Rebecca Green has posted this draft on SSRN (forthcoming, Ohio State LJ). Here is the abstract:
Bush v. Gore catapulted this country into a crisis of confidence in the management of our elections. Despite reforms since 2000, public confidence in election administration continues to wane. Are dead people on the rolls? Are non-citizens voting? Are provisional ballots wrongly rejected? State election transparency statutes meant to reassure the public that elections are producing legitimate results are often conflicting, vague, and even nonexistent. Exacerbating the problem, the last two decades have witnessed huge changes that offset the transparency balance. Dramatic changes in how Americans vote, how elections are administered, and who scrutinizes the election process call for a recalibration of election transparency norms. It is not immediately clear, as some are beginning to sense, that unqualified openness serves the fundamental goals of election transparency, that reactive access policies boost public confidence, or that current state transparency architectures tap the full potential technology offers. Circumstances demand not just statutory revision, but revisiting traditional assumptions about election transparency to accommodate radically changed circumstances. This paper contains a proposal pairing an increase in public access to election materials with penalties for harmful uses of election data. We have an opportunity to craft a modern transparency regime trained on the core goal of ensuring public confidence in election outcomes. Developing state transparency regimes that address — and take advantage of — modern realities is critical in an era when election controversy is the new normal.