Stop Ignoring Pork and Potholes: Election Law and Constituent Service

By Bone, Joshua | The Yale Law Journal, March 2014 | Go to article overview

Stop Ignoring Pork and Potholes: Election Law and Constituent Service


Bone, Joshua, The Yale Law Journal


NOTE CONTENTS INTRODUCTION I. CONSTITUENT SERVICE ACTIVITIES AND WHY THEY MATTER     A. Representative-as-Ombudsman     B. Accessibility     C. Appropriations II. THE IMPACT OF CONSTITUENT SERVICE ON ELECTION LAW     A. Constituent Service and Structuralists        1. Contours of the Current Debate over Partisan Lockups        2. Seniority and Constituent Service        3. Policing Lockups and Constituent Service        4. A Possible Solution      B. Constituent Service and Individual Rights        1. A New Proposal for Protecting Minority Representational Rights        2. LULAC and Cultural Compactness        3. Shaw and District Shape CONCLUSION 

INTRODUCTION

The July 9, 2009 edition of a local South Florida paper, the Hometown News, reported a story about Ellie DeStephan's ninety-second birthday cruise. (1) After booking Ms. DeStephan's trip, her home health aide, Marilyn Angel, realized that Ms. DeStephan would need a passport to board the ship. Normally, applying for a passport is a simple task. But, in Ms. DeStephan's case, "the passport agency wouldn't accept her birth certificate because it was issued when she was 35 years old." (2) Realizing that the cruise line would accept an original copy of the birth certificate in lieu of a passport, Ms. Angel frantically tried to get the birth certificate back from the passport agency. She couldn't get anyone to return her calls. Fortunately, the office of Ms. DeStephan's U.S. representative came to the rescue. A caseworker reached someone at the passport agency and ensured that the agency shipped back the birth certificate in time. As a result, Ms. DeStephan enjoyed a ninety-second birthday celebration aboard the Freedom of the Seas.

What's most remarkable about this story might be that it's not remarkable at all. On a daily basis, representatives help constituents in a variety of ways. In the case of Ms. DeStephan, a representative helped fulfill a birthday dream. But often representatives help constituents address much more serious problems, such as ensuring that a constituent receives a public benefits check that staves off eviction. (3) Representatives understand the importance of constituent service. (4) So do political scientists, who have long recognized that representatives develop a "home style" distinct from the partisan style they employ within the legislature. (5) Yet constituent service has almost entirely escaped the attention of one notable group--legal scholars and judges.

To be sure, constituent service has made occasional appearances in legal scholarship, notably in discussions of term limits, (6) political corruption, (7) and the proper role of legislators. (8) But it has never featured prominently. Perhaps most surprisingly, election law scholars have largely ignored constituent service despite working on topics with significant implications for the relationship between representative and represented. (9) While some, most notably Heather Gerken, have acknowledged the importance of constituent service, (10) none have rigorously incorporated constituent service considerations into election law debates. (11)

This Note argues that election law scholars and judges dealing with election law claims should take constituent service more seriously. Part I draws on insights from the political science literature to describe constituent service activities. These activities largely fall into three categories: representative-as-ombudsman, accessibility, and appropriations. Part I then argues that all three categories of constituent service activities are important, and often valuable, components of the representation that constituents receive. Part II demonstrates how these different aspects of constituent service might inform two crucial areas of election law. Section II.A focuses on the constituent service implications of the classic structuralist thesis that courts should prevent mapmakers from designing legislative districts that undermine political competition. …

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