I am pleased to welcome Nick Stephanopoulos to the ELB Book Corner, writing about his new book, Aligning Election Law. This is the first of five posts:
As many folks in the ELB community know, I recently wrote a book, “Aligning Election Law,” developing a theory of election law focused on the promotion of alignment between governmental outputs and popular preferences. The book builds on some earlier articles of mine but includes mostly new content. In a series of posts this week, I’ll summarize some of the book’s themes, a different one each day. Today I’ll hone in on the concept of alignment itself.
By alignment, then, I mean congruence between what government does and what people want it to do. Alignment can be conceptualized and operationalized in several ways. These varieties are attributable to the facts that (1) people are aggregated into political units at multiple levels, (2) people’s preferences can be captured through simpler or more complex methods, and (3) government performs a wide range of functions. Each of these points represents an axis along which alignment can be defined. Start with the political units into which people are aggregated: most notably, electoral districts and whole jurisdictions (which can be municipalities, states, or the country in its entirety). District-specific alignment can exist (or not) between people in a particular district and their representative. Similarly, jurisdiction-wide alignment is present (or absent) between the population and the government of a whole municipality, state, or nation.
Next, consider two ways in which the views of a group of people can be summarized. One approach is to report the preferences of the median individual: the person in the middle of the ideological distribution. Congruence with this figure’s opinions—majoritarian alignment—usually guarantees that the wishes of the majority are heeded. Another, more demanding method is to determine the opinions of all relevant people and then to measure how near or far some governmental output is from all these preferences. The most congruent outcome—the one that maximizes collective alignment—minimizes the average gap between that result and each person’s viewpoint.
Lastly, think of three important things that governments (or their subparts) do. Elected officials belong to parties. So we can speak of partisan alignment between people’s partisan preferences and officeholders’ party affiliations. Elected officials also take ideological positions, quintessentially by voting on bills in the legislature. Accordingly, representational alignment refers to the distance between people’s ideological views and officeholders’ ideological stances. And then through some combination of voting in the legislature and decision-making by the executive, public policy is eventually formed. Policy alignment captures the extent to which these enacted laws reflect people’s policy preferences.
This typology might be complicated but the democratic appeal of alignment isn’t. When governmental outputs (officeholders’ party affiliations, officeholders’ policy positions, or actual policy outcomes) are congruent with the views of the people (a majority or all of them) within a given political unit (a district or a jurisdiction), the people can genuinely be said to rule. But the more government diverges from the people, the less it can claim to be government by and for the people. Precisely because alignment is such an intuitive value, it overlaps with several theories of representation and democracy. Take the delegate model of representation: the idea that a legislator should abide by the preferences of her constituents. In the terminology I just introduced, this is a prescription for district-specific representational alignment.
Likewise, the pluralist theory that dominated political thought both at the Framing and for much of the twentieth century sees public policy as emerging from the continuous interplay of myriad groups. This unending cycle of making and breaking alliances is supposed to yield outcomes that, in the long run and over many issues, coincide reasonably well with most groups’ wishes. I’d call this aspiration jurisdiction-wide, collective, policy alignment. That’s also how I’d label the ultimate goal of the deliberative theory that’s prominent in contemporary debates about democracy. Deliberative democrats want people to engage in extensive, openminded dialogue before undertaking any official action, as a result of which their original views may well change. Once enough discussion has taken place, though, people’s refined opinions must be translated accurately into policy. Otherwise all their deliberation will have been in vain.
To avoid misunderstanding, I want to emphasize two caveats about alignment. The first is that it’s not the only democratic value that should matter to courts, policymakers, and political observers. Other structuralist scholars prize competition and participation. I agree that these are important elements of a vibrant democracy. So are, among others, freedom to speak and associate, rational deliberation, political equality, minority representation, and impartial election administration. If any of these was missing from a regime—even one that featured high levels of alignment—we’d rightly question its democratic legitimacy. The pursuit of alignment, then, is perfectly capable of coexistence with other election law approaches. It offers judges, politicians, and people one reason to back certain policies and oppose other ones. But it doesn’t purport to occupy the field, to deny the validity of other ways of thinking about democracy.
The second caveat is that alignment isn’t always desirable. People sometimes have poorly informed preferences, reflecting insufficient knowledge or interest. Congruence with these (non)opinions could result in inefficient, incoherent public policy. People also sometimes have malignant views, espousing discrimination against members of groups other than their own. Allowing these attitudes to become law would yield immoral, not just incompetent, outcomes.
People’s inchoate preferences with respect to particular issues mean it’s better to assess alignment in the aggregate, in terms of people’s overall ideologies. It’s reasonable to discount public opinion on specific, technical matters as to which most people haven’t given much thought. But it’s not defensible (from a democratic perspective) to disregard people’s overarching liberalism or conservatism—the sets of beliefs they use to make sense of their political world. These general philosophies are entitled to respect as the will of the people about the society they’re supposed to rule. As for the problem of invidious views, the classic solution is to exclude from the domain where alignment is sought policies that discriminate against disfavored groups or violate fundamental rights. This is typically done through constitutional provisions that render certain outcomes unavailable through the ordinary political process. I have no quarrel with these safeguards because, again, I don’t see alignment as an imperialist principle striving to supplant all other values.