomes, states relied on vigilant candidates to make sure the other side didn’t pull a fast one and election officials did their jobs correctly. Plus, not many members of the public had the time, energy, or resources to march to the clerk’s office to sort through boxes of paper records. But in the years since Bush v. Gore, several trends have combined to challenge the old system. First, more and more people want to scrutinize the administration of our elections. Second, digital technology now allows them to do so with relative ease (at least assuming election officials cooperate). Combine these trends with a huge rise in mail in and provisional voting and the digitization of election administration and it’s clear that sitting back and hoping the old rules will carry us through is problematic. It’s unlikely that the public will accept attempts to deny outside groups access to election materials. Indeed, True the Vote in Mississippi alleges that federal law requires it. It’s likewise the case that old rules are seldom comprehensive enough to handle the New Transparency onslaught.

There’s some reason to hope that throwing back the curtain may in fact not be as dangerous as it might seem. In the Obenshain-Herring recount last fall, Virginians experienced the micro-transparency phenomenon firsthand—bloggers and tweeters pouring over election materials and identifying potential places of error. The leader of the pack, David Wasserman, described his surprise that his efforts did not infuriate Virginia’s election officials. In fact, they thanked him. In the end, especially when full transparency does not necessarily mean the cooks need to be actually in the kitchen (much oversight can be done remotely) perhaps we have nothing to fear.

Then again, so far we’ve seen this New Transparency unfold in relatively small-scale races. What would Bush v. Gore be like today—particularly if state legislatures do nothing to update election transparency statutes to accommodate new realities? If election transparency is to serve its principal goal of ensuring public trust in electoral outcomes, much thinking should be done—well in advance of Election Day—to ensure that new realties are taken into account.

Rebecca Green co-directs William & Mary Law School’s Election Law Program. Her article, Rethinking Transparency in U.S. Elections will be published in the Ohio State Law Journal in Winter 2015.


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