an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Setting the Agenda for Scholarship on Election Reform Part II: Domesticating the Foxes
Yesterday I introduced the idea that academics and reformers ought to think harder about the "here to there" problem in the field of election law -- the fact that it is extraordinarily difficult for reform proposals to get traction in this country. As I said yesterday, it is possible to think as systematically about the electoral reform process as we do about the electoral process itself. I proposed that the focus of this new specialty ought to be changing the institutional terrain on which reform battles are fought.
If we want to think systematically about why it is hard to pass electoral reform in this country, the most obvious place to start is the problem of partisan self-interest. The United States is an outlier among developed democracies in that we leave the regulation of politics to politics; elected officials set the rules by which they are elected. In most states, legislators draw their own districts, set campaign finance rules, and regulate political parties. Most elections are administered by partisan officials. Election controversies are often resolved by elected judges. Academics refer to this problem as "the foxes guarding the henhouse."
The problem is that the phrase "the foxes guarding the henhouse" is typically a conclusion, not a starting point for further inquiry. Academics and reformers, of course, often call for nonpartisan districting or argue that the election system should be administered by professional bureaucrats insulated from politics. But nonpartisan districting commissions or professionally administered election systems do not spring, like Athena, fully formed from the head of Zeus. They have to be adopted by somebody, usually a legislative somebody, and that is where the "here to there" question kicks in. Reformers spend a good deal of time asking legislators to do something contrary to their self-interest. Perhaps unsurprisingly, that strategy has not yielded terribly impressive results.
Rather than focusing solely on proposals that require the foxes to stop guarding the henhouse, it might be useful to think more about how to domesticate the foxes. Thus, instead of hoping that politicians will start to act contrary to their self-interest by giving up the power they wield over the election system, we might imagine strategies for realigning the interests of politicians with the interests of voters. Let me offer two examples to illustrate. (Over the next few days, I will focus on a small set of examples, just for clarity's sake).
The Democracy Index. I have recently proposed one strategy for domesticating the foxes: creating a Democracy Index, an idea that has been put into separate bills by Senators Hillary Clinton and Barack Obama. The Democracy Index would function as the rough equivalent of the U.S. News and World Report rankings for colleges. The Democracy Index harnesses partisan competition, the usual obstacle to change, in the service of reform.
Here's why. At present, it is quite hard for voters to hold secretaries of state accountable for their missteps or reward them for their accomplishments because we lack the most basic information about how well state elections systems are run. If voters cannot assess how well the election system functions, what matters most for the many secretaries of states who want to run for reelection or seek higher office is politics, not professional performance. That means that the fate of a Secretary of State depends heavily on her standing within the party, which will provide the resources and support for her next campaign. The current state of affairs creates the wrong kinds of incentives for secretaries of state. It is not just that some are tempted to administer the process in a partisan fashion. They also have less incentive to rock the boat by lobbying other members of their party hard for needed resources. Legislators, after all, would rather fund cops and teachers than machines and poll workers.
The Democracy Index realigns the interests of secretaries of state with the interests of voters. After all, when voters have information about a state secretary’s professional performance, not just her political skills, she should care deeply about how her state ranks. Imagine, for example, you were running against a former Secretary of State like Ohio's Kenneth Blackwell or Florida's Katherine Harris. What better campaign weapon could you imagine than a ranking system showing that your state is one of the worst-run systems in the country? In this fashion, the Democracy Index would help domesticate the foxes. Instead of asking a secretary of state to stop thinking about her political interests in administering the election process, the Democracy Index links her political fate to her professional performance.
A Procedural Solution to Partisan Gerrymandering. Courts -- where many reformers pursue their goals -- can also help us domesticate the foxes. Michael Kang and I are writing a paper proposing "A Procedural Solution to Partisan Gerrymandering." As Supreme Court junkies are aware, the Supreme Court has long struggled with the challenge of regulating partisan gerrymanders. It is a hard problem for an institution that worries about what academics call the "countermajoritarian difficulty," the idea that unelected judges should not second-guess the judgments of the democratic process. On the one hand, there is a good argument that elected officials are not trustworthy representatives of the people because their self-interest -- the desire to draw a districting plan that gets them re-elected or strengthens their party -- prevents them from being genuine representatives of the people on this issue. On the other hand, in order to regulate the partisan gerrymander, the Court would have to decide what division of power is "fair," how much competition there "should" be, how "best" to represent the people. Needless to say, judges are quite reluctant to endorse one theory of democracy over another.
One way out of this dilemma would be for the Supreme Court to adopt a procedural solution to partisan gerrymandering by calibrating its standard of review to the kind of districting process used. So, for instance, courts would closely scrutinize a districting plan produced solely by self-interested legislators. But it would grant deference to -- perhaps even create a "safe harbor" for -- districting processes with sound democratic credentials and thus create incentives for legislators to improve the districting process on their own. For instance, the Court might grant lower scrutiny to any districting plan the legislature chooses, provided it has been approved via a subsequent referendum. As Michael Kang has pointed out in a recent article, such a process would create the right kinds of incentives for legislators, as they would have to compete for the approval of the median voter rather than try to maximize their political advantage when drawing district lines. Or the Court might grant lower scrutiny for any plan that has been "blessed" by appropriate stakeholders (e.g., plans endorsed by good governance groups or by citizens via deliberate polling or citizen commissions). As I have written elsewhere in proposing a "third way" strategy for administering the Voting Rights Act, if legislators knew that they could guarantee adoption of their districting plan only by obtaining the blessings of the relevant stakeholders, they would have every incentive to build new coalitions and pay attention to constituencies that have been shut out of the districting process thus far. There is a massive amount of political energy devoted to redistricting, and this kind of procedural solution would redirect those energies into more productive channels without removing districting entirely from the democratic process. Here again, such an approach would realign the interests of elected officials with those of the people they represent.
* * * * In sum, one of the key questions for anyone interested in the "here to there" question is what to do about the problem of political self-interest. What these and other examples suggest is that we can think systematically about a different approach to electoral reform. Rather than taking the conventional route and asking elected officials to act contrary to their self-interest, we should think about ways to domesticate the foxes and realign the interests of partisans with those of voters. As I will discuss in my last post, in the long run such a realignment might even help create a political process that is more receptive to the kind of broad, systemic reforms that good governance groups favor.
Tomorrow I will turn to another component of the "here to there" question -- specifically, framing debates on electoral reform so that these issues get more traction with everyday voters. Posted
by Heather K. Gerken [link]
The democracy index proposal has obvious appeal. If done well, it would be exactly the kind of wedge you're looking for. The problem I see is getting it done well enough.
Who is going to operationalize the criteria? Who is going to collect and interpret the data on compliance? How would it come to pass that the measurement process itself is not politicized?
Perhaps more important, what prevents knowledge of what's on the questionnaire from enabling each Secretary of State to meet specific criteria by neglecting important areas that aren't being monitored?
Have you ever noticed how often two or three bags arrive at the luggage carousel long before the rest of the luggage from the flight? I'm pretty sure this reflects the fact that the clipboard-and-stopwatch folks measure time to first arrival, not average time to arrival (which is more expensive to measure).
Similarly, have you ever heard the expression "teaching to the test"?
These are the sorts of responses I would expect from Secretaries of State and local registrars.
Perhaps outside the scope of this article, but in "domesticating the foxes" we are trying to figure out ways to get the representatives to be representative (once again). If the existing political feedback from the public is either not respected or else too weak to be effective, why will a Democracy Index decisively turn the tide? Perhaps if the Index were "Judgmental" enough to state that performance drops below minimum standards and rights enforcement, the grade of "F" on the Index report card might attract attention. But if it is only a ranking of the states 1-50, there are lots of factors besides Secretary of STate performance that go into that ranking, and it will be dismissed or discounted...
The best way, it seems to me, to domesticate the foxes is to shine a spotlight right on them and call a spade a spade. Democracy Index, while a decent idea, is no substitute for a real media that does investigative reporting as well.