Heather K. Gerken

Heather K. Gerken, the J. Skelly Wright Professor of Law at Yale Law School, is an expert in election law. Her book on election reform, The Democracy Index: Why Our Election System is Failing and How to Fix It (Princeton University Press), comes out this spring.

Recent Articles

The Real Problem with <i>Citizens United</i>

The case didn't just give corporations greater voice -- it changed the rules about what corruption means in election funding.

Citizens United President David Bossie. (AP Photo/Lauren Victoria Burke)
Yesterday the Supreme Court struck down the federal ban on corporate independent expenditures in Citizens United v. FEC . Before Citizens United , corporations were not allowed to spend money from their general treasuries to call for the election or defeat of federal candidates close to Election Day, even if they did so without consulting with the candidate. In striking down the federal ban, the Supreme Court overruled two of its decisions: Austin v. Michigan Chamber of Commerce , decided in 1990, and McConnell v. FEC , decided less than 7 years ago. The decision has been met with howls of protest from reformers: The Supreme Court overruled its own precedent! A century-long tradition of regulation is in jeopardy! Corporations will flood the airwaves and further corrupt our already corrupt political process! It's "a disaster for the American people," says Fred Wertheimer of the campaign finance reform organization Democracy 21. It's not surprising that reformers are outraged. Austin...

An Uncertain Fate for Voting Rights

The Supreme Court might not have struck down the act yesterday, but it didn't preserve the act, either.

Attorneys Debo Adegbile and John Payton with the Legal Defense and Education Fund of the NAACP walk down the steps in front of the Supreme Court after oral arguments in a Voting Rights Act case. (AP Photo/Alex Brandon)
Yesterday the Supreme Court wrote a cliffhanger of an opinion on the constitutionality of Section 5 of the Voting Rights Act (VRA), one of the most powerful weapons in the civil-rights arsenal. In the Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder opinion , the Court raised serious questions about Section 5's future, but it didn't pull the trigger. The question is how this story will end. Section 5 requires certain jurisdictions to ask the federal government's permission before making any change -- no matter how small -- in the way they run elections. Until a rule was "precleared," it could not be implemented. This unusual provision solved the central problem of voting-rights enforcement during the civil-rights era -- keeping up with the increasingly creative strategies recalcitrant state and local governments used to disenfranchise voters. Every time a court deemed one discriminatory practice illegal, local officials would switch to another. Section 5...

Race, Voting Rights, and the Genius of Justice Souter

Justice David Souter doesn't care for politics, but he understands the politics of race better than his colleagues to his left or his right.

Associate Justice David Souter was nominated by President George H.W. Bush in 1990. (AP Photo/J. Scott Applewhite)
One of the reasons that the Supreme Court will miss David Souter is that he possesses a gift that we seek but rarely find in a judge – the ability to step outside the bounds of his experience. Nowhere is this more evident than in Justice Souter's astute take on the fraught relationship between race and politics, a topic that has dominated the Supreme Court’s docket for much of his tenure. Souter is perhaps the least politically connected person on the Court, and his home state of New Hampshire is a racially homogenous area that hasn’t had much of a record either way with the Voting Rights Act. Despite his lack of experience, Souter has carved out a position on the Voting Rights Act that is both more nuanced and more pragmatic than his brethren’s. If you want to know what makes Souter a great judge, take a look at his voting-rights opinions. Because Souter’s voting-rights jurisprudence is tied up with his legacy on the bench, it is depressing that his last...

We Have the Facts and We're Voting Yes

We cannot achieve meaningful electoral reform until we can quantify exactly what is wrong with the system.

Last December , Heather Gerken made the case for the creation of a system that ranks states and localities based on how well they run elections. Her new book, The Democracy Index , published by Princeton University Press, expands upon the idea, arguing that clear data about the electoral system could stimulate productive competition between localities and thereby improve the voting process. In the following excerpt adapted from The Democracy Index , Gerken considers the practical effects that voting data -- and lack thereof -- has on ordinary citizens and the implementation of policy. Spencer Overton doesn't fit the stereotype of an election reformer. Polished and professional, it's easier to imagine the Justice appointee in Armani than Birkenstocks. Overton draws his idealism from a civil-rights background, and he is capable of talking about the right to vote in stirring terms. But with his Harvard Law degree and measured baritone, it's as easy to imagine him relating to corporate...

The Case for Keeping Score

A democracy index could push states toward more ambitious electoral reforms.

In 2000, Americans finally learned what Roy Saltman calls "election administration's family secret": Our election system is run badly. Election problems prevented us from learning the identity of our 43rd president until weeks after the election. Things got so bad that Fidel Castro, admittedly a man not cursed with self-awareness, offered to send election monitors to Florida. We were an international laughingstock. Eight years later, too little has changed. On Election Day, we saw the same problems we saw in 2000 (and 2004): long lines, registration problems, a dearth of poll workers, discarded ballots, machine breakdowns. The only difference is that this election wasn't close enough for those problems to matter. The system remains chronically underfunded and poorly run. Our system is resistant to change because of an unusual combination of localism and partisanship. Unlike most developed democracies, state and local officials run our elections, leading to what one scholar has termed...