Election Administration Reform and the New Institutionalism
Richard L. Hasen
University of California, Irvine School of Law
April 20, 2009
California Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2009-17
One of the hallmarks of a mature democracy is professionalized, centralized, and nonpartisan election administration. It is hardly news that the United States does not fit this model, and that since the 2000 election meltdown culminating with the Supreme Court’s decision in Bush v. Gore, the country has faced biannual anxiety over whether the next meltdown is imminent. Some observers at first hoped the courts or Congress would spur election administration reform, but that has not happened. Now, some election law scholars have turned to institutional design, considering new institutions or mechanisms, such as amicus courts and electoral advisory commissions, to prod existing institutions into election reform. Heather Gerken’s significant new book, The Democracy Index: Why Our Election System is Failing and How To Fix It, represents the most sustained effort in this New Institutionalist vein. It makes the case for the creation of a ranking of states (“the Democracy Index”) along a number of election administration criteria, such as how well the system counts votes and how long it takes voters to cast a ballot. Gerken argues that the ranking system will create the right incentives for jurisdictions to move toward professionalized and non-partisan election administration.
Part I of this review sets forth Gerken’s proposal for a Democracy Index. Part II situates the book within the New Institutionalist approach to election administration reform. It argues that Gerken’s work is significant not only for its specific proposal but also because it advances the New Institutionalism. It catalogs the various ways in which the addition of information may spark both rational and emotional reactions by election administrators, legislators, judges, the public, and political parties.
Part III turns from the theory of causal mechanisms of the New Institutionalism to a look at the available evidence. Based upon what we know, it appears that the Democracy Index could well increase the professionalism of election administration in the United States, and thereby decrease the risk of electoral meltdown. But the Index likely will not be enough to overcome the twin pathologies of partisanship and localism that have thus far blocked comprehensive election administration reform. This Review concludes by noting that Old Institutionalism - hardball politics backed by one party or the use in states of an initiative bypass - rather than the soft politics of the New Institutionalism, may present the best hope to fully revamp our system of election administration.
Number of Pages in PDF File: 28
Keywords: election administration, federalism, Bush v. Gore
Date posted: April 24, 2009 ; Last revised: July 25, 2013