Election Law's Efficiency-Convergence Dilemma

Abstract

We are facing a moment of unique reflection in American democracy. Data suggests that marginalized communities feel persistently ignored by political actors—on a bipartisan basis. The scale of wealth inequality is soaring to unprecedented heights. Domestic indifference to foreign interference in our elections has poisoned public confidence in the political process. Mass reckonings with institutionalized racism and police violence have rocked major cities, facing deep and violent resistance from the President and the federal government. A global pandemic disproportionately devastated Black and Brown communities, and the federal government’s response prioritized economic liberty over health and safety. Americans are reconsidering the nature of our relationship to the federal government, and the pressure for reform may now exceed any moment since the New Deal. In this setting, Iowa’s dramatic failure to efficiently administer the Democratic Presidential Caucus hardly seems worthy of a footnote in the history of 2020. Yet, at the time, it became a national story. Iowa’s failure to administer an efficient election was new—but election law’s marriage to economic efficiency is much older. Understanding the depth of efficiency’s roots in the law of democracy requires turning back to that same New Deal era. The conflict between the American Legal Realists and the laissez faire Lochnerism of the Supreme Court laid the groundwork for efficiency’s lasting role in law—and for the century of criticism that sprung up to contest it. Efficiency—and specifically, the conceptions of efficiency proffered by Chicago School Law and Economics and Virginia School Public Choice Theory—emerged victorious from those contests. But, we are facing a moment of unique reflection, and in such a moment, an opportunity arises. By looking back through efficiency’s rise, we can chart a course forward. This article offers a framework with which to do so: the efficiency-convergence dilemma. Part I builds the efficiency-convergence, outlining the intellectual history of efficiency’s role in election law. Part II builds the dilemma, highlighting critical legal theory and heterodox economics traditions that contour the normative concerns with the efficiency-convergence. Part III presents the framework. I develop a typology of efficiency arguments within election law, derived from novel primary source analysis of the legislative history for the Voting Rights Act and the National Voter Registration Act, along with case law and scholarship across election law. I theorize that this typology demonstrates an efficiency-convergence dilemma, functioning to institutionalize racial subordination as a neutral principle undergirding legal thought in the law of democracy. I offer a series of critiques for this efficiency-convergence, built from the critical theories discussed. Finally, Part IV offers two normative implications of the efficiency convergence. The first is to look outside the law, developing an operationalized definition of equity based on similar research in public health and public policy. The second is to highlight election law scholarship that bucks the efficiency convergence, charting a path forward. I present one such path: reimagining the right to vote as a constructive right implemented through constitutional conventions and norms and protected as an instrumental right.