Is Clarity in Election Law Overrated or Underrated? Yes.

[Image courtesy of salesbenchmarkindex]

I had the good fortune to moderate a panel at the NCSL Fall Forum earlier this week with Ned Foley of Ohio State, Rebecca Green of William&Mary, John Fortier from the Bipartisan Policy Center and Alysoun McLaughlin of Montgomery County, MD. The discussion was wide-ranging, but one aspect was especially interesting – and fortunately for me and you, Niraj Chokshi of the Washington Post’s GovBeat picked up on it:

State lawmakers have introduced at least 2,328 bills this year that would change the way elections are run at the local level. Some passed, some stalled. Some are mundane tweaks, others are controversial overhauls.

But if election reformers want to prevent their laws from being held up by lawsuits, they would be wise to pay attention to how they’re written, says Ned Foley, an Ohio State University professor and election law expert.

“Put clarity at the top of the list of things to achieve, maybe before fairness or integrity or access or whatever, because litigators can’t fight over things that are clear,” he said, speaking on an election law panel during a multi-day conference hosted by the bipartisan National Conference of State Legislatures in Washington, D.C. “It’s amazing how much ambiguity kind of seeps into laws that is unintended.”

But while clear regulations are important, too much can backfire, said Alysoun McLaughlin, deputy director of the Montgomery County Board of Elections in Maryland.
“We really kind of have a love-hate relationship with the clarity that you write into laws,” she said, speaking to a group of lawmakers, staff and others. Because election officials are working with limited resources and budgets, specific unfunded requirements can make it hard to implement new election regulations well. For example, too much specificity on ballot design–an issue a fellow election official requested McLaughlin bring up–can tie officials’ hands, she said.

“You kind of get mid-stream and then you realize, oh, there’s this statute that’s really going to make it more expensive. It really doesn’t make sense, but it’s too late to change it now,” McLaughlin said. “So specificity can kind of bite you on the back end.”

And in a lot of states, legislative schedules can make it impossible to address in time. A few legislatures meet every other year and others may pass election reform during short sessions only to realize after the session is over that the laws are problematic, she said.

Clarity matters, she said, but be wary of micromanaging.

Thanks to the panel for a great session!