Sub-Regulating Elections

Abstract

Agency deadlocks are a recurring feature of election-related administrative agencies. Such agencies are often designed by Congress with even-numbered bipartisan commissions with majoritarian voting rules. Using Arizona v. Intertribal Council as a springboard, this Article examines how courts should treat commissioner tie votes when they concern issues of statutory interpretation. In particular, it argues that courts should not defer to the blocking coalition, but rather apply an institutional understanding of Skidmore deference to interpretive documents prepared by politically insulated agency actors, when available. The proposal seeks to create greater incentives for internal agency independence in the presence of partisan deadlocks and the development of agency expertise through sub-regulatory guidance documents such as agency manuals and opinion letters. The analysis also reflects more broadly on the intersections between federal election administration and administrative law.

Keywords: federal election administration, Election Assistance Commission, Federal Election Commission, Skidmore deference, proof-of-citizenship requirements, voter identification