Posted: October 15, 2008

The Need for a Structurally Nonpartisan Tribunal

It is difficult to imagine a better advertisement for the experimental McCain v. Obama simulation than yesterday’s en banc ruling in Ohio Republican Party v. Brunner. The experiment tests whether election litigation might be better handled by a court specially structured to be inherently bipartisan: one Democrat, one Republican, and a third judge mutually chosen by the first two. As others have already noted about yesterday’s en banc ruling, its 9-6 split was virtually (although not entirely) along party lines. All the judges in the majority but one were appointed by Republican presidents; all the judges in dissent but one were appointed by Democratic presidents (and the lone Republican-appointed dissenter was originally nominated by a Democrat).

One need not doubt the conscientiousness or integrity of any of these Article III federal judges to be troubled by this 9-6 divided ruling in an “election eve” case. I am sure that all of these judges were striving to find the true “right answer” to the legal issues before them, in accordance with the model of the ideal judge (Justice Hercules) famously put forward by the legal philosopher Ronald Dworkin. The problem is that it is not so easy to identify objective “right answers” in lightning-speed emergency litigation involving the propriety of a Temporary Restraining Order (TRO) under the so-called “balance of the equities” test. When the topic to be addressed in this inauspicious circumstance concerns the procedures for the casting and counting of ballots in a presidential election—and Republicans and Democrats are lined up on opposite sides of the case (the Republican Party as the lead plaintiff and the Democratic Party having intervened to support the Secretary of State, who is an elected Democrat)—one cannot help but wonder whether the party background of these Article III judges inadvertently affected how they weighed the equities.

To be sure, the majority opinion commendably strives to find “common ground” and puts its reasoning forth in simple, straightforward language that suggests tentativeness about much of its analysis. But ultimately the majority’s decision depends upon its best guess, in the absence of hard evidence, of the feasibility of implementing a change in administrative procedure this close to the start of the ballot-counting process—and its assessment of how necessary a procedural change is in order to make the ballot-counting process “fair” to all voters. The main dissent accepts the Secretary of State’s contention that a court-ordered administrative adjustment might trigger unintended adverse consequences on the voting process; and, in any event, the dissent sees the matter of electoral fairness very differently from the majority. In the face of this kind of disagreement, it is a conjecture that the public (or at least the segment of the public that pays attention to “election eve” judicial decrees) might have more confidence that a court responsible for supervising the administration of the voting process tilts neither Democratic nor Republican, but instead decides issues straight down the middle, if the composition of the court were structured so that it always has an equal number of Democratic and Republican judges, with a tie-breaking member chosen mutually by both sides.

The problem of partisanship appearing to affect tribunals authorized to adjudicate disputes over the voting process is nothing new in our nation’s history. Yesterday, while the Sixth Circuit was releasing its en banc opinion, I was delivering a lecture on how partisanship affected the adjudication of the dispute over the counting of ballots in New York’s gubernatorial election of 1792. The thesis of the lecture was that understanding how partisanship affected that dispute, and the consequences of its doing so, remains important to us today. In brief, the lecture showed that the Founding Fathers had failed to anticipate how disputes over the counting of ballots for Chief Executive could become mired in polarized two-party politics and therefore failed to include in the constitutional system they designed an institution capable of handling this kind of dispute in a way consistent with their own constitutional values. The Founding Fathers themselves suffered from their oversight in the election of 1792—John Jay and his supporters thought he was robbed the governorship by a partisan ruling, and they almost resorted to their revolutionary “first principles” to take their victory back—and, as a nation, we continue to suffer from this oversight, since we have never added the structurally nonpartisan institution necessary to fulfill the Founding Fathers’ vision.

The simultaneous 9-6 split of the en banc appeals court is further confirmation of the point the lecture was then making: our nation continues to lack an institution capable of resolving disputes over the casting and counting of presidential ballots in a way that the institution appears to be nonpartisan and thus fair to both campaigns that so energetically seek a presidential victory. As the lecture observed, James Kent (who participated in the 1792 dispute) and Joseph Story warned that the Framers’ oversight on this issue left the nation vulnerable. Let us hope that the experimental McCain v. Obama simulation begins a process of identifying a way to redress this institutional deficiency.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile