-- Posted by Neil H. Buchanan
This is my last scheduled Dorf on Law post before Election Day. Accordingly, I hereby offer my official prediction: There will be at least one state (probably Ohio) in which there is a mysterious difference in the official count and the best forecasts before, and on, election day. This is not a bold prediction, by any means. In fact, it is probably safer than predicting that the New York Yankees will receive heavy media coverage during the off-season.
This prediction is independent of the outcome of the Presidential race. Even so, it raises some important issues. We know that Republicans have been engaged in a long-running effort to suppress voter turnout. We know that some key Republican donors and fundraisers are also the people who control the voting machine industry. We know that the key swing states currently have Republican governors (who are, at least in the cases of Ohio, Wisconsin, and Florida, prime examples of the radical right-wing transformation that the Republican Party has undergone in the last several years). There are, it seems, a million ways to mess with democracy, and this group has become increasingly aggressive in trying to exploit as many of them as possible.
After the recount insanity in Florida in 2000, and the less-widely-known disenfranchisement of voters in Ohio in 2004, the Democrats belatedly started to push back at the Republicans' efforts to rig elections. We now have full-blown armies of poll-watchers on both sides, ready to be deployed on Election Day, as today's New York Times reports. Odds-makers now include among their potential outcomes the possibilities of extended recounts, legal challenges, and so on. Although the Democrats have been playing catch-up, and they will probably be out-maneuvered again this year, they are certainly no longer going to display Al Gore's naive (if admirable) relative restraint during the 2000 recount.
Earlier this week, while visiting my family near Toledo, I took my mother to the downtown early voting site, where the voting staff (in an area that has historically voted heavily Democratic) was large, apparently well-trained, and seemed to be extremely effective at making the process work quickly and smoothly. As I watched, I wondered how many of the people in the room were there from both parties, already in place either to harass or intimidate voters (Republican operatives) or to call out people who were doing so (Democratic operatives). There was certainly nothing like the naked voter suppression led by William Rehnquist (who was later to serve as Chief Justice) fifty years ago. (Note, by the way, that the linked article quotes our own Professor Sherry Colb, commenting on the 2004 elections!) Everything in downtown Toledo appeared to be running smoothly.
All of which is good news, of course. Even so, one cannot help but marvel at the waste associated with all of this. In the best case, we can only hope that neither side gets an electoral advantage from all of these efforts -- that the self-interested competition between the two parties will simply cancel out, and that the "true" people's choice will win. (The scare-quotes around the word true are necessary, because we go into the election knowing that voter registration laws themselves suppress voting, that only half of the population will turn out, and all that. At best, this is a mockery of democracy. And let us not forget the absurdity of the Electoral College and its effect on what counts as the true choice.)
Even in the best case, therefore, it is all a waste. Consider a comparison (which is a slight variation on the classic "group action" problem): Someone in the front row of a seated stadium stands up to get a better view of a play. He succeeds, briefly. People beside him see that he has a better view, so they do the same. People behind, now with a worse view of the proceedings, stand up as well. Soon, everyone is standing, and only the people in the front row have a better view, while everyone else is worse off, standing to get the same view that they had when they were sitting. Extending that scenario, a scramble ensues to secure first-row seats (at the current event, if possible, but certainly at all future events), leading people to spend time and money to be one of the lucky few to enjoy a marginally better first-row view -- or to have the luxury of choosing between that better view or sitting down. (There was always an incentive to spend more to get the closer view from the first-row seats. Now there is an added incentive not to have to stand throughout the performance.)
At best, the way that we currently run elections in this country leads to the "right" split of first-row seats between the parties, while everyone else in the stadium ends up being in a worse position than they would have been in, if the ridiculousness had not begun in the first place. Or consider a somewhat different way of thinking about this problem. Wealthy people in very poor countries can be as secure in their persons and possessions as wealthy people are in richer countries. The wealthy people in the poorer countries, however, have to spend money on private security that the wealthy people in richer countries need not spend. Heavily guarded compounds, bodyguards, bullet-proof automobiles, and all that are necessary in many countries in South and Central America, but not in Canada or Germany (or, for now, the U.S. -- leaving aside all of our gated communities, and so on).
If all of this seems wasteful, it is. Is it somehow possible, however, that it is also efficient? Of course it is. This seeming paradox is made possible by the infinite pliability of the concept of economic (or Pareto-) efficiency. Depending upon an ultimately unmoored choice of how to measure the costs and benefits of any particular situation, one can call the situation with the well-guarded Plutocrats efficient or inefficient. This means that one can also call efforts to reduce the apparent waste from all that personal security either efficient or inefficient. Viewed from one perspective, the aggregate costs of person-specific security are more than outweighed by the aggregate benefits of not "distorting" economic choices (which would supposedly be caused by efforts to redistribute economic resources in a way that would make it unnecessary to wear bullet-proof vests while walking with machine-gun-toting guards into a barricaded office building). Viewed from the other perspective, all of that is a crazy waste, and the benefits of redistribution more than outweigh the costs.
Bringing it back to the electoral process, consider the method that the state of Iowa uses to set the boundaries of its electoral districts, compared to other states. There, an independent commission sets the boundaries. Elsewhere, partisan politicians Gerrymander districts to their hearts' content. As it happens, Ohio's Republican-led state government in 2011 set its new districts after the 2010 census to, among other things, drive longtime liberal Congressman Dennis Kucinich from office. They succeeded. A ballot initiative on this month's ballot would have Ohio follow something like Iowa's model. (Unsurprisingly, Karl Rove's organization is spearheading efforts to portray this as an attempt to steal the people's control over the electoral process.) If the initiative succeeds, we will have a new equilibrium outcome that is neither more nor less efficient than the old equilibrium. It would, however, be superior from the standpoint of making it less likely that specific districts -- and entire states -- can be made uncompetitive for one party or the other. (Younger readers might be amazed to learn that bright-red Texas was, until the late 1990's, home to a Democratic Party that was very competitive with that state's Republican Party. Rove's strategists changed all of that.)
We could, of course, make the U.S. electoral system a lot
less like the everyone-for-himself world of rich people living in desperately poor countries.
A competent, professional, and truly nonpartisan civil service could be
put in place that could make it not worth anyone's time to try to cheat
the system. It would not be perfect, but it would be a big improvement
on the current situation. If we had a system in which all parties could be counted on to work generally within the law, that system could be stable and far superior to the current mess. Now that the leadership of the Republican Party has taken the attitude that the rules do not apply to them, however, that avenue is foreclosed. Which leaves us with armies of lawyers and other people, wasting their time trying to fight to -- we hope -- a draw.