The Electorate as More than Afterthought

Warren Buffett, writing in a Fortune Magazine article that became an instant classic in the world of finance, wrote that “when very human politicians choose between the next election and the next generation, it’s clear what usually happens.” Unfortunately, in the context of election laws, the Oracle of Omaha’s comments apply a fortiori. That is to say that — to borrow Mr. Buffett’s framing — when very human politicians craft election laws, as between self-interested partisan ends, and high-minded democractic values, it’s usually clear what happens.This article focuses on a few specific election law proposals in which voters qua voters would be the principal beneficiaries. The approach of the paper is to emphasize election law changes in which the pro-electorate characteristics of the proposals are the key criteria, rather than any partisan distributional gains. Pro-electorate is defined, for purposes of the paper, as favorable to voter participation; favorable to the electorate’s increased participation being meaningful; and is specifically intended to be measured without regard to partisanship. In addition to policy ramifications, the article explores notable recent legal developments in connection with the proposals, including, in particular, the ramifications of pertinent court decisions arising out of litigation connected to the 2014 midterm elections.The election law initiatives explored in the article include both ambitious proposals (e.g., expanding early voting, no-fault absentee balloting, same-day registration, and, most ambitiously, state adoption of the national popular vote compact) and more marginal changes (e.g., eliminating the highly countermajoritarian practice of empowering a single US Senator to “blue-slip” a judicial nominee, and rolling back state-specific felon disenfranchisement laws). The article intentionally excludes particularly partisan and tendentious election law topics such as redistricting methodology, controversies surrounding present-day applications of the Voting Rights Act, and broad questions of campaign finance regulation, to instead focus on the selected initiatives, precisely for their electorate-centric qualities. While any changes in election law are inherently subject to politicization, the paper attempts to take a partisan-blind approach to analyzing the potential of the proposals to further the values inherent in a republican form of government.The article proceeds in four parts, each of which focuses on one specific change that, whether standing alone or in concert with the other proposals considered in the paper, would ultimately redound to the benefit of the electorate writ large. Part I advocates for the restoration of voting rights to individuals who, due to felony convictions, have been subjected to disenfranchisement. Part II explores several micro-proposals involving the expansion of access to the polls. Part III addresses, albeit briefly for a topic of such scope, the National Popular Vote Compact. Finally, Part IV addresses the United States Senate’s blue-slip tradition, recognizing that representative governance may just as significantly be undermined by practices as opposed to laws.