“No Man Can Be the Judge of His Own Cause”: Applying the Principles of Due Process to Our Elections

Abstract

The chief election official of a state has broad authority to decide who gets to vote based on policies that regulate voter registration applications, absentee ballots, and state voter rolls. They also have other powers over the election, including the ability to investigate fraud and oversee recounts. In this role, a chief election official is similar to a judge in that she must be the procedural decisionmaker in an adversarial process between opposing parties and has a duty to uphold the fairness, integrity, and legality of the electoral process through impartial policy choices and public statements. This article argues that the same due process requirement of a fair and impartial decision maker in a trial should apply to officials in charge of overseeing elections. To make this argument, I examine the history and case law that have shaped the ban on a biased decision maker in court and the similarities between the roles played by judge and a chief election official, which make the Due Process Clause relevant to determining the constitutional fairness of an election. I then look at recent elections in Georgia, Kansas, and Florida to demonstrate why there is an impermissible risk of abuse when an individual is both a chief election official and a candidate for office. Finally, I argue that such a conflict of interest creates a risk of unfairness in the electoral process that violates due process. In such situations, there should be a presumption of bias, and a chief election official should be required to resign from her position upon announcing her campaign.