“The Incompatible Treatment of Majorities in Election Law and Deliberative Democracy”

Jim Gardner has posted this draft on SSRN.  Here is the abstract [update: it appears that only an abstract appears right now with no paper to download]:

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now on the books is to narrow electoral choice; it seeks at every step to exclude views from public conversation in a process of winnowing out those that command the support only of a minority. Deliberative democracy’s goals and methods, in contrast, stress at every turn the inclusion of many voices, especially those of minorities and of the socially and politically excluded. Deliberative democracy’s goal is not to identify a majority entitled to rule, but to destabilize and transform that majority by exposing its members to opinions and beliefs they do not already hold. Election law resists such a process. As a result, any attempt to incorporate principles of deliberative democracy into the design of election law faces serious and deeply entrenched obstacles.

On the other hand, deliberative democracy may well have a valuable role to play by helping to make the process of public opinion formation outside election campaigns fairer, better informed, and more deliberative. This is in any case where most of the real action takes place: public political opinion is not formed to any significant degree during the brief season of elections and their formal campaigns – within, that is to say, the small slice of political life that falls within the domain of election law proper. On the contrary, public political opinion is formed continually, and therefore mainly between elections. Consequently, if the process of public political opinion formation falls short of deliberative ideals, deliberative democracy can do the most good by addressing itself to the arena of quotidian, non-electoral politics.

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