Shortcuts to reform

Minnesota Law Review

Volumn 93, Issue 5, 2009, Pages 1582-1614

  Gerken, Heather K ^a  

^a YALE UNIVERSITY   (United States)

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EID: 68249136909     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (79)

1. See sources cited infra notes 14-15.
2. There are, however, several exceptions to this general trend. See, e.g., Christopher S. Elmendorf, Representation Reinforcement Through Advisory Commissions: The Case of Election Law, 80 N.Y.U. L. REV. 1366 (2005); Heather K. Gerken, The Double-Edged Sword of Independence: Inoculating Electoral Reform Commissions Against Everyday Politics, 6 ELECTION L.J. 184 (2007) [hereinafter Gerken, Double-Edged Sword]; Heather K. Gerken, A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach, 106 COLUM. L. REV. 708 (2006); Michael S. Kang, De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform, 84 WASH. U. L. REV. 667 (2006); Heather K. Gerken, Citizens Must Drive Electoral Reform, ROLL CALL, Nov. 15, 2005 [hereinafter Gerken, Electoral Reform]; Posting of Christopher Elmendorf & Heather Gerken to Balkinization, http://balkin.blogspot.com/2005/11/next-time-start-with-people.html (Nov. 10, 2005, 23:40 EST);
3. Daniel P. Tokaji, The Moneyball Approach to Election Reform, ELECTION L. MORITZ, Oct. 18, 2005, http://moritzlaw.osu.edu/ electionlaw/comments/2005/051018.php.
4. For ease of exposition, throughout this Article I will often use terms like "election system" to refer to our system of election administration-the "nuts-and-holts" activities of running an election (registration, balloting, vote counting). The phrase usually refers to a far broader set of rules and institutional arrangements, including those surrounding districting and campaign finance.
5. 531 U.S. 98 (2000).
6. Daniel P. Tokaji, The Birth and Rebirth of Election Administration, 6 ELECTION L.J. 118, 121 (2007) (reviewing ROY G. SALTMAN, THE HISTORY AND POLITICS OF VOTING TECHNOLOGY: IN QUEST OF INTEGRITY AND PUBLIC CONFIDENCE (2006)).
7. Twenty percent of states do not report this information; they only disclose how many ballots were successfully counted. Thad Hall & Daniel Tokaji, Money for Data: Funding the Oldest Unfunded Mandate, ELECTION LAW MORITZ, June 5, 2007, http://moritzlaw.osu.edu/blogs/tokaji/2007/06/money-for-data-funding-oldest- unfunded.html.
8. HEATHER K. GERKEN, THE DEMOCRACY INDEX: WHY OUR ELECTION SYSTEM IS FAILING AND HOW TO FIX IT (2009).
9. Public-choice scholars would not be surprised that an issue that affects everyone is not at the forefront of the political agenda. Oddly enough, minority groups-sometimes condemned as "special interests"-are often the ones that succeed best in a majoritarian system like our own. See, e.g., Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985). Political scientist Robert Dahl famously claimed that "minorities rule" in the United States; coalitions of organized interest groups join together to form majorities and get legislation passed. ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 133 (1956). Or, as Jesse Jackson put it, "in politics, an organized minority is a political majority." CNN: Both Sides with Jesse Jackson, (CNN television broadcast Jan. 30, 2000). What matters in a system where "minorities rule" is the ability to organize-to turn out the vote, lobby representatives, and raise money. And it is often easier to organize a small, easily identified group with a concrete complaint than it is to get a large majority affected by a diffuse harm to coalesce. The public-choice explanation is not, of course, a complete answer. Other problems that impose diffuse harms are salient to voters-and thus to politicians. Politicians are careful to sketch out positions on issues like the environment or foreign policy. Moreover, politicians are notoriously risk-averse; no politician is going to be wildly enthusiastic about flouting the preferences of the majority even when no special-interest group is there to fight about it.
10. Building on the work of Erving Goffman, see ERVING GOFFMAN, FRAME ANALYSIS, AN ESSAY ON THE ORGANIZATION OF EXPERIENCE (1974), social scientists have extensively analyzed the ways that issues are presented to, and affect the behavior of, voters. For a sampling of this literature, see, for example, FRANK R. BAUMGARTNER & BRYAN D. JONES, AGENDAS AND INSTABILITY IN AMERICAN POLITICS (1993); SHANTO IYENGAR & DONALD R. KINDER, NEWS THAT MATTERS: TELEVISION AND AMERICAN OPINION (1987); WILLIAM H. RIKER, THE ART OF POLITICAL MANIPULATION (1986); DEBORAH A. STONE, POLICY PARADOX AND POLITICAL REASON (1988); Dennis Chong & James N. Druckman, Framing Theory, 10 ANN. REV. POL. SCI. 103 (2007); James N. Druckman, Political Preference Formation: Competition, Deliberation, and the (Ir)relevance of Framing Effects, 98 AM. POL. SCI. REV. 671 (2004); Deborah A. Stone, Causal Stories and the Formation of Policy Agendas, 104 POL. SCI. Q. 281 (1989).
11. Interview with Jonah Goldman, Dir., Naťl Campaign for Fair Elections (Jan. 4, 2008) (on file with the author).
12. Gary Larson, The Far Side, S.F. CHRON., Oct. 25, 1983, at 51.
13. Many scholars argue, with some evidence, that voters cast their ballots in an irrational fashion. See, e.g., BRYAN CAPLAN, THE MYTH OF THE RATIONAL VOTER (2007). Arguments like these often underestimate the useful role that heuristics can play in guiding voting behavior. See, e.g., David Schleicher, Irrational Voters, Rational Voting, 7 ELECTION. L.J. 149 (2008) (reviewing CAPLAN, supra).
14. Interview with Dan Esty, Hillhouse Professor of Envtl. Law and Policy, Yale Law School, in New Haven, Conn. (Oct. 24, 2007) (on file with the author).
15. For early work in what is now a vast literature, see, for example, JOHN H. ALDRICH, WHY PARTIES? THE ORIGIN AND TRANSFORMATION OF POLITICAL PARTIES IN AMERICA (1995); BERNARD R. BERELSON ET AL., VOTING: A STUDY OF OPINION FORMATION IN PRESIDENTIAL CAMPAIGNS (1954); ANGUS CAMPBELL ET AL., THE AMERICAN VOTER (i960); V.O. Key, Jr. & Frank Mun-ger, Social Determinism and Electoral Decisions: The Case of Indiana, in AMERICAN VOTING BEHAVIOR 281 (Eugene Brudick & Arthur J. Brodbeck eds., 1959).
16. See, e.g., Richard R. Lau & David P. Redlawsk, Voting Correctly, 91 AM. POL. SCI. REV. 585, 590 (1997); Arthur Lupia, Shortcuts Versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Elections, 88 AM. POL. SCI. REV. 63 (1994); Arthur Lupia, Dumber than Chimps? An Assessment of Direct Democracy Voters, in DANGEROUS DEMOCRACY? THE BATTLE OVER BALLOT INITIATIVES IN AMERICA 66 (Larry J. Sabato et al. eds., 2001); SAMUEL L. POPKIN, THE REASONING VOTER (2d ed. 1994).
17. BERELSON ET AL., supra note 14, at 321.
18. Indeed, a major movement within political science insists that we need strong, cohesive parties in order to give voters a better predictive cue as to how candidates will vote. Better party cues, the argument goes, means greater accountability. This notion of "responsible party government" was first endorsed by the American Political Science Association's Committee on Political Parties in 1950. See Am. Political Sci. Ass'n, Toward a More Responsible Two-Party System: A Report of the Committee on Political Parties, 44 AM. POL. SCI. REV. (Supp. 1950).
19. For a summary of BlackwelĽs travails, see GERKEN, supra note 7, at ch. 3.
20. News Release, Office of Governor Christine Gregoire, Washington Earns Top Rating for Managing Public Resources (Mar. 3, 2008), available at http://www.governor.wa.gov/news/news-view.asp?pressrelease=804&newsType= 1;NewsRelease, Office of Governor Timothy M. Kaine, Virginia Gets Top Grade in Performance (Mar. 3, 2008), available at http://www.governor.virginia. gov/mediarelations/newsreleases/viewRelease.cfm?id=621.
21. For example, see the Coleman versus Franken Minnesota 2008 election Senate recount and following court action. See generally Dave Orrick and Rachel E. Stassen-Berger, Franken's Lead Increases to 312 Over Coleman in Minnesota U.S. Senate Race, PIONEER PRESS (St. Paul), Apr. 7, 2009".
22. Daily Kos: State of the Nation, http://www.dailykos.com (last visited Apr. 14, 2009).
23. Redstate, http://www.redstate.com (last visited Apr. 14, 2009).
24. See, e.g., David Schleicher, Why Is There No Partisan Competition in City Council Elections? The Role of Election Law, 14 J.L. & POL. 419 (2007).
25. Michael S. Kang, The Hydraulics and Politics of Party Regulation, 91 IOWA L. REV. 131, 151 (2005).
26. CALTECH/MIT VOTING TECH. PROJECT, INSURING THE INTEGRITY OF THE ELECTORAL PROCESS: RECOMMENDATIONS FOR CONSISTENT AND COMPLETE REPORTING OF ELECTION DATA 2 (2004), available at http://vote.caltech.edu/drupal/ files/report/insuring-integrity-of-electoral-process.pdf.
27. Id.
28. Press Release, Brennan Center for Justice, Brennan Center Report Finds New Improvements in New Voting Technology Being Implemented in Several States (Aug. 28, 2006), available at http://www.brennancenter.org/content/ resource/brennan-center-report-finds-improvements-in-new-voting- technology-being-imp.
29. Pew Center on the States: About Us, http://pewcenteronthestates.org/ about.aspx Oast visited Apr. 14, 2009).
30. Interview with Richard Greene, Consultant, Pew Ctr. on the States (June 12, 2008) (on file with the author). Unless otherwise noted, what follows in the next two paragraphs is drawn from an interview with Richard Greene.
31. See David S. Broder, Managing: An Affair of States, WASH. POST, Mar. 9, 2008, at B7.
32. PEW CTR. ON THE STATES, GOVERNMENT PERFORMANCE PROJECT, GRADING THE STATES: GEORGIA (2005), http://www.pewcenteronthestates.org/ uploadedFiles/gpp200522.pdf (last visited Apr. 14, 2009).
33. Interview with Richard Greene, supra note 26.
34. E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA 68 (1960) (emphasis omitted).
35. See sources cited supra note 9.
36. Interview with Jonah Goldman, supra note 10. For an excellent overview of the role of framing in this debate, see R. MICHAEL ALVAREZ & THAD E. HALL, ELECTRONIC ELECTIONS: THE PERILS AND PROMISES OF DIGITAL DEMOCRACY (2008).
37. See generally, Daniel P. Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 FORDHAML. REV. 1711, 1807 (2005).
38. See, e.g., Voter Confidence and Increased Accessibility Act of 2007 (Holt Bill), H.R. 811, 110th Cong. (2007).
39. GEORG CHRISTOPH LICHTENBERG, APHORISMS 79 (R.J. Hollingdale trans., Penguin Books 1990) (1800-06 and 1844-53).
40. Political competition represents an important force in shaping public opinion. As Robert Bennett explains, "American democracy is an extraordinary engine for producing a conversation about public affairs" that ultimately shapes "the content of public policy decisions . . . ." ROBERT W. BENNETT, TALKING IT THROUGH: PUZZLES OF AMERICAN DEMOCRACY 2 (2003). The fuel for that engine is political competition, as political leaders compete against one another to "shape, coordinate, and frame the public's understandings about electoral politics, public policy, and civic affairs." Michael S. Kang, Race and Democratic Contestation, 117 YALE L.J. 734, 753 (2008). The literature on the relationship between political competition and public opinion dates back at least to the work of venerable political scientists like V.O. Key, Jr. and E.E. Schattschneider. See, e.g., V.O. KEY, JR., THE RESPONSIBLE ELECTORATE 1936-1960 (1966); SCHATTSCHNEIDER, supra note 33. Scholars often call these leaders "political entrepreneurs" because of the creative ways in which they forge new platforms, frame issues, and exploit latent political energies in the process of building new political coalitions. See, e.g., Kang, supra, at 738 n.17. For a necessarily incomplete sampling of the seminal work in this area, see, for example, ROGER W. COBB & CHARLES D. ELDER, PARTICIPATION IN AMERICAN POLITICS (1972); KEY, supra; WILLIAM H. RlKER, THE STRATEGY OF RHETORIC (Randall L. Calvert et al. eds., 1996); and SCHATTSCHNEIDER, supra note 33.
41. One could, of course, make an argument like this about most 'latent" reform platforms that are amenable to effective framing. But few issues are as closely linked to partisan politics as this one. We are already waging political battles in which the Index could be used as a partisan weapon.
42. See http://epi.yale.edu/ Contents for the rankings and more information on the EPI.
43. See Jerry L. Mashaw, Structuring a "Dense Complexity": Accountability and the Project of Administrative Law, ISSUES IN LEGAL SCHOLARSHIP, Mar. 2005, at 6-7, http://www.bepress.com/cgi/viewcontent.cgi?article=1061&context=ils.
44. Cass Sunstein, for example, has written about the pressures of conformity upon individuals. CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT (2003). One of the results of conformity is a decision-making "cascade." Id. at 10-11. If one set of decision makers or "early movers" converge on a particular option, subsequent decision makers-influenced by the agreement of the first movers-make the same choice even if they would not have reached such a decision independently. See id. Sunstein also explains both why reasonable people rely on the decisions of "early movers" and why this tendency sometimes has unfortunate consequences. See id. at 54-73.
45. The global polity "consists of much more than a 'system of states' or 'world economy' or 'international system.' Rather, the global environment is a sea teaming with a great variety of social units-states and their associated polities, military alliances, business enterprises, social movements, terrorists, political activists, nongovernmental organizations . . . ." John Boli, Sovereignty from a World Polity Perspective, in PROBLEMATIC SOVEREIGNTY: CONTESTED RULES AND POLITICAL POSSIBILITIES 53, 59 (Stephen D. Krasner ed., 2001). For a helpful survey of this literature, see GLOBALIZATION AND ORGANIZATION: WORLD SOCIETY AND O RGANIZATIONAL CHANGE (Gili S. Drori et al. eds., 2006); Martha Finnemore, Norms, Culture, and World Politics: Insights from Sociology's Institutionalism, 50 ĪNT'L ORG. 325 (1996); John W. Meyer, The World Polity and the Authority of the Nation-State, in INSTITUTIONAL STRUCTURE 41 (George M. Thomas et al. eds., 1987); John W. Meyer et al., World Society and the Nation-State, 103 AM. J. SOC. 144 (1997). For a general introduction to the social science behind the global-polity literature, see W. RICHARD SCOTT, INSTITUTIONS AND ORGANIZATIONS (2d ed. 2001). Ryan Goodman and Derek Jinks have led the way in connecting this literature to legal scholarship and exploring its potential ramifications for international law, particularly human rights law. See Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621 (2004); Ryan Goodman & Derek Jinks, Toward an Institutional Theory of Sovereignty, 55 STAN. L. REV. 1749 (2003) [hereinafter Goodman & Jinks, Theory of Sovereignty]-
46. GILI S. DRORI ET AL., SCIENCE IN THE MODERN WORLD POLITY: INSTITUTIONALIZATION AND GLOBALIZATION at ix (2003). For instance, nation-states often deploy similar record-keeping systems and mandate mass education in school systems using similar curricula and administrative structures. Isomorphism and decoupling have been found in areas such as "constitutional forms emphasizing both state power and individual rights, mass schooling systems organized around a fairly standard curriculum, rationalized economic and demographic record keeping and data systems, antinatalist population control policies intended to enhance national development, " as well as "formally equalized female status and rights, expanded human rights in general, expansive environmental policies, development-oriented economic policy, universalistic welfare systems, standard definitions of disease and health care, and even some basic demographic variables." Meyer et al., supra note 44, at 152-53 (citations omitted); see also Karen Bradley & Francisco O. Ramirez, World Polity and Gender Parity: Women's Share of Higher Education, 1965-85, 11 RES. IN SOC. OF EDUC. AND SOCIALIZATION 63 (1996); David John Frank et al., What Counts as History: A Cross-National and Longitudinal Study of University Curricula, 44 COMP. EDUC. REV. 29 (2000); John W. Meyer, The Changing Cultural Content of World Society, in STATE/CULTURE: STATE FORMATION AFTER THE CULTURAL TURN (George Steinmetz ed., 1999).
47. See Finnemore, supra note 44, at 336-37. Another example is the fact that the enrollment of women in institutions of higher education increased around the world at roughly the same rate and at about the same time in Western and non-Western countries. See Bradley & Ramirez, supra note 45, at 83-84.
48. Goodman & Jinks, Theory of Sovereignty, supra note 44, at 1760.
49. See, e.g., Virginia Gray, Innovation in the States: A Diffusion Study, 67 AM. POL. SCI. REV. 1174 (1973); Jack L. Walker, The Diffusion of Innovations Among the American States, 63 AM. POL. SCI. REV. 880 (1969).
50. This literature is vast, so what follows is only a sampling drawn primarily from the work of sociologists and political scientists. See, e.g., HENRY R. GLICK, THE RIGHT TO DIE (1992); ANDREW KARCH, DEMOCRATIC LABORATORIES: POLICY DIFFUSION AMONG THE AMERICAN STATES (2007); KAREN MOSS-BERGER, THE POLITICS OF IDEAS AND THE SPREAD OF ENTERPRISE ZONES (2000); RICHARD ROSE, LESSON-DRAWING IN PUBLIC POLICY (1993); Steven J. Balla, Interstate Professional Associations and the Diffusion of Policy Innovations, 29 AM. POL. RES., 221 (2OO1); Frances Stokes Berry & William D. Berry, Innovation and Diffusion Models in Policy Research, in THEORIES OF THE POLICY PROCESS 169 (Paul A. Sabatier ed. 1999); Frances Stokes Berry & William D. Berry, State Lottery Adoptions as Policy Innovations: An Event History Analysis, 84 AM. POL. SCI. REV. 395 (1990); Frances Stokes Berry & William D. Berry, Tax Innovation in the States: Capitalizing on Political Opportunity, 36 AM. J. POL. SCI. 715 (1992); Michael Mintrom, Policy Entrepreneurs and the Diffusion of Innovation, 41 AM. J. POL. SCI. 738 (1997); Michael Mintrom & Sandra Vergari, Policy Networks and Innovation Diffusion: The Case of State Education Reforms, 60 J. POL. 126 (1998); Anne Schneider & Helen Ingram, Systematically Pinching Ideas: A Comparative Approach to Policy Design, 8 J. PUB. POĽY 61 (1988); David L. Weimer, The Current State of Design Craft: Borrowing, Tinkering, and Problem Solving, 55 PUB. ADMIN. REV. 110 (1993); Harold Wolman & Ed Page, Policy Transfer Among Local Governments: An Information-Theory Approach, 15 GOVERNANCE: AN INT'L J. POĽY, ADMIN., & INSTITUTIONS 477 (2002). For a critical take on some of this work, see Christopher Z. Mooney, Modeling Regional Effects on State Policy Diffusion, 54 POL. RES. Q. 103 (2001) (questioning whether regional effects on diffusion are as pronounced as prior work has suggested). For an examination of interstate dif-fusion in different countries, see Katerina Linos, How Can International Organizations Shape National Welfare States? Evidence from Compliance with European Union Directives, 40 COMP. POL. STUD. 547 (2007); James M. Lutz, Emulation and Policy Adoptions in the Canadian Provinces, 22 CAN. J. POL. SCI. 147 (1989); Dale H. Poel, The Diffusion of Legislation Among Canadian Provinces: A Statistical Analysis, 9 CAN. J. POL. S. 605 (1976); Note, When Do Policy Innovations Spread?: Lessons for Advocates of Lesson-Drawing, 119 HARV. L. REV. 1467 (2006). For a survey of the literature on diffusion among non-state organizations, see David Strang & Sarah A. Soule, Diffusion in Organizations and Social Movements: From Hybrid Corn to Poison Pills, 24 ANN. REV. SOC. 265 (1998).
51. KARCH, supra note 49, at 2-3.
52. See supra notes 41-42 and accompanying text.
53. See KARCH, supra note 49, at 7-9.
54. A recent survey indicates that sixty percent of local officials did not belong to a national professional association, and one quarter of local officials did not belong to any professional association. ERIC A. FISCHER & KEVIN J. COLEMAN, CONG. RESEARCH SERV., ELECTION REFORM AND LOCAL ELECTION OFFICIALS: RESULTS OF TWO NATIONAL SURVEYS, RL-34363, at 5-6 (2008), available at http://assets.opencrs.com/rpts/RL34363-20080207.pdf.
55. Interview with Trey Grayson, Sec'y of State, Kentucky (Jan. 9, 2008) (on file with the author); Interview with Jonah Goldman, supra note 10; Interview with Anonymous Election Official (Apr. 15, .2008) (on file with the author). It is worth noting that these organizations lack the resources they need to provide such broad services to their members. The National Association of Secretaries of State, for instance, has an extraordinarily small staff and has accomplished an impressive amount with the staff it possesses. Similarly, the institution that seems to have made the most headway in promoting professional norms is the Election Center, a Texas-based nonprofit headed up by Doug Lewis. The Election Center offers training and continuing education to election administrators while serving as an advocate for their interests. Unfortunately, the Election Center is not yet big enough to reach most election administrators.
56. Interview with Leslie Reynolds, Executive Dir., Naťl Ass'n of Sec'ys of State (Dec. 11, 2007) (on file with the author).
57. Interview with Ray Martinez, Former Comm'r, Election Assistance Comm'n (Jan. 24, 2008) (on file with the author).
58. Interview with Anonymous (April 15, 2008) (on file with the author).
59. Strang & Soule, supra note 49, at 274-75; Note, supra note 49, at 1473.
60. Interview with Philip Joyce, Professor of Pub. Policy & Pub. Admin., George Washington University (Sept. 19, 2007) (on file with the author).
61. See Interview with Leslie Reynolds, supra note 55 and accompanying text.
62. KARCH, supra note 49, at 8. This is, to be sure, not a conclusion reached only by political scientists. Sociologists Harold Wolman and Ed Page, for instance, have reached a similar conclusion. Wolman & Page, supra note 49, at 498.
63. KARCH, supra note 49, at 105-43; Balla, supra note 49. For sociology work exploring similar themes in the context of private institutions, see, for example, Lauren B. Edelman et al., The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth, 105 AM. J. SOC. 406 (1999); Lauren B. Edelman, Legal Environments and Organizational Governance: The Expansion of Due Process in the American Workplace, 95 AM. J. SOC. 1401 (1990).
64. Mintrom, supra note 49; Mintrom & Vergari, supra note 49.
65. KARCH, supra note 49.
66. Id. at 31.
67. Id. at 9.
68. Id.
69. Interview with Richard Greene, supra note 29.
70. GERKEN, supra note 7, chs. 4 & 5.
71. STEIN RINGEN, WHAT DEMOCRACY IS FOR 283 (2007).
72. Interview with Dan Esty, supra note 13.
73. Id.
74. Id.
75. RINGEN, supra note 70, at 284.
76. Meg Greenfield, The People's Revenge, WASH. POST, June 14, 1978, at A27.
77. See Gerken, Double-Edged Sword, supra note 2; Gerken, Electoral Reform, supra note 2; Elmendorf & Gerken, supra note 2.
78. Edward B. Foley, A Model Court for Contested Elections (Or the "Field of Dreams" Approach to Election Law Reform), ELECTION L. MORITZ, June 19, 2007, http://moritzlaw.osu.edu/ electionlaw/comments/articles.php?ID=157.
79. See Heather Gerken, Out of the Shadows: Private Redistricting Can Help Overcome Lawmakers' Partisanship, LEGAL TIMES, May 5, 2008, at 62.