By Louis Jacobson, Special to Stateline
As Kris Kobach and Scott Gessler prepare to take office as secretary of state for Kansas and Colorado, respectively, their elections are putting to rest any lingering notions that the job of secretary of state is a quiet, low-key, technocratic position.
Kobach is credited with being the intellectual architect of Arizona’s S.B. 1070, the tough-on-illegal-immigrants legislation signed into law in that state last year. The measure sparked impassioned debate nationwide on both sides of the ideological divide. It is now on hold pending resolution of a battle in the courts.
Kobach, who handily defeated incumbent Democrat Chris Biggs, campaigned for Kansas secretary of state on an aggressive agenda of halting voter fraud. “Organizations that promote voter fraud have burrowed into every corner of our country,” Kobach’s campaign website said. “In Kansas, the illegal registration of alien voters has become pervasive.”
Kobach called the 2008 Minnesota recount that led to Democrat Al Franken’s narrow U.S. Senate victory a “pseudo-election.” He also attacked Minnesota’s Democratic secretary of state, Mark Ritchie, for playing “a pivotal role in the heist — manipulating the process to pacify a leftist mob.”
Kobach went on to argue that “the problem is only going to get worse, unless the country’s secretaries of state take the necessary steps to protect the integrity of our elections. The threat is real, and time is short.” He said that his agenda begins, but doesn’t end, with a statute requiring a photo ID to vote. Kobach acknowledged during the campaign that he "would be transforming the model (of the secretary of state office) somewhat, from a ministerial model to more of a law enforcement model," according to the Wichita Eagle.
Meanwhile, in Colorado, Gessler — who won in November by a 50-43 percent margin — comes to his new post from a career as an election lawyer who worked for Republican and conservative groups. Not surprisingly, Democrats are wary.
Gessler, like Kobach, ran on an agenda of fighting election fraud through the enactment of a voter ID law. Following his victory in November, Gessler told a Colorado political blog that he would also move toward mandating “proof of citizenship” as a qualifcation for voting, although he acknowledged that this proposal could face a difficult path given the likely opposition of the new Democratic governor, John Hickenlooper. (Neither Kobach nor Gessler returned requests for comment for this story.)
None of this is entirely new. Ever since the election of 2000 — when Florida Secretary of State Katherine Harris was accused of using her office to help fellow Republican George W. Bush win a presidential recount victory over Democrat Al Gore — the office of secretary of state has been the subject of gradually intensifying rhetoric and high-voltage partisan scrutiny. Now the battles are heating up further.
"Partisans are less likely to accept the results, are more likely to litigate and are more likely to set up the rules so their side can win,” says Richard L. Hasen, a professor at Loyola Law School in Los Angeles who specializes in election law.
“I'd characterize the emerging role of the secretary of state as similar to the emerging role of the state attorney general in the 1990s,” says Ben Cannatti, a national Republican strategist. “Citizens and officeholders alike are recognizing the impact these previously overlooked offices can appropriately have on the election process.”
The impact is widespread. Secretaries of state serve as chief elections administrators in 37 states, and in 30 of those states, they are popularly elected. The enactment of the Help America Vote Act in 2002 (HAVA) and the Military and Overseas Voter Empowerment Act in 2009 have handed secretaries of state enhanced power and responsibility.
“I think agendas are growing more aggressively,” says Trey Grayson, Kentucky’s secretary of state and the former president of the National Association of Secretaries of State. “Some recent secretaries have really driven policy debates. This has meant greater clout with the legislatures, greater clout with the media, and greater clout with citizens. And that adds up to more ability to accomplish policy change, as opposed to the traditional ministerial functions of the office.”
To cite one high-profile example, Indiana’s outgoing Republican secretary of state, Todd Rokita, pushed for a photo ID law in his state. The law went all the way to the U.S. Supreme Court, where it was upheld.
“When an entrepreneurial secretary of state has an agenda that aligns with a legislative agenda and can’t be blocked by local officials, then they can have a real effect on the lives of voters, and sometimes even on election outcomes,” says Heather Gerken, a Yale Law School professor who specializes in election law. If anything, suggests Rob Richie, the executive director of FairVote, an electoral reform group, secretaries of state seem to be gaining influence at the expense of the Election Assistance Commission, the federal voting-administration advisory body set up by HAVA.
Both parties join the fray
Whereas Republican secretaries of state have focused their attention on ways to curb voter fraud, Democrats have pointed to shortcomings in voter access, seeking ways to reduce barriers to participation at the polls.
“Some policies that are designed to promote integrity, such as voter identification requirements, can lead to the formation of barriers to voting and participation,” Jocelyn Benson, a Wayne State University law professor, wrote in the preface to a recent book on secretaries of state. In 2010, Benson mounted a losing battle as the Democratic nominee for secretary of state in Michigan.
The two parties' divergent orientations on election policy mirror the longstanding beliefs that larger and more diverse electorates tend to favor Democrats, while more tightly regulated electorates favor Republicans. So it’s no surprise that the battle to control secretary of state offices has drawn both parties directly into the fray.
In 2006, Democratic activists launched the Secretary of State Project — an online fundraising effort that helped send several Democrats into office in 2008, including Linda McCulloch in Montana, Natalie Tennant in West Virginia and Kate Brown in Oregon, and helped reelect Robin Carnahan in Missouri. The group spent less than $300,000 in that cycle — a sum that led the conservative American Spectator to grudgingly marvel about the big return on a modest investment.
Republicans did much better in 2010, when they benefited from the national electoral wave. The GOP’s efforts on secretaries of state have been led by the Republican State Leadership Committee, which was chaired during the 2010 election cycle by Ed Gillespie, a former top White House aide to Bush.
Another factor in the rising profile of secretaries of state is that the job is increasingly being seen as an effective stepping stone to higher office. No fewer than seven current, incoming or outgoing governors formerly served as secretaries of state, and six other governors in recent history held the post. Five current, incoming or outgoing U.S. senators held the position, and four House members in the 112th Congress are ex-secretaries of state. These figures don't count an additional 10 recent secretaries of state who have run unsuccessfully for governor or senator.
With Republicans having swept the 2010 elections in Kansas, and electing conservative Republican Sam Brownback as governor, Kobach may have some room to maneuver. “I think that a fair amount of stuff will go right through our much more conservative legislature and then Governor Brownback will sign it,” says Burdett Loomis, a University of Kansas political scientist. “Kobach's smart enough, I think, not to get too far out in front of Brownback.”
By contrast, in Colorado, Democrats will have the power to block proposals by Gessler that they disagree with. Still, even if Gessler fails to achieve his top agenda items, he likely will be able to move his office in a much more activist direction than what was practiced by prior secretaries of state from both parties. “His predecessors’ agendas were primarily administrative — running the office efficiently — so Scott's agenda is definitely more ambitious,” says Katy Atkinson, a Denver-based Republican consultant.
If voters tire of the skirmishing being conducted by secretaries of state in either party, there is another option: Curbing the degree of direct partisanship in the office. In 10 states — Delaware, Hawaii, Illinois, Maryland, New York, North Carolina, Oklahoma, South Carolina, Virginia and Wisconsin — election administration is handled by appointed boards or committees.
But voters seem to have an allergic reaction to making elected positions into appointed ones, in the view of Edward B. Foley, an Ohio State University law professor who specializes in election law: “Voters say, ‘Hey, I trust myself — I want this to be an elected office.’”