Professor Jennifer Nou (University of Chicago) raises some interesting questions in an article she published back in February (“Sub-regulating Elections“) about the relative timidity with which Federal agencies (such as the Federal Elections Commission and the Elections Advisory Commission, but also the Department of Justice) have approached using the Federal Administrative Procedures Act in the context of voting and elections.
Among other things, Professor Nou suggests that: (1) overt institutional bipartisanship (wherein agencies are designed to reflect some idealized parity between the two dominant U.S. political parties) tends to lead to intractable institutional deadlock and failure. (A good example of this can be seen in the general ineffectiveness of the State of New York’s Board of Elections, which lacks any effective non-partisan tie-breaking mechanism, and so is more or less by design unable to actually accomplish any policy objective. Of course, the Elections Advisory Commission is another excellent example of what happens when a deliberative body is explicitly designed to divide evenly along partisan lines); and (2) that courts are less likely to give deference to administrative agency actions taken by partisan agencies.
On the second point, Professor Nou argues that the conservative wing of the U.S. Supreme Court was hostile to the position of the Department of Justice in Shelby County v. Holder (and in general) in part because the Voting Section of the Civil Rights Division was perceived as using Section 5 preclearance procedures under the Voting Rights Act to pursue an overtly liberal partisan agenda.
Ultimately, it didn’t matter whether or not there was any partisan bias in the way that Section 5 preclearance was conducted, and it didn’t matter whether the critics of the preclearance process actually believed the Department of Justice was furthering a liberal agenda. The Voting Section was vulnerable to such accusations because prior acts of executive interference by presidents on both the left and the right had occurred.
Professor Nou’s advice is that elections administration at every level of government should be non-partisan. “Non-partisan” isn’t the same thing as “bipartisan.” “Non-partisan” means that elections administration should be shielded and protected from partisan influence. As a former little gray bureaucrat, I heartily agree.