For all the hostility between presidential contenders Barack Obama and Hillary Clinton LAW ’73, they at least agree on one thing: Yale Law School professor Heather Gerken has the right idea about election reform.
Gerken’s proposal to rank state election systems — as developed in her upcoming book, “The Democracy Index: Getting from ‘Here to There’ in Election Reform” — is already gaining traction in academic and political circles. Since Gerken first presented the idea of collecting state-by-state data on how well elections run and using that information to produce a ratings system in an article she wrote a year ago in the Legal Times, both Clinton and Obama have proposed separate bills calling for objective studies of how election processes are working nationwide.
Both bills, adopting Gerken’s term “Democracy Index,” would fund studies to evaluate and publicize the functionality of election procedures in each state.
But Gerken did not want the comprehensive articulation of her idea to stop with a 1,427-word Legal Times article, she said. So the book, still in the draft stages, will provide “a more balanced, fuller presentation of the idea,” she said in an interview with the News.
The concept is to change the forces affecting election policy, which are currently stacked against reform, Gerken explained.
“If you look at the reform environment, it’s almost impossible to get anything done,” Gerken said. “So this is about changing that terrain rather than fighting the same fights over and over again on that terrain.”
Whereas every other developed democracy charges a nonpartisan bureaucracy with running elections, she said, the United States relies on elected or partisan administrators, who are disinclined to change the system.
“The foxes are guarding the henhouse,” she said.
A second problem, also unique to the United States among industrialized democracies, is the reliance on thousands of small localities to run federal elections and the absence of any centralized system, she said.
The solution, as Gerken sees it, is information-based. Her idea is to rank each state’s election procedures in the same way U.S. News & World Report ranks colleges or the Yale Center for Environmental Law and Policy ranks countries’ environmental performance.
“There’s a critical need to create reliable means by which to measure and compare state election systems,” said Daniel Tokaji LAW ’94, a professor at the Ohio State University’s Moritz College of Law whose work concentrates on election reform. “For all the attention on election reform since 2000, we really have a poor idea of how we’re doing.”
The rankings would be a “shaming mechanism” for states, inducing a “healthy race to the top,” Gerkin said. If voters had the information to assess their local voting system, she said, they would demand improvements.
“Partisans would pay attention to election reform if voters paid attention to election reform,” she said, but election processes are often invisible to voters except in the event of a crisis, at which point it is too late to fix the current election and the momentum subsides during the lull before the next election.
The book’s publication, slated for January 2009, is timed to coincide with such a potential crisis, which would maximize its impact on the crisis’s denouement — and, of course, theoretically maximize book sales.
“Every election crisis is different, and odds are, if there is one this time, it would be nice to write an afterword,” Gerken said. “January 2009 would coincide with Congress coming back in session and maybe looking to get something done.”
Tokaji said the strength of Gerken’s proposal — as well as the reason for the early signals of its broad appeal to the body politic — lies in its realism and accessibility.
“This is not the work of an ivory-tower academic,” he said. “This is the work of someone with a very practical mindset about how we can make things better.”
Although Congress has already set aside funds to begin collecting election data in some states, Gerken said she does not expect much progress in 2008.
“It’s hard to get something done in an election year, especially when two senators are running against each other,” she said.
Both Obama’s and Clinton’s bills are currently stalled in committee.