The Party Line: Looking Backward and Forward

The law of unanticipated consequences has long played a prominent role in election law. Changes to the complex web of rules and practices surrounding the political process have often had effects that were neither intended nor foreseen by their adopters. One example is the wide spread adoption of the initiative and referendum in the early 20^th Century, which transformed the political processes of many states in ways that the progressive supporters of direct democracy did not anticipate. Another example is the ever-evolving law of campaign finance, now a product of judicial decisions as much as legislative action, which has led to political money flowing through new channels as the rules change. So too, changes in election administration over the last decade have had consequences beyond those contemplated by most members of Congress at the time of the Help America Vote Act of 2002. The battles over electronic voting technology, photo ID laws, registration databases, and non-precinct voting are just a few examples from the last decade of election reform.

Helping to anticipate consequences is one of the great services that the Election Law Journal provided in its first nine years. Under the leadership of our predecessor co-editors Dan Lowenstein and Rick Hasen, the Journal not only looked back to examine problems that had occurred in past elections, but also looked forward to gauge the consequences of proposed law and policy reforms. The Journal has thus served a function that is both scholarly and practical.

The present issue carries on this tradition of looking backward and forward. Articles in this issue examine states' recent experiences with election recounts, blanket primaries, mail voting, public financing, and redistricting, with an eye toward informing the ongoing debate over future changes in these areas. If we cannot repeal the law of unintended consequences, we can at least illuminate the likely effects of different electoral practices and, by doing so, attempt to mitigate the negative ones.

In this spirit, Ned Foley leads off this issue by assessing what can be learned from Minnesota's 2008 U.S. Senate election, in “How Fair Can Be Faster: The Lessons of Coleman v. Franken.” This article is the second of two parts, the first of which (published in 10:2) offered a detailed account of the canvassing, recount, and litigation surrounding that election. While Professor Foley has a generally favorable view of Minnesota's performance, he sees a major flaw in the eight-month delay between Election Day and the election's resolution. In a presidential election, such a drawn-out process could be disastrous. For this reason, Professor Foley advocates major changes to state processes for resolving post-election disputes. Perhaps the most innovative and provocative recommendation is a new quasi-administrative and quasi-judicial tribunal, with broad authority to resolve voter intent and ballot eligibility disputes and little or no review by traditional courts.

Our last issue included five articles (including Professor Foley's) considering the consequences of the proliferation of absentee and early voting in recent decades. The next article in this issue continues this line of inquiry, assessing whether election results are affected by the increase in pre-election day voting. Marc Meredith and Neil Maholtra's “Convenience Voting Can Change Election Outcomes” suggests that allowing early voting in primaries does more than just “time shift” the vote. They find some evidence that late-breaking information sometimes changes some people's minds on whom to vote for. This has clear implications for the ongoing debate over non-precinct voting, and may add fuel to the arguments of those who would seek to limit the pre-election period for early or absentee voting.

Matt Manweller's “The Very Partisan Nonpartisan Top-Two Primary: Understanding What Voters Don't Understand” examines an issue left open by Washington State Grange v. Washington State Republican Party (2008). In that case, the U.S. Supreme Court rejected a facial challenge to a top-two primary, while leaving open the prospect of an as-applied challenge. Professor Manweller investigates whether voters correctly understand the relationship (or lack of relationship) between candidates and parties. His conclusion that many voters don't could have an impact on future as-applied challenges to this mode of conducting elections.

Another Supreme Court decision that will likely affect future elections is Arizona Free Enterprise Freedom PAC v. Bennett (2011), which struck down Arizona's law providing public financing for state elections. Changes in this area will surely be guided not only by the Court's decision, but also by a 2010 study of Arizona's and Maine's public financing systems by the General Accountability Office (GAO). We are fortunate to have two papers in this issue on the GAO report. The first is Michael Miller's article “After the GAO Report: What Do We Know About Public Election Funding?,” which puts the report in the context of other research on the subject, critiques some aspects of the GAO's methodology and conclusions, and discusses areas where additional research would be helpful. Following this article is a response from William Jenkins, Jeff Tessin, and Anna Maria Ortiz of the GAO, who explain and defend aspects of the report that Professor Miller criticizes. We believe that this lively exchange will help to inform the ongoing debate over public financing. Our thanks go out to our excellent reviewers who suggested a GAO response.

Also in keeping with our goal of providing a forum for discussion of emerging developments, the issue includes essays on three dimensions of the trend toward expanded absentee and early voting. Charles Stewart III measures the costs of this trend, including “leakage” in the absentee voting pipeline that causes millions not to have their votes counted. Doug Chapin examines the challenges and opportunities of non-precinct voting from the election administrators' point of view. Finally, Bob Stein and Greg Vonnahmeconsider intended and unintended consequences of the growth in non-precinct voting, suggesting a research agenda for empirical scholars.

In the year to come, the redistricting process – already underway in many states – is sure to command attention from legislators, scholars, the media, and the public. We are pleased to feature a primer on the last decade's developments and a preview of what's to come by Michael McDonald, one of the country's leading experts on the subject. This issue concludes with Susan Hyde's review of Lorraine Minnite's book The Myth of Voter Fraud.

Last but not least, we wish to thank our editorial assistants. For the first two issues of the current volume, Sophia Chang at Moritz and Adrienne Lane at Reed provided unfailingly timely and meticulously careful assistance. Sophia has moved on to private legal practice, while Adrienne will be spending a year as a Carnegie Fellow for International Affairs. For the current issue (and, we hope, future ones), Abby Kline at Moritz and Shawn Flanigan at Reed have stepped into their roles, already proving themselves exceptionally quick studies. It might be possible for us to put together this Journal without the help of these outstanding students and recent graduates, but the costs to its quality—not to mention our sanity—would be incalculable.