“One is One Too Many”: The Resignation of Georgia’s Election Director and the Concept of Strict Liability

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[Image courtesy of all-flags-world]

I have a lot on which to catch up from last week – compromise in Connecticut! Voting machine drama in Virginia! OVR fights in Florida! – but a story from the weekend out of Georgia caught my eye as an interesting example of a larger matter that’s worth examining more closely. The Associated Press has more:

Georgia Secretary of State Brian Kemp said Friday the state’s election director has resigned at his request.

Linda Ford, who had served as elections director since 2010, stepped down because of a “technical error” in which nearly 8,000 Georgia voters had their status changed from “inactive” to “cancelled” in late February 2014, Kemp said.

It’s common practice for Kemp’s office to update Georgia voter rolls and transfer long-time inactive voters to “cancelled” status. However, the batch of voters that cost Ford her job had their status changed within 90 days of the May 20, 2014, primaries. That’s not allowed.

“It was an honest mistake by a hard-working person and, unfortunately, she has to pay the price,” Kemp said. “Linda and I go back a long way. But I have a duty to uphold the integrity of the system, and this was one of those lines that were crossed. It can’t be tolerated.”

The Journal-Constitution had a few more details about what happened:

Kemp’s office does routine work to keep the voter registration roll up to date which involves a process to change the status of long-time inactive voters to “cancelled” status. The process was conducted on Feb. 19, 2015 and moved about 312,000 voters to the new status.

But an investigation by Kemp’s office revealed that six days later, another 7,690 voters were moved from inactive to canceled status. The change was conducted within 90 days of an election and after the deadline.

The 90-day rule isn’t a new one; it was an issue in 2012 regarding pre-election list maintenance in Florida and elsewhere. Quite simply, federal law prohibits ANY changes to the voter list within the 90-day window – and it’s a bright enough line that courts are usually skeptical about arguments that there are good reasons to waive the requirement.

While it isn’t clear whether or not there were other factors in play – including a pending lawsuit about allegedly “missing” voters in Georgia – Ford’s resignation suggests that violation of the 90-day window is considered (at least in Georgia) as a fireable offense.

If this is true, it suggests that there may be a certain class of actions that carry strict liability for the offending election official. Some of these seem clear, like willful misconduct or outright fraud in the performance of an election official’s duty. Others are grayer, like personal conduct outside the workplace (e.g. DUI, domestic violence, tax evasion) that casts doubt on the official’s suitability for office. But in this case, it appears that failure to comply with specific laws like the 90-day window can also be grounds for removal of the official in question, whether by resignation or termination.

The most striking thing about the Georgia story is that the violation appears to have affected only a single voter, according to the Journal-Constitution:

Kemp said in an interview that his office’s investigators found one potential voter who faced issues with the change. He said a young woman from Richmond County needed to re-register to vote when she visited her polling precinct, and that it was unclear if she had cast a ballot.

And yet, this single impact was enough for Kemp to make the change:

“One is one too many,” Kemp said. “It was an honest mistake by a hard-working person and, unfortunately, she has to pay the price. Linda and I go back a long way. But I have a duty to uphold the integrity of the system, and this was one of those lines that were crossed. It can’t be tolerated.”

I’m now curious about whether this notion of strict liability is one that can (and should) be generalized to the entire field – i.e., if there’s a well-defined list of actions. deliberate or not, that can serve as grounds for removal of the election official in question. If there is, then that (in a strange way) can help form the basis for a positive standard of conduct that other election administrators should follow.

It’s a tough result for Georgia’s now-former director – but it could be an opportunity for a larger learning opportunity for the field.

Stay tuned.

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