Should Secretaries of State recuse themselves from elections?
Published 7:38 pm Sunday, August 12, 2018
Georgia Secretary of State Brian Kemp, who manages the state’s election, is also a candidate for governor in 2018 against Stacey Abrams. Democrats are sure to call foul on this advantage Kemp has. But in Kentucky, Secretary of State Alison Lundergan Grimes (a Democrat) is the leading candidate to take on embattled GOP Governor Matt Bevin in 2019.
Should secretaries of state, like Kemp and Grimes, be able to simultaneously run for election while managing the election? Or should there be some solution to avoid the appearance of having an unfavorable advantage?
This column is not a personal attack on Brian Kemp. In fact, I have met him once in person, though he probably doesn’t remember this. He was personally checking on a dispute in Hogansville on Election Day in 2012, and he was watching my student, a freshman basketball player, process election forms, probably wondering what his professor got him into. That player is now a top-notch law student in Florida, and still remembers that experience.
Few Americans even knew who their state’s secretary of state was, or what he or she even did until the 2000 election, when Florida Secretary of State Katherine Harris managed the state’s election during the contentious Bush-Gore election. The best outcome would have been an entire statewide recount, not just the four Democratic counties, but the naked partisanship shown in that post-election battle made us think differently about secretaries of state. Should it be an elected position, or an appointed position? If appointed, who should do the appointing? And is there any way to keep this from being a position that could benefit one party or another?
Currently, 47 states have a secretary of state, or something like it (a few states use a different name for the position); Alaska, Hawaii and Utah don’t have one. Most elect their position, so obviously there is some partisanship. After all, a secretary of state who is an incumbent on the ballot has a huge advantage, when running for reelection or for another office. Kansas GOP Secretary of State Kris Kobach of the ill-fated “Election Czar” post hopes to unseat his state’s GOP Governor. Despite being in office, and supported by a number of state Republicans, incumbent Jeff Colyer (with favorable approval ratings) may be a long-shot in his own primary, as a result of Kobach’s power.
Twelve states appoint their secretary of state. Nine have the governor appoint that post, but that seems to benefit governors running for reelection, which is why so many of them don’t lose. The legislature appoints the post in Tennessee, New Hampshire, and Maine, but legislatures are usually controlled by a party (unless the upper and lower houses are controlled by different parties). Is there a solution to this problem of a perceived unfair advantage to a political party?
One solution is to make it a non-partisan post, like the German President or the Israeli President. That would be an improvement, though a tricky situation. Another solution would be to have Kemp, Grimes, Kobach, and other Secretaries of State remove themselves from the top post before running for higher office, to provide a level playing field between themselves and their opponents.
Of course, no such law exists now. I would advise all three candidates, and any other Democrat or Republican secretary of state candidate, to step aside before running for governor or senator, or some other post, or to recuse himself or herself when running for reelection from the operation of the election.