Privatizing Democracy: Promoting Election Integrity Through Procurement Contracts
118 Yale L.J. 744 (2009).
Voting machine failures continue to plague American elections. These failures have fueled the growing sense that private machine manufacturers must be held accountable. This Note argues that, because legitimacy externalities and resource disparities across election jurisdictions pose persistent threats to electoral integrity, meaningful accountability will require greater federal oversight. This oversight must take into account the unique nature of the public-private partnership that defines this nation’s system of election administration. This Note thus proposes an amendment to the Help America Vote Act of 2002, which would condition federal funds on state procurement contracts. These procurement contracts would mandate performance-based requirements for vendors to supply the means with which to verify votes cast. Such contracts should not only have third-party beneficiary enforcement mechanisms, but also override the doctrine of trade secrecy invoked by manufacturers to prevent software disclosure.