To Here from Theory in Election Law

By Kang, Michael S. | Texas Law Review, March 2009 | Go to article overview

To Here from Theory in Election Law


Kang, Michael S., Texas Law Review


To Here from Theory in Election Law The Democracy index: Why Our Election System Is Failing and How To Flx It. By Heather K. Gerken. Princeton, N.J.: Princeton University Press, 2009. 192 pages. $24.95.

I. Introduction

Heather Gerken' s book, The Democracy Index: Why Our Election System Is Failing and How To Fix It,1 addresses what is now the most important practical concern in election law: election administration. In today's hypercompetitive political environment, election administration directly affects the vote in every race and changes outcomes in many elections. However, legal scholarship addressing election administration as a serious academic issue has been sparse, with some exceptions.2 Even after Bush v. Gore,3 legal scholarship has neglected election administration as a substantive concern and generally failed to keep pace with election administration's emergence as a practical one. Legal scholarship has tended to approach election administration as a field unto itself, somewhat disconnected from scholarly debates elsewhere in election law.

Nonetheless, the central importance of election administration is no longer a secret in American politics. Although larger margins of victory and electoral noncompetitiveness over large swaths of the country once obscured the effect of election administration, me narrowness of election margins across virtually the entire nation now makes clear how subtle nuances of election administration threaten to alter political outcomes.4 It is a fact of which political actors are keenly aware in today's politics. They seek to exploit election administration - and are conscious of their political enemies' attempts to do so - for political gain. Issues like voter identification and voting technology are now fought over as partisan issues in ways that would have been hard to imagine not long ago.5

Heather Gerken's timely book may refocus public and scholarly attention on election administration at exactly the right time. Gerken cites a wide array of evidence - thousands of votes routinely lost in every election, intolerably long lines at polling places, widespread computer failures in connection with electronic voting - to argue that the patchwork system of election administration in America badly needs overhauling.6 Gerken explains that "the election system is usually underfunded, often run by people without adequate training, and occasionally hijacked to serve partisan ends."7 She warns that it may only be a matter of time before another debacle like the 2000 presidential election and that "[i]t's hard to tell where disaster will strike, but it doesn't make sense to bet against disaster in the long haul."8

As a first step, Gerken proposes a comprehensive system for the collection of data about election administration, to be aggregated into a "Democracy Index" that ranks the states by their effectiveness in election administration.9 Gerken seeks to engage the states in federalist competition by objectively quantifying the problems of election administration. The Democracy Index would aggregate data about election-administration performance by localities and states for the purpose of providing voters with an intuitive, accessible ranking that voters could use to punish bad performance and reward good performance. Gerken hopes that the Democracy Index, which was already proposed in Congress separately by then-Senators Barack Obama10 and Hillary Clinton11 in 2007, will develop democratic and professional accountability among election administrators and will make visible the real problems in election administration beyond the "atmospherics and anecdote" that critics often offer today.12

The Democracy Index not only reconnects the legal academy with election ao"rninistration at just the right time, but also points to a new framework for reorienting election law as a field of study and an area for legal reform. Of course, written for a popular authence, The Democracy Index does not make these connections as explicit as I do here.

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