Regulating Impartiality: Electoral Boundary Politics in the Administrative Arena

57 Pages Posted: 18 Nov 2008

See all articles by Ron Levy

Ron Levy

Australian National University

Multiple version iconThere are 3 versions of this paper

Date Written: August 6, 2008

Abstract

The author examines impartiality in cases of politically contentious decision making. Many jurisdictions delegate decisions over matters such as the establishment of fair election ground rules to independent bodies. Some of these bodies, including Canada's Federal Electoral Boundaries Commissions (FEBCs), attract widespread trust and are by most accounts substantially impartial. In contrast, commissions empanelled to draw electoral boundaries in the United States, and to a lesser extent in certain Canadian provinces, are often plagued by partisanship.

The author canvasses approaches to controlling partisanship, relying on a series of interviews conducted with boundaries commissioners and on interdisciplinary literature on trust and trustworthiness in governance. Commentators often favour bolstering formal constraints on FEBC discretion. However, the author concludes that traditional administrative law models favouring such constraints are often inadequate. In politically sensitive cases these methods frequently catalyze partisanship. Proposals for more nuanced design - design sensitive to the complex interactions between law and administrative culture in cases where the potential for partisanship is high - are better but rarer. The author focuses in particular on the use of ambiguity in legal and institutional design. Although this approach is counterintuitive in light of rule-of-law assumptions favouring clarity, it has nevertheless gained traction in commentary and has long been at work in practice. The author argues that extensively ambiguous design, as displayed by the complex federal readjustment processes in Canada, has helped to develop the widely admired impartial decision-making cultures of the FEBCs.

Keywords: Impartiality, Partisanship, Trust, Elections, Electoral Boundaries, Canada, United States, Comparative Law, Institutions, Decision making, Administrative Law, Constitutional Law, Informal Norms, Ambiguity

Suggested Citation

Levy, Ron, Regulating Impartiality: Electoral Boundary Politics in the Administrative Arena (August 6, 2008). Griffith Socio-Legal Research Centre, Research Paper No. 1. Available at SSRN: https://ssrn.com/abstract=1302282

Ron Levy (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 2600
Australia

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