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Wednesday, October 31, 2012

Politics, partisanship, and democracy

My thoughts and prayers go out to all the Prawfs family (including my own family in NJ, NYC, and Long Island), friends, and readers dealing with the effects of Sandy. I hope you all are safe and that you have your power back soon. I want to consider two things with respect to Sandy's effects on next week's election.

First, folks are beginning to talk about how the storm will affect the mechanics of the election and whether state and local governments (who wield exclusive authority to administer the electoral process) hit by the storm will be ready and able to carry out an election, both with early voting ongoing this week and Election Day itself next week. This has lead to discussions of whether the election could or should be delayed, either by congressional action or by unilateral actions of individual states or localities. Here is some good analysis of the constitutional and statutory issues involved. Rick Hasen argues that this again demonstrates the need for Congress to create a uniform national scheme to respond to natural and other disasters that affect voting. Hasen calls this another example of Congress failing to act on what should be non-controversial issues resolvable with non-partisan solutions. He compares congressional inaction here with congressional inaction on ensuring continuity in the House of Representatives in the event of a terrorist or other attack.

Actually, though, the current situation brings to mind a different concern on continuity of government, a subject on which I wrote in my early scholarship. I have argued that if we ever get into the statutory line of succession (below the Vice President), we should hold a special election as soon as practicable (within 3-6 months, for example), so that the ultimate recovery from a mass catastrophe can be lead by a popularly chosen executive. But  I may have to rethink that, depending on how things play out in the next week. If a bad storm affecting five or so states can hamper a national election, it may not really be possible to hold one a few months after a catastrophic attack on the nation and the government itself.

Second, when asked about the election, New Jersey Governor Chris Christie responded as only he can: "I don't give a damn about Election Day . . . This administration, at the moment, could give a damn less about Election Day." Now, obviously the first concern must be ensuring public health and safety, getting roads and debris cleared, and getting the power back on. But Christie's bluster reveals an unfortunately blase attitude about the election and thus about democracy. It suggests that the election is not important; it is "partisan" and "political" and thus not what we should be thinking about in times of high-minded crisis, when we should put our differences aside and come together, blah blah. It is the same attitude reflected in 2008 when John McCain called for a suspension of the campaign and cancellation of the debate so he and then-Senator Obama could return to Washington to work on bailout legislation.

But, as I wrote four years ago, elections are the procedural element that most fundamentally identifies our socio-political system as democratic, as a system in which here, sir, the people govern. Partisan politics describe and define the process by which we select the "immediate representatives" through whom the people act in governing themselves. And elections work through a two-party adversarial process.

Thus, inability to carry out an election is no small thing and should not be treated, or discussed, as such. It would be no mere minor inconvenience if New Jersey or New York is unable to administer elections next week--or unable to efficiently administer elections in which those who want to vote are able to do so. It would be a genuine problem for the functioning of a supposedly democratic national government. Alternatively, if we really believe that we must "come together" and put all electoral conflicts aside and not concern ourselves with an ongoing election, then Hasen is right that we must establish mechanisms to postpone the whole thing or otherwise alter the rules. We should not ignore the problems or let the election go forward as planned and simply accept sub-optimal processes in those places still recovering from the storm.

Again, the election should not be the top concern at this moment, either for the people trying to recover or for the governments trying to help them. But neither should the election be pooh-poohed as an unimportant triviality beneath government concern.

Posted by Howard Wasserman on October 31, 2012 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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