The hotly contested 2020 Presidential Election was filled with complaints—not only about the election results, but also about the voting process itself. Aggregated and escalated, those complaints led not only to litigation, but also to doubts in some quarters about the reliability of the results the process produced. As we look ahead to November, it is likely that the voting process will again be severely tested unless confidence-inducing changes to the process are made.
That is why the American Law Institute’s recent release of a Statement entitled Ethical Standards for Election Administration is so timely and so important.
Founded in 1923 by a group of prominent American judges, lawyers, and teachers, the ALI, as the Institute is commonly known, has devoted itself to issuing and updating Statements of basic legal principles. Those Statements are designed to help lawyers and judges understand what the law is and how it should be applied to various social issues and legal problems.
For the last several years, the Institute has been working on a Statement regarding government ethics. It decided to issue a separate Statement about the ethics of election administration, a component of overall government ethics, because of the imminence of the next election cycle and because of its belief that “our contentious politics have clouded much of what they do with misunderstanding and distrust.”
In a slight departure from precedent, this Statement is not designed to help election administrators understand what the election laws are. Indeed, that task would be nearly impossible to accomplish given the diversity of election rules, laws, and procedures in existence throughout the Nation. Instead, the Statement is designed to help administrators understand and agree on basic ethical principles that should apply to the way that election laws in their jurisdictions are implemented.
The committee that produced the report consisted of 21 members. Seven were academics, including the co-chairs, one of whom was on the faculty of New York University Law School and the other on the faculty of the Hoover Institution. Six members had responsibility for elections in Colorado, Arizona, Utah, Michigan, and Kansas, and one, Tahesha Way, is the Lt. Governor of New Jersey. Although all 21 members approved of the report before it was issued, those six had primary responsibility for drafting its contents.
The Statement creates, for the first time in our Nation’s history, a set of common principles for election administration. Those principles emphasize the importance of maintaining a nationwide system in which all eligible voters can vote and have their votes counted. Equally important, the Statement also provides lawyers of every political persuasion and members of the public with a common mechanism for evaluating the way the election process in their jurisdiction is operating.
The Statement is neither ponderous nor packaged in incomprehensible legalese. Instead, it focuses on seven ethical principles for administrative election supervision: adherence to the law; protection and defense of the integrity of the election process; promotion of transparency in the conduct of elections; treating all participants in the election process impartially; demonstration of personal integrity by election administrators; practicing the highest level of ethics; and stewardship and advancement of professional excellence.
Procedurally, the report also suggests that election officials should be required to take an oath or make an affirmation “to support and defend the Constitution, follow the law, and behave ethically.” While recognizing that those measures are largely symbolic, the report recognizes “the emotional power,” both for the official and the public, of a hand raised, public pledge to embrace and implement principles that assure an eligible person’s right to vote and have their vote counted.
The importance of those principles and measures might seem to be self-evident, and perhaps it is, but the report’s focus on the need for administrators to embrace those principles publicly is designed to create a shared national vocabulary about how elections should be run. Creation of that vocabulary, the report suggests, will increase public confidence in the impartial administration of elections. It will also provide new election administrators with tools for ethical decision-making in areas where there are no ready or clear-cut answers when novel problems arise.
In sum, the ALI’s report provides the public, and lawyers in particular, with standards for judging the integrity of the election processes as they unfold. It is particularly important for lawyers, engaged as they are in a profession that is dedicated to upholding the rule of law, to be aware of those principles and ready to act if, when, and as they see those principles abandoned.