The post of Election officer is a public office created by the legislature. The method of appointment, powers, and duties are prescribed by law. An election board is a statutorily created body and they have to perform their duties in conformity with the statute[i]. The members of an election board are state officers and duty-bound to safeguard the constitutional guaranty of free and open elections.
The manner of appointing election officers vary from state to state. In some states the secretary of state is the chief election officer. S/he instructs on how to conduct elections and advises the election board on all matters regarding election. An election board will have representation from all political parties. It is not necessary that an equal number of representatives have to be there in the election board[ii]. A mayor may appoint an election commissioner from the list given by the respective political parties[iii]. A candidate for a public office is not eligible to serve as election officer if such service may influence the result of the election. But a candidate may be appointed to a post which involves only ministerial duty like declaring the result. If an unauthorized or ineligible person acts as election officer it may invalidate an election. Usually the duties entrusted to election officers are directory if it is not made mandatory by law[iv].
An election officer does not have clear discretionary power in performing his/her duties. If a law clearly specifies a particular procedure to be followed in the conduct of an election it should be strictly followed by the officers. However, where discretion is exercised to achieve a goal in the election laws, a court will not interfere with the decision of the officer. Then a court considers only whether the discretion exercised by the officer is reasonable[v].
A particular state law provides that judges and clerks shall be officers of the county court and a violation of their duties under the Election law amounts to contempt of court[vi]. Election boards and public officers may be compelled to act even after the expiry of time prescribed for action, where they have refused or omitted to perform a statutory duty by mistake[vii].
Disputes regarding material facts have to be resolved in accordance with an administrative procedure laid down by state laws. Usually the findings and decisions made by the officers are affirmed if there is clear substantial evidence and are in conformity with law. But an election agency’s decision on a question of law is not binding on a reviewing court. It is reviewed de novo[viii].
A writ of mandamus is an appropriate remedy to challenge the decisions of the officials of the election boards. To establish this right, it has to be proved that the concerned officials have acted in fraud, corruption, and with disregard to the provisions of law[ix]. A writ of mandamus may be sought for in a case where abuse of discretion seems to have occurred[x]. It would be difficult to challenge the decision of an officer without proving any of the illegality mentioned above.
A legislature may increase or decrease the number of members in an election board according to the requirement. An election officer may be removed for any reasonable cause. An officer can be removed if it is found that an officer may not be able to exercise his/her duty impartially. Also, removal may be made if s/he has caused failure of any election due to improper administration of his/her office[xi]. An election officer must perform his/her duties with due care. An individual whose right is damaged due to the irresponsibility of an officer can sue and is entitled to damages[xii]. A candidate in an election may sue an individual election board member who declared invalid nominating petitions as valid, arbitrarily, and wrongfully.
In election cases, jurisdiction of federal court arises only when some federal right or constitutionally guaranteed right of a voter is violated. To establish violation of constitutional rights requires proof with regard to a deliberate discrimination in administering elections laws[xiii].
Maintenance of an election board is a state function. But the legislature may force the smaller or regional units of government to contribute to the functioning of the board[xiv].
[i] Siegel v. Lake County Officers Electoral Bd., 385 Ill. App. 3d 452 (Ill. App. Ct. 2d Dist. 2008).
[ii] Vintson v. Anton, 786 F.2d 1023 (11th Cir. Ala. 1986).
[iii] Kidder v. Mayor of Cambridge, 304 Mass. 491, 24 N.E.2d 151 (1939).
[iv] Prado v. Johnson, 625 S.W.2d 368, 1981 Tex. App. LEXIS 4046.
[v] Schundler v. Donovan, 377 N.J. Super. 339 (App.Div. 2005).
[vi] People ex rel. Rusch v. Enger, 364 Ill. 464 (Ill. 1936).
[vii] Harvey v. City Com. of Port Huron, 225 Mich. 368, 1923 Mich. LEXIS 586.
[viii] Cinkus v. Vill. of Stickney, 2008 Ill. LEXIS 294 (Ill. Mar. 20, 2008).
[ix] State ex rel. Husted v. Brunner, 123 Ohio St. 3d 288 (Ohio 2009).
[x] Rust v. Lucas County Bd. of Elections, 108 Ohio St. 3d 139 (Ohio 2005).
[xi] gray v. Clerk of common pleas court, 366 Mich. 588, 1962 Mich. LEXIS 537.
[xii] Schwartz v. Heffernan, 201 Misc. 101 (N.Y. Sup. Ct. 1951).
[xiii] Harris v. Conradi, 675 F.2d 1212 (11th Cir. Ala. 1982).
[xiv] State ex rel. Volker v. Carey, 345 Mo. 811 (Mo. 1940).