Tuesday, December 14, 2004

Issues and Strategies for Election Law Reform -- post by Nate Persily

In response to Reva's urging, I have attached a summary of what I see as the election law issues relevant to the first part of the New Politics session -- that is, not the IP/Media Concentration topic. I have organized them according to strategies for judicial interpretation and statutory innovation. I have included other topics that I think are usually "on the table" even if we did not have a chance to cover them. I have also included (mostly in italics) ideas/reforms with which I specifically disagree but which are usually part of these debates.

There is a trees rather than forest approach to this matrix, but perhaps that is because in this field I suspect that the underlying values are not as disputed as in others (except when political self-interest gets in the way). Here are a few words at the opposite end of the abstraction spectrum:

The electoral system should be arranged in a way that promotes values of representation, participation, and competition in the service of a particular vision of governance. The chief danger to these agreed upon
values comes from incumbents' manipulation of the rules of the electoral game to insulate themselves from effective competition and one faction's (whether a majority or a minority) systematic attempt to deprive its opponents of their rightful share of representation and political power. The underlying values -- such as representation and competition --
are often in tension with one another (as in the case of incumbent protecting gerrymanders); however, most of the "problems" in this area come from three heretofore intractable features of the American system:

(1) Our reliance on partisan officials for most aspects of election
administration and redistricting.

(2) The incompetence of officials on the ground (due in large part to resource constraints) with respect to the actual mechanics of voting.

(3) The decentralization of most election administration, which causes dramatic disparities within and among states.

Frankly, if you can solve those three problems, many of the others that have preoccupied reformers in the past four years will fall by the wayside or greatly diminish in importance.

issuejudicial actionstatutory innovation
election administration

1. challenges to biased administration based on 1st and 14th amendments.

2. use of epc to minimize disparities between regions, localities, counties and precincts.

1. creation of offices/commissions for non-partisan election administration.

2. move toward statewide and national rules/uniformity/administration as to ballot design, technology, registration requirements, etc.

3. professionalize precinct administration, develop graduate programs for election administration.


1. challenge to partisan (or bipartisan/incumbent protecting) gerrymanders under 1st and 14th amendments.

2. development of rules/districting principles for court drawn plans

3. what to do with shaw v. reno?

1. establishment of nonpartisan commissions.

2. repeal of statutes mandating single member districts for congress (or state legislature)

3. move to alternative voting systems.

4. reauthorize/change section 5 (and section 2) of the vra

campaign finance

1. should buckley be overturned?

2. should unions be treated differently than corporations?

1. public funding/ ackerman-ayres.

2. change the bcra?

3. deal with 527s?

4. abolish/reform the fec.


1. eliminate felon disfranchisement (overturn Ramirez)

2. challenge onerous burdens to registration and voting (including shortages of machines and long lines to vote).

1. overturn statutes that disfranchise ex-offenders (change the way the census counts prisoners).

2. same day registration, automatic registration through change of address form.

3. internet voting, early voting, voting holiday.

4. revisit the help america vote act/ provisional ballots.

5. measures to eliminate fraud (particularly with respect to absentee ballots).

6. compulsory voting.

7. deliberation day.

party reform

1. reassess state actor/ private association status of political parties.

2. challenge onerous ballot access rules.

1. change primary/nomination rules.

2. liberalize ballot access.

electoral college

1. eliminate by way of constitutional amendment.

2. move states toward more proportional systems (such as the failed in initiative in colorado).

voting technology

1. challenges to states that use a variety of technology with different error rates.

1. push for elimination of low quality technology.

2. require voter verified paper trail for electronic voting machines.

3. internet voting.

macroinstitutional reoforms

1. reform of heavily majoritarian structure of representative institutions (e.g., decline of committee authority, concentration of power in majority party caucus, decline in opportunities for debate).

2. eliminate the filibuster.