Voters decide who wins an election, right? Not necessarily. In fact, we may see partisan operatives determine the winner in the razor-thin race for Virginia’s attorney general. After the initial count, Democrat Mark Herring is ahead of Republican Mark Obenshain by a mere 164 votes out of 2.2 million. If Herring remains on top after a recount and any federal court litigation, then the next step is for the Republican candidate to initiate an “election contest” with the Virginia General Assembly. This election contest is a procedure in which the losing candidate disputes the certified results. States have varying ways to resolve these controversies — and most use a process that allows partisans to determine the ultimate winner. There are better solutions, however, than allowing a partisan legislature to decide. We can minimize ideology, actual or perceived, by creating a bipartisan entity that would resolve a post-election battle. Yet in Virginia an election contest goes to the General Assembly sitting as a joint session, with the speaker of the House of Delegates presiding. Republicans now control a majority of the Virginia General Assembly seats — and have been pushing through a socially conservative agenda.
Some states allow their elected judiciaries to decide a disputed election. Still others have stranger processes. In Texas, for example, the governor decides an election contest for the state’s Presidential Electors. Imagine the presidential election coming down to Texas — the governor would then hold the key to determining the outcome.
When election administrators hold partisan positions, they will inevitably face pressure to render decisions that help their side. Consider that Ohio’s highest election official, the secretary of state, has been mired in disputes during each of the past few election cycles — regardless of which party held the seat. Both Democrats and Republicans have been blamed because this is a systemic problem.
Even if decisions of election operatives are fair-minded, the public will likely view their actions as partisan. This undermines the integrity of the entire election system.
Full Article: Va. AG: When voters don’t decide | The Great Debate.