Tuesday, May 06, 2008
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.
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.
The case appears to be another one of the majority having some useful "expert" body that they could use for their ends, especially if they spin it a certain way. (cf. Breyer)
This seems like a pretty unsurprising result and those in the know probably could supply other examples in other constitutional areas.
Such bodies surely are always with us in some fashion, so the net result doesn't seem too surprising. You still are left with the Court having an obligation to use the resources at hand wisely.
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.
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