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Jennifer Nou, Sub-Regulating Elections, Sup Ct. Rev. (forthcoming 2014), available at SSRN.

What should courts do when bipartisan agencies deadlock on an interpretation of a statute? That conundrum recently arose when the Election Administration Commission (EAC) addressed the meaning of the National Voter Registration Act (NVRA). Specifically, the EAC had to decide whether an Arizona requirement that voter registrants provide proof of their citizenship violated the NVRA, as a refusal to “accept and use” the federal mail-in registration form. The two Democrats on the four-person Commission found that the proof-of-citizenship requirement constituted a refusal to use the federal form while the two Republicans found that it did not. When the federal Court of Appeals reviewed the agency action, the judges seemed to have three options: Defer to the interpretation of the Democratic commissioners; defer to the interpretation of the Republican commissioners; or defer to neither and independently construe the statute. In this context of deadlock, there was no clear justification for deferring to either interpretation. Choosing to defer to one partisan interpretation over the other might subject the court to a Bush v. Gore-like charge of bias. But the decision to independently construe the statute would have had costs as well. It would have denied the court expert guidance in its determination of the meaning of the statute. None of the three options were particularly appealing.

In her innovative and illuminating article, Sub-Regulating Elections, Professor Jennifer Nou engages this problem of deadlock in election administration, and suggests a broad, creative solution. The two principal election agencies, the EAC and the Federal Election Commission (FEC), have similar designs in that they both have even numbered commissioners (four for the EAC and six for the FEC) with the two major political parties equally represented. In the current context of political polarization where decisions about the meaning of election statutes often have high stakes, the problem of deadlock has become endemic to election administration. One response would be to change the design of these commissions by making them odd-numbered or eliminating the requirement of partisan balance. But as Nou correctly notes, these design changes are unlikely anytime in the near future.

Nou instead proposes a novel solution to the problem of deadlock. This solution is responsive to what she sees as the failures of the prevailing judicial approach to agency deadlock found in the D.C. Circuit Court of Appeals. When deadlock occurs, the D.C. Circuit breaks the tie by giving heightened Chevron deference to the decision of a bloc of commissioners to dismiss the complaint. This response to deadlock reduces incentives for bipartisan agreement because both blocs of commissioners can veto the actions of the other. This might be a good thing depending on how one conceives the role of these agencies. A cynic might suggest that the agencies’ design features of an equal number of commissioners from each party and a majority vote rule to accept a complaint were intended to create just this sort of deadlock in order to narrow the scope of agency action. Reinforcing vetoes of agency action with Chevron deference is therefore the right response. But a more optimistic account of the agency design would suggest that the bipartisan design and majority vote rule was intended to ensure a deliberative process of decision-making guided by expertise rather than partisanship.

If that more optimistic account of agency design is the right one, then it would be better for the court to apply a doctrinal approach that both incentivizes bipartisanship and provides opportunities for judicial reliance on agency expertise. Nou’s doctrinal solution represents such an approach, and thus implicitly favors a more optimistic account of agency design. Nou’s solution asks the court to apply an alternative Skidmore deference standard and “pierce the veil” of the administrative agency. When agencies deadlock, courts in their assessment of the meaning of the statute should not give heightened Chevron deference to the interpretation of one bloc of commissioners. Instead, Nou argues that the less deferential, more probing Skidmore deference standard should be applied to the judgments of agency staffers that work below the commissioners. Under the Skidmore deference standard, courts look to the “‘thoroughness’ of the agency actor’s consideration, the reasoning’s ‘validity’ and ‘consistency,’ and, more generally, any factors which give an interpretation power to persuade, if lacking power to control.” While some view Skidmore deference as a tool courts use when they want to independently decide the meaning of statutes, Nou imagines the standard as a means to break through deadlock and provide courts with expert guidance in the interpretation of statutes.

Nou would pierce the agency veil when the commissioners deadlock, allowing the court to look to and rely on the expert judgment of agency staffers within the commission. The persuasiveness of the expert judgments of agency staffers would depend on factors related to the political insulation of the decision maker. Such indicia of political insulation would include “tenure and salary protection, methods of appointment, and the degree of professionalization.” The stronger the indicia of political insulation of the agency actor, the more the court should be willing to defer to that election official’s expert judgment, as found in sub-regulatory informal guidance documents, opinion letters, or advisory committee recommendations.

Granting deference to these agency staffers will not only provide courts with reasoned expert guidance in their interpretation of statutes, but it could also foster cooperation among the commissioners. Fearing that deadlock will result in their judgments being bypassed by the court, the commissioners would have greater motivation to overcome their differences and reach agreement. This might lead to the conditions that allow for a more deliberative agency decision-making process in which the commissioners are able to put aside partisanship and decide on the basis of the available information what interpretation best advances the goals of the statute. Ultimately, we might see a shift toward more bipartisan agencies as a design to ensure agency action driven by expertise rather than partisanship.

Nou’s article is excellent in multiple aspects, but what ultimately makes it stand out is Nou’s extremely sophisticated and thoughtful marrying of election and administrative law. She provides a fascinating new lens through which to understand both areas of law as she paves the path toward the development of “more robust theories of federal election administration.” And perhaps most importantly, she provides a solution that aside from its innovation is one that we can imagine courts putting in place. If they did, we might finally see what many consider to be dysfunctional bipartisan agencies begin to function again.

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Cite as: Bertrall Ross, Breaking the Deadlock in Bipartisan Election Administration, JOTWELL (December 16, 2014) (reviewing Jennifer Nou, Sub-Regulating Elections, Sup Ct. Rev. (forthcoming 2014), available at SSRN), https://lex.jotwell.com/breaking-the-deadlock-in-bipartisan-election-administration/.