[EL] "Voters as Fiduciaries" paper, relevant to Evenwel

Mon Jun 1 08:33:56 PDT 2015

Ned-

Your argument also seems relevant to the question of whether the electorate should be regarded as a state actor for certain purposes.  I advanced an electorate-as-state-actor argument in "Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1822642>," 160 U. Pa. L. Rev. 377 (2011), relying on a distinction between the individual voter (not a state actor) and the electorate as a whole (state actor).  Some might regard the voter/electorate distinction as sophistic, however, in which case a voters-as-fiduciaries foundation might strengthen the case.

best,

Chris

Christopher S. Elmendorf
Professor of Law
UC Davis School of Law
400 Mrak Hall Drive
Davis, CA 95616
530.752.5756

From: <Foley>, "foley.33 at osu.edu<mailto:foley.33 at osu.edu>" <foley.33 at osu.edu<mailto:foley.33 at osu.edu>>
Date: Monday, June 1, 2015 at 7:12 AM
To: "law-election at UCI.edu<mailto:law-election at UCI.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>, rick hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Subject: [EL] "Voters as Fiduciaries" paper, relevant to Evenwel

I've posted on SSRN a paper, "Voters as Fiduciaries," which I wrote for the University of Chicago Legal Forum's symposium: "Does Election Law Serve the Electorate?":  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2612001

Although the paper was written with general principles in mind, and not specifically for the issue in Evenwel, I believe the argument made in the paper is relevant to the case.  The argument, which relies on a version of Rawls's idea of the veil of ignorance, is that voters should be understood, like jurors, as holding an office in the government of society-and should be seen as representing not their own self-interest but the interests of the community as a whole.  When I was invited to participate in the symposium, I asked whether it would be okay to present this argument, as it can been seen as taking issue with the premise of the symposium "Does Election Law Serve the Electorate?"  https://legal-forum.uchicago.edu/page/symposium (They kindly agreed that I could.)  We don't ask whether jury laws serve the interest of the jurors; we ask whether these laws serve the public interest as a whole. My point was that election law likewise should serve the public interest as a whole, not just the interest of voters.  In the paper, I argue that the concept of "voting rights" has developed to focus too narrowly on just the interests of the voters themselves, and not the public as a whole, which voters are supposed to serve in their capacity as the electorate.  I think the claim made in Evenwel can be taken a symptomatic of this trend, and it is time for something of a corrective.  i hope my paper can contribute to that effort.

For the next draft of the paper I plan to include some specific discussion of its application to the issue in Evenwel, but that hasn't happened yet.  The current draft just presents the general argument.  Since it is a work-in-progress, comments are very much welcome.

Thanks, Ned

[cid:image001.png at 01D09227.E771F750]

Edward B. Foley
Director, Election Law @ Moritz
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Moritz College of Law
55 West 12th Avenue
Columbus, OH 43210
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