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Thursday, September 12, 2019

Election Judges should be Judicial Officials

The key to improving democratic systems world wide is the realization that elections are such a vital function in any democracy with parliamentary, republican and democratic features; that the following republican principles need to be applied:

Separation of Powers
Fair Judicial process requires separate Judge, Jury and executive functions
These functions are needed to ensure fairness
Neutral Judges
  • Elections require a neutral election judge.
  • Electing Partisan hacks by misapplying the principle of majority rule fails with judges.
  • Judges must be non-partisan, neutral, and ensure the process is administered justly.
  • Therefore, Judges should be appointed for long terms (life works),
  • Judges should be barred from outside income except teaching, and lectures to non-partisan groups
  • And Election Judges should be Judges, barred from running for partisan office.
  • Election Judges should have Juries!
  • Jury like structures should be responsible for overseeing the election along with the Judge and representatives of the election factions.
  • Jury like panel structures are necessary to vett candidates and elected officers.
  • Elected Officers should be subject to performance reviews at the end of term!
  • Investigators should be empowered and required to compel document discovery, testimony and perform accounting reviews of the officers performance.
  • The Sessions should be carried live unless a matter is determined sensitive and out of scope.
  • That material should then be provided to a review panel, reporters and made available to voters.
  • Separate panels should moderate forums, debates and review sessions of candidates.
  • Imagine if candidate promises were under oath? Do you think they'd break them so easy?

    Discussion

    If there is one thing that current events show is that there is severe risk in vesting control over justice in the Political Executive. Donald Trump is not the first executive to abuse his powers with the judiciary. On a process level no person should ever have judicial, executive or legislative powers over their own case. It is appropriate that officials have "informal" adjudication powers, but not when it is a case that concerns themselves. It is never appropriate that formal adjudication should ever effectively involve interested parties except as defendants or plaintiffs. Some of these principles were written into law, though we are seeing the laws involved are inadequate.

    Juries ARE Democracy

    Judges are an elite role. The reason US elections require juries, is that without them, judges are tempted to make themselves nobility, behave in a self interested fashion. Juries are there to ensure non-partisan, justice. They have the power to resist venal, partisan or corrupt judges.

    Judicial judges aren't always non-partisan or just. They can apply the law using sophistry or worse, if they are getting outside income or are part of a faction by wealth or interest. When that happens Justice remains the subject but the product is injustice. Juries are genuine democracy. Ordinary people are drafted to step up and speak for the people of the community. They can check such judges.

    Even Worse with Election Judges

    On those principles, it is absurdly bad process, not to mention corrupt, that election judges should ever be the election judge while they are in the running for office. It is like the town Sheriff being also the town judge and being also the only defense lawyer. It is a travesty of justice, unjust, for election officials to represent a political party as election judge, run for office while working as election judge, or seeking any elected post other than election judge while or after serving as election judge in the same jurisdiction. This is such an obvious bit of corruption that the remedy should have been in law long ago.

    And like with jury trials, all the factions in the election should have a say in picking the members of the Election Jury.

    But there is an even Deeper Level

    In elections, we rely on investigative reporters and the partisan system to vett candidates. This rarely works as intended. Candidates don't always tell the truth. Candidates can use money and influence to hide information from the electorate, or to push out false information that blocks people from voting for their opponents. When any one party has a monopoly over the election, the temptation to cheat is going to be there. Changing the officers doesn't change the temptations. Making elections a Judicial function opens elections to checks and balances that a purely bureaucratic or partisan process can't supply.

    Better Vetting

    The usual remedies for that involve transparency, competition, open access to both the ruling party and the loyal opposition as vehicles for getting out information. During elections debates, town halls, etc... allow some proper vetting. But they don't always work. With a formal process both parties have a voice, a judge is expected to enforce "truth and nothing but the truth" and a Jury, made up of neutral people from all factions, can keep an eye on reporters, activists, Judge and other officials!

    Election Judging requires Judge, Jury, prosecutor and defense

    When I discovered the ancient principles of Euthenia and Dokimasia (vetting and scrutiny) were used by the Athenians, I saw they were using a judicial process. The exact methods they used, don't apply in our day. But the principles do. We need two structures to protect our system. It turns out that we need precisely a judicial process to manage elections.

    • End of Term Accounting
    • Election Vetting

    End of Term Accounting Scrutiny

    Every Elected Officer should face an end of term accounting Scrutiny. If a private person works for a private company, the owners do a performance review, periodically. We the people should do an end of term accounting review of every officer. This should be mandatory, not voluntary, and run in a quasi Judicial manner. A Kind of Jury should be assembled, more like a Grand Jury than a trial Jury. Professional investigators, preferably a mix of police type investigators and journalists should have the right to pour through their records under the supervision of an election judge, who is more a Judge than simply running an election. The results would get presented to a panel selected from the jury pool. Representatives of the person would defend or direct prosecution of the information. All would be sworn to secrecy, but the result of the investigation would be a public report of the relevant facts, not an indictment. The panel would be able to take testimony under oath and if it were found that the people testifying lied they could be referred to a grand jury. The results would be available to the public. The officer would be judged based on his/her job description, promises made and promises kept.

    Election Vetting Scrutiny

    Similar panels would be convened for elections. Again the panels would have ordinary citizens, journalists and investigators, led by a Judge and representatives of the candidates. Accounting Vetting material would be available to them. This time they would manage debates, ask questions, get candidates on the record, and oversee the election. The panel in this case would have the duty to make sure voters are informed, are enabled to vote and that their votes are cast and counted. They would have a duty to be as neutral and factual as possible.

    Power of the People

    Scrutiny is important. Too many people think their power in their office is only tangentally derived from the people who elect them. Making Elections governed by people forced to act like they are on a jury would fulfil the promise of why we call election official "election judges."

    Empowering and Resourcing the Press

    The interface between elections and the people should be a press, with cameras (including video), recordings and on hand listening and participating in the vetting and scrutiny. Establishing a process such as that should provide jobs for reporters and ensure that local government has a free press.

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