Law and Election Politics: The Rule of the Game.

Vol. 15 No.2 (February 2005), pp.161-165

LAW AND ELECTION POLITICS: THE RULES OF THE GAME, by Matthew J. Streb (ed). Boulder, Lynne Rienner Publishers, 2004. 223pp. Hardcover. $55.00. ISBN: 1-58826-304-5. Paper. $19.95. ISBN: 1-58826-329-0.

Reviewed by Ricardo Chueca, Department of Law, University of La Rioja. Email: ricardo.chueca@dd.unirioja.es

Elections and Constitutional Law generally exist in two separated worlds; however, in democratic system their intersection can produce some very complicated results. Indeed, the elements of the electoral system and the juridical principles that regulate the electoral processes configure a spider’s web that is challenging to comprehend. In the case of elections in the United States, this fact gets more complicated because of the strong presence of courts and judges in the process. Under the U.S. Constitution, it is clear that elections compose serious jurisprudential terrain.

This book breaks with a certain tradition of electoral studies in North America where it is unusual to find investigations that address both the politics of electoral systems and focus upon judicial actions. LAW AND ELECTION POLITICS serves as a bridge, joining the political with the jurisprudential. The best knowledge, as Matthew Streb, editor of this collection, and most of the authors who contributed to it, argue, does not obtain with the study of election politics alone, with an understanding of how both law and politics shape electoral processes.

Among the issues considered in the book campaign finance, the growing role of the internet in political campaigns, and the presidential election of 2000, including the Bush v Gore litigation. In addition, a full chapter (Chapter 11) is dedicated to judicial elections. A central objective of the book as a whole is to analyze minutely the connectedness of law and politics in elections.

Primary elections are, as it is known, a central part of the American electoral process. However, these events occur in very different formats, and, as Kristin Kanthak and Jeffrey Williams highlight in Chapter 2, have a significant influence in determining the ultimate result. Conflict over primary elections of various types (open, closed, blanket) has led to a series of judicial decisions on such issues as the right of association, bias towards the two major parties, and the responsibility of the States to regulate those elections. The judicial decisions have left many questions unresolved that will certainly be addressed in the future.

Primary elections are inconceivable without the political parties. However, as Marjorie Randon Hershey discusses in the Chapter 3, “Third Parties: The Power Electoral of Laws and Institutions,” a candidate of a third party is surely a frustrated candidate. A campaign for a third party candidate is “like that of bee: You rise up, you sting, and then you die.” The history of third parties is like an obstacle race to obtain votes and to win some elections; but the rules of the game are conceived and created with [*162] only two runners in mind. Logically this means that the rules are also biased against third parties. For their part, the courts have not shown much inclination to support these competitors. In such a heterogeneous and diverse nation as United States, with so many cultural and ethnic differences, it seems unlikely that only two parties would dominate the system of political representation of its citizens. This outcome is explained by a blending of the election rules, the presidential system, the Electoral College and the primary election process. A general bias against third parties is evident in legislation and in judicial decisions, so evident in fact that one might think that the existence of two, and only two, parties is an expectation of the American political system, and at least an implicit constitutional provision.

The next piece in the sequence is a chapter by Victoria A. Farrar-Myers who presents a study of electoral finance issues in “Campaign Finance: Reform, Representation, and the First Amendment.” BUCKLEY v. VALEO and the Federal Election Campaign Act set the foundation of the regulatory regime governing electoral money, but she also discusses the recent Bipartisan Campaign Reform Act (BRCA) and the decision of the Supreme Court in MCCONNELL v. FEDERAL ELECTION COMMISSION. The general principle in BUCKLEY is that limiting financing is tantamount to limiting the freedom of speech under the First Amendment. The BRCA (2003) tried to neutralize “twin evils” of the campaign finance system: soft money and issue ads. Arguing that “Money is property; it is not speech,” Farrar-Myers explores the relationship between electoral finance and the idea of political representation. These issues are complicated, and she presents a very useful precise and exact description of the current situation in her conclusion (pp.56-57).

In Chapter 5 Allan J. Cigler addresses a related set of questions, “Issue Advocacy Electioneering: The Role of Money and Organized Interests.” The author’s central thesis is that as government intervention in the economic processes of elections increases, interest groups apply greater pressure in the form of issue advocacy that has the effect of supporting certain candidates. Influencing voter sensitivity to issues also influences candidates’ campaigns. However, the BRCA has put limits on this type of activity. As the saying goes, “Money, like water, will always find an outlet.” Readers will find this chapter to be quite interesting.

In “Half Coverage: The Local Effects of Deregulation,” Brian F. Schaffner outlines how recent legislative modifications, changes in rules issued by the Federal Communication Commission, and judicial decisions regarding the role of the media have affected electoral campaigns at the local level. The increasing concentration of the media may well diminish the likelihood that local events will receive full coverage. After discussing the changes introduced by the Telecommunications Act 1996 and their regulatory effect, Schaffner remains uncertain regarding how the process of concentration will affect local elections. Will deregulation modify the habits of the voters who look for information in the local media? [*163]

“The Internet: Democracy Goes Online,” by Lee E. Goodman, addresses a difficult subject, considering the impact of the Internet on the electoral process. Probably the US is one of the few places where such a study makes sense, because more than half of all household are connected for access to the web. A most recent indication that the Internet has begun to have a great relevance is the “phenomenon of Howard Dean,” a candidate whose use of the web as a way to collect financial resources was an outstanding success. Certainly, as Dr. Dean’s campaign demonstrated, “The Internet changes everything.” For the most part, First Amendment jurisprudence has effectively enhanced the potentialities of this new communications technology that is transforming, with great speed, the social structure and a growing array of political behavior. Individual uses of the Internet are largely unregulated, and this is especially true with regard to issue advocacy. “Every Citizen Is ‘Citizen Kane’ on the Internet,” Goodman tells us. However, all indications suggest that online voting systems are a long way from becoming a reality.

Chapters 8 and 9 consider individual voters. Evan Gertsmann, in “Defining Voter’s Rights: Equal Protection and the Impact of BUSH v. GORE,” discusses the series of judicial resolutions that followed from the problematic Florida recounts in the presidential election of 2000. He begins with the relevant constitutional evidence: the original American Constitution did not have the purpose of translating the democratic idea into a broad right to vote. Indeed, the right to vote has seen a contentious history, and recent court decisions have not always been helpful in providing clear guidance. Gertsmann is particularly concerned about the consequences that the decision in BUSH v. GORE will have as other tribunals address similar issues. Beyond the line of argument presented in a growing number of court cases, there are juridical and technical deficiencies in the process by which American voters choose their President, and pragmatism is not always the best solution.

In “The Voting Rights Act: Addressing Age-Old Barriers in to New Milieu,” Antonio Brown takes a different approach to the right of vote. The Voting Rights Act of 1965 (VRA) promised to advance real access to the ballot among black voters, thus “unlocking the gates to freedom.” However, one finds a gap, once again, between legal regulations and irregular practices; a variety of actions have been taken that continue to impede exercise of the vote in some areas. Brown analyzes some of the VRA violations that have been detailed in cases arising from the presidential election of 2000 and the 2003 recall of Governor Gray Davis in California. He concludes with some reflections on a number of the more significant issues related to introduction of new computerized voting, in which drawbacks associated with the technology could actually diminish the achievements reached in earlier eras.

One of the unquestioned contributions of the United States (with UK and France) to electoral techniques is redistricting. Where ever the practice occurs, there is little doubt that modification of election district boundaries can have considerable consequences for the results. However, gerrymandering originated in the US. Governor Elbridge Gerry of [*164] Massachusetts, a signer of the Declaration of Independence, and whose administration was notorious for changing voting districts for partisan gain, would not recognize the sophisticated techniques used in recent years by those who hold political power to influence election outcomes by tinkering with district boundaries, a practice that carries his name. There are, as Charles S. Bullock III tells us, two forms of altering (two sins) an equal distribution of voters among districts. The first make purposeful changes that should not be made and the second consists of not redrawing boundaries demanded by changes in the distribution of population. “Redistricting: Racial and Partisan Considerations” demonstrates that, in spite of all the advances in this field in favor of the equal vote principle, the practice of the redistricting is always done for partisan gain, especially with the aid of new technologies applied to geographic information that allows for very precise calculations. Everything seems to indicate, in Bullock’s opinion, that, unless legal restrictions against gerrymandering are enacted, the number of cases on this matter will most likely increase significantly in the coming years.

Matthew J. Streb devotes his chapter to the relatively unexplored phenomenon of “Judicial Elections.” Although thirty-nine states choose their judges by election (under a variety of schemes), few investigators have studied them. Judicial selection seems especially relevant in light of the fact that earlier chapters emphasized the importance of their decisions dealing with broader issues of voting rights and elections. There is a division of thought regarding judicial selection. For some, the most significant factor should be accountability; whereas for others the main value should be maintaining judicial independence. This leads to different types of recruitment processes, and sometimes to mixed systems. Electing judges is accompanied by a number of serious problems, and Streb pays special attention to two of them. To run a campaign usually requires fundraising, which can be a delicate proposition for a judicial candidate. Related to this is the fact that voter awareness and knowledge is usually quite low, and electoral participation in judicial elections is often reduced. Second, judicial aspirants, unlike candidates for other offices, should be more measured in their public statements and the positions they take on issues. A variety of rules, such as the Announce, Commit, and Pledges and Promises Clauses, define the parameters of campaign discussion. However, it not at all clear that many of these restrictions would withstand legal challenge.

In conclusion, this is a very thoroughly researched and well-presented book with a great quantity of information on a specific set of interesting issues: judicial influences on the electoral processes in the US.

When one reads this book from Europe, it offers a very interesting perspective. In the British and European systems, most of the issues presented by electoral processes in the US would not likely involve the courts, because they simply do not represent justiciable questions. In addition, what to say about the judicial arguments! Perhaps this is due to an emphasis on individual liberties as opposed to the practical operation of democracy? In the European electoral systems, [*165] the value of the democracy is placed higher than individual rights and freedoms, on the notion that freedom depends upon the existence of a Democratic State. The culture of freedom has flourished in a different way on the other side of the Atlantic Ocean.

CASE REFERENCES:

BUCKLEY v. VALEO, 424 US 1 (1976).

BUSH v. GORE, 531 US 98 (2000).

MCCONNELL v. FEDERAL ELECTION COMMISSION, 540 U.S. 93 (2003).

*************************************************************