VOLUME 52, NUMBER 1, WINTER 2011 What if Europe Held an Election and No One Cared? David Schleicher TABLE OF CONTENTS INTRODUCTION................................................. 110 1. THE SOLUTIONS AND PROBLEMS OF ASSIGNING POWER TO A POPULARLY ELECTED EUROPEAN PARLIAMENT.............. ... 118 A. The European Parliament as a solution: bringing a popular voice on European issues into the separation of powers in the European Union ... .............................. 119 B. European Parliament elections as a problem: European Parliament elections track preferences about domestic policies and not European Union polices ....................... 123 II. EUROPEAN PARLIAMENT ELECTIONS AS AN INSTITUTIONAL PROBLEM: THE CONFLICT BETWEEN REFORM AND THE EXISTING SEPARATION OF POWERS INSIDE THE EUROPEAN UNION............................................... ....... 132 III. EUROPEAN PARLIAMENT ELECTIONS AS A MISMATCH PROBLEM: USING ELECTION LAW TO MAKE THE EUROPEAN PARLIAMENT PLAY ITS INSTITUTIONAL ROLE ............... 138 A. The problem of mismatch in European Parliament elections ... 139 1. A model of mismatch: why sub-national or super- national elections track nationalparty preference ....... .139 2. Applying the mismatch model to European Parliament elections .. .................................. 144 B. An election law solution to the problem of mismatch in European Parliamentelections ..... ................... 148 1. Electoral engineering and institutional design .......... 149 2. Using distribution requirements to reduce the mismatch problem in European Parliament elections/ ............. 152 IV. CONCLUSION: THE MISMATCH PROBLEM IN AMERICA AND EUROPE ..................................................... 156 110 Harvard InternationalLaw journal / Vol. 52 What if Europe Held an Election and No One Cared? David Schleicher* Last June's European Parliament ("EP") election was widely considered a failure. Turnout was low across Europe, and, as has been the case in every EP election since they were introduced in 1979, voters responded exclusively to domestic cues in deciding how to fill the European Union's only directly elected body. Campaigns were waged entirely on domestic issues outside of the purview of the EP, and the popular- ity of domestic prime ministers, who were not on the ballot, was the most importantfactor in determining the results. The EP is supposed to provide a popular check on the other legislative bodies in the European Union ("EU"), which are either appointed or directly controlledby member state governments, and thereby reduce the EU's "democratic deficit." Instead, the failure of EP elections to generate popular feedback on EU policy allows the deficit to fester and undermines the separation of powers inside the EU. This paper argues that the problems of EP elections are much like the problems in a variety of American state and local elections. Election laws ensure that national parties are on the ballot, and both legal limitations and strategic considerations make it difficult for these national parties to develop separate localized identities, or in the case of EP elections, Europeanizedones. Rationally ignorantvoters who know little about the individualfigures in these European bodies rely on the party heuristic that is available on the ballot, as it is the only relevant information that they have. Moreover, they do so even though it is unclear how closely preferences on European or local policies track preferences about national issues. The result is that national party preference ends up being reflected in these elections, despite the fact that the winners will decide policies at another level of government. Put another way, there is a "mismatch" between the institutional role the EP is asked to play in the EU's separation of powers-the voice of European citizens about EU policies-and the level of party competition at which EP elections are contested. Mismatch problems are endemic in federal systems and are generated by constitutional structures that ask more of voters than they are capable of providing. However, they can be solved or at least mitigated with election law tools. Following a procedure used in a variety of developing countries, the EU could pass a law that the EP will only seat members from those parties that both won seats from a given EU country and received a certain percentage of the vote in a quarter of EU member states. This would force the coalitions formed in the EP-the so-called "Euro-parties"--onto EP ballots, as parties would need to contest elections across Europe. Voters thus would have access to a European rather than national heuristic on the EP ballot, which would better allow them to use these elections to express preferences about EU policy. INTRODUCTION Elections were held for the European Parliament ("EP")-the only di- rectly elected body in the European Union ("EU")-in June 2009, but you can forgive yourself if you missed them. Despite an unprecedented EU- * Assistant Professor, George Mason University School of Law. I would like to thank Michelle Board- man, Chris Elmendorf, Heather Gerken, Samuel Issacharoff, Rachel Harmon, Daryl Levinson, Jeremy Rabkin, and the participants at the Virginia Junior Faculty Forum and the University of Texas Law School Faculty Colloquium for their comments and advice. Also, thanks are due to Jared Fleischer and Matt Kelly for research assistance. 2011 / What if Europe Held an Election and No One Cared? 111 funded media campaign to spur turnout, substantial doubt surrounding the future of EU institutional reform, and an enormous economic downturn, European voters barely registered that this election was taking place.' Turn- out hit an all-time low, and the widespread lack of interest allowed parties from the nationalist, xenophobic, and just strange fringes of European polit- ics to win seats. 2 Furthermore, the actual behavior of the Members of Euro- pean Parliament ("MEPs") had little to do with the results. Instead, as they have in every EP election since the first in 1979, voters responded exclu- sively to domestic cues, with the elections turning almost solely on the pop- ularity of domestic prime ministers and parties.' In most voters' eyes, June's EP elections did not play a role greater than a midterm public opinion poll about people not on the ballot, despite the fact that these elections deter- mined the composition of an increasingly powerful body inside the EU. It was not supposed to be like this. In 1979, with great fanfare, European voters were granted the power to directly elect their representatives for the EP.4 In several successive treaties revising the institutional structure of the EU since then, the EP has been given new and stronger powers, making it a major player in the EU's legis- lative process and leaving it only slightly weaker than the Council of the European Union, the legislative body in which member states of the EU 1. See, e.g., Marketa Hulpachovd, Voters Still Unclear on EU Issues, PRAGUE PosT, June 3, 2009, at 1 (describing election campaigns); Alain Lamassoure, Continuation of the European Adventure Relies on Ireland, IRISH TIMES, Dec. 10, 2008, at 18 (describing doubt about the future of EU reforms following Irish rejection of the Treaty of Lisbon); Martin Wolf, This Crisis is a Moment, but is it a Defining One?, FIN. TIMES, May 19, 2009, available at http://www.fullermoney.com/content/2009-05-20/FTThisCrisisIsA MomentBulsIcADefiningOne20MayO9.pdf ("Europe ... is not having a good crisis."). 2. Total turnout was forty-three percent, far lower than the turnout for domestic elections, and a number that overstates actual interest since it includes turnout numbers from countries where voting is mandatory. See,e.g., David Charter & Rory Watson, European Elections: Extremist and Fringe Partiesare the Big Winners, TIMEs (U.K.), June 8, 2009, available at http://www.timesonline.co.uk/tol/news/politics/ elections/article6452090.ece (discussing turnout); Jonathan Eyal, EU Parliament on Fringe of Lunaty; Newly Elected Rightist and Extremist Parties Have Little Clout but Could Undermine Unity, STRAITS TIMES (Sing.), June 14, 2009 (describing success of xenophobic, nationalist, and odd parties like the Pirate Party of Sweden); Swing Low, Swing Right; The European Elections, ECONOMIsT, June 13, 2009 (discussing turnout and results) [hereinafter Swing Low, Swing Right); Trouble at the Polls; The Worrying European Elections, EcoNoMIsT, June 13, 2009 (highlighting the success of xenophobic, nationalist, and odd parties like the Pirate Party of Sweden). 3. A model created by three leading European political scientists using national party preferences as its central variable predicted ninety percent of the seats won in the 2009 elections. Simon Hix, Michael Marsh & Nick Vivyan, Burson-Marsteller, Predict '09, June 8, 2009, http://www.webarchive.org.uk/ wayback/archive/20090609081906/predict09.eu/defaulten-us.aspx. Following the first EP election in 1980, Karlheinz Reif and Hermann Schmitt first diagnosed EP elections as "second-order elections," or elections with results determined entirely by national party popularity. See Karlheinz Reif & Hermann Schmitt, Nine Second-Order Nation Elections-A Conceptual Framework for the Analysis of European Election Results, 8 EUR. J. POL. RESEARCH 3, 8 (1980). This result has held up in studies of each EP election since 1979. See SIMoN Hix, WHAT'S WRONG WITH THE EUROPEAN UNION & How To Fix IT 80-84 (2008) {hereinafter Hix, WHAT'S WRONG); Michael Marsh, Testing the Second-Order Election