Legal scholar: ‘Hydraulic system’ constrains elections, politics

We like to think elections are clear-cut affairs in which the people choose their representatives, but the reality is much more complex, legal scholar Pamela Karlan told an IU Maurer School of Law audience in a Constitution Day lecture today.

But in fact, elections are hydraulic systems, she said. Results are “constrained and channeled” like fluid in a closed environment. Previous elections and political events limit the options that voters have today and limit their ability to influence government.

Pamela Karlan

Pamela Karlan (Photo by James Boyd)

“Law produces elections every bit as much as elections produce laws,” said Karlan, a professor at the Stanford Law School and a former deputy assistant U.S. attorney for civil rights.

And this year’s elections reflect forces that were not widely understood, she said in her talk, “The Hydraulic Election of 2016: Vote Denial, Political Parties, the Rise of Donald Trump, and the Courts.”

Some constraints are shaped by the Constitution, Karlan said. The requirement that presidents and members of Congress are elected on set dates and serve fixed terms has led to “insanely long and expensive” campaigns. The Electoral College brings inordinate attention to swing states.

But other pressures rise and ebb with the make-up of the Supreme Court and its shifting interpretation of constitutional restrictions on voting. What she called the “new vote denial” — including voter ID laws, restrictions on early voting and elimination of same-day voter registration — is a case in point.

Until recently, the court required states to show strong evidence that voting restrictions were necessary, Karlan said. But in Crawford v. Marion County Election Board, a 2008 Indiana case, it ruled the government’s interest in stopping fraud was grounds for requiring voter IDs, even if fraud was rare.

In 2000, Karlan said, only 14 states required voters to present identification. But after the 2000 presidential election, decided by a razor-thin margin, some state legislators adopted voting ID laws.

The trend accelerated after the Crawford decision and with growing control of state legislatures by Republicans, whose party often benefits from lower voter turnout. Today 33 states have voter ID laws, and some put strict limits on the IDs that can be used to vote.

Karlan tied the rise of Donald Trump and his upset victory in the Republican presidential primary to hydraulic forces largely outside government and law. One is the rise of new media, including social media and targeted cable TV networks. Insiders thought the GOP candidate who raised the most money, Jeb Bush, would win. But Trump’s celebrity gave him access to free media attention.

Another factor is the weakening of political parties. Party leaders, constrained by a confusing set of state and national rules, lost control of primary elections.

“The path-dependent nature of the nominating process has run amok,” Karlan said.

She said the Supreme Court vacancy created by the death in February of Justice Antonin Scalia presents another illustration of constraints on elections and governance. Senate Majority Leader Mitch McConnell ruled out considering any nominee for the court until a new president is elected, arguing that the American people should have a voice in the nomination.

But the Constitution’s framers didn’t think the American people should have any direct say in choosing justices, Karlan said. They decided justices would be nominated by the president with advice and consent of the Senate, when neither the president nor senators were chosen by direct election.

Karlan said the Senate’s refusal to fill the vacancy on the court is likely to “emerge downstream in unpredictable ways.” That’s what happens in a hydraulic system.

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