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National Issues

Partisanship and the Dark Side of Election Law PDF  | Print |  Email
By Bob Bauer   
January 23, 2008
This article was posted at Bob Bauer's Blog and is reposted here with permission of the author.

Rick Hasen has attempted to describe for a foreign audience, Australians, the dilapidated, ever-on-the-brink-of collapse electoral process in the United States.   He says that things are generally a mess, spread among jurisdictions that are free to run elections as they wish, are overseen by partisans and are only irregularly held to professional standards.  Such a foul state of affairs predictably produces a Bush v. Gore or a spoiled Congressional election like Florida’s 13th.  It is just good fortune that elections are only rarely decided by a hair, when dysfunction is consequential and hard to ignore, and we can get by more generally, with limited discomfort, because of the apparently infinite tolerance of the voter.

It is important to separate the different sources of the problem of partisanship which are closely but not always clearly connected.  Partisans do run elections, giving cause for unease:  it is not what is best for public confidence in the impartiality of the process.  Partisans cause all sorts of problems for another reason:  even the best-intentioned have other plans and commitments, priorities higher than the conduct of flawless elections, and a set of skills that do not necessarily include a deft touch for management.  Putting professionals in charge of elections could make anyone who cares about the franchise breathe a little easier.

But it is not only partisanship within the system, bred deeply into governance, that needs to be considered. Partisanship on the outside, among parties, candidates and others, has feasted on the opportunities yielded by the disorder in election law and administration.  Such is the dark side of the growth of election law.  The best of all examples—far from the only one—is the Republican embrace of "equal protection" in the year 2000, for the immediate purpose of lifting George W Bush to the White House.  Progressives horrified by Bush v. Gore took heart that maybe something good would come of this promising rationale grossly misapplied in the particular case.  Nothing really came of it.  It was a theory of convenience, helpful to the particular case, and this manipulation is what we find that partisans routinely make of the grand aspirations and expectations of election law.
Across the range of issues, we see the same:  election law a weapon for the accomplishment of political objectives.  Politics has infected the law, and this is now old hat, more or less taken for granted—a specialized branch of political warfare, with the voters caught in the cross-fire.

Hasen has pointed out elsewhere that courts have shown the same tendency to decide issues in neat correspondence with their political backgrounds and sponsorships.  He has written, generously, that this is only the workings of different worldviews, nothing more insidious; but his generosity of perspective is not uniformly held.   Partisans often chalk up their excesses to the pull of ideology; they would do anything but attribute them to political self-interest.  But when their decisions in political cases fit their established political positions, who is to say that this suspicion is not justified?

Partisans will be—must be—partisans, and find it hard to act out of role.  Rick is right that a strong check on their zeal would be nonpartisan professional administration of elections.  Its day is long overdue, on all grounds, including but limited to simple competence, which is in unacceptably short supply.  This is also the step needed to deny partisans their partners in government.  We can cut them off, at the source, from the power to put the fix in.

And, turning to the judiciary, we could consider establishing special election courts, an alternative that could draw on specialists trained for just this role.  This alternative has been promoted as providing a more "neutral" forum for the resolution of post-election disputes.  Steven F. Huefner, Daniel P. Tokaji, & Edward B. Foley, with Nathan A. Cemenska, From Registration to Recounts:  The Election Ecosystems of Five Midwestern States (2007).  Perhaps, however, their use should not be so limited to conflicts about votes already counted. 

A trained branch of judiciary dedicated to hearing election claims in the first instance could bring many benefits.  Litigants would face a bench experienced in the law; and that experience might contribute to its more orderly, rational development.  And the authority that, it is hoped, these courts would develop, might eventually have a salutary effect on partisan contemplating political lawsuits, and on the appellate courts that may eventually come to hear them.
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