The Downside(?) Of Clear Election Laws

Washington Post: The Down Side Of Clear Election Laws <read> A thoughtful piece, yet the title does not say it all:

State lawmakers have introduced at least 2,328 bills this year that would change the way elections are run at the local level. Some passed, some stalled. Some are mundane tweaks, others are controversial overhauls.

But if election reformers want to prevent their laws from being held up by lawsuits, they would be wise to pay attention to how they’re written, says Ned Foley, an Ohio State University professor and election law expert.

“Put clarity at the top of the list of things to achieve, maybe before fairness or integrity or access or whatever, because litigators can’t fight over things that are clear,” he said, speaking on an election law panel during a multi-day conference hosted by the bipartisan National Conference of State Legislatures in Washington, D.C. “It’s amazing how much ambiguity kind of seeps into laws that is unintended.”

But while clear regulations are important, too much can backfire, said Alysoun McLaughlin, deputy director of the Montgomery County Board of Elections in Maryland.

“We really kind of have a love-hate relationship with the clarity that you write into laws,” she said, speaking to a group of lawmakers, staff and others. Because election officials are working with limited resources and budgets, specific unfunded requirements can make it hard to implement new election regulations well. For example, too much specificity on ballot design—an issue a fellow election official requested McLaughlin bring up—can tie officials’ hands, she said.

“You kind of get mid-stream and then you realize, oh, there’s this statute that’s really going to make it more expensive. It really doesn’t make sense, but it’s too late to change it now,” McLaughlin said. “So specificity can kind of bite you on the back end.”

And in a lot of states, legislative schedules can make it impossible to address in time. A few legislatures meet every other year and others may pass election reform during short sessions only to realize after the session is over that the laws are problematic, she said.

Clarity matters, she said, but be wary of micromanaging.

To paraphrase Einstein, “Laws should be as simple as possible, but no simpler”

Especially when Legislators do not have the training and experience to understand all the areas that they must legislate, and lack the time to consider all sides in depth, laws can be a more complex than necessary, and ambiguous. Yet, there are cases where laws need to cover the essentials.  Some issues in Connecticut:

  • The post-election audit law mandates that the random selection of districts and local counting sessions be open to the public. Yet, does not specify a notification period or required method of notification of the public. And there is no requirements that the random selection of races to be audited by the Secretary of the State be public. Officials have not always provided reasonable notice or public notice when not required.
  • A law originally saying clearly that elections that could not be handled by lever machines could use paper ballots, was rewritten to cover optical scanners. The botched rewrite was not clear. It said to run elections on paper ballots when in was impracticable to use optical scanners, yet the word impracticable has been interpreted by officials to mean  not practical so many officials avoid using scanners when they clearly would work, while impracticable means “difficult or impossible to use”  (did you know that?)

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