November 11, 2008

Elmendorf: A Reply to Bob Bauer

Chris Elmendorf has written this guest post:

Yesterday, Bob Bauer took issue with my very tentative suggestion of a "recruit the states" model for building public confidence in the electoral process, which I presented as an alternative to new federal statutory mandates for election administration (e.g., Election Day Registration). Bauer's critique runs on two levels: he suggests, first, that "public confidence" is a dubious goal for electoral reform; second, accepting the confidence goal arguendo, he sees no reason to think that state-level experimentation under the aegis of a nonpartisan federal agency (my "recruit the states" model) would be more successful in bolstering public confidence than new national standards for federal elections.

As to the first point, I agree with Bauer that public confidence, somehow understood, is not the only goal worth pursuing in the design of electoral institutions. But I do think the desideratum of broad public consent to the legitimacy of election results--especially among supporters of losing candidates--should be kept in mind when designing election laws and institutions. Indeed, there are both intrinsic (consent-based theories of democracy) and instrumental reasons (consequences of procedural fairness for pro-social behavior) to believe that this is a matter of first importance, though the instrumental argument is more of a working hypothesis than a social-scientific "truth" at the present time.

Bauer's other objection to my suggestion is that it is "not clear why" "the state experimental program stands the superior chance of running [the] gauntlet" of "partisan mischief," as compared to federal statutory fixes. "In this last election cycle," he rightly observes, "the partisan mischief was just as pronounced at the state and local as at the federal level."

The essential advantages of the recruit-the-states approach (relative to federal standardization) are threefold. First, it fosters diversity in election administration, which is a necessary predicate for learning about the still-poorly-understood relationship between election administration and public confidence in the electoral process. Second, it provides incentives for the lawmakers and election administrators who will determine the ground rules of political competition to figure out what the public actually cares about (regards as legitimating) in this domain, and then to act on this understanding. This certainly won't end partisanship in electoral reform, but it should help to yoke partisan ambitions to the public interest, at least at the margin. (State lawmakers who can successfully demonstrate--rather than merely assert--that their preferred reforms will bolster public confidence will be rewarded with federal funding or exemptions to help implement those reforms.) Third, the very act of instituting the "recruit the states" model could serve an important expressive function, instantiating a national commitment to the principle that election procedures should be designed to secure the widest possible consent among the governed. One may hope that a meaningful statement of commitment to this principle would reinforce whatever internal inklings our lawmakers may have that bare partisanship is not an appropriate basis upon which to found electoral reform.

Chris Elmendorf
U.C. Davis School of Law

Posted by Rick Hasen at November 11, 2008 10:20 AM