Schleicher on Election Law Mismatch Problem

Yale Law School's Heather Gerken, J. Skelly Wright Professor of Law and expert in election law, constitutional law, and civil procedure, has published an article in Jotwell praising two papers by Mason Law Professor David Schleicher.

Schleicher's papers are entitled Why Is There No Partisan Competition in City Council Elections? The Role of Election Law and What if Europe Held an Election and No One Cared? Both articles explore what Schleicher terms the "mismatch" problem - what happens when voters are asked to perform a constitutional role without having the tools to do so.

Gerken explains that Schleicher makes a provocative claim that "election laws interact with voters' own shortcomings to produce elections that are, in Schleicher's view, meaningless." With national politics dominating the political scene in both the U.S. and the European Union, the opinions voiced by voters at local or supranational levels are really expressions of how they feel about national parties. Schleicher maintains that there is no democratic accountability in votes cast on the basis of performance of a different set of actors.

"Schleicher is pushing on a core question for the field of election law: how do electoral rules interact with a rationally ignorant electorate?" says Gerken.

Jotwell is sponsored by the University of Miami Law School. Its stated mission is to fill a "gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship."

The Mismatch Problem: Why Election Law Isn't Always Built for the Electorate, Jotwell, January 25, 2010. By Heather Gerken.

"If Schleicher is right, then the absence of local competition isn’t something that is 'natural' or innate to local politics, as many academics have argued. Instead, election law is the source of the mismatch problem. After all, we could in theory structure elections so that voters have a shorthand that works at the local level. For instance, we could ban national parties from running in local elections so that local parties could develop their own brand. Election law, however, creates massive incentives to connect local parties to national ones. Further, the First Amendment itself would pose a significant challenge to any effort to remedy this problem.

"Schleicher also has interesting things to say about the EU. There, he notes, scholars who study the EU’s democratic deficit either try to downplay its significance or suggest massive changes to the EU’s institutional structure to remedy it. Schleicher’s proposal is more modest. He suggests changing EU’s election requirements in order to give rationally ignorant European voters a better heuristic. Schleicher proposes that the EU follow the lead of a handful of countries and 'require[] political parties to get a certain threshold amount of the vote in a majority of EU countries in order to get any members elected from any country.' Such a rule, argues Schleicher, would 'force campaigns to be waged at the European, rather than Member State, level.'”

Read the paper (Why Is There No Partisan Competition in City Council Elections? The Role of Election Law)

Read the paper (What if Europe Held an Election and No One Cared?)