Second-Best Deliberative Democracy and Election Law

This article proposes and develops the concept of “second-best deliberation,” and uses it to evaluate the deliberative possibilities within and the shortcomings of various aspects of the U.S. electoral system, including electoral redistricting, majority-minority districts, political parties and partisanship, the Voting Rights Act, campaign finance regulation, election administration, and electoral reform. Under a second-best approach, the norms of deliberation change depending on the actors and institutions involved. I argue that the concept of deliberation should be re-conceived as existing along a spectrum, with ideal deliberation on one end and non-ideal deliberation on the other end. This article argues for a non-ideal approach to deliberation because such an approach can identify and foster deliberative moments that would otherwise fail to satisfy the strict, and arguably unrealistic, requirements of ideal deliberation. 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