Volume 34 Number 3 -- April 2001

TABLE OF CONTENTS

SYMPOSIUM

INTERNET VOTING AND DEMOCRACY

INTRODUCTION

by Richard L. Hasen

WHY VOTING?

by Frank I. Michelman

Professor Frank I. Michelman poses a fundamental question that underlies the debate over the effects of Internet voting: Exactly why do Americans use simple-majoritarian voting as a mechanism for making binding political decisions? Without seeking a definitive conclusion, he catalogs an array of answers to this question from different quarters of our political culture. Professor Michelman concludes that the American commitment to simple-majoritarian voting owes as much to our collective cultural intuition about procedural justice as to any particular theory of voting, and leaves open the question of whether Internet voting can -- or should -- alter this traditional commitment.

THE INTERNET IN THE (DIS)SERVICE OF DEMOCRACY

by Bruce E. Cain

In his comments prepared for Loyola’s Symposium on Internet Voting, Professor Bruce E. Cain poses the question of whether Internet voting is democratically desirable. Professor Cain takes issue with some of the advantages of Internet voting asserted by other commentators in this Symposium and questions whether these advantages really further the purpose of democracy.

WHY INTERNET VOTING?

by John T. Nockleby

In the context of a Symposium devoted to the subject of Internet voting, Professor John T. Nockleby reflects on Frank I. Michelman’s normative question, “Why voting?” First, Professor Nockleby discusses whether Internet voting will enhance equality. He argues that the Internet might enhance equality of citizenship in two ways, but it will not satisfy anything more than formal political equality. He also asks whether Internet voting will result in better decisions, raising important related questions, such as what types of issues should be put to a vote. Finally, Professor Nockleby addresses whether Internet voting will enhance deliberative democracy and explains that it might, in fact, further remove us from the contact with others that encourages productive deliberation.

DIRECT DEMOCRACY AND THE INTERNET

by Dick Morris

Dick Morris, President of Vote.com, addresses the rapidly increasing use of the Internet in political campaigns. Morris argues that the increased use of the Internet will decrease the reliance on large financial contributors and reverse the trend toward more expensive campaigns. The Internet is seen as a mechanism by which the historical American desire for direct democracy will be brought to fruition. By facilitating surveys and opinion polls, the Internet creates a mechanism for greater voter participation and greater response by elected officials to the opinions of their constituents. Consequently, Mr. Morris concludes that the power of special interest groups and big money will be significantly decreased.

POLITICAL INTERMEDIARIES AND THE INTERNET “REVOLUTION”

by Elizabeth Garrett

In her comments presented at Loyola’s Symposium on Internet Voting, Professor Elizabeth Garrett challenges those who assert that the “Internet offers a potential for direct democracy so profound that it may well transform . . . our very form of government.” Professor Garrett argues that “reinforcement” theorists have a superior argument to the “mobilization” or “transformation” theorists. Specifically, Professor Garrett argues that the Internet will not replace political parties, established news sources, and other traditional intermediaries. Further, she asserts that the Internet will not reduce the influence of money and special interests. Finally, Professor Garrett points out that because of the burdens direct democracy places on voters, the Internet will not usher in direct democracy.

VOTE.COM AND INTERNET POLITICS: A COMMENT ON DICK MORRIS’S VERSION OF INTERNET DEMOCRACY

by Paul M. Schwartz

In this Article, Professor Paul M. Schwartz takes issue with political commentator and dot-com entrepreneur Dick Morris’s predictions about how the Internet is going to improve democracy in the United States. Professor Schwartz offers specific responses to Morris’s contentions that the Internet will make elections cheaper, encourage greater voter participation, and stimulate a transformation to a more direct form of democracy. Interspersed with his critique of Morris, Professor Schwartz engages in his own, more pessimistic, analysis of the Internet's likely impact on our political system. Finally, he raises concerns about how online voting might undermine information privacy.

THE SOUL OF A NEW POLITICAL MACHINE: THE ONLINE, THE COLOR LINE AND ELECTRONIC DEMOCRACY

by Eben Moglen and Pamela S. Karlan

In this Article, Professors Eben Moglen and Pamela S. Karlan argue that the effects of computer mediated communications on the political process have less to do with the mechanics of voting than with alterations in the cultural context of political behavior. Two particular aspects of the networked society -- the replacement of geographic propinquity by affiliation as a basis for group formation and an increased confidence in unmediated decision-making -- will affect the culture of politics. The authors conclude that the first may have positive results for minority representation in the political process, while the second is more likely to carry negative consequences.

THE LIKELY CONSEQUENCES OF INTERNET VOTING FOR POLITICAL REPRESENTATION

by R. Michael Alvarez and Jonathan Nagler

In this Article, Professors R. Michael Alvarez and Jonathan Nagler consider the consequences of Internet voting for political representation. They believe that based on the evidence presented Internet voting is likely to exacerbate the current problem of class-bias in American elections if it is introduced any time in the near future. The authors maintain that previous reforms to ease voting or registration have tended to be taken advantage of by those of higher socio-economic status. Similarly, based on the current digital divide, Internet voting is a reform ripe to be taken advantage of by those with higher socio-economic status. Adopting a system of voting whereby people of sufficient means can vote from the convenience of their homes using a technology they find routine and regularly use, while people of lesser means must brave the uncertain weather of early November to find a local polling place, hardly seems like an election reform likely to lead to fairer or more representative elections. But right now, Internet voting would be the equivalent of “motor-voter: for luxury car drivers only.”

E-RACING E-LECTIONS

by Jerry Kang

Professor Jerry Kang examines the future of American politics and its electoral process under the new techno-political practice of e-voting. According to Professor Kang, e-voting is inevitable and presents the possibility of radical changes in the mechanics of voting, the ways in which representatives are elected, and how we govern ourselves. In particular, he explores the relationship between e-voting and cyber-race, the social construction of race in the technological construction of cyberspace. Through this analysis, Professor Kang provides insightful commentary on the impending changes in American racial politics in the digital millennium.

THE VOTING RIGHTS ACT IN THE INTERNET AGE: AN EQUAL ACCESS THEORY FOR INTERESTING TIMES

by Stephen B. Pershing

In this Article, Stephen B. Pershing explores how harms to equality of voting access, other than the harm of mathematical dilution, ought to be treated under section 2 of the Voting Rights Act of 1965. The author addresses the concept of denial of equal access to voting opportunities in general, and then offers the following modest proposal for understanding the section 2 standard when it comes to asserted justifications for practices that result in the denial of equal access: The more severe the racial disparity of voting access that results from a challenged practice, the more tenuous the justification should be seen to be, even if that justification is asserted to have nothing to do with race.

HOW MIGHT CYBERSPACE CHANGE AMERICAN POLITICS?

by Eugene Volokh

Internet voting, Eugene Volokh suggests, may dramatically increase (for better or worse) the power of ideological interest groups. When people vote on their home computers, they can easily download certain groups’ voting suggestions; in fact, some organizations could even write special programs that actually fill out the electronic ballots for the voter (perhaps combining the suggestions from various interest groups that the voter chooses). And these programs could let groups more reliably count how many voters are relying on their advice, and then use this count in lobbying politicians to listen to their policy suggestions -- thus further increasing the interest groups’ power.
 

On a different note, Professor Volokh also suggests that while telecommuting and video commuting may in some ways diminish people’s connection to their geographical residence, it may also increase this connection: As more people find it possible to live where they really want to live, rather than just where their jobs require, they may find themselves developing stronger bonds to the place where they choose to settle.

NOTE AND COMMENT

RISK, UNCERTAINTY, AND NONERGODICITY IN THE DETERMINATION OF INVESTMENT-BACKED EXPECTATIONS: A POST KEYNESIAN ALTERNATIVE TO POSNERIAN DOCTRINE IN THE ANALYSIS OF REGULATORY TAKINGS

by Johan Deprez

The destruction of reasonable investment-backed expectations is an important factor in determining if a regulatory taking has occurred. This Comment applies distinction between risk and uncertainty, as found in Post Keynesian economics, to create a test for determining when investment- backed expectations are reasonable or not. Specifically, the statistical distinction between ergodic and nonergodic contexts is used. Risk-based investments are based upon an ergodic context -- a context where there is no structural change -- and, therefore, can be based on reasonable investment-backed expectations. Uncertainty-based investments are those investments based upon a nonergodic system -- a context where significant structural change occurs -- and, therefore, cannot be based on investment-backed expectations that are reasonable. Hence, Dr. Deprez concludes that it is logically impossible for regulatory takings to occur when dealing with an uncertainty-based investment.

TREES THAT FALL IN THE FOREST: THE PRECEDENTIAL EFFECT OF UNPUBLISHED OPINIONS

by Joshua R. Mandell

Limited publication -- the system under which judges have the discretion to issue an unpublished opinion, along with the court rules which govern the ability to cite an unpublished opinion -- began in the 1970s as an experiment for improving the efficiency of the federal courts. This Note examines the system of limited publication, finding it to be flawed on many levels. Specifically, the author argues that it is impossible for judges to predict the precedential value of a particular case when they decide it is not worthy of full publication. A recent en banc decision of the Eight Circuit announced that the constitutional status of unpublished opinions is an open question. This Note examines the rationale in Anastasoff v. United States in which a panel of the Eighth Circuit believed itself to be constitutionally bound to follow unpublished in-circuit precedent. The Note argues that in Anastasoff, the Eighth Circuit panel misunderstood the nature and historical development of the doctrine of precedent. The author concludes that limited publication merits careful reexamination, for although it is not unconstitutional, it is inherently flawed.