Stop ignoring pork and potholes: election law and constituent service.

AuthorBone, Joshua
PositionAuthor abstract

NOTE CONTENTS INTRODUCTION I. CONSTITUENT SERVICE ACTIVITIES AND WHY THEY MATTER A. Representative-as-Ombudsman B. Accessibility C. Appropriations II. THE IMPACT OF CONSTITUENT SERVICE ON ELECTION LAW A. Constituent Service and Structuralists 1. Contours of the Current Debate over Partisan Lockups 2. Seniority and Constituent Service 3. Policing Lockups and Constituent Service 4. A Possible Solution B. Constituent Service and Individual Rights 1. A New Proposal for Protecting Minority Representational Rights 2. LULAC and Cultural Compactness 3. Shaw and District Shape CONCLUSION INTRODUCTION

The July 9, 2009 edition of a local South Florida paper, the Hometown News, reported a story about Ellie DeStephan's ninety-second birthday cruise. (1) After booking Ms. DeStephan's trip, her home health aide, Marilyn Angel, realized that Ms. DeStephan would need a passport to board the ship. Normally, applying for a passport is a simple task. But, in Ms. DeStephan's case, "the passport agency wouldn't accept her birth certificate because it was issued when she was 35 years old." (2) Realizing that the cruise line would accept an original copy of the birth certificate in lieu of a passport, Ms. Angel frantically tried to get the birth certificate back from the passport agency. She couldn't get anyone to return her calls. Fortunately, the office of Ms. DeStephan's U.S. representative came to the rescue. A caseworker reached someone at the passport agency and ensured that the agency shipped back the birth certificate in time. As a result, Ms. DeStephan enjoyed a ninety-second birthday celebration aboard the Freedom of the Seas.

What's most remarkable about this story might be that it's not remarkable at all. On a daily basis, representatives help constituents in a variety of ways. In the case of Ms. DeStephan, a representative helped fulfill a birthday dream. But often representatives help constituents address much more serious problems, such as ensuring that a constituent receives a public benefits check that staves off eviction. (3) Representatives understand the importance of constituent service. (4) So do political scientists, who have long recognized that representatives develop a "home style" distinct from the partisan style they employ within the legislature. (5) Yet constituent service has almost entirely escaped the attention of one notable group--legal scholars and judges.

To be sure, constituent service has made occasional appearances in legal scholarship, notably in discussions of term limits, (6) political corruption, (7) and the proper role of legislators. (8) But it has never featured prominently. Perhaps most surprisingly, election law scholars have largely ignored constituent service despite working on topics with significant implications for the relationship between representative and represented. (9) While some, most notably Heather Gerken, have acknowledged the importance of constituent service, (10) none have rigorously incorporated constituent service considerations into election law debates. (11)

This Note argues that election law scholars and judges dealing with election law claims should take constituent service more seriously. Part I draws on insights from the political science literature to describe constituent service activities. These activities largely fall into three categories: representative-as-ombudsman, accessibility, and appropriations. Part I then argues that all three categories of constituent service activities are important, and often valuable, components of the representation that constituents receive. Part II demonstrates how these different aspects of constituent service might inform two crucial areas of election law. Section II.A focuses on the constituent service implications of the classic structuralist thesis that courts should prevent mapmakers from designing legislative districts that undermine political competition. Specifically, this Section proposes amending the structuralist approach to permit some deviation from partisan equality within districts to facilitate effective constituent service delivery. Section II.B focuses on the constituent service implications of minority-majority districting, arguing that Congress should require that jurisdictions impose no unnecessary or unjustified structural barriers to effective constituent service delivery in minority-majority districts.

  1. CONSTITUENT SERVICE ACTIVITIES AND WHY THEY MATTER

    The term "constituent service" involves a set of relationships between individuals and their representatives that are often personal, idiosyncratic, and hidden from public view. (12) Before applying lessons of constituent service to ongoing election law debates, it is therefore important to unpack the concept of constituent service itself, both in order to identify its various elements and to explore its contribution to the quality of representation that constituents receive. It would be impossible, for instance, to argue convincingly that some deprivation of constituent service constitutes a legally cognizable injury without first identifying what constituent services are and then explaining why the deprivation of those services might matter to a constituent or a court.

    Recognizing that representatives play a multifaceted role in modern democracies, political theorists have long understood that the concept of representation includes non-policymaking functions. Hanna Pitkin, for example, posited that political representation is a broad concept involving "acting in the interests of the represented, in a manner responsive to them." (13) For Pitkin, responsiveness--and, hence, representation--results from many different types of interactions between representatives and constituents. (14) Building on this insight, Heinz Eulau and Paul D. Karps argue that responsiveness in modern democratic systems can come from providing services, allocating funds, and remaining accessible to constituents. (15) I refer to such activities as "constituent service." Eulau and Karps do not necessarily argue that constituent service comprises an inherent component of representation itself. Rather, Eulau and Karps argue that as long as these non-policymaking avenues for responsiveness remain open in our political system, they contribute to the overall quality of representation that constituents receive.

    The political science literature reveals that most constituent service activities fit into one or more of three broad categories: (1) "representative-as-ombudsman," i.e., a representative's attempts to help constituents or groups navigate government bureaucracies; (2) "accessibility," i.e., a representative's efforts to keep in touch with constituents and, particularly, district stakeholders; and (3) "appropriations," i.e., a representative's use of influence within the legislative process to deliver discretionary funds back to district interests.' (6) While these categories certainly fail to cover all constituent service activities, they are meant to capture most of the ways in which legislators serve their constituents. Each is subject to criticism but also capable of improving the quality of representation that constituents receive.

    1. Representative-as-Ombudsman

      John R. Johannes describes the ombudsman role as being, " [i]n short, the function of [the legislature] as intermediary between the government and the governed-between citizens and the bureaucracy." (17) He describes two primary aspects of this role--casework and federal projects assistance. (18) Casework, which Johannes defines as "intervention for individuals, groups, or organizations (including businesses) that have requests of, grievances against, or a need for access to federal (and occasionally state or local) government departments or agencies," (19) might include, for instance, helping a constituent demonstrate eligibility for social security benefits, (20) or nudging a local highway department to fill a pothole. "Projects" assistance, which Johannes describes as "assisting state and local governments in their attempts to secure federal grants from agencies that possess discretion in allocating such funds," (21) might include, for instance, helping a local advocacy organization receive Department of Housing and Urban Development funding. (22) Fenno's observational studies suggest that representatives spend some of their own time on ombudsman tasks, but also frequently delegate such tasks to trained, full-time staffers. (23) While most legislative offices receive many casework and projects assistance requests, the precise number varies between offices and between different levels of government. (24)

      The ombudsman function improves quality of representation in several ways. First, it helps constituents successfully navigate administrative bureaucracies. Representatives and staffers develop expertise evaluating and defending casework and projects assistance requests; agency staffers rely on this expertise to reduce the amount of time they must spend interpreting and responding to requests. (25) Moreover, insofar as representatives control agency purse strings, agencies have incentives to take requests from representatives seriously. (26) Second, and relatedly, the ombudsman function helps reduce status inequalities between petitioners for agency services. The representative-as-ombudsman not only distributes requests to the proper agencies and bureaucrats, but also knows how to present those requests in convincing ways. (27) As a result, constituents with little relevant education or background can, with the help of their representative, receive treatment comparable to what the more educated and politically connected receive. (28) Third, the ombudsman function provides an important policy feedback mechanism for representatives and for agencies. As Johannes notes, "casework is ... a way not only of keeping track of what executive agencies are doing but also of staying in touch with people and...

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