Second-Best Deliberative Democracy and Election Law

Abstract

Abstract

This article addresses the following question: Does the theory of deliberative democracy have any place in the electoral process? Decision-making through deliberation is considered to be a central value in a democracy. However, critics charge that deliberation is highly unlikely to take place during elections or in politics more generally. This article intervenes in this debate in two respects. First, it argues for the concept of second-best deliberation. Under a second-best approach, deliberation is viewed as being context-specific: that is, the norms of deliberation change depending on the actors and institutions involved. I also argue that deliberation, instead of being treated as a unified theory, should be reconceived as existing along a spectrum. Second, this article uses the concept of second-best deliberation to evaluate the deliberative possibilities within and the shortcomings of a wide range of topics in U.S. election law, including electoral redistricting, majority-minority districts, political parties and partisanship, the Voting Rights Act, campaign finance regulation, election administration, and electoral reform. Although this article focuses on U.S. election law, the concept of second-best deliberation can be applied more broadly to evaluate the deliberative strengths and limitations of other democratic systems. The article also provides an extensive discussion of the theory of deliberative democracy and its various critiques.