The following is a public comment letter filed by the Lex Rex Institute to the California Secretary of State. You can read the letter here.
Re: Proposed Regulation Changes to Chapter 8.2. Election Observation: Rights and Responsibilities
To Whom It May Concern,
The Lex Rex Institute, a California public benefit corporation founded to promote and educate the public with respect to their rights under the U.S. Constitution, finds certain aspects of the proposed changes to Title 2, Division 7, Chapter 8.2 of the California Code of Regulations (hereinafter referred to as the “Proposed Regulation”) troubling. The Proposed Regulation harbors potential dangers due to vagueness, which, upon execution, may grant elections officials sweeping, unchecked authority to dismiss electoral challenges. Moreover, the Proposed Regulation purports to solve a problem that does not appear to exist. No reasonable person would argue that it is appropriate for elections observers to impede election proceedings under the guise of challenging ballots, but this problem has not been demonstrated and, even if extant, presents a significantly lesser threat to our electoral architecture than conferring unchecked powers upon state agents to eliminate such challenges altogether. The Lex Rex Institute believes that it is imperative that the Proposed Regulation be rejected or, at minimum, amended such that election observers are protected from arbitrary actions of elections officials.
I. THE PROPOSED REGULATION LEAVES “DISRUPTION” WHOLLY UNDEFINED AND POISED FOR ABUSE.
While the Proposed Regulation is to be applauded insofar as it recognizes and reiterates California’s longstanding law that observation of elections is a right, rather than something merely permitted at the sufferance of elections officials (see §20873(a) of the Proposed Regulation), the effect of the other provisions within the Proposed Regulation undercut this representation and erode that right. The text of §20873(c)(3)(B), for instance, provides that elections officials “shall have the discretion to halt challenges if multiple challenges are being made by the same person or group, and those challenges are disrupting the processing of the vote-by-mail identification envelopes.” The Proposed Regulation provides no definition for “disruption” has no requirement that the official issue a warning prior to putting an end to all challenges. The standards whereby an elections official may make this determination are therefore wholly ambiguous and the likelihood of abuse – even well-meaning abuse – is extremely high. Within the meaning of the text, an elections official may be tempted to regard any delay caused by a challenge as a “disruption.” Even in those circumstances, the Proposed Regulation could validly be read as empowering the official to stop observers from making warranted challenges.
II. THE PROPOSED REGULATION CREATES UNCHECKED AND UNGUIDED POWER FOR ELECTIONS OFFICIALS TO REMOVE OBSERVERS.
Likewise, the provisions of §20874(f) afford far too much opportunity for arbitrary exclusion of observers. The bulk of this section lays out procedures for issuing a formal warning to an observer for failing to comply with established rules and permits an elections official to expel an observer who, after being warned, continues to violate rules. However, this entire procedure is undercut by the final sentence of the section: “In addition, if the situation warrants, the registrar of voters/county clerk or their designee may require an election observer to leave the observation area and/or the premises immediately.” §20874(f) (emphasis added). This effectively creates authority for an elections official to circumvent the entire system of warnings based on his or her assessment of whether the situation “warrants” dismissal. The Proposed Regulation provides no standard whatsoever for making this assessment. Similarly, there is no requirement that evidence of such a situation be observed or maintained prior to the dismissal. It is therefore entirely unclear how or even if an elections official could exceed his or her authority pursuant to this section, as the determination of what constitutes a “situation warranting dismissal” appears to be left solely to the discretion of the official making the assessment, based upon whatever standards they deem fit. The door is left open to an arbitrary decision to forego the warning process and immediately dismiss an observer at the whim of an elections official.
III. THE PROPOSED REGULATION PERMITS ELECTIONS OFFICIALS TO SHUT DOWN ELECTION OBSERVATION WITHOUT PROVIDING CRITERIA FOR DOING SO.
Finally, and most troubling of all, §20879(d) provides that, “[i]n the event the elections official has determined that mass challenges that appear frivolous and/or meritless are being made, the elections official shall have the right to halt the challenge process in order to prevent interference with the conduct of the elections activity or process being undertaken.” Without providing any criteria by which to determine the frivolousness or lack of merit in a broad challenge, this provision is all too likely to lead to the baseless dismissal of any challenge of multiple ballots. Multiple ballots could easily be affected by various kinds of procedural errors or oversights, and observers would be firmly within their rights to issue a challenge on this basis. It is also undoubtedly the case that elections officials, eager to finish ballot processing, could perceive delays caused by legitimate and necessary challenges as a mere nuisance. Without a clear basis on which to determine whether or not a given challenge is without merit, the Proposed Regulation creates an extreme risk that elections officials would very easily dismiss any challenge out of hand, merely because it affects a large number of ballots.
IV. THIS IMBALANCE OF POWER IMPERILS THE FOUNDATIONAL TENETS OF OUR SYSTEM OF GOVERNANCE
Central to these issues is the alarming excess of power the Proposed Regulation bestows upon election officials, a misallocation of authority that profoundly imperils the sanctity and integrity of the electoral process.
The powers proposed to be bestowed upon these officials are alarmingly unregulated, providing officials the authority to arbitrarily suspend challenges and remove observers based on personal interpretations of “disruption,” “frivolous,” and “meritless.” Absent of clear definitions or guidelines, the Proposed Regulation risks opening Pandora’s box of unchecked discretion, in stark contravention of the principles of transparency, fairness, and accountability.
The implications are severe. Unspecific rules allow room for bias or abuse of power, both of which threaten our society’s foundational principles: balance of power, rule of law, and citizens’ participation in governance. It is essential to our Republic that such powers be prudently defined and monitored to protect these principles, and the Proposed Regulation, in its present form, does not do this.
V. ELECTION OBSERVERS ARE OF PARAMOUNT IMPORTANCE IN SECURING TRANSPARENCY AND ACCOUNTABILITY.
The role of election observers is indispensable, acting as a necessary balancing force within our electoral structure. Their presence fortifies the principle of transparency and imposes accountability on those who possess authority. The undermining of this role through subjective and expansive discretion, as seems to be permissible under the Proposed Regulation, is not merely a disregard of this essential function, but a threat to the integrity of our electoral process itself.
In light of the aforementioned points, The Lex Rex Institute hereby asserts the absolute necessity for rejection and/or amendment of the Proposed Regulation.