Judging Elections
Elections are, in essence, a judicial process where common citizens acting as voters, judge the fitness of candidates and elected officers to serve them. They need the power to:
- Scrutinize candidates, officers and their promises
- Determine Fitness for Office
- Hold officials accountable for performance.
- Enforce transparency
Elections are where voters judge who is fit to lead them.
These are judicial functions, but also personnel decisions. Election courts don't decide whether or not a person is guilty of crimes, but whether they are fit for the office the people are electing him or her to.
Best Practices for Elections
Because elections are a judicial process they should be run with best practices that embody the best and most appropriate judicial principles.
Election Courts
The role of the election court is to ensure that the hiring authority, we the people, oversee the appointing of officers, Governors, Presidents, legislators. The people deserve to know what they are getting into.
- Election courts have two missions;
- Vetting, Shepherding elections and scrutinizing candidates
- Scrutinizing Elected Officials at end of Term
Election Stakeholders
There are five sets of Stakeholders in an election.
- Voters are first.
- Parties, Factions, Movements and Activists.
- The Candidates, their factions and associations.
- Reporters and Investigators.
- Election Officials
All these stakeholders need to be represented in the process, which is why elections need to be run as if a court.
A judicial process requires judicial structures
The required scrutiny, vetting and accountability, requires the election be run as a court would be run. A proper election court must involve all the stakeholders who have an interest in the outcome of that election. It is up to the hiring authority, thru elections to judge candidates and officers on their qualifications and accomplishment. To do that requires that the court include representation of the candidates, their factions and parties, and that they are able to argue their case. The Beauty of using election courts is that the judge and juries involved can verify and validate the claims made by the candidates and their factions.
Election Judging Requires they behave like judges
We we need better election judging because currently "election judge" is often a misnomer. They need to behave like judges. That happens when they are prohibited from holding other office for the term of their office and beyond at least one term. It also happens when the local factions and candidates have a right to representation in the processes and events of the election. Representation of candidates in the court should be mandatory. The representatives should have a say in selecting the review panels that question candidates. The judge function should be limited and subject to agreement from stakeholders except on matters of law. Election Judges, through the the processes of the election court and the actual election, should have the power to enforce that these functions are done according to law but not to dictate outcomes or excert undue influence.
- Election judges would have a prescribed, limited role to:
- Oversee the scrutiny of candidates and officers.
- Shepherd the process and ensure that the election is conducted fairly.
- Select investigators and reporters to investigate and report on proceedings.
- Select election panels to conduct scrutiny and debate, with input from the interested parties in the election.
- Judge according to law and refer legal violations to an ordinary court.
Jury Panels Scrutiny
Every Candidate for a position of Trust, for elective or appointive office, should be vetted through an election court jury panel that includes the voters who stand to elect him or her. During Primaries the panels should be registered party members. During the general election, the pool of all registered voters. The purpose of these panels is to question candidates and investigators so that voters can judge the fitness for office of candidates and elected officers. The ultimate jury is the voters. The jury structures would serve the purposes of groups like the League of Women Voters or similar. They manage and develop information for scrutiny, vetting, debates. The panels would also rule on decisions made by election judges that are disagreed with by principles in the election (Candidates, factions, parties and their representatives).
Investigators and Reporters
The press is named and protected in the USA constitution for a reason. The reason is that elections require that ordinary people, who don't have time to be involved in elections full time, are kept informed. For that reason investigators and reporters need a license to investigate and report on candidates for office, and of elected officials seeking reelection and of the government offices they hold. This is a critical thing and needs to be resourced and funded by the public. The press should have a right to participate in elections in this role. They should be part of the election courts, questioning candidates and presenting information to voters.
Entry Points to Elections
When an election is scheduled, an election judge should stand up an election court for each phase of the election. Candidates should have to sign an agreement that their background be checked and scrutinized. The court can decide how much of the details of that information can be kept confidential, but the public should be informed of any past criminality or relevent scandal through the election jury panel.
Step One: Confidential Scrutiny
As an entry point for running for office each Candidate for office should agree to be investigated and scrutinized then and at the end of their term should they win the election. Candidates for reelection should have the performance of their previous term investigated, scrutinized and reviewed by the "Election Jury" panel under guidance of representation and testimony of investigators. If they want to run for reelection this should be mandatory. If they are stepping down, it should be done anyway.
We have a duty to look into candidate finances, associations, criminal and civil history, just as if they were applying for a clearance for a public trust job. Because they are. They should also agree to end of term scrutiny.
Step Two: Performance Review and report
This professional confidential review, should be done by a panel led by Election judge, with testimony by investigators and local reporters, some brought in by the Election judge, some by the interested Parties, including the candidate.
Those completing a term should have their performance reviewed and that review, with minority opinions represented entered into the public record after review by the panel. They work for "We the People."
Transparent Process
Interested parties and local press should have the right to petition to be part of this panel as witnesses and observers. They should be sworn to confidentiality for the duration of the hearings. Violating that oath should be cause for ejection and bar from further participation for a term. But once the work is done, it should be public record.
Inquisitory Powers
All this would be under oath. Perjury would be referred to an ordinary court.
Report Product
The product of this panel would be a report, which would be required to be a factual document allowing minority and majority opinions based on facts alone. The subject would be limited to fitness for office and background.
Disagreements on content would be referred to a jury of ordinary citizens using the voir dire process. Once all the panel, or jury, agree on the factual content of the report, it can be published and used in the election. Parts not agreed on in opinion, if they are factual, go to a minority report.
End of Term Performance Reviews
Election courts would be to use the same process of using experts and investigators for a review panel would look at elected officers at the end of their term, whether they run for reelection or not.
- Judicial Powers
- Election Courts should have subpoena and investigatory powers, and contempt powers, but no prosecutorial powers. They should have referral powers when a criminal action is discovered. The power to subpoena, take testimony, seek and seize documents and the power to put people under oath and refer them for perjury powers if they commit perjury, should be the limit of their power. In scrutinizing candidates and officers, they should have the power to examine financial, criminal, and background records. The agreement to submit this should be a condition of seeking office.
- Election managers should be an executive position supervised by election judges but separate from them.
- Judicial Election Judges
- Forbidden to run for office for the term of their Judgeship + 1 election.
- Oversee elections as judges, but have limited powers.
- Must use Election panels to moderate different phases of the election.
- Must use processes similar to a trial for the scrutiny power.
- Investigatory Vetting Scrutiny process
- Elections should employ reporters and investigators and empower them to dig into finances, backgrounds and qualifications in a manner nearly identical with clearance investigations. Indeed clearance investigations should use these courts.
- Professional Investigators and Journalists should be empowered to look into all relevant matters of candidates and officers reaching term. Their results should be presented to the court during the preliminary sessions and after validation in open session. When in Open Session, that information must be public as well as accurate. Preliminary results should be verified and validated before being presented in Open Session. And during preliminary Session, and open session, the parties involved should have representation and be able to cross examine witnesses.
- When there is a dispute between the parties, election juries should moderate those disputes. Selected on Jury trial principles but allowed to make some decisions on a majority vote. But not allowed to go beyond investigations and fact checking except to make referrals to a criminal court if illegal behavior discovered.
- Preliminary Sessions
- When the Candidate or officer is to be scrutinized, a panel should be assembled using a voire dire style process, of selecting ordinary citizens for the panel with 1/3 approved by the Candidate, 1/3 by an "Inquisitor" or by opposition candidate representative, whose job is to inquire as to the person under investigation, and 1/3 by the Judge. The panels should also include local press. Investigators gather documents, interview and record results and bring them back to the court. The information then is validated as much as possible and put into a preliminary report.
- Preliminary Review
- Once the Preliminary Report is assembled the Judge, inquisitor and representative review the preliminary report. Anything challenged gets investigated further. At some point the Judge shall present the Preliminary Review to the Jury. The Jury then shall work with the Judge, journalists, inquisitor and representation to validate the report. The Jury shall ask questions at this stage.
- Open Session
- The Final Fitness report shall be produced and reviewed in open session. Recording majority and minority views on the subjects reviewed, and the facts of the subject. This then becomes a record to go into election reporting, debates and election process
- Election debates
- Once the background checks and scrutiny are complete. The panels can then conduct debates to get candidates on the record as to proposed policies, goals, etc... These debates and sessions should also be public. and the reporters should be enabled to report on and summarize the positions.
- Free Press
- The Press, has a formal role in this process and may be subdivided up into jobs that are more than mere stenographers and archivists, but may involve reporters and investigators who's training overlaps that of police detectives. This process would ensure that the free press can do its actual job.
Rationale
A free press is necessary to the health of our society because it has a role in the recording, vetting and accounting of what the government does. Reducing reporting to a clerical role destroys its power to check officials. In elective courts journalists would be required to do sensitive investigations, not release sensitive information until the proper time.
- Elective Bar
Journalists, investigators, jurors, Judges, all officers of the Election court should be sworn in as officers of the court. Their words should be considered under oath and penalty of perjury.
