Outsourcing Democracy: Redefining Public-Private Partnerships in Election Administration

Abstract

“We are left with a system in which almost every state still outsources its elections to what are actually private organizations.”

Federal, state and local governments are deeply indebted to private organizations, political parties, candidates, and private individuals to assist it, inter alia, in registering voters, getting citizens to the ballot box through get out the vote campaigns (GOTV), assisting limited English proficient (LEP) citizens, and monitoring Election Day activities. In a recent Supreme Court case, Crawford v. Marion County, Justice Souter recognized that voting legislation has “two competing interests,” the fundamental right to vote and the need for governmental structure in elections. The authority to structure elections lies primarily with the state legislature. The Federal Government, however, has the power to prescribe election laws to enforce the Fourteenth and Fifteenth Amendments. In developing this intricate balance, the government has, as it has in other areas, began to relinquish more authority to private and often partisan influences to create a partnership.

In this public-private partnership, the government, however, has outsourced its authority to private groups, organizations and individuals to determine voter eligibility through various election administration measures, such as voter challenges and voter purges. Often these private organizations use public authority for private partisan gain. Moreover, although the laws that govern private involvement in these areas appear neutral, they are often used to disenfranchise and discriminate against minority voters. When private actors perform state actions, such as purging voter rolls or conducting voter challenges in a discriminatory manner, they do so with state endorsement. This article will discuss ways to challenge the unauthorized ceding of constitutional authority and restore an effective balance between the public private partnership that encourages voter access and integrity while maintaining Constitutional constrictions.

Keywords: election law, constitutional law, equal protection, Voting Rights Act, disenfranchisement, racial discrimination, voter challenge

JEL Classification: K19, K39