Electoral Adequacy
abstract. This Essay considers the function of election law, as an academic field, in strengthening democratic institutions and improving democratic accountability. In undertaking this inquiry, this Essay advocates an interdisciplinary research program oriented around the concept of electoral adequacy. Electoral adequacy’s premise is that states are obligated to provide a minimal set of entitlements, or a baseline level of election services, to all voters.
Electoral adequacy seeks to unite institutional political theory, empirical research on election systems, and strategic political thinking, with the goal of improving the electoral process. It is centered on three policy components: adequate funding, competent management, and democratic structures. Finding success in these policy areas would mitigate many specific election-administration disputes.
Introduction
As American democracy staggers further into the twenty-first century, the peculiarities and vulnerabilities of our democratic arrangements are conspicuous. The profoundly undemocratic Electoral College threatens the legitimacy of our presidential elections.1 Election administration—the array of administrative rules and decisions impacting elections—is now a disconcertingly partisan arena.2 The U.S. Supreme Court, in its current composition, routinely impedes political equality.3 Congress, despite possessing ample authority over elections,4 failed to pass either of two pieces of major election-reform legislation recently under consideration.5 Alarmism, despondency, and anger figure prominently in the commentary.6
Given these dynamics, it is worth considering the function of election law, as an academic field, in strengthening democratic institutions and improving democratic accountability. How can those of us working in the field, situated on our own “independent intellectual terrain,”7 aid in mounting an effective defense against “antidemocracy”?8 In facing this challenge, this Essay advocates an interdisciplinary research program oriented around the concept of electoral adequacy. Electoral adequacy’s premise is that states are obligated to provide a minimal set of entitlements, or a “baseline level of election services,” to all voters.9 Elsewhere, I have described electoral adequacy as encompassing three components: the right to adequate funding, the right to competent management, and the right to democratic structures.10 In this Essay, I consider what a research program built around electoral adequacy might entail. In short, I endorse uniting “institutional political theory,”11 empirical research on election systems, and strategic political thinking.12
What are the benefits of this approach? A research program built around electoral adequacy can help identify practical reforms that effectively balance competing values and governance priorities. It can, for instance, establish where financial resources are most needed, the relative effectiveness of election systems, and whether constituents are afforded meaningful opportunities to engage election administrators. These findings can, in turn, inform state legislatures when drafting election legislation, secretaries of state, attorneys general, county recorders, and other election administrators when making administrative choices, and, potentially, judges when resolving voting-related and election-administration cases.13
Electoral adequacy also accounts for political reality regarding the likelihood for reform. In 2020, Democratic Party control of the White House and Congress understandably shifted attention to the prospect of federal voting-rights legislation. With that legislation moribund, though, and the near certainty that the Democratic Party will soon lose control of the House of Representatives, continued focus on Congress as a site of broad-based reform is illogical.14 At the same time, prodemocracy reformers confront potent antidemocratic forces in a plurality of states.15 While there may be democratic promise in underexamined state constitutional provisions,16 at present, in many jurisdictions, significant reliance on state constitutions to achieve comprehensive election reform would be misplaced.17 Thus, reform efforts that reflexively seek only to enlarge or expand democratic opportunities, absent other considerations, should be reassessed. Reform advocates, often faced with inevitable resource limitations, should instead prioritize initiatives that attenuate zero-sum partisan and ideological divisions.
Rather than pursuing election reform with a maximalist orientation, then, there may be theoretical, policy, and political benefits to an alternate approach structured around adequacy. By way of example, consider Ned Foley’s assertion, while critiquing H.R. 1, the For the People Act, that providing both two weeks of early voting and no-excuse vote-by-mail is redundant.18 In one sense, this assertion seems unnecessarily conciliatory, contrary to the democratic goal of increased political participation. Yet, in fact, the veracity of Foley’s assertion depends on several factors, which we can only determine through: some degree of democratic theorizing in “the midrange of political deliberation, between the abstract concepts of philosophers and the concrete proposals of politicians;”19 empirical research on early voting and no-excuse vote-by-mail;20 and consideration of what is both administratively and politically feasible. Some of these factors might appear to be secondary to the simple importance of securing the vote, but they are in fact inseparable from that aspiration. Furthermore, these factors will point in different directions from jurisdiction to jurisdiction; given the decentralization of our elections, the tradeoffs between them are necessarily idiosyncratic. The purpose of this type of analysis, then, is to encourage holistic thinking about election law—theory, policy, politics—in defense of our proposed interventions.
One final preliminary note: the word adequacy connotes minimalism; it suggests the surrender of grand principle and perhaps a poverty of imagination. It might be read to betray a concessionary outlook that underestimates the democratic challenges at hand, or a dispositional commitment to what Martin Luther King, Jr. called “the tranquilizing drug of gradualism.”21 Such a reading would misapprehend the research program outlined below. While realism and pragmatism are, in my estimation, necessary aspects of any reform effort, electoral adequacy is not rooted in resignation.22 Rather, it entails context-specific, granular inquiries intended to facilitate the construction of robust, well-functioning election systems. Finding success, as is true in any complex institution, requires both commitment and vision. But as an initial step, we need to understand the landscape. Electoral adequacy is, in short, fully compatible with creative thinking.23
In fact, creative thinking is imperative. If democracy is, as John Dewey described it, a “mode of associated living,”24 our associations are under severe strain. Trust in electoral institutions is waning.25 Voting inequality persists.26 Election administrators are under threat.27 Racial divisions, and especially “white identity-based political calculations,”28 continue to befoul our politics in myriad ways.29 Fortifying American democracy in the face of these and related crosscurrents requires identifying and prioritizing what is most prudent in the current environment. So, while no research program can remedy blatant race-based or partisan electoral discrimination—both troublingly common—that does not relieve aspiring reformers of the task of striving for creative, yet achievable, solutions.
This Essay proceeds as follows. Part I defines electoral adequacy and situates it within a collection of complementary reform projects. After describing these projects, it explains why electoral adequacy is timely. Part II provides two examples of how electoral adequacy can aid in reform efforts. Part III concludes with a brief comment on electoral adequacy and rights.
I. electoral adequacy and its precursors
A. Defining Electoral Adequacy
Electoral adequacy obligates states to provide a minimal set of entitlements to all voters. As a touchstone for reform, it relies on an analytical framework uniting theory, policy, and politics. The policy dimension of the framework encompasses three subsidiary components—adequate funding, competent management, and democratic structures30—and is the core of the framework. These three policy components arise from an understanding that the right to vote is both unacceptably fragile31 and impersonal.32 Accordingly, improvement along the policy dimension would remedy many of the most salient election-administration challenges. It is also the part of the framework for which collaboration between scholars, election administrators, and community stakeholders is most likely. So, while theorizing about both electoral institutions and political strategizing is essential, the policy dimension is the central node of the framework.
With respect to the first policy component, adequate funding, we know very little. We do know that election administration is chronically underfunded, despite widespread acknowledgment of the need for more resources.33 Such resources are essential not only for conventional purposes—such as training and paying poll workers, printing and mailing ballots, and updating voter-registration databases—but also for responding to heightened security needs.34 Therefore, to achieve electoral adequacy, scholars and policy makers must identify existing election expenditures and, more significantly, uncover how resource limitations impact the voting experience.35
The second policy component of electoral adequacy, competent management, involves “the organizations, networks, resources, micro anthropological working practices and instruments involved in implementing elections.”36 This admittedly expansive sphere implicates a host of public and private actors, often with relationships that are difficult to evaluate systematically.37 The task is made even more difficult given the central role of local governments in managing elections.38 Fortunately, political science and public administration provide models for engaging these complex networks. For instance, one such “model of network innovation”39 outlines various stages of election-administration professionalism and discusses how different election-administration innovations spread across jurisdictions.40 Other models evaluate the “multifaceted approach to building capacity in local election administration.”41 These and similar models might aid efforts to improve election administration and establish baselines for competent management.
Democratic structures, the third policy component of electoral adequacy, are “internal governance structures that clarify the roles of state and local officials in administering elections”42 and include the “[r]epresentation of disempowered communities within the election administration sphere.”43 Thus, poll workers, law-enforcement officials, election observers, communication specialists, election auditors, elected officials, and countless others involved with administering elections should reflect the communities they serve. In addition, citizens, nonprofits, and community groups should have options for providing feedback to election administrators.44 In these ways, democratic structures promote accountability and function as a safeguard against election-administration manipulation.
Note that the focus of each of the three policy components is on institutions, not individuals. While individualist, rights-oriented perspectives are a common feature of election-law scholarship, such perspectives reveal little about the complexity of election systems and processes.45 Note also that these components fall within a midrange of generality; finding success in these policy dimensions would mitigate many specific election-administration disputes.46 In other words, adequate funding, competent management, and democratic structures would go a long way towards producing administrative outcomes that are just.47 Of course, until such success is realized, specific election-administration disputes will remain. In the meanwhile, then, efforts should be made to define the line between adequacy and inadequacy in the context of each specific dispute. In sum, this Essay proposes retail electoral adequacy based on systematized research in the short term (e.g., how long is too long to wait in line at a polling place?),48 with the goal of wholesale electoral adequacy in the long term.
B. Electoral Adequacy’s Precursors
A research program built around electoral adequacy draws inspiration from several earlier scholarly projects. While electoral adequacy’s express focus on adequate funding, competent management, and democratic structures is unique, the notion that theory, policy (through quantitative research), and politics should inform our pursuits is indebted to prior prominent accounts.
The closest analogue is found in what Heather K. Gerken and Michael S. Kang, writing in 2011, labeled the “institutional turn” in election-law scholarship.49 This line of scholarship, which emerged around 2009 and to which Gerken was a central contributor,50 endorsed “[shifting] our attention away from the courts toward a new set of private and public institutions, away from big reform proposals toward the more modest institutional tweaks that will make bigger and better reform possible in the long run.”51 Indeed, some of the ideas in this Essay (e.g., the systematic collection of quantitative data and attention to the competency and professionalization of election administrators) are reprised suggestions from the institutional turn.52
In highlighting election administration as a distinct topic of study, this line of scholarship distinguished election rules (the traditional focus) from the institutional features of electoral administrative bodies.53 It pressed for institutional novelties to improve local election performance.54 And it sought “avenue[s] for second-best deliberative opportunities.”55 Like electoral adequacy, these proposals were characterized by both their pragmatism and skepticism about the feasibility of large-scale reform. For example, Ned Foley, another key contributor to the genre,56 expressly advocated for “optimality” (as opposed to “perfection”) as a lodestar for election-law reform.57 In a representative article, he made the case for quantifying an “electoral error rate”58 that “would be a powerful measure of how well, or poorly, a state’s voting system performed its basic function of accurately aggregating the electoral preferences of the eligible citizens endeavoring to participate in democratic decisions.”59 Foley’s express engagement with theory,60 policy,61 and politics62 anticipated the scholarly frame this Essay suggests.63
In its specific approach to theory, electoral adequacy is in service to Bruce Cain’s groundbreaking and deeply realist book, Democracy More or Less.64 Cain premised the argument for his “coherent blended design”65 not on an idealized or uniform set of reforms, but on pragmatism and urgency. In his words, “[T]he goal of a more coherent blending of different reforms is more feasible than consistency. It allows reformers to pick and choose their fights more carefully.”66 “Rather than fix what is not seriously broken but might seem inconsistent with populist principles,”67 Cain concluded, “it is better to focus on features that violate basic democratic goals and good governance.”68 In other words, with respect to election administration, it is better to prioritize electoral adequacy.
But beyond offering a scholarly paradigm shift, election-law institutionalism spotlighted the need for more functional election-related data.69 This realization engendered valuable compilations that pushed the research agenda forward.70 At the same time, though, new issues emerged that occupied much of the election-law field’s bandwidth. For example, the Supreme Court’s decision in Citizens United v. Federal Election Commission71 and its progeny72 initiated a deluge of scholarship on the nature of corruption and the shifting campaign-finance landscape.73 The Court’s momentous Shelby County v. Holder74 decision likewise centered attention on both the plethora of voting laws enacted in its wake75 and potential legislative and doctrinal responses.76 And the Court’s unexpected resuscitation of racial-gerrymandering doctrine in Alabama Legislative Black Caucus v. Alabama77 sparked a rash of commentary on the implications for Democrats and minority voters.78
So, while it would be plainly inaccurate to say that the institutional turn had run its course by 2020,79 it is probably fair to say it was deprioritized. And of course, the nefariousness of President Trump, Rudy Giuliani, John Eastman, and a significant portion of the Republican Party80 has, as of late, compelled lawyers, judges, and scholars to engage with previously obscure topics, including the so-called “independent state legislature theory”81 and the Electoral Count Act.82 What, then, recommends a research program built around electoral adequacy at this moment in time?
C. Electoral Adequacy’s Timeliness
There are three principal justifications for the timeliness of electoral adequacy: remaining open questions, improved data, and synergy with other reform efforts.
First, and despite earlier endeavors, so much about the performance and fairness of our election systems remains unknown.83 Questions ranging from the utility of various voter-registration processes, to the relative virtues of rival voting machines, to the security of various post-election ballot-counting practices, persist. As noted above, only now are we starting to systematically evaluate how election expenditures affect election administration.84 Simply stated, improving our election systems requires, as a first step, better understanding their current functionality, which, again, entails theoretical, policy, and political considerations.
Second, and most crucially, we now have more reliable data than ever to evaluate election performance. For example, while the biennial election-administration data provided in the Election Administration and Voting Survey has its limitations,85 it is far more comprehensive now than was true in the early 2000s.86 The Election Performance Index compiled by the MIT Election Data and Science Lab similarly offers a wealth of data for scholars to mine. The U.S. Census Bureau, of course, continues to provide indispensable data through, for example, its Current Population Survey’s November Voting and Registration Supplement, carried out after every national election.87 Other organizations, such as the Center for Election Innovation & Research, conduct routine surveys on voter-registration database security.88 In addition, data collected by private vendors like Data Trust and Catalist has enabled novel research designs.89 Data alone will not answer democracy’s fundamental questions. Yet, presently available data greatly expands our ability to comprehensively assess election performance, straightforwardly negotiate trade-offs, and convincingly defend best practices. While data limitations may have narrowed the scope of prior research, today, the abundance of election-related data should be exploited.
A third and final justification for electoral adequacy is its confluence with current reform efforts in nonprofit and broader academic communities. For example, electoral adequacy comports with the Bipartisan Policy Center’s suggestion that “states must have flexibility to implement minimum standards in ways that meet the unique needs of their voters.”90 There are also calls for “[m]ore pragmatic and evidence-based approaches to improving elections in the short term”91 that accord with this Essay’s proposals for systematized data collection. And in the long term, electoral adequacy intersects with sophisticated advances in “election science.”92 As stated by leaders in that field, “[i]mproving the technology and administration of U.S. elections is a critical research priority but is not an activity that any single academic discipline can tackle alone.”93 Election-law scholars can meaningfully contribute to these endeavors, and electoral adequacy offers a practical framework for doing so.
Election reform is far from easy. As Cain aptly summarized:
Figuring out the optimal trade-offs between [different approaches to political reform] is no simple matter. It is complex politically (somebody’s ox will be gored with any change), empirically (how do we know whether things are working as we hoped they would), and in terms of fundamental values (people may view the trade-offs between different democratic values in various ways).94
Electoral adequacy provides a research program for negotiating this complexity. To demonstrate this, the next Part outlines how this program might be applied to two election-reform issues.
II. operationalizing electoral adequacy
This Part examines two election-reform issues—one extensively studied, one severely understudied—as a means of illustrating the benefits of a research program built around electoral adequacy. The first, extensively studied issue, is polling-place wait times. The second, severely understudied issue, is voting rights for the disabled.
A. Polling-Place Wait Times
Researchers have devoted significant attention to the issue of polling-place wait times.95 The amount of time voters have to wait at polling sites is understood to affect, among other things, voter-turnout rates and levels of voter satisfaction.96 Models applying so-called “queuing theory” to polling places have existed since 1980.97 More recently, the Presidential Commission on Election Administration identified long lines at polling places as a key area for reform.98 The Commission set a target of having no voter wait for more than thirty minutes at any polling site.99 With that target in mind, one team of researchers found that “the application of simple line-management techniques can produce significant benefits for voters.”100 The idea of a simple fix should be tempered, however, by another study’s finding that “minorities are three times as likely to wait longer than 30 minutes and six times as likely to wait more than 60 minutes.”101 This finding comports with the established view that “the more voters in a precinct who are non-white, the longer the wait times.”102 What, then, can the concept of electoral adequacy contribute to this already well-studied issue?
Recall electoral adequacy’s emphasis on merging institutional theory, policy, and politics. Regarding theory, electoral adequacy would conceptualize polling places as quintessential sites of democratic inclusion and as institutions with expressive value to their communities.103 It would explicate the “civic alienation”104 that results when voters experience long wait times, especially due to threats or intimidation. It would explore the concept of justice and our expectation that “a baseline attribute of responsible government is the capacity to accommodate its own public’s desire to participate in its foundational constituent moment.”105 Specifics aside, institutional theory should inform a determination of what constitutes an unacceptably long wait time.
The policy dimension of electoral adequacy (and its subsidiary components: electoral adequacy, competent management, and democratic structures) generates countless questions. Are lengthy wait times—which are often caused by too few voting machines and poll workers—related to inadequate funding?106 How should the “time tax”107 of waiting in a long line be quantified? What relationships exist between the increased volume of mail voting,108 the trend in several states of polling-place closures,109 and wait times? Do poll-worker trainings and certifications, or community input into preferred polling-place locations, produce shorter wait times?
Finally, efforts to reduce polling-place wait times may find bipartisan political support. Consider, for example, that eighty-eight electoral jurisdictions, representing election administrators from both political parties, chose to provide polling-place line data as part of a national study.110 Their participation evidences some general level of commitment to reform.
Legal scholars could build useful research agendas around these dimensions. For example, legal scholars are well suited to evaluate the rules and regulations governing polling places,111 voters’ relative eligibility for voting by mail,112 and the scope of election administrators’ discretionary authority.113 In collaboration with scholars from other fields, legal academics can develop fruitful research questions and, to continue with this Section’s example, gain greater insight into how these rules and regulations affect wait times.
These are just preliminary thoughts about electoral adequacy’s promise as applied to polling-place wait times. What should be apparent, though, is how traditional legal scholarship emphasizing rights and structure overlooks many crucially important election-performance issues that electoral adequacy would foreground.114
B. Voting Rights for the Disabled
Unlike polling-place wait times, voting rights for the disabled are severely understudied. What is known, though, is that voters with disabilities—cognitive, visual, physical, and more—comprise approximately one-sixth of the eligible electorate.115 Voters with disabilities have consistently lower voter-turnout rates.116 Those who do vote often encounter difficulties. For example, one survey following the 2012 elections found that “almost one-third (30.1%) of voters with disabilities reported one or more difficulties in voting, compared to about one-twelfth (8.4%) of voters without disabilities.”117 Furthermore, as the population grows older, more voters will have accessibility needs.118 As Rabia Belt observed, “An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. Every person is vulnerable to falling into this category, and nearly one in five of us will before we die.”119 Given these looming challenges, how might the concept of electoral adequacy be applied in this context?
Theoretically, electoral adequacy might inspire new modes of thinking about the obligations that election administrators have to their communities. For example, voter-accessibility questions seem inseparable from larger theoretical questions about whether a universalist or civil-rights disability frame is preferable.120 A host of other issues, including the need to make information pertaining to the voting process widely accessible,121 the implications of ballot design, and the need to expand voting opportunities,122 might be reconsidered once viewed through a disability lens.
As for policy, the relevant questions are legion and, again, underexamined. What are, and are likely to be, the relationships between election funding and voter access, particularly as the number of disabled voters increases?123 Does the professionalization of election administration improve disabled voters’ perceived ease of voting?124 Do disability advocates have meaningful options to voice their concerns to election administrators?
Politically, existing research suggests that expanding and improving voting opportunities for the disabled does not advantage either major political party over the other.125 At the same time, improving voting access for the disabled necessarily entails improving voting access for the underprivileged.126 This would seem, then, to be a promising area for reform.
Legal scholarship on voting rights for the disabled is sparse.127 A research agenda built around electoral adequacy would correct this shortcoming by focusing attention on how, practically, to ensure voting equality for disabled voters. As one example, there is much to explore in how the law might compel adequate funding, competent management, and democratic structures to mitigate or remedy the continued informational disparities we see among the disabled.128
* * *
The discussion here of polling-place wait times and voting rights for the disabled is illustrative; any number of examples might have been used to highlight the promise of electoral adequacy as a research program. Ultimately, the hope is that this and related programs will facilitate the construction of homeostatic election systems that both stabilize and strengthen our democracy.
III. electoral adequacy and rights
To this point, I have assiduously avoided discussing the relationship between electoral adequacy and rights. In this Part, I briefly comment on electoral adequacy’s relationship to traditional conceptions of rights.
Rights are invaluable insofar as they establish a language through which interests (and grievances) can be vindicated.129 That is, they provide the means by which claims for justice and equality are recognized by the state.130 In these ways, they signify the country’s constitutional principles and, more broadly, normative commitments to citizens. Because the right to vote is a fundamental right, we think of voting as a sacrosanct activity, one that the state is bound to promote and respect. That said, the parameters of the right to vote have been subject to constant contestation, and regulation of the right has always been fraught.131 The right to vote, as currently conceived, protects against only limited forms of injustice and some methods of exclusion. Consequently, possessing the right to vote does not secure meaningful participation in the electoral process. This observation is not meant in a public-choice theory “voting is irrational” way,132 or a “why voting is different” way.133 It is simply to say that possessing the right to vote does not, on its own, ensure the means of exercising the right. Electoral adequacy accounts for this incongruity by providing a framework for supplementing the predominant understanding of the right to vote—one that aims to secure the right through affirmative government action.
A useful way to think about the limits of traditional rights-based approaches to electoral reform is provided by the “capabilities approach” developed by Amartya Sen and Martha C. Nussbaum.134 That approach, initially designed to address conceptual shortcomings in measuring international-development outcomes, directs attention beyond the consideration of rights in the abstract to an assessment of individuals’ actual capacity to improve their quality of life. “Capabilities,” Nussbaum states, “are very closely linked to rights, but the language of capabilities gives important precision and supplementation to the language of rights.”135
Electoral adequacy similarly interrogates and seeks to facilitate individuals’ abilities to fulfill their political entitlements. In highlighting the importance of adequate funding, competent management, and democratic structures, the framework “gives us a benchmark in thinking about what it is really to secure [the right to vote] to someone.”136 This benchmark can then provide clarity on how voting rights remain significantly compromised and might be strengthened.137 In sum, by focusing attention on electoral adequacy’s policy components (i.e., electoral capabilities), we will be better positioned to navigate the divide between what the right to vote, as traditionally defined, secures, and what truly inclusive election systems require.
The question remains, though, as to how these electoral capabilities can be realized. Ideally, election officials and election administrators will come to see the virtues of electoral adequacy and respond accordingly. Election administrators are, in general, as interested and invested as scholars in gathering more information about election performance and in improving election systems. In other instances, though, electoral adequacy will need to be compelled and, crucially, courts “must take a more active hand in how they require states and local governments to comply with various statutes” and constitutional provisions.138
Regrettably, as of late, federal election-law doctrine has proven inhospitable to voting-rights and election-reform claims. Therefore, the most viable strategy for implementing electoral adequacy is likely through novel interpretations of state constitutional provisions pertaining to voting and elections. As Miriam Seifter, in describing state constitutional litigation, notes, “Unlike the federal constitution, state constitutions, through their often extensive text, expressly and repeatedly embrace popular sovereignty, majority rule, and popular equality.”139 These provisions, and the principles they reflect, align with the goals of electoral adequacy. That said, as noted above, state constitutions are unlikely to be interpreted to require comprehensive overhauls of election systems.140 But that is not what electoral adequacy seeks. Instead, it seeks targeted reforms based on data and deliberation. Election officials, election administrators, and judges committed to democratic improvement should welcome its findings.
Conclusion
In many ways, election law has always been a highly interdisciplinary field. Rigorous study of American democracy essentially demands engagement with democratic theory, constitutional law, history, and the social sciences. Legal scholarship has proven to be a necessary part of the inquiry.141 Yet, there has never been a coordinated, sustained, and interdisciplinary research program designed to improve election systems.142 Electoral adequacy is animated by the belief that the potential benefits of such a program are considerable. It offers a timely framework for uniting theory, policy, and politics, with the ultimate and perennial goal of improving the electoral process.
Associate Professor of Law, Sandra Day O’Connor College of Law. For their generous feedback on this Essay, I want to thank Ned Foley, Rick Pildes, Doug Spencer, Nick Stephanopoulos, and Justin Weinstein-Tull. I am also grateful to the excellent Yale Law Journal editors.