Christopher S. Elmendorf

Lost in Space? Information Shortcuts, Spatial Voting, and Local Government Representation

Voters face difficult choices in local elections, where information about candidates is scarce and party labels often do not distinguish candidates’ ideological positions. Can voters choose candidates who represent them ideologically in these contexts? To address this question, we conduct original surveys that ask candidates in the 2011 mayoral election in San Francisco to take positions on local policy issues. We ask voters their positions on these same policy issues on a written exit poll. We use these policy positions to construct comparable measures of candidate and voter ideology (i.e., ideal points). Within the exit poll, we experimentally manipulate cues to examine their effects on voters’ candidate preferences. We observe a strong, positive relationship between voter ideology and the ideology of the candidates they choose in the election. However, our experiments show that endorsements from political parties and newspapers with ideological reputations weaken this relationship. These findings challenge the view of local elections as nonideological and demonstrate that spatial voting theory can be usefully applied to local settings. They also indicate that voters may not treat political party and newspaper endorsements as signals of candidates’ ideological positions, but rather as nonideological signals of partisan affinity or candidate quality/viability.

Why Party Democrats Need Popular Democracy and Popular Democrats Need Parties

Too often popular political power – whether it is in the form of direct democracy or other more innovative forays in participatory or deliberative democracy – presents itself as a counterweight to the political power parties wield. Yet setting up “popular democracy” and “party democracy” in opposition to one another in the American political landscape is not only unnecessary but also pathological: it thwarts an understanding of their potential for mutual enrichment. Popular democracy and party-based representative democracy in the American states each have characteristic limitations. Mass popular democracy – the ballot initiative and the referendum – presents a daunting informational challenge for ordinary voters. Popular democracy in its more selective, deliberative forms gives rise to unanswered questions about agenda-setting and legitimation. Meanwhile, party democracy as practiced in the American states often fails to realize the virtues claimed for it, because structural features of state government occlude party-based accountability, and because parties may not develop coherent, competitive state-level brands. We argue that institutional designers can use parties to solve some of the characteristic problems of popular democracy, and popular democracy to improve the functioning of party democracy. We illustrate our claims with a discussion of two seemingly disparate problems: state budget stalemates, and the design of state constitutional conventions.

Lost in Space? Shortcuts and Spatial Voting in Low-Information Elections

Voters face difficult choices in low-information local elections. Despite the concerns this raises for voter competence, there are virtually no studies of whether and when voters are able to choose candidates who best represent them ideologically in these contexts. We fill this gap by creating same-scale measures of candidate and voter ideology during a local election and examining how candidate ideology affects voters’ decisions. We also conduct an exit poll in which we experimentally manipulate cues and examine their effects on voters’ candidate preferences. Our results show that the ideological proximity of candidates has large effects on voters’ decisions. However, exposing voters to endorsements made by political parties and newspapers with ideological reputations diminishes, rather than enhances, voters’ propensity to prefer ideologically-similar candidates. These results challenge the notion that local elections are non-ideological and that citizens who have access to cues make “better” decisions than those who do not.

Administering Section 2 of the VRA After Shelby County

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, lowcost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases—each relying on data from a different set of elections—are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate. * Professor of Law, University of California, Davis. Faculty affiliate, Institute for Governmental Studies and Center for the Study of Law and Society, UC Berkeley (2013-14). † Associate Professor of Law and Public Policy, University of Connecticut. For helpful discussions and feedback the authors thank Eric Biber, Guy Charles, Jack Chin, Mike Gilbert, Perry Grossman, Rick Hasen, Ellen Katz, Michael McDonald, Jennifer Nou, Mike Pitts, Kevin Quinn, David Schleicher, Nick Stephanopoulos, Franita Tolson, and discussants and participants at the 2014 Conference of the Midwest Political Science Association, and the Political Economy and Public Law Conference at the University of Rochester. We are also indebted to Lynn Vavreck and Simon Jackman for sharing the 2008 Cooperative Campaign Analysis Project dataset; to Heather O’Connell for sharing her data on county slave populations in 1860. Replication code and data appendix available at: http://www.dougspencer.org/research.html. 2 Administering Section 2 After Shelby County

Empirical Legitimcy and Election Law

It is commonly thought that elections help to secure the positive legitimacy of the political order, leading citizens who may vehemently disagree with the current course of public policy to accept the government’s right to rule, to comply voluntarily with duly enacted laws, and to channel their disagreements toward the next election. The Supreme Court’s constitutional election law jurisprudence seems motivated, at least in part, by a desire to ensure that American elections perform this function. As yet, however, the Court’s legitimacy-minded interventions have been predicated on judicial surmise about the relationship between election law and positive legitimacy. Recent research by political scientists has cast doubt on some of the Court’s suppositions, while also suggesting that features of the electoral process which the Court has treated as inconsequential may have significance for empirical legitimacy. It will not be long before this body of work is regularly cited in legal briefs. That will put pressure on the courts either to clarify the sense in which the exigencies of empirical legitimacy inform the substance of (and limitations upon) constitutional political rights, or else to abandon the notion that citizens’ legitimacy-related beliefs or behaviors have doctrinal relevance. In recognition of the moment at hand, I seek in this paper to clarify why a reasonable judge might want to make constitutional election law responsive to social science findings about positive legitimacy; to summarize the relevant empirical findings to date; and to outline a path forward for the courts.

State Courts, Citizen Suits, and the Enforcement of Federal Environmental Law by Non-Article III Plaintiffs

Environmentalists habitually bring their federal claims to federal court. Only a handful of citizen suits under national environmental statutes have surfaced in the state courts. This pattern may reflect environmental lawyers’ greater familiarity with federal procedure, their fear of state court bias, or their greater confidence in the quality of federal adjudication. Perhaps it reflects a mistaken belief that state courts generally lack concurrent jurisdiction over federal environmental claims. The task I shoulder here is not to plumb the origins of this pattern, but to predict and defend a change—a new role for state courts in adjudicating claims under federal environmental law. It is my contention that state courts can, will, and should adjudicate the federal environmental claims of parties who lack Article III standing (non-Article III plaintiffs). My prediction emerges from no insider knowledge of environmentalists’ litigation strategy. Rather, it takes root in the principle that, in law as in markets and ecosystems, unexploited niches come to be filled. This Note reveals an open niche. 1 Three jurisprudential developments that came to a head in the last decade make state courts increasingly attractive fora for the private enforcement of federal