Nathaniel Persily

Nathaniel Persily

Courts looking for a mechanic to repair broken electoral processes often turn to the Penn Law professor.

Photo by Candace diCarlo

There’s a chance that, in a couple of weeks, we may all be reliving our last electoral cliffhanger, as officials in Los Angeles and 18 of California’s 57 other counties scrutinize punch cards for hanging or dimpled chads, trying to divine whether a voter wanted to kick Gov. Gray Davis out or keep him around.

Should that happen, there’s a good chance you will soon find Professor of Law Nathaniel Persily offering commentary to the media and maybe even filing briefs in support of one or another party in yet another election-law case arising from the disputed count.

He has become quite proficient at both since the 2000 election, when he filed an amicus curiae brief in Bush vs. Gore, the U.S. Supreme Court case that called an early halt to the recount of punch-card ballots in Florida. His services have also been much in demand wherever states have had problems redrawing legislative districts.

Persily began his academic career as a political science student but switched to the study of law, he said, because it was the lawyers who were asking all the interesting questions about American elections and politics. He joined the Penn faculty in 2001, coming here from Stanford. “Ironically enough, I grew up in Miami and then went to graduate school and law school in California, so it seems that election-law controversies have a five- to 10-year lag time from whenever I happen to be in a particular state,” he said.

Q. Have you studied elections in all 50 states or are there certain parts of the country that are of particular interest?
Like most observers, I pay attention to where the hot spots are, and so now people are paying attention to what’s happening in California. I paid attention to what was happening in Florida when that was going on, but I also—[the week of Sept. 10], the U.S. Supreme Court held a special session to adjudicate the constitutionality of the McCain-Feingold campaign finance law, one of the biggest First Amendment cases in recent years, and so I’m writing a lot about that and participating in that.

Also, over the last two years, I’ve been participating actively in redistricting disputes. I was appointed by courts in New York and Maryland to draw Congressional districts in New York and legislative districts in Maryland.

Q. What do you think about having nonpartisan commissions draw legislative boundaries?
I wrote a piece last year in the Harvard Law Review called “In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders.” One of the arguments I make in the piece is that there’s no such thing as a nonpartisan commission and that most of the states that have these commissions [either have] a commission that is appointed by one of the parties or a commission that’s appointed by both parties so that it becomes an incumbent-protection racket.

Now I should say it’s in my interest to have nonpartisan folks draw these lines, since that’s what I was appointed to do over the last year, so in a sense, in this article I’m arguing against myself. But it is very difficult to create authentically nonpartisan officials to run the redistricting process. Our experience with nonpartisan officials [supervising] American politics has produced Ken Starr and [Florida] Secretary of State Katherine Harris.

Q. What would you say is right and what is wrong with the way we conduct our elections?
[long pause] So much of the time I’m paying attention to the problems in elections, so that I can’t reflect on the good things. [But] the answer is, most of what we do is good, because we have been, at least historically, the leader when it comes to promoting democracy and becoming a symbol for the world.

We have remarkable access to the ballot. We have vigorous protections for free speech of candidates and political parties and, for that matter, voters. We have an active and competitive two-party system…the two parties nationwide are at a level of parity they haven’t been for 100 years. And you can’t talk about what is good in the U.S. without talking about how…we have slowly but almost completely expanded suffrage to universal adult suffrage in this country.

Now the problems, and there are many. There are the basic technological problems that we learned about in Bush vs. Gore. The United States [also] continues to make it harder for its citizens to [actually cast a ballot] than any other country in the world. In most countries, the government will take affirmative steps to register as much of the citizenry as possible, whereas here, it’s up to every American to register to vote on his or her own.

With respect to campaign finance, we are one of the only countries in the world that does not publicly finance our elections. The result is that you have large interests, corporations, unions, other groups, [that] play a determinative role in our electoral process.

At some point, we are going to learn the lesson every other democracy has, which is that government has to invest in the democracy. To spend a few billion dollars each election cycle in public funds to take the taint of private contributions out of the system would be, I think, a wise investment.

Q. What’s the potential for mischief in the California voting?
It depends on whether you mean intentional mischief or fiasco. We only seem to care about inadequacies of the electoral system when it’s a very close election, so the potential for disaster is related to how close the election might be.

It looks like the first question on the ballot, which is whether Gray Davis should be recalled, is going to be close. If the margin of victory or defeat is 1 or 2 percent, we can expect that people might point to the punch card ballots in Los Angeles, for example, where Davis might be getting a lot of his support, and say that it’s a problem.

Q. Might this wind up in a Bush vs. Gore-like case before the Supreme Court?
Many of the legal challenges are being played out before the election, which is fortunate here so that we don’t have the same kind of post-election partisanship in the courts that we had in Bush vs. Gore. However, in the event that there is a close election, one can expect that the aggrieved candidates will run to the courts.

Q. What about mischief in the Philadelphia mayoral election next month?
Mischief comes in many forms in electoral politics. One form is rigging the rules of the game before the game is played. Another is rigging the results while the game is being played.

Like many large cities, Philadelphia has a rich and colorful history of urban party machines that, shall we say, can often have a determinative effect on the outcome of elections through all types of creative means. I doubt if it will happen here [this time] if for no other reason than that you have a serious challenger who will be making sure that there’s nothing happening, that there is no ballot box stuffing and that there aren’t any shenanigans that happen at the polls, but we’ll wait and see. Who knows what will happen?

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Originally published on October 2, 2003