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The Effect of the Carter-Baker Commission on the Supreme Court

By Jack M. Balkin

Yesterday I talked about the role that "shadow institutions" -- privately created, nonpartisan decisionmaking bodies ? can play in promoting election reform. Rick Hasen, election law's über-blogger, responded with the following questions: Did the "Carter-Baker commission play[] this kind of shadow role for election administration reform," and what does it tell us about designing shadow institutions? Bob Bauer then offered a more detailed and skeptical post along the same lines. The Carter-Baker Commission -- whose 2005 report on the state of our election system was cited in three of the four opinions issued in last week?s voter i.d. case -- is an excellent example of the power that shadow institutions can wield. But it also offers an important caveat about how they should be designed.

A little background might be in order for those who are not election law junkies. Last week, the Supreme Court issued its decision in Crawford v. Marion County Election Board, where it upheld Indiana's requirement that voters present government-issued photo i.d. to cast a ballot. What matters for our purposes is that three of the four opinions -- Justice Stevens' plurality and the dissents penned by Justices Souter and Breyer -- repeatedly referred to the Carter-Baker Commission's Report. Justices Stevens and Breyer deferred to the Carter-Baker Commission's conclusion that photo identification represented a reasonable strategy to deter fraud. Justices Souter and Breyer also took Indiana to task for failing to implement the protections the Commission insisted were necessary for a photo i.d. law to work.

The prominent role played by the Carter-Baker Commission in Crawford makes clear just how powerful the decision of a shadow institution can be. The Court faced the dilemma we all face in the elections context: figuring out whether a law passed by a group of partisans is a legitimate effort to regulate elections or an illicit attempt to hijack the system for political ends. The Justices were plainly on the hunt for a fair metric to evaluate the Indiana law. In the eyes of Justices Stevens and Breyer, at least, the Carter-Baker Report offered just such a metric, and they therefore deferred to it (with Justice Stevens invoking it in general terms and Justice Breyer deferring on some specifics). In the eyes of Justice Souter and Breyer, the fact that the Indiana regulation fell well short of the proposal offered by Carter-Baker was also a reason to question the regulation.

What we saw in Crawford is precisely the kind of debate I'd expect Ned Foley's amicus court or my shadow districting commissions to generate. People need a baseline to evaluate a decision, and a shadow institution can provide it. Crawford, in short, demonstrated just how hungry people are for the kind of help a shadow institution can provide.

Bob Bauer is right, however, that the story of Crawford is a cautionary tale. It serves as an important reminder that shadow institutions should be composed of nonpartisan experts. (One always wants to put scare quotes around the word nonpartisan. No one, of course, is truly neutral, but we're dealing with a sliding scale here. I'm assuming we can all name a few people we think to be sufficiently fair-minded and professional to garner our respect).

The problem is that Carter and Baker are not experts, nor are they politically neutral. The position the Commission took on voter i.d. is exactly what one would expect from a bipartisan decisionmaking body ? an obviously political compromise that lies roughly in the middle of the positions that the political parties have taken on this issue, one made despite the empirical evidence amassed by Spencer Overton, who dissented from the Commission?s decision.

A bipartisan shadow institution is thus a concededly second-best solution to the problem of partisanship. It may cast doubt on the most egregiously partisan stunts. But as a smart commentator noted on Balkinization yesterday in response to my post, "the big worry with a bipartisan shadow institution is that it would reproduce the partisan debates we already have and end up recommending that the electoral spoils simply be divided equally among the two parties." A body that is only going to strike political compromises will seem, well, compromised.

Nonetheless, even a second-best solution is a solution. Like Bauer, I'm uneasy about the unfortunate influence of the Carter-Baker Report on the Justices; they ought to have been more reflective. But before we wring our hands, we ought to ask the "as opposed to what?" question. Without the Carter-Baker Report, the Justices would have had no baseline to measure Indiana's law save their own intuitions. Those intuitions, of course, produced the exceedingly silly decision in Purcell, another voter i.d. case where the Supreme Court engaged in a bit of free-form empirical guesswork, also to the dismay of many voting-rights experts. Moreover, for all if its flaws, the Carter-Baker Commission's compromise was plainly superior to what the ruthlessly partisan Indiana legislature passed, a fact that Justices Souter and Breyer used to great effect in their dissents.

Bob Bauer's point, of course, goes a good deal deeper than this. He worries about the influence of democratically unaccountable "luminaries." I'm with him on the luminaries front. I'd rather have Ned Foley serve as a judge on his amicus court than non-expert, politically important people like James Baker or Jimmy Carter. That is because, like Bauer, I believe it is possible to develop a "tradition of scrupulous professionalism." I?m also entirely sympathetic to Bauer's emphasis on democratic accountability. I've expressed deep skepticism about the tendency of academics to think that decisions about election reform should be isolated from political influence.

Here's where I part company with Bauer's characteristically thoughtful remarks: I think that shadow institutions, properly designed, help promote accountability. They don't take decisions out of the hands of politically accountable actors, but offer us a tool for making sure that politicians are indeed accountable. Bauer says that "partisans have nowhere to hide" when they make bad decisions, whereas members of shadow institutions can "rely on their good name" -- or, perhaps, their expertise -- "to deflect hard questions." I just don't buy the premise. Partisans do have a place to hide -- in that brambly undergrowth we have denominated "the political thicket." Most voters haven't the faintest idea how to evaluate the judgments partisans make about campaign finance or redistricting or election administration. Shadow institutions offer voters a much-needed metric for doing so.

Bauer is surely right that this metric relies on the "strength of the [shadow institution's] brand name." But I return to the "as opposed to what?" question. Without shadow institutions, voters are also forced to rely on a brand name -- they have only the party label or the incumbent's name to guide them. In an area of law riven by the problem of self-interest, neither offers a reliable heuristic. The question is not whether voters will rely on a brand name, but which brand name they?ll rely on. Nonpartisan experts (or even bipartisan luminaries) will generally be an improvement on what we have now. "Don?t let the perfect be the enemy of the good" is a trite, worn-out phrase. But there?s a reason for that.

Full post as published by Balkinization on May 06, 2008 (boomark / email).