Research Matters: Jennifer Nou on “Sub-Regulating Elections”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Jennifer Nou, Neubauer Family Assistant Professor of Law, wrote “Sub-Regulating Elections” for the 2014 issue of the Supreme Court Review. In the paper, Nou proposes an approach for how courts should treat voting deadlocks by federal election administration agencies on questions of statutory interpretation. Nou supports deference to decisions made by nonpartisan agency actors when they are more persuasive relative to the judgment of courts often uninformed in election law.

Q. Why did you write this?

A.  A confluence of different things sparked the idea. First was the Supreme Court’s decision in a case called Arizona v. Inter Tribal Council, which is the focus of the article. That case dealt with the question of how to interpret the National Voter Registration Act’s requirement that states “accept and use” a federal voter registration form. The case arose because Arizona had passed an initiative that required proof of citizenship before an individual could vote. The state tried to add this requirement on top of the federal form. The Supreme Court said no, that states must use the federal form exclusively and not add any other requirements. But what struck me about the opinion was that it doesn’t discuss the fact that there was an administrative agency in the background of the case. The Election Assistance Commission, the EAC, was the agency that first answered the question of statutory interpretation. It answered it through informal means; the agency’s executive director sent a letter to Arizona saying that the “accept and use” provision of the federal statute should be interpreted to preempt the state’s attempts to add this proof of citizenship requirement. But the commissioners of the EAC deadlocked on the question. So there really wasn’t an authoritative agency interpretation, and that may help to explain why the Court ignored it (though the lower court had not). The article seeks to bring to the foreground the fact that we have this administrative agency that was structured to deadlock. It raises all these interesting issues, such as how should a court review an agency deadlock on an interpretive question?

The second motivation was a lot of press over the last year about Judge Posner’s recent book on being a federal judge. In a footnote, he seemed to express regret about writing the opinion in Crawford v. Marion County, which upheld Indiana’s photo identification requirement.  Judge Posner thought that such requirements were now widely considered a means of voter suppression rather than fraud prevention. He had the case when it was at the Seventh Circuit, before it went to the Supreme Court. His remarks inspired a public debate about how judges should adjudicate election-related disputes. Some understood Judge Posner’s later comments as suggesting that the litigants in the case didn’t present him with as much information as he would’ve liked to rule in the case. It struck me, because that too raises this question of, how well-suited are courts to decide election disputes, vis-à-vis administrative agencies that arguably have more expertise and have seen these disputes more? Which institution, in other words, is better suited to weigh in on these questions?

Finally, President Obama recently convened a presidential election administration commission, and they just came out with a report. It was a commission set up by executive order in the wake of the last presidential election calling for more study about federal election administration. That report was bipartisan, and it came out with a lot of findings that are interesting and important. But it further highlights at the national level that we don’t have enough research happening in the area. I think that’s why this is an important topic.

Q. So what do you propose in your paper, when it comes to election regulation and who should do it?

A. The paper simply proposes that judges applying something called Skidmore deference for informal interpretations take into account institutional considerations. Skidmore deference basically asks: how persuasive is the interpretation that the agency is giving? If judges find it persuasive, they’ll defer. The paper suggests that the question of persuasiveness should be calibrated to the extent to which the agency actor is insulated from political interference within the agency. What that means is that the more the author of a particular interpretation is insulated by virtue of tenure protections or salary protections or by professionalization and so on, the more persuasive that interpretation should be for the judge. So in this case what that would’ve meant is that the Court would have at least considered the interpretation of the EAC executive director, who indeed was insulated from political interference in a number of different ways in that particular case. Of course, here, that analysis wouldn’t have changed the case’s outcome, since the Court agreed with the director’s interpretation, but one could imagine other cases where that might not be true.

Q. What are some possible challenges to your proposal?

A. There are many counterarguments to the paper, of course. One question that’s naturally raised is whether deference to these internal agency actors is going to make it more likely that they are going to be captured by the parties. The risk is real, but there are some countervailing dynamics. For example, the administrators could get something called Chevron deference if they agree on an interpretation rather than deadlock and their interpretation is reasonable. There’s a comparative incentive for them to do that rather than leave it up to the uncertainty of Skidmore. There’s also the notion that the more the agency officials are perceived to be captured, the more likely it is that other external institutions will step in and not accord deference.

One illustrative example is how the Supreme Court has treated interpretations of the Voting Rights Act by the Department of Justice (DOJ). DOJ has a single agency head in the attorney general, and it’s an executive branch agency. And, rightly or wrongly, the agency has increasingly been perceived to be partisan. And that perception, some have argued, has resulted in the Supreme Court not giving it any deference at all in terms of how DOJ interprets the voting rights statute. So in other words, maybe the Supreme Court is already calibrating its deference, the more an agency is perceived to be captured.

Another criticism is that Congress created these agencies to deadlock. So isn’t the fact that the court might break the tie with reference to an internal agency actor contrary to legislative intent?  The answer, I think, is that it depends on the underlying statute itself and the ways that statute could be read to allow for or preclude review and whether a deadlock results in some agency action or, rather, is unreviewable inaction.  As long as judicial review is available for the deadlock, some actor is going to have to interpret the statute when a litigant is seeking review.  It’s going to be the court that has to interpret the statute and essentially break the deadlock, and it seems like a good idea to ask courts to consider the views of insulated election administrators who may provide a persuasively informed reading. More broadly, I want to ask who’s better situated to break the interpretive deadlock when it has to be broken? This generalist court, that doesn’t come across election-related disputes, that is worried about diving into political questions that it shouldn’t be involved with? Or an administrative agency that’s been empowered to collect data and has a lot more experience with these kinds of disputes on the ground?

Q. Why is all this important to figure out?

A. Traditionally, states have administered both federal and state elections. Arizona v. Inter Tribal Council, however, arguably gives a broad reading to a constitutional provision that basically allows Congress to regulate the time, places, and manner of elections. So there is currently a live debate about whether the federal regulation of elections is a good idea and thus the extent to which Congress should pass legislation accordingly and further empower administrative bodies to implement the statutes. As it stands, the EAC is currently a headless commission without any nominated and confirmed commissioners. Beyond partisan jostling, part of the reason why that’s the case is the expressed doubt that the EAC is a valuable entity. There have been many bills to abolish the EAC altogether, and this is in addition to all of the politics that already occur with nominations more generally. So one aim of the paper is to suggest that, at the very least, there’s an important information-gathering role for administrative agencies at the federal level across different states. I also think that there are good substantive reasons to have greater uniformity across different jurisdictions. Particularly because there are a lot of resource disparities across electoral jurisdictions in different states. Different states use different technology to register votes; we see that in the news every election cycle.

Relatedly, one other thing I’ll add is that election administration is one of the few areas where policies are currently set with almost no systematic data for what the consequences are for different administrative regimes. For example, we don’t know simple things, like, how long do people stand in line to vote? How many voting machines are in different jurisdictions? Something as critical as election administration really should have that data. Empowering administrative agencies is one way to foster that.