Privatizing Democracy: Promoting Election Integrity through Procurement Contracts

Abstract

Voting machine failures continue to plague American elections. These failures give rise to legitimacy externalities and reflect resource disparities across election jurisdictions that pose persistent threats to electoral integrity. There is thus a need for greater federal oversight of the public-private partnership that is this nation's system of election administration. In this context, procurement contracts are an overlooked but likely effective regulatory tool. Such contracts resemble private commercial contracts, but must also adhere to regulations designed to achieve various public norms. This Note accordingly proposes an amendment to the Help America Vote Act of 2002, which would condition federal funds on mandated provisions of state voting machine procurement contracts. These provisions would require disclosable vote verification procedures, as well as the waiver of state and common law trade secrecy protections.

Keywords: voting machines, election administration, public-private partnership, procurement contracts, trade secrets, Help America Vote Act, legitimacy externalities, third-party beneficiaries