[EL] NY Times on Florida's SoS Browning's resignation

[Foley, Edward]

Buried in this morning's story -- http://www.nytimes.com/2012/06/02/us/justice-dept-asks-florida-to-end-voter-purge.html?_r=1&ref=politics - is what seems to be an especially interesting detail:

"Gov. Rick Scott began to push for the voter roll review last year. He asked former Secretary of State Kurt Browning to try to identify noncitizen voters on the rolls, Mr. Browning told The Associated Press. But Mr. Browning found that using the state's driver's license database did not provide accurate results. Lacking confidence in the search, Mr. Browning resigned early this year."

This passage suggests that Browning resigned in order to resist what he considered to be a faulty method for removing noncitizens from the voter rolls.  It's the first explanation for Browning's resignation that I've happened to see in news reports.  Have there been others?  (The Times cites an AP story, but I couldn't find it.)

If Browning indeed resigned for this reason, it seems a significant example of a state's chief elections officer, who got his job through a partisan selection method, resisting partisan pressures to perform in office in a particular way.  A "profile in courage" moment?  As long as we continue to have partisans performing these election administration duties, how can we cultivate them to have such moments?

Yet is the larger lesson of today's story that such "profiles in courage" are quixotic and ineffectual?  After all, if the story's narrative is correct, Florida's governor replaced Browning with another partisan who was more willing to carry out the party's election administration objectives.

One is tempted to draw an even further lesson still: whatever one thinks of the roll of the US DOJ in this story, it is in an institution controlled by one of the two competing parties, and it is acting here to oppose the apparently partisan actions of Florida's officials.  Maybe Madison would approve this situation of ambition counteracting ambition-inevitably partisan politicians vying for power within a system of constitutional architecture regulated by separation of powers and federalism, producing a messy but workable system that avoids undue tyranny over time.

But maybe Madisonianism isn't the best model for election administration?  After all, if the system is built on the assumption that the actors within it will act solely out of naked ambition, and not virtue, then what's to constrain the actors from engaging in truly horrific acts in an effort to seize and retain power.  (One may have read this other story in yesterday's Times about unprecedented levels of election-related murder in the Philippines: http://www.nytimes.com/2012/06/01/world/asia/a-third-witness-in-philippine-massacre-is-murdered-prosecutor-says.html ).

I would suggest that we need to think of ways to cultivate nonpartisan virtue within our system of election administration, and reward (not punish) officials when they exercise such virtue.  I will continue to ponder what this morning's story means in this context.


Edward B. Foley
Isadore & Ida Topper Professor of Constitutional Law
Director, Election Law @ Moritz

The Ohio State University Moritz College of Law
(614) 292-4288; foley.33 at osu.edu<mailto:foley.33 at osu.edu>
Website: www.electionlaw.osu.edu<http://www.electionlaw.osu.edu/>



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