Balkinization

Shadow institutions and election reform

Heather K. Gerken

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.

Labels: Shadow institutions and election reform

Posted 3:35 PM by Heather K. Gerken [link] (4) comments