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
Today I published an op-ed in the Legal Times arguing that we should use what I call "shadow institutions" -- including privately created “shadow” districting commissions -- to push reform in the elections arena. Here's how I describe the problem:
Partisanship is both the main source of what ails our election system and the reason why it's hard to find a cure. Unlike every other mature democracy, the United States depends on partisans to administer our election system. In most states, legislators draw their own districts, set campaign finance rules, and write voting laws. Most elections are administered by partisan officials, and election controversies are often resolved by elected judges.
The problem is not just that partisanship infects the decision-making process. The problem is that partisanship makes it hard to put neutral decision-makers into place. The people who decide who decides -- the legislators who could take election decisions out of partisan hands -- are themselves party members. They have every incentive to hang on to that power.
I argue in the piece that privately created "shadow institutions" -- the nonpartisan cognate to shadow cabinets found in Great Britain and elsewhere -- are a good strategy for mitigating partisanship in the short term while moving us toward a nonpartisan system for administering elections in the long term. One example is the idea I sketch in the editorial: creating shadow districting commissions. Composed of nonpartisan experts, these shadow commissions would use Census data (which can be downloaded for free) and inexpensive districting software to draw a districting plan based on best practices. Another example is Ned Foley's proposal to create an "amicus court," a private panel of experts that would issue nonbinding decision in election disputes and submit them to existing courts in the form of amicus briefs. Here's why I argued that shadow institutions can mitigate both of the problems I identified in the editorial:
In the short term, they give the public a baseline for evaluating the decisions of partisan decision-makers. They can thus help shame those in power into doing better, tamping down on overtly partisan decisions. In the long term, shadow institutions raise awareness about the need for more substantial reform. Whenever an institution's decision deviates from its shadow's, someone -- a journalist or reformer or someone on the losing side -- will draw attention to that fact. A shadow institution, by its mere presence, reminds us that we can do better.
Take my proposal that we create shadow districting commissions. While the shadow plans would have no legal effect, they would lay down an important benchmark. We know that legislators who draw districting plans usually draw either a partisan gerrymander (a districting plan designed to hurt the opposing party) or a bipartisan gerrymander (a plan that gives safe seats to all incumbents). When they do, critics inevitably squawk about partisan bias or the lack of competitive districts. But critics' arguments tend to be fairly abstract, as they are unaccompanied by a concrete metric for judging what a good plan ought to look like. The shadow plan offers just the kind of real-world comparison that critics need to make their case.
In the short term, the shadow districting commission should tamp down on at least the most egregiously self-interested line-drawing. That's because politicians don't like bad publicity. Nor do they like risk. And a shadow plan makes at least partisan gerrymanders riskier to draw. Partisan gerrymanders tend to generate law suits. And you can bet that any lawyer challenging a districting plan will make sure the shadow plan is put in front of the court, if only to undermine the judge's confidence in the process.
In the long term, every one of these fights -- whether waged in the media or in the courts -- ought to promote the cause of reform by raising awareness about the problems inherent in having legislators draw their own districts. The proposal is not, to be sure, a silver bullet. It's a modest reform that comes with an exceedingly modest price tag. But it's the type of modest reform that should make it easier to pass bigger, better reform in the future.
On a first quick read of your post, I thought for a fleeting moment that you were suggesting that the British “shadow cabinet” was non partisan!
What we do have is a non-partisan Boundary Commission which is which revises constituencies on a periodic basis to ensure that each has a broadly comparable population and that so far as is possible it has sensible boundaries. As you may be aware – it has just published its 5th Report available on the Commission’s website: http://www.statistics.gov.uk/pbc/default.asp
The system works well and we do not have the weird gerrymandered districts one sees in states like Texas.
Ultimately, our systems generally greatly depend on having (i) a judiciary which is non partisan - judges must on appointment sever all connections with party politics and (ii) professional civil and local government services which are also non-partisan.
The problem is that you cannot have a non partisan electoral administration until you have legislators who are mature enough to see the long term benefits of that. Perhaps only then do you have a truly ‘mature’ democracy, so perhaps it is premature to include the USA in that group.
Many think it takes 500 years or so to get to maturity and even if your Founding Fathers gave you a head start with the grounding in the common law and their participation in the European Enlightenment, it is early days yet.
If it is any consolation, quite a lot of our legislators behave on quite a regular basis in a pretty immature manner too!
I think this is a great idea -- a potentially sharp tool for prying the administration of elections from away from elected officials. I have one concern though: Will it be possible to find groups of credibly non-partisan individuals to serve on the proposed "shadow institutions"? Given the realities of the present hyperpartisan system, it seems that pretty much everyone who is expert in election law is affiliated with one party or the other. There appear to be precious few non-partisan enclaves in the election law and administration world. As such, wouldn't any shadow institution's neutrality quickly be impugned? Or, maybe I am too pessimistic -- perhaps there remain pockets of non-partisan professionalism among U.S. election lawyers, administrators, election reform groups, and election law scholars.
In any case, the obvious alternative to strict non-partisanship would be strict bipartisanship, and that doesn't seem like a very good idea at all. 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. So it seems that an attempt at non-partisanship is the better alternative.
A more ambitious (farfetched?) idea might be to establish shadow institutions stocked with ordinary citizens invited to participate at random. In Canada, "citizens' assemblies" have recently become the standard way to vet and propose major changes to the electoral system. Though in the Canadian case, these assemblies are not private institutions, but are established by the legislatures themselves. See, e.g. http://en.wikipedia.org/wiki/Citizens%27_Assembly_on_Electoral_Reform_%28British_Columbia%29 http://en.wikipedia.org/wiki/Citizens%27_Assembly_on_Electoral_Reform_%28Ontario%29
Many thanks for your comments. As to "Mourad," I was thinking of the decidedly partisan British "shadow cabinets" only as a rough cognate to my proposal. I agree that it will be a while before nonpartisan election administration becomes a reality in the United States. As to "Jonathan," I'm posting today on precisely these questions -- how to create them, the problems with bipartisan commissions, etc. Although I won't discuss citizen commissions, on this blog and elsewhere I've repeatedly talked about the useful role they might serve in election reform. Thanks to both of you for the very helpful comments.