Over at Jotwell — the Journal of Things We Like (Lots) — Betrall Ross has a terrific review of Jennifer Nou’s latest article “Sub-Regulating Elections.” This article was just published in the Supreme Court Review, and is available behind a paywall on JSTOR here. An earlier draft is also available (for free) on SSRN here. Here’s a summary of the article, from the SSRN abstract:

Agency deadlocks are a recurring feature of election-related administrative agencies. Such agencies are often designed by Congress with even-numbered bipartisan commissions with majoritarian voting rules. UsingArizona v. Intertribal Council as a springboard, this Article examines how courts should treat commissioner tie votes when they concern issues of statutory interpretation. In particular, it argues that courts should not defer to the blocking coalition, but rather apply an institutional understanding of Skidmore deference to interpretive documents prepared by politically insulated agency actors, when available. The proposal seeks to create greater incentives for internal agency independence in the presence of partisan deadlocks and the development of agency expertise through sub-regulatory guidance documents such as agency manuals and opinion letters. The analysis also reflects more broadly on the intersections between federal election administration and administrative law.

And here are some highlights from Professor Ross’s Jotwell review:

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.

This article is such a fun read, and Professor Ross’s review is a great example of the value of Jotwell in highlighting terrific legal scholarship.

I have two brief reactions to Professor Nou’s proposal of replacing Chevron deference with the less-deferential Skidmore standard.

First, a natural reaction to this proposal may be: Why would we want to give even more power to an unelected bureaucrat, especially to decide important questions that directly affect the democratic process? Professor Nou carefully explores the various factors at play — expertise, political accountability, etc. — but she also underscores what is really at stake when setting judicial deference standards. Deference standards don’t just decide how much power a particular government actor has, but also and perhaps more importantly the allocation of powers among various government actors.

My guess is that this observation isn’t new to anyone familiar with administrative law. But Professor Nou’s article, and the election law context in which she explores deference regimes, provides a great context to drive home this point. If not the unelected, career officials breaking the tie on election procedures, then who? Article III judges? Bush v. Gore immediately comes to mind as Exhibit A for why that’s not ideal. Adding an individual from the governing party to the agency commission to break the tie? Some states, such as Ohio, have in essence done that with their boards of elections and the secretary of state. Again, not sure that’s the best approach.

As Professor Nou suggests, however, a nice feature of federal administrative law is that the deference regime is not a binary choice about who gets power to decide, but one can also adjust the level of judicial deference to better monitor and constrain agency behavior. A Skidmore standard here — one that attempts to constrain political decisions by having a court review the thoroughness of the agency’s analysis, validity of its reasoning, consistency of its interpretation over time, and related factors that may persuade — allows courts to play a meaningful review role while also encouraging that agency to develop and exercise expertise.

Second, I agree with Professor Ross’s bottom line that “what ultimately makes [Nou’s article] 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.'” I’m not as confident, however, with Professor Ross’s suggestion that we can (or should) imagine courts implementing Professor Nou’s proposal of shifting from Chevron to Skidmore. I don’t see a statutory or doctrinal hook for such modification, and the Court’s bright-line rule in City of Arlington v. FCCwould suggest a disfavor for carving out substantive exceptions as to when Chevron applies.

But Professor Nou’s proposal is one that Congress should seriously consider, perhaps to be included as part of Dan Takoji‘s grand election bargain (or more likely some more modest, incremental election law statutory reform). As Kent Barnett has explored in his Codifying Chevmore article, which I blogged about here, Congress has codified Skidmore deference in lieu of Chevron deference in at least one instance (Dodd-Frank). For the reasons that both Professors Nou and Barnett explore in their scholarship, breaking ties on equally divided agency commissions — especially in the election law context — seems like another area where Chevrmore codification would be warranted.

Regardless whether Professor Nou’s proposal becomes a reality, the work she has done in this piece is just terrific. I look forward to seeing how she builds on this piece in subsequent work. And, on a somewhat related point, if you haven’t already read Professor Nou’s terrific article “Agency Self-Insulation Under Presidential Review,” it’s definitely worth adding to your reading list. It was one of my favorite pieces published in 2013.