Spoils of Victory

by Brian on July 24, 2003

Like Henry I was bemused by Randy Barnett’s MSNBC effort. I was thinking of teeing off on some of the details, but Fisking is so 2002. And Henry’s and Tim Lambert’s responses are better than anything I could have done. So instead I’ll just mention something that arose almost in passing in the article.

bq. The Supreme Court “decided the election” (rather than reversed a rogue Southern state Supreme Court and restore the rulings of local, mainly democratic, election officials).

I guess there is a typo here, and ‘democratic’ should be ‘Democratic’. Either way, there is something very odd about the fact that we can tell the political sympathies of electoral officials from their past public pronouncements.

In many sporting contests the winner one year gets an advantage the next time around. In the America’s Cup, the winner gets home field (home seas?) advantage. (And we’re all looking forward to Swiss ocean racing as a result.) In the World Cup and Champions League the winner traditionally gets a free pass to the final 32, though I’m not sure this is still the rule. But in American elections something more dramatic happens – the winner one year gets to be the umpire next time around.

The politicisation of the management of elections, including the politicisation of boundary drawings, is one of the most striking features of American politics. And, in many cases, one of the least attractive. (I of course think the Republicans are worse offenders than the Democrats, but I would think that wouldn’t I?)

It doesn’t have to be this way. In Britain (if I’ve read the relevant act correctly) anyone who has even made a donation over 200 pounds to a political party in the last ten years is ineligible to be an electoral commissioner, as are all party members. In Australia there’s no similar legislative bans on affiliations of commissioners, but I’ve never heard any complaints about biases of commissioners. And the commission, not Parliament or the executive, sets boundaries, decides on whether recounts will happen (and they do whenever an election is even close), designs ballot papers (and they look the same all over the country) and so on.

Compare this to the American system where all through the Florida recount the newspapers could easily report the political affiliations of every official who ever had to make a crucial decision. It’s hard to believe that this improves the integrity of the process. But it’s also hard to know what to do about it. Possibly because the parties are so incohesive (at least relative to world standards, though not I take it to historical norms in America) it seems everyone who is connected to governmental work in any way is affiliated to one party or the other.

I think it would be obviously desirable to have independent electoral commission, but I can’t imagine it happening any time soon.



PG 07.24.03 at 8:00 pm

It’s a great suggestion, to depoliticize the making of election rules. Now we just have to find the fair-minded, apolitical souls who will do it. Good luck!

People who are interested in elections tend to be interested in politics, and thus have a partisan affiliation. I haven’t donated money to anyone’s campaign because I believe in public financing, but I’m still partisan as hell.

Also, I think people in other countries may come to government work with the desire to make the current structure run properly, while Americans are more likely to come to such work with the desire to effect change.

In the interests of partisanship, don’t forget Katharine Harris’s becoming a Republican congresswoman from the strength of her notoriety in the 2000 election.


Micha Ghertner 07.24.03 at 9:58 pm

Now if we could just depoliticize the rest of the political process, we’d be set.


Matt Weiner 07.24.03 at 10:43 pm

I was struck by Barnett’s assertion that this is a question of fact. Surely “rogue” is a value judgment.


Brian Leiter 07.24.03 at 10:49 pm

Barnett’s piece is a complete embarrassment, especially for a law professor who is not usually a fool. Barnett knows full well that his characterization of the U.S. Supreme Court’s conduct in Bush/Gore couldn’t be defended in front of anyone who knew anything about the case. But I suppose that’s why he posted on MSNBC, rather than making the argument in front of law professors.


anno-nymous 07.25.03 at 1:08 am

This isn’t directly applicable to the discussion of political appointees to these electoral commissions, but it addresses a similar issue — state legislatures determine the borders of congressional districts after the Census (traditionally), so a party in power can generally quite easily keep itself in power through the magic of gerrymandering. From what I’ve heard, however, the state of Iowa has successfully managed to set up an independent committee which determines the districts in a nonpolitical manner. Presumably the people involved are just as partisan and biased as everyone else, but somehow the system seems to work, and to keep the House elections there competitive. I don’t know how it’s done, but this seems to prove that it’s possible to get around some of the apparently systemic and unavoidable problems of American democracy.

Of course, even if a fair and practical system can be set up, you still have to convince the officials presently in office that they should reform the system and, in so doing, weaken their power.


nameless 07.25.03 at 2:32 am

Why is everyone so high on Barnett? He seems like a standard issue Federalist Society hack to me. Also, his legal textbooks are crap.


Brian Weatherson 07.25.03 at 2:43 am

I’d forgotten that Iowa does have the kind of system I was praising. That’s a nice demonstration that this kind of thing really is possible, even in America.

And you know politicians do occasionally vote to take powers away from themselves. When the Labor Party took control of both houses of Parliament in Victoria (my home state) one of the first things they did was to keep a promise to pass electoral reforms more or less guaranteeing that no party would ever again have sole control of both houses. (The state upper house will be elected by proportional representation from now on, which makes a majority for any party highly improbable.) And this was despite the fact that they were pretty much a lock to keep control after the next election, if the system hadn’t been changed. I don’t think I’ve ever been prouder to be a member of a political party.


Ichikawa 07.25.03 at 2:41 pm

Didn’t Fidel Castro offer to supervise the U.S. elections? He’s not affiliated with either of our parties…


Seth Gordon 07.25.03 at 3:16 pm

In the UK (correct me if I’m wrong), you have to actually pay a political party for the privilege of becoming a member. In the US, there is no similar procedure: in most states, you can vote in whichever party’s primary strikes your fancy, and people who have never given money to a politician in their lives still tell the pollsters that they are “Democrats” or “Republicans”.

On the one hand, this means that banning “party members” from involvement in the electoral process would not be so easy in the US, and just because a judge is labeled “Democrat” doesn’t mean that he’s ever given money to the Democratic party. On the other hand, since it costs so little to become a “party member”, most of these “members” aren’t particularly loyal to the party, anyway.


nick sweeney 07.25.03 at 5:33 pm

Seth: how about doing away with ‘registration’ in its current US form? Sure, open primaries have the potential to attract tactical voting, but if both sides get involved, you’d have Pat Buchanan vs Al Sharpton for the presidency, rather than Bush and Gore trying to out-‘centre’ each other.


Kynn Bartlett 07.25.03 at 5:55 pm

“Like Henry I was bemused by Randy Bartlett’s MSNBC effort.”

Pssst…that’s actually Randy Barnett.

–Kynn Bartlett


Brian Weatherson 07.25.03 at 7:24 pm

My bad. The error’s fixed now.

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