This piece was prepared for a meeting of the Tobin Project’s Institutions of Democracy Working Group on June 23, 2007
If legislatures won’t create fair bipartisan courts to adjudicate election contests, then the private sector should create a “shadow” Elections Court to show how this tribunal would work. Its “amicus opinions” might influence actual judicial decisions or else highlight the need for legislative reform.
Contested elections need specialized courts, ones structured to be strictly bipartisan. That is the lesson of research into the voting administration laws of five Great Lakes states (Illinois, Michigan, Minnesota, Ohio, and Wisconsin), sponsored by the Joyce Foundation, as explained in a recent paper.
This lesson is especially applicable to gubernatorial and other major elections, where the stakes are particularly high. In the 1962 race for Governor of Minnesota, for example, the state’s supreme court split three-to-two along party lines on a dispute over error correction in the canvassing of returns. The upright citizens of the North Star State were so embarrassed by this politicized ruling that the two candidates subsequently agreed to create their own bipartisan court to adjudicate the recount that followed the canvass.
It would be nice if in every contested election, due to a sense of fair play, the competing candidates agreed on a set of procedures for resolving their dispute. But the increased acrimony of contemporary politics would likely prevent the repeat of such an agreement even in Minnesota, where partisanship remains relatively less hard-edged than elsewhere.
Consequently, if there are to be fair procedures for resolving a contested election, they need to exist before the ballots are cast and counted. There is a widespread consensus among election law scholars that fair procedures in this context include clear and specific rules spelled out in advance for handling any issue that might arise. But another important lesson of the five-state study identified at the outset is that it is impossible for any state’s election code to stipulate the correct outcome to every dispute that could possibly occur. Moreover, even if the state’s code writers were omnisciently clairvoyant, malleable constitutional clauses in the hands of politically motivated judges could render irrelevant a perfectly crafted code. For this reason, as important as it is to write an election code as best as one can, it is even more important to create an evenly bipartisan tribunal for implementing this code when it is invoked in a contested election. That way both sides will have equal representation in the event that politics influences how the judges view the merits.
Of course, a tribunal with an even number of members is a recipe for stalemate. The experiences of the FEC and EAC confirm as much. Thus, a well-structured bipartisan tribunal would have a mechanism whereby the even number of equally divided members would agree upon an additional tiebreaker member. For example, if the bipartisan tribunal consisted of two Democrats and two Republicans (chosen perhaps by the majority and minority leaders in each house of the state’s legislature), then these four members would select a mutually agreeable fifth member—or face the prospect that any election contest resulting in a tie vote would be resolved by a coin toss.
A Legislative Proposal. Accordingly, I would favor legislation in each state to place the authority to adjudicate election contests in a specialized Elections Court structured along these lines, rather than in the state’s conventional supreme court (which, whether elected or appointed, is unlikely to be inherently and evenly bipartisan in the same way). Membership on this Elections Court obviously would not be a full-time job. If a state were lucky, years or even decades would pass before it would need to convene for a contest in a major statewide race. But the infrequency of its active docket would not prevent selecting its members on a regular basis, to be ready in the event that a contest occurred. Once a decade, or as vacancies occurred, new members could be designated according to established procedures. This body would be the fairest one possible for resolving any future disputed election—at least in the absence of a mutually agreeable alternative, as developed in Minnesota’s 1962 gubernatorial election.
This legislative proposal, however, has little chance of being adopted under current conditions. To the extent that legislatures engage in reform of their state’s voting procedures, they tend to overlook the procedures for adjudicating election contests and focus instead on the procedures for casting or counting ballots (or on pre-voting procedures, like registration). One possible explanation may be that election administrators also tend to put a lower priority on the rules and procedures for judicial adjudication of election contests: not only are contests relatively infrequent, but they are outside the direct authority of the administrators themselves. Therefore, when lobbying their state’s legislatures for reforms, the administrators focus on more immediate concerns. Their priorities are not necessarily misplaced and, indeed, may reduce the number of contested elections even further. (Administrative reforms that lower the likelihood of problems in the casting and counting of ballots should remove potential grounds for fighting over the results in a close race.) Still, these reforms do not concern the procedures for resolving a contested election if and when one does occur.
The state’s judiciary, too, is unlikely to lobby the legislature for reform of election contest procedures. Despite their importance, election contests are simply too small a fraction of the judiciary’s overall docket, encompassing criminal cases and the full range of civil litigation, to warrant the judiciary’s priority when it comes to lobbying the legislature for reforms. In any event, the state’s supreme court may be reluctant to support a reform that removes election contests from its jurisdiction by placing them in a specialized tribunal.
No other well-organized group appears to have the political clout to push this proposal through the legislature. “Good government” groups, like the League of Women Voters, might come to embrace its merits, but they are unlikely to be successful—especially if the judiciary is not merely indifferent, but instead actively opposes removing these cases from the supreme court’s jurisdiction.
Reform Without Legislation. What then? My suggestion is for proponents of this reform to create their own “shadow” Elections Court that will model the behavior of an appropriately bipartisan tribunal. (This suggestion is inspired in part by FactCheck.org insofar as it attempts to develop a private-sector institution that will exert a quasi-regulatory pressure on the election-related conduct of political actors, in a context where regulation by a government body is infeasible or suboptimal.) This shadow court will issue its own opinions, which although lacking authority may embarrass existing courts to emulate the model. These opinions could even be submitted as amicus briefs to the actual courts faced with the task of adjudicating election contests. Over time, these amicus briefs might come to have an especially enhanced status in the eyes of the actual courts, assuming that the shadow court develops a strong reputation for scrupulous bipartisanship (and also maintains a high level of professional excellence in its amicus submissions).
Moreover, if and when an actual court deviates from an amicus opinion of the shadow court—and the actual court’s decision appears to be motivated by mere partisanship—this deviation might generate some momentum for the proposal to assign election contests to a tribunal structured along the lines of the shadow court. Especially if the shadow court is held in exceptionally high regard (being the bluest of blue-ribbon panels), the impetus may exist to replace the cravenly political supreme court with a fair tribunal that looks like the shadow court. In this way, the creation of a fair bipartisan Elections Court, although entirely powerless at first, may acquire real power simply by modeling the necessary fairness; call it the “Field of Dreams” approach to election law reform.
The key, then, is the composition of this shadow court. It must track the structure of the legislative proposal it is designed to support (and for which it serves as a second-best substitute in the interim). Thus, it must have an equal number of Democrats and Republicans, and it must choose a tiebreaking member. If the election reform community embraces this idea, it must vigilantly adhere to this structure, so that the shadow court can become perceived as inherently and strictly bipartisan.
This shadow court could be nationwide in the scope of its operations. In other words, whenever a significant election contest arises in any state, the shadow court would convene and issue its own “decision” in the case. The members of the shadow court (other than the tiebreaking member) could be selected with input from the DNC and RNC, or some other method could be developed to assure even bipartisanship. Members could be law professors, former public officials, or other lawyers who could perform the role of a judge in an election contest. The goal would be to select members whose participation on this model tribunal, as well as their prior careers, would enhance the shadow court’s public reputation for bipartisan fairness.
If well selected, the members of the shadow court would strive hard to sublimate their partisan affiliations for the sake of resolving the contest as objectively as they can according to the existing law of the state in question. The fact that the members of the shadow court would have a national perspective might help minimize the temptation to twist the available law to fit a desired partisan outcome. It would be hoped, too, that the tiebreaker member of the shadow court would be capable of exercising leadership to minimize dissent among other members of this model tribunal. (Ideally, the frequency of dissenting opinions on this shadow court would be much lower than their frequency among actual supreme courts adjudicating election contests.) Temperament certainly would be a factor in the ability of this shadow court to be successful: some partisan members would be more willing than others to serve constructively for the sake of the enterprise. But I certainly can imagine well-respected experts in election law with both Democratic and Republican affiliations who, if selected for this model tribunal, would participate in precisely the proper spirit.
In any event, there is no reason not to create this shadow court, at least on an experimental basis. Doing so will not slow the movement towards the creation of actual specialized election courts that are structured to be evenly—and thus fairly—bipartisan. There is no such movement at present, and the creation of this shadow court is the best (and perhaps only) means of getting this movement started.