Opinion: In rebuking Youngkin, court depoliticized election administration

Earlier this year, former Suffolk GOP Chairwoman Dawn Jones filed a lawsuit against the Virginia Department of Elections alleging that Gov. Glenn Youngkin strong-armed the agency into changing the nomination process for Virginia’s 17th Senate District to help his preferred candidate fill an unexpected vacancy.

How? By changing from a state-run primary decided by voters to a convention controlled by Youngkin allies that could advantage his preferred candidate.

On March 29, Richmond Circuit Court Judge Claire Cardwell rebuked the governor’s attempt to rig the election, directing officials to rescind the Virginia Department of Elections’s decision to hold a party-run convention.

At first glance, this may seem like a simple intra-party fight between a governor and local party officials, but the outcome actually has much larger implications for democracy.

In her ruling, Cardwell confirmed that state election officials have only a “ministerial duty” in the process — meaning it wasn’t up to them how the seat was to be filled. Instead, the local Republican election committee for 17th Senate District had — by law — the actual authority to choose the method of the nomination process.

In other words, the judge confirmed an important principle in American democracy: The administration of elections is not subject to the whims of politicians — whether it’s a governor or a local member of a county board. Politicians can alter election laws during a legislative session, but once the law is set, carrying it out is almost always a ministerial duty — not only for setting the rules of primaries or conventions but also for counting votes and certifying elections.

Here’s why that’s so important. Ahead of the special election in Virginia’s 4th Congressional District this year, our watchdog group — Informing Democracy — released a report that found five county election officials within VA-04 who recently exhibited anti-democracy tendencies or spread blatant misinformation about the results of the 2020 election.

While the special election was administered without incident, county officials in Arizona and Pennsylvania exhibited similar tendencies, actually refusing to certify the vote tallies in their jurisdictions, blatantly violating their ministerial duties. In some cases, they were forced by courts to perform their duties following the letter of the law.

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Rarely, however, have we seen election officials face any consequences for blatantly refusing to do their duty or follow the laws that govern election administration. Cardwell’s reprimanding Youngkin’s meddling with the election reminds us that many statutory duties involving elections are non-discretionary. Election officials don’t get to make up the rules as they go along to advantage their preferred outcome.

The middle of the nominating contests, or during the vote count and certification stages, are not the times for policy disputes about administering elections. The proper time for that is during the legislative session through policy making.

Election officials who refuse to perform their duties violate the law, and should be held accountable, up to and including criminal liability.

This is critical to ensuring our democracy remains strong — despite the attempts to undermine it. While our elections are generally well organized and well run by dedicated public servants, we’ve seen just how vulnerable these processes can be to individual officials — especially when bad actors abuse administrative processes to disrupt the certification process or impact results.

While the court system has historically confirmed the non-discretionary duties of election officials, and plays a vital role in continuing to protect that limitation, trust in elections is bolstered when election results are affirmed quickly without being politicized or forced into the adversarial process of the court system at all.

We expect election officials will remember this during the upcoming elections in Virginia, and will act within their prescribed, and limited, role.

Jenny Gimian is the director of legal research and senior policy counsel at Informing Democracy, a nonprofit that researches the processes and personnel behind vote counting and election certification. Gimian previously worked in voter protection and received a Juris Doctor from Harvard Law.