Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

Avoiding Election Bias

10/25/2017

0 Comments

 
Picture
By Habib Olapade
Habib Olapade is a second-year law student at Yale University.


In January 2008, Hillary Clinton surprised most political commenters by winning the New Hampshire primary. Clinton’s chances were thought to be severely diminished after Barack Obama defeated her in the Iowa Caucus. Indeed, some pre-election polls in New Hampshire showed Clinton trailing Obama by as much as 13 points. Although political pundits attempted to explain this surprise by pointing to polling errors, groupthink among reporters, identity politics, and a critical, decisive mass of undecided voters, one explanation has been neglected: ballot order.

Before 2008, New Hampshire created a two-step process for primary ballots. First, state officials randomized the name order, and then they rotated name order on ballots precinct by precinct. This method ensured that each candidate appeared first on the ballot for approximately the same number of voters. The New Hampshire State Secretary refused, though, to rotate names during the 2008 primary. The result? Joe Biden was listed first, followed by Hillary Clinton in the fourth slot, and Barack Obama in the eighteenth position. This ordering triggered the ‘primary effect’ phenomenon whereby individuals are more likely to select one of the first choices on the ballot.  Judging from historical data, this may have given Clinton as much as a three-point bump – her margin of victory – on Election Day.      
There are several possible reasons for the primary effect. Democracy demands a lot of citizens who have little incentive to search for political information. Obtaining political information requires the expenditure of scarce resources, and rational citizens will look for ways to minimize those costs. As a result, citizens often delegate the procurement and analysis of political information to political parties, interest groups, the government, and other specialists. In single-district elections, heuristics such as party affiliation, incumbency, and likeability help voters narrow their choices and make decisions. In this low information environment, the primary effect may be due to a confirmation bias; instead of looking for reasons to not select a candidate, voters may be searching for positive reasons to select the candidate instead. As a decision-maker moves down a list, he or she becomes less likely to generate reasons for selecting an item due to fatigue and short-term memory constraints. Another possible cause of the primary effect, is satisficing behavior – selecting the first option that meets a minimum threshold. Voters tend to be more susceptible to the primary effect when they have no information about a race, are ambivalent between the candidates, or are participating in down-ballot, nonpartisan, primary races. Of course, none of these categories are mutually exclusive.    
     
States and their political subdivisions have nearly exclusive control over voting technology, registration criteria, voter identification, ballot rules, and other facets of election administration. [1] Because states are, “laboratories of democracy,” this plenary control has resulted in fifty different and highly unique election administration regimes. [2] Commonalities abound, though. There are four different types of ballot order rules: some states permit local election officials to order the candidates, others place the incumbent candidate or party first, a handful rank the candidates in alphabetical order by last name, and a few create a random order by lottery. [3] The first two methods provide the largest opportunity for intentional bias and have been held unconstitutional by lower federal courts and state courts of last resort. [4] The other two have been upheld against constitutional attack across the board for the most part. [5]

The ballot order effect has a statistically significant and unconstitutional effect on elections. [6] The Supreme Court has held that the right to vote is a fundamental right that is protected under the Fourteenth Amendment’s Equal Protection Clause and that severe infringements on that right are subject to strict scrutiny. [7] When they are not accompanied with a precinct-by-precinct rotation scheme, all four ballot order rules fail this test. Indeed, an equal protection jurisprudence that accepts primary effect bias caused by alphabetical or lottery systems, but rejects that same bias when it is caused by clerical preference or partisan ordering laws, rests on a distinction without a constitutional difference. If primary bias inflicts a constitutionally cognizable injury that cannot be justified with an acceptable state interest, regardless of the circumstances, it makes no difference how the state throws its punches – an injury is an injury. Under these circumstances, rotation and randomization are appropriate remedies because if each candidate appears first on the ballot for an equal number of voters, each candidate benefits and suffers from the primary effect equally. [8]

A cynic might retort that alphabetical ordering and lottery laws that cause  primary bias cannot be unconstitutional because these laws do not limit who can be on the ballot or keep any voter from choosing a preferred candidate. However,  what these arguments miss is how that alphabetical ordering and lottery schemes do not treat similarly situated candidates and voters equally. This results from the way the ballot scheme systematically steers some proportion of voters to certain candidates over others. This harm is intolerable for three reasons. First, state and local jurisdictions can correct this error with precinct by precinct name rotation which is usually just a small fraction of their total election administration budget. [9] Second, randomization procedures without rotation further no cognizable state interest other than resource conservation. [10] The state’s interest in being cheap is not weighty when it is severely restricting its citizens’ right to vote.

Finally, to the extent that the primary effect causes some voters to not select a candidate that, ceteris paribus, they would have selected; this scheme dilutes the voting power of the disadvantaged candidate’s voters. This is so for two reasons. First, the advantaged candidate receives some votes, not because of her policy positions, campaign strategy, or experience but rather solely, by virtue of a random, state generated polling feature: her ballot placement.[ 11] This tactic makes it harder for opposing supporters to aggregate their votes and select their candidate of choice. [12] Second, a ballot ordering scheme unaccompanied by name randomization only permits one candidate to benefit from primary bias, which accentuates the bias’ effect on the election. This one-sided advantage is significant because name randomization equalizes and eliminates primary bias by ensuring that each candidate benefits and suffers from primary bias equally by appearing on the ballot first for approximately the same number of voters.    

Our elections are a product of our election laws. Because this country contains close to 13,000 election districts nationwide, ballot order procedures can vary between and within states. This variation can introduce constitutionally unacceptable election administration errors that threaten the legitimacy of the American people’s political choices. Non-randomized ballot order presents such a risk. While “there is no constitutional right to a wholly rational election based on reasonable consideration of the issues,” there is a constitutional right to rational election laws.       

[1] U.S. Const. art. I § 4.
[2] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis J. dissenting).
[3] Laura Miller, Election by Lottery: Ballot Order, Equal Protection, and the Irrational Voter, 13 N.Y.U.J. Legis. & Pub. Pol’y 373, 376-378 (2010).
[4] Sangmeister v. Woodard, 565 F.2d 460 (7th Cir. 1977); Gould v. Grubb, 536 P.2d 1337 (Cal. 1975).
[5] Schaefer v. Lamone, No. L-06-896, 2006 U.S. Dist. LEXIS 96855 (D. Md. Nov. 30, 2006); Koppell v. New York State Bd. of Elections, 382 F. Supp. 2d 382 (S.D.N.Y. 1998).  
[6] Joanne M. Miller & Jon A. Krosnick, The Impact of Candidate Name Order on Election Outcomes, 62 PUB. OPINION Q. 291, 293-94 (1998).
[7] Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).
[8] Supra note 3, at 396-402.
[9] Supra note 3, at 403.
[10] Clough v. Guzzi, 416 F. Supp. 1057, 1068 (D. Mass. 1976).
[11] McLain v. Meier, 637 F.2d 1159, 1167 (8th Cir. 1980).
[12] See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).
Photo Credit: Flickr User The White House


The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​