The Tyranny of Automatic Bipartisanship

The recent voting-rights controversy in Ohio hinged around a curious institutional feature. In each of the state's 88 counties, a local elections board determined county electoral policy. But these boards weren't just elected by the general county population. Instead, they had a predetermined equal number of Democrats and Republicans. So, when each county was considering whether or not to have early voting in this year's Presidential election, a curious dynamic started up. Democrats, who favor voting rights generally, supported early voting everywhere. In most counties, their Republican counterparts also supported early voting. The exception, of course, was the handful of urban counties where Ohio Democrats rack up big margins to stay competitive statewide. In those counties, every Republican voted against early voting, creating a tie. The Ohio Secretary of State got to break those ties, and sided with the Republicans, preventing early voting. Net result? More generous voting provisions in Republican-leaning counties than Democratic-leaning ones.

Now, fortunately, a federal judge has put a stop to this whole regime, thanks to a quirk of the law permitting the roll-back of early voting in Ohio that exempted the military, and therefore ran afoul of the Equal Protection Clause. But I'd like to point out a different aspect of the whole affair, namely the dangers and, in a sense, tyranny of requiring everything to be bipartisan. Because the problem here was only that Republicans held genuine policymaking power in the Democratic-dominated areas. If, in Cuyahoga County where Obama won more than two-thirds of the vote, two-thirds of these board members were Democrats, they'd've just voted to continue early voting, and no problem. In each county, if the boards reflected the political composition of their constituents, they would automatically have an interest in promoting their constituents' rights to vote. Instead, we had a system that gave people control over the political voices of their opponents.

Another way in which insistence upon bipartisanship leads to undemocratic results can be seen through the "grand bargain." If there's a culture that says all major legislation must have substantial support from both parties, and both parties' leadership, then it doesn't matter in the slightest who wins the elections. Policy gets made by the two caucuses together, and the people stop being allowed to choose which policies they prefer. It's a slightly different dynamic to the Ohio situation, but serves similarly to illustrate the problem. An a priori decision that everything must be bipartisan amounts to a decision to reserve power for the losers of elections. It means you don't need to win an election to hold substantial political power. That is, almost tautologically, undemocratic. And the result is what we saw in Ohio.

Good thing we've got the countermajoritarian judiciary to police these things.