The Democracy Index: An Interview With Law Professor Heather Gerken

On January 1, 2007, Yale Law School professor Heather Gerken published a widely read article in the LegalTimes entitled, “How Does Your State Rank on The Democracy Index.” Gerken argued that just as the Environmental Performance Index (“EPI”) shamed countries such as Belgium to upgrade their environmental practices, a “Democracy Index” would embarrass state and localities into reforming their electoral administration through competition.

Since Bush vs. Gore in 2000, the debate about electoral reform has been dominated by anecdotes and overheated abstractions. Liberals like me have long suspected that states such as Ohio and Florida were deliberately disenfranchising minority voters sympathetic to Democratic candidates. Conservatives complained that voter fraud and urban political machines were allowing ineligible voters to cast ballots at the expense of Republican candidates. With her article, Gerken contended that a Democracy Index would replace a debate dominated by shouting with data driven arguments instead:

“This index should take what Ohio State University law professor Daniel Tokaji calls a ‘moneyball approach.’ The word ‘moneyball,’ of course, refers to Michael Lewis’ book of the same name about the success of the Oakland A’s after management substituted hard numbers and empirical research for the gut-level judgments of baseball scouts in making hiring decisions.

Similarly, the Democracy Index could change the terms of the debate by giving voters something new: moneyball politics. It would offer cold, hard numbers and comparative data in place of atmospherics and anecdotes. It would provide bottom-line results in place of subjective judgments. It would let reformers talk like corporate executives, not starry-eyed idealists. And, most important, it would enable the voters to hold election officials accountable for their missteps.

In the end, a ranking system would work for a simple reason: No one wants to be at the bottom of the list.”

Gerken further described her Democracy Index proposal and identified the major obstacles to good election practices with her new book, The Democracy Index: Why Our Election System Is Failing and How To Fix It (Princeton University Press). Her book is an accessible 181 pages and postulates that we need more facts about our election practices and that a ranking metric is our best hope to facilitate accountability and reform. Gerken also contends that our broken electoral system has less to do with intended malice than “deferred maintenance,” a term typically applied to failed infrastructure such as broken bridges.

Shortly after Gerken’s LegalTimes article was published, Both Barack Obama and Hillary Clinton, put her concept into proposed legislation and within a year, Congress set aside $10 million to fund model data collection programs in five states and the Pew Center. Other foundations also sponsored conferences and initial research. On March 1, 2007, Obama referred to these initiatives on the Senate floor as,

“an important first step toward improving the health of our democracy. We are all familiar with the problems that have recently plagued our elections: Long lines, lost ballots, voters improperly turned away from the polls. These are basic failures of process. Until we fix them, we run the risk in every election that we will once again experience the kind of chaos and uncertainty that paralyzed the nation in 2000. We can do better. We must do better. But to do better, we need more than anecdotal information. We need better, nonpartisan, objective information.”

Hence, Gerken's efforts illustrated at least the potential for action from the body politic to facilitate electoral reform but obviously, more needs to be done.

With respect to electoral law, Gerken is among the most authoritative voices in the country. In 2006, Gerken joined the Yale Law School faculty where she teaches election and constitutional law. Previously, Gerken clerked for Supreme Court Justice David Souter and was an assistant professor at Harvard Law School, where she was granted tenure and won the Sachs-Freund teaching award. She has also written for the New Republic, Roll Call, and Legal Affairs and has been a frequent media commentator.

Gerken was among several commentators who appeared on Charlie Rose’s program the very evening the Supreme Court rendered its fateful decision in Bush vs. Gore. During the 2008 presidential election, Gerken served on Barack Obama’s election protection team.

Gerken agreed to a podcast interview with me over the telephone about her book and proposal for a Democracy index. Our conversation was just over seventeen minutes and can be accessed via the flash media player below.



This interview can also be accessed at no cost via the Itunes Store by searching for either “Intrepid Liberal Journal” or “Robert Ellman.”