Hiding Behind the Words

Zebra_in_black_and_white There is comfort in seeing the world as black and white.  When the duties of election administrators require decisions, solutions which are black or white are highly preferred.  Shades of gray, interpretation of rules and codes, and the use of discretion are fatuously avoided.  No administrator wants to take unnecessary risk or to explain and justify a decision.  Bureaucrats and administrators carefully seek out simplistic and unambiguous responses from statutes, procedures, precedents, and even the practices of others.

A fundamental premise of this decision making style is that the right answer can be found in rules and statutes and, further, when an answer is found in the rules (or in past practices or best practices), it is, by definition, the right answer.   The right answer is the answer that stands on its own without the decision maker having to accept any responsibility for the answer, i.e. the codes says…”, past practice is…”, other jurisdictions do…”, etc..  The ability to insulate oneself from the consequences or criticism of a decision is not the sole advantage, however, in the minds of those who employ this approach.

There is a normative mindset inherent in those who demand black and white and eschew shades of grey which condemns the interpretation and application of rules and laws.  This approach condemns permissive interpretations and liberal construction of the election code, even when the code provides a range of solutions or directs the application of judgment based upon facts for specific cases.  In this framework, there is no discretion and interpretation is always wrong.  Those who maintain this approach see not only the decisions based upon interpretation and discretion as wrong but also see those who would interpret and use discretion as being corrupt and unethical.

The presumed moral superiority of those who read rules and laws restrictively and who assume to correctness and rightness of pat answers is based upon a false sense of neutrality that such an approach provides.  This view is steeped in the tradition of the politics-administration dichotomy which dominated late 19th and early 20th century public administration theory.  Political leaders made the rules and laws based upon a mandate received by the electorate and the role of the virtuous administrator was to faithfully, and with neutrality, implement the will of legislators.  This theory assumes that all situations can be/should be/are addressed in legislation and that the legislators have the expertise to provide technical solutions to complex questions.  Scholars, ethicists, legislators and administrators have all recognized practical and theoretical limitations of governing in this manner but the mindset persists in many current administrators.  It is these administrators who I refer to as bureaucrats.

Bureaucrats do not seem to realize that, in an attempt to avoid errors of discretion and interpretation, they themselves make their own interpretations and use their own discretion.  They use to use choose restrictive and literal interpretations regs, rules and laws even when these decisions are not consistent with facts or with other sections of code. 

There are two important points I am trying to make in this post.  First, a literal, restrictive, black and white reading of governing documents for decision and policy making is equally, although unconsciously, interpretive and discretionary as the approaches of deliberate interpretation and the conscious use of administrative discretion.  There is no legal, ethical or moral high ground to be gained by appeals to literal readings when there is space for interpretation.  In fact, the opposite may be true. 

Let me refer to a recent discussion regarding the mailing of information to voters pertaining to a specific election.  The Election code directs administrators to mail the material to voters as early as 40 days prior to the election.  At the time the code was written, the deadline for registering was 29 days prior to the election and there is a provision in the code that indicates that voter information should be sent to everyone registered 29 days prior to the election.  Since that time, the registration deadline has been moved to 15 days prior to the election but the practice of cutting off mailing voter information at 29 days continues in many places.  When I asked why people who register between the 15th and 29th day dont get voter information, I was told that the 29 day cut-off was interpreted to prohibit sending voter information even when new voters were legitimately registered and there were adequate time and resources to do the mailing.  The suggestion of mailing to these voters was perceived to be provocative and subversive, not to mention reckless.

To be clear on the matter, the code did not direct nor did it prohibit mailing information after 29 days.  It was simply interpreted to mean that registrants after 29 days would not be mailed the same information that other voters received.  At some point in time the 29 day cut off made sense but over time, as other laws changed and printing and mailing technologies evolved, the interpretation somehow evolved to a prohibition on mailing to these voters.  When I challenged this interpretation by asking why it was good service and good policy to withhold the mailing, the answer was predictable– “the code says…”  When I pointed out that it was actually cheaper to do the mailing after 15 days, it reduced returned mail, and it was a greater service to voters; I received a slightly different yet obstinate response-“the code doesn’t say we can….”

My second point is that hiding behind a literal or black and white interpretation sets up intransigent and counter-intuitive policy positions that serve no public interest and often result in high visibility lawsuits which are costly and undermine confidence in our institutions.  There are many notable examples: the 2004 San Diego County case in which clearly legible write-in votes were not counted, reversing the apparent outcome of the election, because the write-in votes were not machine readable (the bubble was not filled in) but were clearly human readable;  the 2009 Hamilton County, Ohio case in which provisional ballots were not counted because the ballot was cast at the right polling place but the wrong precinct ballot was used (even though the ballot contents were identical); and the 2012 Allegheny County, PA case in which reporters were banned from entering a polling place and reporting on voting on Election Day.  The list could go on and on.

Good elections are based upon good decisions- not bureaucratic decisions.  Good decisions are based upon an ethic that seeks the protection of constitutional principles, individual rights, and the respect for the rule of law. 

Stay tuned.

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8 thoughts on “Hiding Behind the Words

  1. The issue is not that decisions based upon interpretation and discretion as wrong, nor is it the ethics of those making such. It is the Catch-22 within which it leaves the candidates.

    Here in PA, USA, we are stuck with an irresolvable situation, due to this “grey area.” I refer to the 2013 election for Harrisburg City Mayor. Nevin Mindlin was a candidate who was removed from the ballot because he filled out the petition paperwork wrong. It was wrong in the court’s eyes, but correct in both his and (to the point here) to the regulatory agency’s direction.

    http://www.pennlive.com/opinion/index.ssf/2013/10/mindlin_off_ballot_commonwealth_court_bad_ruling.html

    The Dauphin County elections office did NOT merely “accept Mindlin’s petition, without any warning”, as PNEB states here. Per this same news source’s previous coverage, it DIRECTED him to fill it in as he did.

    As a former candidate, every, single time I have had any issue with our myriad of unnecessarily complex campaign issues, from petitioning to finances and reporting, I have been directed to follow the guidance and direction of the Dauphin County Election Bureau. I tried to go directly to our state gov’t on several issues, and was directed to Dauphin on each one.

    No problem: We The People have appointed an agency, and We The Candidates follow its guidance, as universally directed to do. Now, we see in no uncertain terms that instruction from that Bureau has absolutely no legal standing as a defense against a legal challenge.

    What if I, in my most honest effort submit campaign finance reports that Bureau deems wrong? Do I change it to their way, but remain completely and separately liable for any errors that result, or do I refuse to and insist on my interpretation specifically because of this severed liability? If I refuse, can that Bureau reject my submittal, without any liability? I have no problem following supervisory direction, if the source of said is liable for that direction. I will NOT be liable for direction from a non-liable person or entity. Sorry, it is just not a fair burden to demand of a person.

    This is the root of the injustice against Mindlin, but also the real problem with the ‘grey area’ you identify. We candidates deserve clear and binding direction on this…from whoever has authority. We now see – for the first time ever, in my case – that that entity is NOT the Bureau we have been directed to follow.

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    1. Steven;

      The article you linked is a perfect example of what I am characterizing as “hiding behind the words”. Pennsylvania is always a good source for these types of situations where the literal interpretation of a law results in nonsensical outcomes.
      In this example, all three branches of government are culpable for the situation. First, the legislature for passing poorly written statutes. Second, the executive branch (the Election Bureau) whose arguably legitimate use of discretion was overturned by the Judicial branch who, in the words of the article, “… used a legal technicality to dodge the heart of Mindlin’s case.”
      I can appreciate the desire for candidates to have black and white, legally binding direction but an administrative office will never be able to provide it. Only the legislature can provide that certainty by passing unambiguous, comprehensive laws that meet a clearly stated intent. Absent that, administrators are left to interpret the application of the laws and can hope that the courts will back them up. In this case it appears that the courts were the ones hiding behind the words.

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      1. Fair enough. But then remove the binding, but not binding, oversight of the non-liable agency. The agency needs to either act as a receiving station for our submittals (in which case, we could do away with the bureaucracy and just file online), OR it must give direction and then the direction be binding. In this case, Mindlin should not have ben removed by doing exactly what the agency said to do. This unfairly moves the goalposts mid-stream, and punishes the candidate severely and maybe irreparably.

        It currently costs hundreds of thousands to run for Harrisburg Mayor. The system’s removal of Mindlin will make it infinitely hard – I believe, impossible – for him to raise that kind of entry fee in the future. Potential backers will accurately say, “I’m not backing you, you can’t even fill out the application correctly.” They are not going to care about academic debates about the protocols, etc.

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      2. I disagree, Scott.

        The statute involved is clear as day.
        _All_ nomination papers _shall_ … Words like “all” and “shall” are not ambiguous. There were at least three previous decisions from single judge cases before the same court (Commonwealth Court) holding the same thing that this case held. If this court had ruled otherwise they would have been turning their own precedents on their heads.

        The key under-reported issue here is Nevin Mindlin’s attempt to run as an utter independent candidate, utterly free of any party or political body, something the Pennsylvania Election Code has NEVER permitted. Pretty sad for a bar association officer / candidate to be unaware of this.

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  2. I am left unimpressed. Mr. Mindlin is not only an attorney, but a leading one at that. He holds a prestigious position in the bar. The Dauphin County elections director is NOT an attorney, and is quite inexperienced, unlike his predecessor who WOULD HAVE directed you otherwise, and only a fool would hide behind “undue reliance” as an excuse for his own lack of care and acumen. In fact, the Dauphin County elections office is FORBIDDEN from providing legal advice to candidates, per se. The elections office IS merely a receiving station, and may reject papers (in Mindlin’s case) or petitions (in the case of primary election filers) ONLY in the case of a facially obvious defect. In my opinion, this WAS a facially obvious defect, but obviousness apparently varies widely depending on election director experience or the lack thereof.

    The elections office has ZERO authority to pass judgment on the validity of petitions and/or nominating papers, absent the most glaring and obvious of defects. It is an utterly adversarial process, and has been in PA since 1937 at least.

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  3. Thank you, Mr Bellman. Your input has been invaluable, as a former Election Director in nearby Berks County, PA.

    V. Kurt Bellman’s LinkedIn states that he served as:

    “Director of Elections
    County of Berks, PA
    April 2001 – April 2005 (4 years 1 month)
    As an ancillary duty connected to this position, served as the initial Chairman of Pennsylvania’s “Help America Vote Act” State Plan Advisory Board, while representing Pennsylvania’s 3rd Class counties on that board. Appointed by then-Governor Schweiker initially, subsequently re-appointed by incoming Governor Rendell.”

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  4. I also have served as a consultant on quite a few nomination petition and papers court challenges since leaving the profession. People get annoyed by that process because it “smells” undemocratic, but in Pennsylvania, running for office is a highly adversarial process, even in the ballot access phase.

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