There is a saying that “people get the government they vote for.” The implication of the maxim is that if undesirable or unwise legislation is enacted, if executive branch officials are inept or ineffective, or if the government is beset with widespread corruption, then such unfortunate results are the consequence of the electorate’s decision regarding whom to trust with the powers and prestige of public office. The Constitution does not forbid people from enacting wrongheaded policies. If voters elect leaders that fail them, then the citizenry is saddled with the consequences of its choice until the next election. Such is the reality in a democratic republic.
But this argument begs the question of whether voters did in fact elect the individuals who take their oaths of office. How do citizens know which candidate actually won in any given election? Election results are legitimate only to the extent that the returns include every legal vote–and only those legal votes–undiluted by fraudulent or otherwise unacceptable votes. The task of counting every legal ballot and excluding every unlawful one is the challenge faced by practitioners of election law, whether as lawyers or as election officials. Primary authority for elections in America rests with the states, and in each jurisdiction the secretary of state is the senior executive officer responsible for ensuring a free and fair election. Thus the secretary of state is involved in the unique act of balancing the duty to ensure access to the ballot box with protecting the integrity of the voting process.
Over the past four decades, most developments in voting rights legislation and case law have focused specifically on the franchise: the right to cast a ballot and have that ballot tabulated as a vote. These advances, albeit important, have left underdeveloped the concomitant right to an undiluted count. And if we seek to ensure the legitimacy and fairness of our electoral system then we must now turn to protecting this “other voting right” vigorously. Further, we must do so in a manner that recognizes voting as a duty and that expects the voter to exert some effort toward fulfilling that duty.
This Essay explores several aspects of protecting the second, equally important, right to a protected ballot box. Click here to download the full essay. (PDF)