What the Election Proves--Posner

Critics of the American electoral process have long complained that the process was poisoned as the combined result of (1) gerrymandering, (2) inadequate limitations on donations to political campaigns, (3) barriers to third parties, (4) barriers to voting (such as registration requirements and conducting elections on workdays rather than weekends or holidays), (5) public ignorance of policy issues and the consequent ability of political advisers, consultants, media specialists, pollsters, etc., to manipulate the public’s voting behavior, and (6) mistake-prone voting equipment, such as the notorious punchcards that cast a shadow over the 2000 presidential election in Florida. But the outcome of Tuesday's midterm election suggests that these problems are less serious than the critics believe. A Newsweek poll taken days after the election reported that 51 percent of those polled thought the Democrats' election victory a good thing; the election gave the Democrats approximately 51 percent of the seats in both the House of Representatives and the Senate (counting the two independent Senators as Democrats, though technically they are independents). Gerrymandering poses the issue of the democratic legitimacy of our electoral system in its starkest form, as the avowed purpose is to reduce the number of legislators elected by the party not in control of the gerrymandering process. But this, it turns out, is easier said that done. For one thing, there is an inherent tension between incumbents and challengers in the same party running in different districts. An incumbent wants his district so configured that it will be dominated by members of his own party. But challengers belonging to the same party do not want the incumbent'’ districts to be packed with members of the party because that reduces the number of party members in the challengers' districts. So if incumbents prevail in districting, and in the next election the electorate proves to be hostile to incumbents, the gerrymander may boomerang, because challengers from the same party to incumbents of the other party will have fewer supporters in their districts. The idea that without strict limitations on campaign finance the wealthy will dominate campaigns and tug the nation rightward also turns out to be questionable. There are many wealthy liberals and the Internet has made it much easier than it used to be to obtain modest campaign donations from the nonwealthy. Moreover, the effect of political advertising (which is where most campaign donations go) is diluted by the fact that voters are exposed to vast amounts of information and opinion that derive from sources other than advertising--not ony the mainstream media but, increasingly, blogs and other informal media. As usual in this election, Republicans outspent Democrats but were badly beaten anyway. The states are permitted by the courts to establish barriers to third parties, mainly by requiring that a party have a large number of signatures from registered voters in order to get a place on the ballot. Yet despite this requirement, third parties are on the ballot in many states and the fact that they usually obtain only a handful of votes (though sometimes they play a spoiler role, as the Reform Party did in both the 1992 and 2000 elections--and in last week's election Joseph Lieberman was reelected to the Senate, running as an independent) is due more to the inherent difficulty of third parties in a presidential (as distinct from parliamentary) political system (for example, because a third party is so unlikely to produce a president it has difficulty attracting ambitious candidates) than to the barrier to entry that ballot-access rules create. Although voter turnout is lower in the United States than in other countries, the consequences again are slight because those persons who are eligible to vote but don't bother to do so tend to have the same political opinions as those who do vote. Nor is it obviously wrong as a matter of democratic theory to discourage from voting those people whose interest in the political process is so attenuated that they are unwilling to incur the modest inconvenience that the American system imposes on would-be voters. The poor voting equipment in many precincts throughout the country undoubtedly disfranchises a number of voters; but as with other barriers to voting this one affects outcomes only if the people disfranchised have systematically different political preferences from others. This is rare although it may have happened in Florida in the 2000 election. It wasn't a factor in the recent election. Finally, although surveys reveal that most Americans are indeed political ignoramuses, even the significance of this fact for the healthy functioning of the democratic process can be doubted. Issues of public policy, especially at the federal level, and issues of the competence and leadership qualities of officials at that level, are so difficult for outsiders to government to assess that it is unrealistic to think that the electorate could become well informed--unless the American population reallocated a substantial amount of its time from work, family, and cultural and other leisure activities to the study of politics and policy. That might not be an efficient reallocation of time, especially if its principal product was confusion. If the electorate can be expected to focus only on highly salient issues of policy and leadership, it may not need to be well informed. Maybe all it needs to know is that things are going badly or well and that the party in power bears some responsibility for the situation. Expert commentators on the recent election results, regardless of their politics, are virtually unanimous in the view that the Republicans deserved the severe rebuke that they received from the electorate. These experts may be right or wrong--a question on which I would be uncomfortable, being a judge, to offer an opinion. What is pertinent to the present discussion is only that if the franchise were confined to experts, the results of the election would have been the same or very similar. If the electorate comes to the same conclusion as the experts, the implication is that democracy can work quite well even when the electorate lacks expertise.

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