In recent years, commentators have expressed heightened concern about the harms to democratic legitimacy caused by political actors making decisions about the electoral process on partisan or incumbent-protecting bases. This concern has been recognized in a number of judicial opinions, but has not taken form in election law doctrine. This Article argues that administrative law presents a well-developed doctrinal resource for addressing concerns about democratic legitimacy in the electoral process. Administrative law trades off some direct electoral control for some demonstrated expertise and shores up the democratic element through lines of accountability to the legislature, the executive, and the public. The resulting framework seeks an optimal balance in effective democratic governance. Despite the institutional differences between administrative law and election law, both confront the central challenge of securing democratic legitimacy in contexts of governance by state actors who are shielded from robust accountability mechanisms. In connecting the treatment of democratic values across the administrative law and election law settings, reflecting the operation and selection of government, I contend that these settings demand similar models of governmental decisionmaking. This approach calls for regulation of elections on a standard of instrumental rationality as to the means of reaching politically determined and constitutionally valid ends, thereby promoting the effective operation of the democratic process. To illustrate this approach, I sketch a framework for adapting administrative law tools to the election law setting, with examples from current controversies in the field.
Administering Election Law,
95 Marq. L. Rev. 641
Available at: http://scholarship.law.marquette.edu/mulr/vol95/iss2/6