Informing Consent: Voter Ignorance, Political Parties, and Election Law

Abstract

This Article examines what law can do to enable an electorate comprised of mostly ignorant voters to obtain meaningful representation and to hold elected officials accountable for the government's performance. Drawing on a half-century of research by political scientists, we argue that political parties are both the key to good elections and a common cause of electoral dysfunction. Party labels can help rational, low-information voters by providing them with credible, low cost, and easily understood signals of candidates' ideology and policy preferences. But in federal systems, any number of forces may result in party cues that are poorly calibrated to the electorate and issue space of subnational governments. Further, the geographic clustering of partisan voters can lead to persistently dysfunctional elections at subnational levels, however well calibrated the major party cues, because in these communities the aggregation of votes will not neutralize (as it otherwise would) the ballots cast by citizens whose party ties reflect their upbringing and social milieu more than their observations about what the government has done. To date, these problems have largely been the province of political science and sociology. We argue that they are problems of, and for, election law. Statutes and court decisions govern who selects a party's candidates, what information appears on the ballot, and any number of other variables that affect the meaning and utility of party labels. Our analysis challenges the focus of decades of political science and legal scholarship, and sheds new light on important questions about party regulation, ballot design, the choice between partisan and nonpartisan elections, and the constitutional law of party rights.