Constitutions, Elections, and Election Law

In this Article, Professor Ordeshook argues that a democratic state’s stability depends more upon elements that are not usually enumerated in the state’s constitution than those that are more typically thought of as affecting elections.  For example, constitutions typically include “precise formulas whereby votes are translated into legislative seats or aggregated to determine the winner for executive office.”  But examining these provisions tells only part of the story of a state’s election law.  The more consequential elements of election law are those that govern the “timing of elections, terms of office, and the encouragement of democratic governance at regional and local levels.”  These latter elements are more consequential because they influence the ways in which political parties gain power in all branches and levels of government.

Ordeshook describes the “informational dilemma” facing the modern American voter: “the improbability that any one vote will be pivotal in any mass election [and] the proliferation of elected offices increases information costs and minimizes the incentives for voters to learn much about the multitude of choices they confront on a typical ballot.”  The solution, Professor Ordeshook argues, is the political party, which allows voters to make decisions based on broad party platforms, rather than on familiarity with individual candidates.  Professor Ordeshook examines American, Ukrainian, and Russian election law to illustrate his argument.

Professor Ordeshook concludes that, in some cases, details of election law should be left to statute—for example, statutes which “allow[] incumbents to experiment, fine-tune, and change those formulas may be, at worst, a harmless game among elites and, at best, a way of bringing electoral institutions into harmony with existing structures.”  Election law reform and scholarship should focus not merely on national elections, but on all levels of government.