In my first post of this series, I noted that, despite our common goals in seeking to understand the dynamics of administrative policymaking, those who devote their professional lives to administrative statecraft often place themselves in intellectual silos.  

With almost one week until Election Day and voting already underway, I cannot help but think of election administration as a prime example.  Most administrative lawyers consider elections law as a separate discipline.  However, as put by Professor Edward B. Foley, election law is a species of administrative law. 

It is almost impossible not to be bombarded with ads, stories, or colleagues sharing information about the election. In addition to news that outside spending on the presidential race has exceeded $1 billion and statistical predictions of a toss-up regarding who will win control of Congress, I was struck by the fact that only three incumbents are running for reelection in states with gubernatorial contests.  Not to mention the fact that more than 40.7 million voters have already cast their ballots across the country.

Each of these informational tidbits could prompt a decade’s worth of research on the who, what, when, where, and why of elections.  They also highlight the fact that those who research elections or work in election law are pulled in so many different directions.  

Political science and public administration scholars largely focus on the external factors (i.e., politics) that govern our electoral process.  Since the 2020 presidential election, important work has assessed the competitiveness, partisanship, and nationalization of elections in the United States; the effect of political advertising and mobilization efforts on vote choice and turnout; and how various legal requirements for voting – including voter ID laws, same day registration, and early voting  – influence the makeup of the electorate.  Additional scholarship has explored how electoral incentives influence politicians’ behavior in office and even their career decisions at the federal or state level.

In the same time period, legal scholars who study elections have explored the features of our constitutional system that influence elections, including the meaning, history, and importance of the Elections Clause; interaction between partisan and racial gerrymandering; protection of political speech, including campaign finance law; and the constitutional and statutory construction of the right to vote.

Notable post-2020 works that cross disciplinary boundaries include (but are not limited to) the explanation by Professors Jessica Bulman-Pozen and Miriam Seifter of the underappreciated role of state courts in the electoral process; Professor Reva Siegel’s analysis of the politics of constitutional suffrage throughout history; and Professor Abby Wood’s examination of the implications campaign finance transparency for courts, campaigns, and policymakers. 

Yet, understandably due to the complexity of elections in the United States, comparatively little research speaks to election administration as the tie that binds.  This is a glaring gap in our understanding, as election administration is public administration. 

Both public administration and administrative law contemplate the relationship between administrators, political leaders, and citizens in pursuit of sound governance.  Indeed, a recurring theme throughout modern history is that administrative agencies play a key role in informing, guiding, and even coercing citizen behavior.  Specifically, election administrators are at the forefront of “street-level” information provision on and implementation of the laws and regulations that guide our electoral process.

As a result, election administrators face clear challenges in the complex and increasingly salient world of election operations.  Rumors and misinformation about state and local election officials are particularly striking this election season, as it is the first presidential contest since January 6.  Thus, it is a good time for us all to incorporate the lessons we’ve learned in our various disciplines into one cohesive whole.

The Framers of the Constitution contemplated an electoral system that detailed rules for the selection of the president; created room for divergent, localized interests; and provided an opportunity for federal oversight.  

The Elections Clause of the Constitution places the regulation of elections primarily in the hands of the states and, as a result, the legal framework that governs administration of the electoral process varies across the country.  Consequently, local election officials operate over 100,000 polling places across the country and at least 19 congressional committees have oversight jurisdiction over federal elections.  Put by Professor Alex Ewald, election administration in the United States is “hyperfederalized.”

Yet, Congress has the authority to protect the integrity of the American electoral system.  This includes safeguarding the fundamental right to vote.  In addition to federal election administration-based reforms, Congress has established two federal agencies to regulate elections: the Federal Election Commission (FEC), which the federal legislature designed to promote confidence and participation in the electoral process, and the United States Election Assistance Commission (EAC), which supports state and local election administrators in their efforts to ensure accessible, accurate, and secure elections.

While our flexible, overlapping system of election administration helps promote local governance with federal oversight, the system is not without cost.  The same national, state, and local factors that our electoral system accommodates can also result in variation in citizen experience with the electoral process.  As explained by Professors Pamela Herd and Donald P. Moynihan, the relative ease by which citizens can exercise their democratic rights through elections are the product of deliberate choices made by politicians.

Simply, “[h]ashing out the nitty-gritty” of election administration is a political game.  And both separation of powers and federalism principles are a part of this game.  As a result, political dynamics and disparities in the capacity of federal, state, and local government units to administer elections raise legal questions that have consequences for the balance of authority across the political system.  

The scope and function of election law and administration are both a bulwark and a target for democracy.

Building upon this political reality, recent important work across fields explores an increasingly nationalized electoral system that takes the lead from presidential nominees.  This research falls along two themes: (1) the dynamics of election administration across and within states and (2) the politics-administration dichotomy.

First, cross-governmental administration has important implications for our electoral system.  When coordination across governmental units works well, it can promote the right to vote and the administration of free and fair elections.  But a lack of coordination or disagreement about the law not only can hamper election administration, but also further distrust in the electoral system.

Second, presidents and governors play an increasingly important role in election administration.  These executives appoint administrators within the electoral administrative state who understandably seek to implement the law in accordance with executive preferences.  

To counteract these choices, Congress and state legislatures have placed election administration in the hands of independent commissions.  The effect of such commissions on issues like partisan gerrymandering or vote counting is unclear.  

However, on the federal level, it is worth noting that Congress designed both the FEC and the EAC to be independent commissions. The structure of these agencies indicates a credible commitment by politicians to contribute to stability in administrators’ implementation of the law.  Extending the idea of administrative independence beyond agency structure, Professors Ganesh Sitaraman and Kevin M. Stack argue election administration should be subject to professional licensing requirements.

Such debates will continue far beyond the 2024 election season.  And, after the election is over, our attention will shift to the peaceful transition of power.  

Next month, the Administrative Statecraft series will feature two posts.  The first will explore the laws, procedures, and politics that govern the presidential transition process.  The second will examine how and when the administrative state is designed to be responsive to political change (or not), as well as research that examines the dynamics of public participation in the administration of regulatory programs.  

December’s post will explore scholarly insights on the appointment and confirmation of political appointees and the impact these appointees may have on federal administration.