Constitutions, Elections, and Election Law

By Ordeshook, Peter C. | Texas Law Review, June 2009 | Go to article overview

Constitutions, Elections, and Election Law


Ordeshook, Peter C., Texas Law Review


I. Introduction

The issue that concerns us is what constitutions should and should not say about elections and election law. Our core argument is that even if we limit matters to the form and function of elections, then constitutional directives about the precise formulas whereby votes are translated into legislative seats or aggregated to determine the winner in the competition for executive office are of less consequence than what is said, implicitly or explicitly, about the timing of elections, terms of office, and the encouragement of democratic governance at regional and local levels. If, without attempting here to offer precise definitions of terms, our general focus is how elections impact the stability of a democratic state and mesh with whatever separation of powers we seek to establish, it matters little whether, for instance, we initially require that legislative seats be filled by proportional representation (PR) versus single-member districts - or some combination of the two; whether, if PR is employed, seats are awarded on the basis of simple ratios, d'Hondt, or some other scheme; and whether other offices are filled by simple plurality or majority rule with a runoff. Such things may be of concern to political elites, but they are best left to statute with the expectation that details will be adjusted in a generally satisfactory way if other constitutional provisions encourage a participatory polity and a coherent, competitive party system. We argue, in fact, that provisions not commonly viewed as pertaining to national election law will generally be of greater significance in determining the form and function of elections and the long-run performance of the state than details of provisions specifically focused on election systems.

In making this argument, then, we take issue with Russian President Dmitry Medvedev who, in his State of the Federation speech, proposed that presidential and parliamentary terms be extended from four years to six and five years respectively, averring that "we are not talking about constitutional reform but about adjustments to the Constitution, about adjustments that are important but are nonetheless no more than clarifications and do not change the political and legal essence of the current institutions."1 Neither Medvedev nor the legislators who approved these changes are so naive as to believe these words or to presume that their actions are not intended to extend "Putinism" into the indefinite future.2 But in properly countering the assertion that such changes are irrelevant to core institutions, we must contend with the essential difficulty of mapping the consequences of alternative provisions and reaching definitive conclusions about what constitutions should require: namely, our lack of a compelling theory of constitutional design and a generally accepted paradigm of a constitution's role in a democracy. When building bridges, by analogy, we may not have a "theory of bridge design," but we do have principles of mechanics and materials with varying strengths that dictate the parameters of what is feasible. Thus, although a number of alternative designs may do the job - suspension, cantilever, continuous truss, and so on - viable alternatives must abide by those principles. Moreover, even if one designer is an advocate of, say, suspension structures, while another feels that cantilever forms are best, there is no disagreement as to what those mechanical principles say and when and where they are relevant. Thus, the final design often depends not on arguments over structural viability - by that time such concerns have been largely dispensed with - but rather on the basis of some combination of aesthetics and mundane economics.

Things are different with respect to political constitutions. First, those who would write them, instead of referring to some universally acknowledged set of first principles, must make do with a variety of ad hoc rules of thumb such as "Keep it simple" or, with respect to entitlements, "Don't promise what you can't deliver. …

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