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
The Effect of the Carter-Baker Commission on the Supreme Court
Heather K. Gerken
Yesterday I talked about the role that "shadow institutions" -- privately created, nonpartisan decisionmaking bodies – can play in promoting election reform. Rick Hasen, election law's über-blogger, responded with the following questions: Did the "Carter-Baker commission play this kind of shadow role for election administration reform," and what does it tell us about designing shadow institutions? Bob Bauer then offered a more detailed and skeptical post along the same lines. The Carter-Baker Commission -- whose 2005 report on the state of our election system was cited in three of the four opinions issued in last week’s voter i.d. case -- is an excellent example of the power that shadow institutions can wield. But it also offers an important caveat about how they should be designed.
A little background might be in order for those who are not election law junkies. Last week, the Supreme Court issued its decision in Crawford v. Marion County Election Board, where it upheld Indiana's requirement that voters present government-issued photo i.d. to cast a ballot. What matters for our purposes is that three of the four opinions -- Justice Stevens' plurality and the dissents penned by Justices Souter and Breyer -- repeatedly referred to the Carter-Baker Commission's Report. Justices Stevens and Breyer deferred to the Carter-Baker Commission's conclusion that photo identification represented a reasonable strategy to deter fraud. Justices Souter and Breyer also took Indiana to task for failing to implement the protections the Commission insisted were necessary for a photo i.d. law to work.
The prominent role played by the Carter-Baker Commission in Crawford makes clear just how powerful the decision of a shadow institution can be. The Court faced the dilemma we all face in the elections context: figuring out whether a law passed by a group of partisans is a legitimate effort to regulate elections or an illicit attempt to hijack the system for political ends. The Justices were plainly on the hunt for a fair metric to evaluate the Indiana law. In the eyes of Justices Stevens and Breyer, at least, the Carter-Baker Report offered just such a metric, and they therefore deferred to it (with Justice Stevens invoking it in general terms and Justice Breyer deferring on some specifics). In the eyes of Justice Souter and Breyer, the fact that the Indiana regulation fell well short of the proposal offered by Carter-Baker was also a reason to question the regulation. What we saw in Crawford is precisely the kind of debate I'd expect Ned Foley's amicus court or my shadow districting commissions to generate. People need a baseline to evaluate a decision, and a shadow institution can provide it. Crawford, in short, demonstrated just how hungry people are for the kind of help a shadow institution can provide.
Bob Bauer is right, however, that the story of Crawford is a cautionary tale. It serves as an important reminder that shadow institutions should be composed of nonpartisan experts. (One always wants to put scare quotes around the word nonpartisan. No one, of course, is truly neutral, but we're dealing with a sliding scale here. I'm assuming we can all name a few people we think to be sufficiently fair-minded and professional to garner our respect).
The problem is that Carter and Baker are not experts, nor are they politically neutral. The position the Commission took on voter i.d. is exactly what one would expect from a bipartisan decisionmaking body – an obviously political compromise that lies roughly in the middle of the positions that the political parties have taken on this issue, one made despite the empirical evidence amassed by Spencer Overton, who dissented from the Commission’s decision.
A bipartisan shadow institution is thus a concededly second-best solution to the problem of partisanship. It may cast doubt on the most egregiously partisan stunts. But as a smart commentator noted on Balkinization yesterday in response to my post, "the big worry with a bipartisan shadow institution is that it would reproduce the partisan debates we already have and end up recommending that the electoral spoils simply be divided equally among the two parties." A body that is only going to strike political compromises will seem, well, compromised.
Nonetheless, even a second-best solution is a solution. Like Bauer, I'm uneasy about the unfortunate influence of the Carter-Baker Report on the Justices; they ought to have been more reflective. But before we wring our hands, we ought to ask the "as opposed to what?" question. Without the Carter-Baker Report, the Justices would have had no baseline to measure Indiana's law save their own intuitions. Those intuitions, of course, produced the exceedingly silly decision in Purcell, another voter i.d. case where the Supreme Court engaged in a bit of free-form empirical guesswork, also to the dismay of many voting-rights experts. Moreover, for all if its flaws, the Carter-Baker Commission's compromise was plainly superior to what the ruthlessly partisan Indiana legislature passed, a fact that Justices Souter and Breyer used to great effect in their dissents.
Bob Bauer's point, of course, goes a good deal deeper than this. He worries about the influence of democratically unaccountable "luminaries." I'm with him on the luminaries front. I'd rather have Ned Foley serve as a judge on his amicus court than non-expert, politically important people like James Baker or Jimmy Carter. That is because, like Bauer, I believe it is possible to develop a "tradition of scrupulous professionalism." I’m also entirely sympathetic to Bauer's emphasis on democratic accountability. I've expressed deep skepticism about the tendency of academics to think that decisions about election reform should be isolated from political influence.
Here's where I part company with Bauer's characteristically thoughtful remarks: I think that shadow institutions, properly designed, help promote accountability. They don't take decisions out of the hands of politically accountable actors, but offer us a tool for making sure that politicians are indeed accountable. Bauer says that "partisans have nowhere to hide" when they make bad decisions, whereas members of shadow institutions can "rely on their good name" -- or, perhaps, their expertise -- "to deflect hard questions." I just don't buy the premise. Partisans do have a place to hide -- in that brambly undergrowth we have denominated "the political thicket." Most voters haven't the faintest idea how to evaluate the judgments partisans make about campaign finance or redistricting or election administration. Shadow institutions offer voters a much-needed metric for doing so.
Bauer is surely right that this metric relies on the "strength of the [shadow institution's] brand name." But I return to the "as opposed to what?" question. Without shadow institutions, voters are also forced to rely on a brand name -- they have only the party label or the incumbent's name to guide them. In an area of law riven by the problem of self-interest, neither offers a reliable heuristic. The question is not whether voters will rely on a brand name, but which brand name they’ll rely on. Nonpartisan experts (or even bipartisan luminaries) will generally be an improvement on what we have now. "Don’t let the perfect be the enemy of the good" is a trite, worn-out phrase. But there’s a reason for that. Posted
by Heather K. Gerken [link]
Heather: In general I am very sympathetic to your agenda here, on any number of election-related matters.
But this is an odd case in which to raise the "as opposed to what?" question. As opposed to, say . . . the Court itself.
"Without the Carter-Baker Report," you write, "the Justices would have had no baseline to measure Indiana's law save their own intuitions."
No, not intuitions. They could have simply recognized that *some* voters -- probably thousands, but even if it's hundreds, same result -- will not vote, or will have their provisional votes excluded, because of this law. And where that is the case, the state needs *at the very least* to come forward with evidence of *some* non-trivial benefit to justify that disenfranchisement (no matter how extensive it might be). Yet there was no evidence of any such benefit here -- despite extraordinary incentives of the state and its amici to come forward with such evidence.
Indeed, ironically enough, the principal "evidence" the Court cited of the incidence of voter-impersonation fraud was the throw-away line in the Carter-Baker Report itself! (a conclusion that also was not supported by any evidence).
So although I am (tentatively) sympathetic to the notion of relying upon "shadow institutions" in some areas of election law (with the caveats that you and Bob discuss), no shadows are needed in the easy cases, where the Court itself should suffice. This was about as easy a case as one can imagine; and it's more than a bit disheartening that the Court could not see it for what it was.
Fair enough, Marty. I certainly hope nothing in my post suggestes any sympathy with the Court's resolution of this case. Justice Souter's dissent could and should have been a majority.
Perhaps this is where Ned Foley's amicus court would be more relevant. At the very least, when you posted on these issues, you'd have a concrete piece of evidence to show that the Court made a mistake.
Australia used to have one of the worst electoral systems in the democratic world, particularly at state level. Both malapportionment and gerrymandering were rife. One headline famously reported that the ruling party in the state of Queensland had retained power 'with a reduced minority'.
In 1979 the state of South Australia, after a reversed winner election, introduced independent administration and redistricting. Over the next 25 years all state and federal parliaments adopted reforms which now mean we have perhaps the best electoral administration in the democratic world.
This achievement was not done though shadow agencies. It was achieved because one of the major parties committed itself to reform and worked long and hard through election after election keeping electoral reform at the heart of its campaign.
That's a lesson US reformers could well adopt. There is no magic bipartisan formula that will suddenly make everyone happy and have the walls of Jericho fall down by themselves.
I think the issue is part of the broad category of problems arising from the use of experts by the legal system and the democratic polity. The dangers from use of experts cluster around the idea of loss of political autonomy: disefranchisement, technocracy, oligarchy, and as an overarching matter, the illusion that experts have the answers, whether they be social or scientific. What is, in fact, an expert opinion that is relied on by a policy-maker, judge, elected official? It is information that functions in the same way as popular desire. There is something politically compelling about it. It has insignia of political validity and authority. Since it is unrealistic to imagine a world in which the inherently illusory or constructed political nature of expert opinion can be peeled off of the core meaning (assuming it reflects some kind of essential truth, natural law or whatever), then the best that can be hoped for is that when it is formed it is formed by procedures that have been agreed to in the social contract, by the demos, etc. Since the inherent justness of expert opinion can never clearly be determined, having politically agreed on procedures for producing expert opinion is a moral solution. I recognize this is problematic too (cf Daubert), but this kind of “hand-wringing” about a "shadow" committee would not be taking place if there was a fair way to develop political knowledge. Political fairness in a democracy usually refers to democratic inputs, etc.
I think all of the foregoing is well-understood by this crowd, but somehow the notion of "non-partisan" does not go far enough in addressing fundamental issues of political fairness in the use of experts to define characteristics of the polity. The idea of political inequality based on social status is ancient, and it is no surprise to see it reappear so regularly and vigorously in our polity. I am a "yellow-dog democrat," Obama supporter, human rights advocate, and general political liberal; but the notion of an uneducated polity, equality and so on are very difficult problems.” One person; one vote” sounds great, but what does it mean in practice? In some ways we "need" experts because we do not have an educated polity. The idea of substitute authority is deeply embedded in our form of government, but for our political representatives (substitute authorities) we have a somewhat public system of accountability (suffrage).
Perhaps because the problem is more stark in science, there one finds such epistemological authorities such as the Institute of Medicine of the National Academies. It reflects (and demonstrates the persistence of subjectivity in science found in) the Frye standard, which is part of Daubert. In theory it convenes large panels of experts within an institutional structure who research and then report on various pressing problems, at the behest of the entities that have standing to make such requests for information. Since it is dealing with scientific information, it functions to make "science" (methodologically empirical information) by committee. It is, perhaps, a much larger version of something like the Congressional Record Service. All of which is a long-winded way of saying had there been some procedural/institutional way of responding to political science questions such as voting rights, then the source and quality of the judicial science would not be such an issue.