Will the rules, particularly recent changes in the rules, governing elections make a difference in the outcomes next November? Possibilities include the effect of changes in campaign finance laws or the laws governing voter identification and other aspects of the vote-casting process. But something entirely unexpected may upend the best efforts to predict what will happen in this potentially momentous presidential election year.
At this season’s holiday parties friends would say, referring to the upcoming presidential election, “2012 is going to be a big year.” I would agree politely, as undoubtedly 2012 will be an interesting and important year politically. It cannot help but be, given the pressing economic issues facing the nation, and stalemate in Washington, with each side hoping that the electoral verdict in November will somehow break the deadlock in its favor.
But will 2012 be a big year legally, meaning will election law feature prominently in assessments of the significance of political developments at the end of 2012? In other words, next New Year’s Eve will we look back and say that this or that aspect of the legal regime for conducting our elections affected which candidate or party won an important electoral victory?
In some sense, we must hope that election law never determines which side of the electoral contest will win. Ideally, the rules that run the electoral process should favor no candidate or party, but rather simply let the citizenry make whatever authentically democratic choice it wishes. But experts in election law know that this ideal, although undoubtedly compelling in terms of democratic values, is frustratingly elusive in terms of operational reality. Any set of election laws, including the current ones, is likely to give a real or perceived advantage to one side or the other. For example, the constitutional requirement that each state elect the same number of U.S. Senators regardless of population is sometimes thought to give the Republican Party an advantage in its competition with the Democratic Party to win majority control of the Senate, since some of the less populous states in the West (for example, Wyoming and Alaska) are viewed as leaning Republican. (Whether the perception of this structural “bias” toward Republicans is in fact accurate is another matter. One might look at the less populous states in the Northeast, like Vermont, and think that the structural advantage either runs the other way or is at least neutralized.)
For this reason, it makes sense to focus on how any change in election laws might favor one party or another. Whatever the status quo in election law may be, if it is stable the parties can tailor their campaign practices to compete according to those rules. To use a sports analogy, some baseball teams excel more at hitting than pitching, while for other teams it is just the opposite. The particular rules of baseball, like the height of the pitcher’s mound, can affect the balance of competitive power between hitters and pitchers. If the height of the pitcher’s mound remains fixed year after year, teams can decide the degree to which they wish to emphasize hitting or pitching in their effort to win. But if the height of the pitcher’s mound unexpectedly changes—for example, is raised to make it harder for hitters—then teams that have relatively deemphasized pitching compared to hitting are at a sudden disadvantage for the current season (and maybe several more).