Should partisans be in charge of our elections?
University of California, Irvine professor Richard Hasen, another election law expert and the author of "The Voting Wars," agreed that the system is flawed.
"We want a system where all eligible voters, but only eligible voters, can cast a vote that will be accurately counted," he said. "And to get that we need a people whose allegiance is to the integrity of the political process, and not to one political party."
Asked for a model for reforming the electoral process, Tokaji pointed to Wisconsin's Government Accountability Board, which the Wisconsin legislature created four years ago. A combination of the elections and ethics boards, the six-member Government Accountability Board is staffed with judges who have spent a minimum of six years away from partisan politics; it has made decisions that have upset both Democrats and Republicans.
In Canada, Australia, India, the United Kingdom and most other mature democracies, elections are overseen by independent election authorities that are designed to be insulated from partisan politics. In Canada, for example, a nonpartisan chief electoral officer is tasked with enforcing the Canada Elections Act. The officer reports directly to Parliament - not a partisan government minister - and serves until retirement in order to stay insulated from partisan concerns.
Of course, that doesn't mean that Canadian elections are free from partisan meddling. The party in power could, for example, amend the Elections Act to limit early voting hours to boost its electoral prospects. The chief electoral officer would then enforce that policy.
Indeed, in the United States, lawmakers generally have more power to influence election practices than those who oversee the process. If state lawmakers decide, for example, to institute new voter identification laws in an effort to combat the relatively minor problem of voter fraud - as has happened in a number of states this year - an election official generally has to enforce that law, whether or not he has a partisan affiliation.
Some say it isn't necessary to change the system. Elaine Karmarck, a lecturer in Public Policy at Harvard University who worked in the Clinton White House and was a senior policy adviser to Al Gore's 2000 presidential campaign, said that it "may seem like a screwy system, but compared to most of the elections in the world, we do a pretty good job."
The reason, she said, is that America has relatively low levels of corruption and because both parties can go appeal to the legal system to address alleged unfair treatment.
"If it's a really close race or somebody suspects some foul play, it goes right to the courts, and it cuts out the secretary of state's office," she said. Karmarck noted that despite Harris' efforts in 2000, the Florida contest -- and with it the presidential election -- was ultimately decided by the Supreme Court.
Still, critics say any system in which the person overseeing the election has a stake in the outcome needs to change.
"We can't know for sure whether Katherine Harris made the decisions she made because that was her legitimate interpretation of the law or she wanted to help Bush win," said Tokaji. "But this is not just a problem of bad actors, this is the problem of an inherently unfair system."
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