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Out of the Shadows—A Commentary by Heather Gerken

The following commentary was published in Legal Times on May 5, 2008.

Out of the Shadows; Private redistricting plans can help overcome lawmakers' partisanship
By Heather Gerken

Partisanship has long been the Achilles' heel of our democracy. It not only taints the way we run elections, but also makes it difficult to pass much-needed reform. Edward Foley recently offered in Legal Times an excellent idea for addressing both problems. He proposed an "amicus court" to push existing courts to do a better job of resolving election disputes ("Let's Not Repeat 2000," April 21, Page 62).
Foley described many advantages to creating such an institution, but he left out the best reason: An amicus court would help us get from "here to there" in election reform. Indeed, that's the bigger idea embedded in Foley's proposal. Creating "shadow institutions," like Foley's amicus court, is one of the most promising paths to political reform.
We have a "here to there" problem in election reform. Academics and reformers spend a lot of time on the "here" (identifying problems with our current system) and the "there" (figuring out how things ought to work in the future).
But we don't spend enough time thinking about how to get from "here to there"—how to create an environment in which meaningful reform might take root. We should spend less time identifying the journey's end and more time figuring out how to smooth the road that leads there.
Partisanship is both the main source of what ails our election system and the reason why it's hard to find a cure. Unlike every other mature democracy, the United States depends on partisans to administer our election system. In most states, legislators draw their own districts, set campaign finance rules, and write voting laws. Most elections are administered by partisan officials, and election controversies are often resolved by elected judges.
The problem is not just that partisanship infects the decision-making process. The problem is that partisanship makes it hard to put neutral decision-makers into place. The people who decide who decides—the legislators who could take election decisions out of partisan hands—are themselves party members. They have every incentive to hang on to that power.
Shadow institutions like Foley's amicus court can mitigate both problems. In the short term, they give the public a baseline for evaluating the decisions of partisan decision-makers. They can thus help shame those in power into doing better, tamping down on overtly partisan decisions.
In the long term, shadow institutions raise awareness about the need for more substantial reform. Whenever an institution's decision deviates from its shadow's, somebody—a journalist or reformer or someone on the losing side—will draw attention to that fact. A shadow institution, by its mere presence, reminds us that we can do better. It's the nonpartisan cognate to the shadow cabinets found in Great Britain and elsewhere. Composed of members of the opposition party, these shadow cabinets provide a standing alternative to the party in power. Their members critique the government and showcase competing policy proposals, often to significant effect in causing political change.
In a similar manner, Foley's proposal is a good example of the way that an assiduously nonpartisan shadow institution can help us get from "here to there" in fixing our election system.
Foley has long thought that we should create specialized, nonpartisan courts for election disputes. But existing political incentives make it unlikely that legislators would heed his suggestion. So he asked how we could get reform without legislation.
Inspired in part by—a nonpartisan Web site that monitors the factual accuracy of political statements—he came up with a pragmatic answer: Create a private panel of experts to issue nonbinding decisions in election disputes and submit those decisions to existing courts in amicus briefs.
This amicus court, composed of Democrats, Republicans, and Independents, should push courts toward better election decisions. For current judges, the amicus court would provide an impartial expert judgment on how to resolve the dispute. If their actual decision departs from the baseline established by the amicus court, commentators and unhappy litigants will surely complain.
In addition, the mere existence of an amicus court should create a terrain receptive to reform. By modeling how a well-functioning court ought to work, Foley's amicus court should spur a broader debate about our current strategy for resolving election disputes. Every time an election ruling generated controversy, an amicus court would remind us that a better alternative exists.
Foley's proposal is thus a quintessentially "here to there" proposal, a modest change designed to make more significant change possible. Perhaps that is why his proposal has already attracted the attention of a prominent good-governance group, which may implement it this fall.
Reformers interested in getting from here to there should also think about other kinds of shadow institutions to make our democracy work as it should.
This strategy should succeed even where the problem of partisanship seems most intractable: the highly politicized area of drawing election districts. Partisanship is a bigger problem here than in judicial decisions. That's because legislators draw their own districts, and they inevitably use that power to hurt members of the opposing party or create safe seats for incumbents or both. In each case, politicians are looking out for themselves, not voters.
Most experts agree that districting should be done by nonpartisan commissions. Most experts also agree that this reform is unlikely to pass. Legislators are not interested in giving up this important power, and voters haven't pushed for change.
Imagine that a well-respected nonpolitical foundation created shadow districting commissions for the 2010 districting cycle. Like Foley's amicus courts, these commissions would be composed of small groups of nonpartisan experts. They would draw districting plans based on best practices.
The price tag would be quite small. The relevant data can be downloaded from the Census Bureau for free, and districting software costs roughly as much as a high-definition television.
Although the shadow districting plan would have no legal effect, it would lay down an important benchmark. If a particular state legislature tried to hurt one party's electoral chances, the opposing party could use the shadow commission's plan to point out this bias. If the legislature created safe seats to insulate incumbents from competition, reformers could again point to the shadow plan.
As with Foley's amicus court, shadow districting commissions would be an inexpensive strategy for improving existing practices in the short term and jump-starting debate in the long term.
In the immediate future, the shadow districting plans should reduce legislators' incentive to engage in shamelessly self-interested line-drawing. Legislators never like bad publicity. Moreover, you can be sure that the shadow plan would be highlighted in the litigation that inevitably follows a controversial districting process, if only to cast doubt on the motives of the legislature.
As to the long haul, debates over the competing plans should raise awareness about the persistent problems associated with legislative self-interest in districting.
Foley's amicus court proposal and my shadow districting proposal may not seem as grand as calls to revamp our entire judicial system or to eliminate all partisanship in election administration. But those wide-ranging proposals have been met with a deafening silence from voters and politicians.
What we need is not bold proposals for change that go nowhere, but an environment in which change can actually happen. Shadow institutions represent the type of "here to there" strategy we should be pursuing—modest initiatives designed to lay the groundwork for bigger, better reform in the future.
Heather Gerken, a professor at Yale Law School, specializes in election law.