Legal Commentary

Heather Gerken had a Legal Times op-ed and a Balkinization post discussing proposals for private, non-partisan "shadow institutions" to help resolve electoral disputes involving vote counting, eligibility, and districting. She writes more here. She argues that such institutions can function as a first step towards taking control of electoral processes out of partisan hands and moving us, incrementally, toward the non-partisan processes that all other western democracies use.

I do not study the electoral process, although much of the work in it, particularly Gerken's, is very interesting. But it seems that she and other commentators pushing for electoral reform are playing out, in the electoral context, the same spirit of judicial procedural reform that played out in the late 19th and first three decades of the twentieth century, and which lead to the Rules Enabling Act of 1934 and the Federal Rules of Civil Procedure four years later. (Steve Burbank's 1982 article remains the best history of the spirit of reform that lead to the Rules).

That period was marked by a drive for reform in the content of procedural rules (simplified and de-emphasized pleading, simplified access to litigation, flexibility to bring multiple claims and multiple parties into a case, broad discovery and cooperative exchanges of evidence, preference for resolution of claims on the merits) and in the process for creating rules (moving the power to create rules away from individual states and the political branches and into the federal judicial branch, reliance on the expertise of the judges, law professors, and lawyers on the rules committees that did the drafting). All with a goal of creating a uniform national system of "neutral" procedure, with rules that do not favor one set of litigants or interests over another (bracket, for the moment, the realty that, as the system and substantive law have evolved, procedure has proven to not, in fact, be neutral).

Does that sound similar to what electoral-reform scholars now seek? A system of neutral electoral procedures, that do not systematically favor one political party or group over another. A system that will be fairer and better able to serve the ultimate goals of free, fair, and accurate elections with full voter participation and easy access to participation in the process. A system of rules created by experts in an environment insulated from the realities of partisan rent-seeking. And perhaps a degree of uniformity in the system, at least to the extent that experts agree on "best practices" for drawing district lines, registering voters, and counting votes.

The analogy is not perfectly exact. The problem, as Gerken points out, is that legislators' personal and partisan interests in the details of the electoral process, and the outcomes they produce, make them less likely to surrender rulemaking power to any other institution, neutral or otherwise. Members of Congress, regardless of party, did not particularly care whether the advisory committee and the Supreme Court adopted notice pleading or made it easier for plaintiffs to get into court; they will care about how electoral lines are drawn to the extent it advantages or disadvantages them or their party. Reformers can take some solace in knowing that change takes time--agitation for procedural reform begin in earnest in 1896, but had been ongoing for some years before that. So it takes time. On the other hand, I do not believe late-19th century civil procedural was nearly as dysfunctional as current electoral procedures, so waiting becomes a little harder.

By the way, the title is not meant to suggest that the electoral rules should be federally codified, but only to suggest that we may be seeing a similar spirit of procedural reform as the 70-year-old (as of this year) FRCP.