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Election Law @ Moritz

Free & Fair

Presidential and congressional elections; Amar's "sunrise" idea

In my first post, I discussed the importance of reforming the process for presidential elections, specifically advocating the need for a runoff mechanism (like Instant Runoff Voting, but it could be a separate runoff election like many other democratic countries, including France, use for their presidential elections).  I used the full scope of U.S. history to make the point that, ever since the Electoral College failed to function in the way intended even after the Twelfth Amendment fix, the existing process for presidential election fails to handle adequately the existence of third (or more) candidates--and that it is not just a "Ralph Nader" problem limited to just a few aberrations.

In this post, I want to raise a question that was asked on Friday at the Fordham Law Review symposium where I presented my paper on the need for presidential runoffs.  The question, an extremely important one, was essentially (and I'm paraphrasing), "What difference does it make to fix presidential elections, if Congress is paralyzed by hyper-polarization and gridlock, especially when one party controls the Senate and another party controls the House?"  

I'm strongly of the view that the purpose of elections is for the citizenry to choose a government.  But if the government is incapable of actually governing, then elections have failed in their essential purpose.  I think the capacity, or incapacity, of Congress to legislate responsibly with respect to the budget and other pressing national issues (tax reform, etc.) suggest that our political system is at an unprecedented level of dysfunction.  If reforming presidential elections won't fix the problem, what will? Reforming congressional elections? Something else?  I hope to have more to say on this topic.  Meanwhile, I note that it is impossible to place the blame solely on gerrymandering, since the Senate is not gerrymandered.  Or on Citizens United, given the existence of Buckely (among other reasons).  The challenge of reform is a multi-faceted one.

Here, I want to close this post with one idea concerning the process of reform.  It's Akhil Amar's idea, which he mentions at the end of his book America's Unwritten Constitution, and which I explore in a subsequent essay, The Posterity Project.  The idea, very simply, is to use a "sunrise" mechanism when adopting any significant structural reform.  The opposite of a "sunset" mechanism, which terminates a piece of enacted law after a specified period of time, a "sunrise" mechanism would delay the time at which a piece of reform takes effect for a specified period.  The reason for a "sunrise" mechanism is to induce present-day politicians to set aside short to self-interest (including the short-term self-interest of their constituents and co-partisans) and adopt reforms in the long-term best interest of the polity.  It's the closest we humans can actually come to putting ourselves behind a Rawlsian veil-of-ignorance, as we might not know what our own narrow self-interest will be at some point in time down the road. 

Obviously, there is an inherent trade-off in setting the "sunrise" date: the further in the future it is, the more Rawlsian the deliberation, but the longer we have to wait before the reform actually takes effect.  The shorter the delay of the "sunrise" mechanism, conversely, the more likely self-interest calculations will taint the deliberations over what reform to adopt.   However you think the "sunrise" mechanism should be specified, I urge you to consider the advantage of a nonpartisan structural reform commission co-chaired by ex-presidents Barack Obama (after he leaves office) and George W. Bush.  The purpose of the reform commission would be to consider the set of structural reforms--involving presidential and congressional elections, and other topics--that are necessary to rectify the problem of paralyzed and dysfunctional government, which we seem to have right now.  Any reforms recommended by this commission would not be adopted until after the specified "sunrise" period of delay was over.

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


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In the News

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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