Addressing Constitutional Concerns and Strengthening Nebraska's Election Administration: a Roadmap to Substantive Reform Comment

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 786. Addressing Constitutional Concerns and Strengthening Nebraska's Election Administration: A Roadmap to Substantive Reform Comment

Addressing Constitutional Concerns and Strengthening Nebraska's Election Administration: A Roadmap to Substantive Reform Comment(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 787
A. Nebraska Election System Overview: Areas of Concern ........................................... 788

II. Lack of Uniform Standards ............................ 792
A. The Problem ...................................... 792
1. Case in Point: The Disparate Treatment of Ballots in Nebraska ........................... 798
B. Obstacles to Reform ............................... 801
1. An Attempt to Provide Uniform Election Guides and Standards in Nebraska .................... 802
C. Proposed Reforms ................................. 805
1. Legislative Reform: Collaboration and Outreach .......................................... 805
2. Reform via Litigation .......................... 806

III. The Need for Trained Professionals .................... 808
A. The Problem ...................................... 808
B. Obstacles to Reform ............................... 809
C. Proposed Reforms ................................. 810

IV. Disenfranchisement by Deadline: The Need for Election Day Registration ...................................... 810
A. The Problem ...................................... 811

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1. Why Push for Election Day Registration in Nebraska ...................................... 813
2. Election Day Registration Saves Nebraska Election Commissioners Time and Money ...... 815
B. Obstacles to Reform ............................... 816
C. Proposed Reforms ................................. 819

V. In Nebraska We Let the Fox Guard the Hens: Partisan Election Commissioners ............................... 820
A. The Problem: The Case for Non-Partisan Election Administrators .................................... 822
1. Partisanship and Election Administration: Former Douglas County Election Commissioner Lautenbaugh's Argument for Redistricting ..... 824
i. Commissioner Lautenbaugh's Argument for Redistricting ............................... 826
ii. The Nebraska Supreme Court Weighs In . . . 827
iii. Partisan Redistricting Accusations Continue ...................................... 828
2. Lessons Learned: The Need for Non-Partisan Election Administration ........................ 829
B. Obstacles to Reform ............................... 830
C. Proposed Reforms ................................. 831
1. Reform via the Initiative Process ............... 831

VI. Conclusion ............................................ 833

I. INTRODUCTION

It is no secret that the nation's election system is imperfect, and Nebraska's election system is no exception. Indeed, the issues that plague elections nationwide are the same source of problems in Nebraska. Troublesome election issues in this state include: decentralized election administration; a lack of uniform election standards; arbitrary voter registration deadlines; and the appointment of high-level, partisan, political operatives to administer elections.(fn1) Combined, these factors create a system of ad hoc decision-making that, at best, leads to the unequal treatment of voters from one county to the next, and, at worst, could lead to partisan manipulation of elections.

The solutions to these problems are surprisingly straightforward. However, the political barriers are exceptional. In Nebraska, like many states, election administration is highly decentralized, with a different election official administering the elections for each of the

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state's ninety-three counties.(fn2) While the Nebraska secretary of state also serves as chief election officer, has the power to make uniform interpretations of election law, and has a responsibility to train election administrators, the secretary of state rarely does so.(fn3) Surprisingly, Nebraska's secretary of state is one of the few state election officers in our region who does not provide uniform election administration standards or poll worker standards and guidelines.(fn4) This decentralized system of conducting elections leads to varying degrees of administrative competency and fosters non-uniform election practices from county to county. Non-uniform election practices in turn lead to unequal treatment of voters and trigger equal protection implications.(fn5)

This Comment will explore the statutory structure of Nebraska's election system and point out areas of concern. First, it will examine the decentralized nature of the Nebraska election system and how this leads to a lack of uniformity and unequal treatment of voters. Second, this Comment will discuss the effect of arbitrary registration deadlines on voter turnout, particularly among traditionally disenfranchised populations. Third, it will explore the partisan nature of the Nebraska election system and the subsequent negative effects of partisan election administration. Finally, this Comment will discuss the various solutions and ways in which reform may take place.

This Comment is a call and roadmap for substantive election reform in Nebraska. All too often, substantive reform within democracies is reactive rather than proactive. What is at stake? Elections are the primary vehicle by which citizens in a democratic society voice their will. The success or failure of the election system directly reflects upon the democratic system as a whole. Reliable, fair, and accessible elections are critical to a form of government that relies upon legitimacy through democratic governance.

A. Nebraska Election System Overview: Areas of Concern

In order to understand the need for reform it is important to provide an overview of how elections are administered in Nebraska. Pursuant to state statute, counties with a population of 100,000 or more shall have an election commissioner appointed by the Governor.(fn6) For counties with a population of less than 100,000, the county clerk shall

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act as chief election officer of the county, unless the county board decides to create the office of election commissioner and appoint one.(fn7) However, only counties with a population of more than 20,000 may create the office of election commissioner.(fn8)

There are seven appointed election commissioners in Nebraska.(fn9) Three counties (Douglas, Lancaster, and Sarpy) have a population greater than 100,000, and thus have a governor-appointed election commissioner. In addition, four county boards (Buffalo, Cass, Hall, and Platte) made the decision to appoint an election commissioner.(fn10) As of 2011, eighty-six elected county clerks serve as chief election administrator in their respective counties. However, these county clerks only administer the elections of a little under half of all registered Nebraska voters,(fn11) while partisanly-appointed election commissioners in Douglas, Sarpy, and Lancaster Counties administer the elections of the remainder of Nebraska's registered voters.(fn12) With little oversight and a lack of comprehensive uniform standards, this decentralized election system leads to differing election practices, which can result in unequal treatment of voters and ballots.(fn13) Differing treatment of ballots, particularly provisional ballots, is a violation of the Equal Protection Clause of the United States Constitution.(fn14)

In addition to their duties as chief election administrators, county clerks also record all actions of the county board, maintain county records, and may perform the duties of a court reporter, depending on the size of the county.(fn15) Since election administration is only one of many tasks delegated to county clerks, elections may fall by the way-side.(fn16) Perhaps most worrisome is many county clerks assume election

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administration responsibilities with little or no experience in elections. As will be discussed at length in Part II, this is why the lack of uniform election standards and formal training requirements for election administrators are a critical oversight by the Nebraska secretary of state's office.

Counties with populations greater than 100,000 have full-time election commissioners dedicated solely to election administration and have their own uniform election standards and guidelines.(fn17) These offices have larger, full-time professional staffs dedicated to elections, unlike less populous counties.(fn18) Governor-appointed election commissioners have the ability to focus on elections, allowing for the creation of uniform election standards and greater knowledge of election laws and processes. In addition, these administrators have broad discretion to promulgate rules so long as they do not interfere with the Election Act(fn19) or the secretary of state's regulations.(fn20) However, these election standards and guidelines are created by individual election commissioners, and only ensure uniform treatment of voters within their respective counties, not statewide.

Surprisingly, there is little official collaboration between the fulltime election administrators and the part-time county clerk election administrators.(fn21) This lack of collaboration creates a system of haves and have-nots. Nebraska statute requires that gubernatorially-appointed election commissioners have a chief deputy of the opposite party.(fn22)...