Guest Column: Heather Gerken on Foley’s “Shadow Court” Proposal


I think Ned Foley’s proposal to create “shadow” courts for resolving election disputes to be a good deal more promising than you do. First, Ned is exactly right that scholars and policymakers ought to be thinking harder about what he has described as “reform without legislation.” I’ve argued that the biggest challenge in election reform is figuring out how to get from “here to there.” We spend a lot of time thinking about what’s wrong with our election system and how to fix it. The problem is that we are fighting reform battles on hostile terrain, and almost no one is thinking about how to change the terrain itself so that it is hospitable to reform. Ned’s proposal is a classic “here to there” strategy; it helps create an environment in which bigger and better reform is possible. In that respect, it seems a good deal more productive than yet-another call but yet-another reform group for nonpartisan, expert courts.

Second, Ned’s proposal can succeed even if we never get all the way to nonpartisan, expert courts for resolving election disputes. We have two worries about the current system: (1) partisanship can taint judicial decisions, and (2) judges don’t have the expertise to resolve highly technical election issues. Ned’s shadow court could help mitigate both problems. On the first, judges are less likely to allow partisanship to taint their judgments because the public and journalists will have a baseline against which to judge the opinion. I know, of course, that no one is truly “nonpartisan,” but we are talking about a sliding scale here. It’s not hard to imagine that a group of outside experts will be less partisan than elected judges who depend on their parties’ support to win their next election. On the second, the advice given by the experts out to be genuinely helpful to judges who are at sea on these issues. Judges want to render professionally respectable decisions, but may not know the terrain well enough to do so. Ned’s proposal thus harnesses the (partisan and professional) incentives of judges in order to make them better judges. It’s just the kind of modest institutional corrective that helps get us closer to the ideal.

Heather Gerken, Yale Law School