An election law expert shares his take on American politics and the 2016 presidential race.
Derek Muller was in the midst of earning his law degree from the University of Notre Dame when he found himself fascinated by the rapidly growing area of election law. Excited to be in front of this field, he focused his research on federalism and the role of states in federal elections. Now, nearly a decade later, his passion for the political process drives his frequent contributions to national news media, opinion pieces, and scholarly articles that analyze election law.
An associate professor of law at the Pepperdine University School of Law, Muller teaches in the areas of civil procedure, complex civil litigation, and evidence, as well as election law. During this year’s particularly polarizing and contentious election climate, his expertise provided students with a behind-the-scenes look at American politics.
Pepperdine Magazine sat down with Muller to discuss federal laws, the American political system, and the 2016 presidential election.
Pepperdine Magazine: What do you find most fascinating about politics and federalism?
Derek Muller: I am most interested in the process behind elections. There is always going to be a winner and a loser, and people will get excited or disappointed from time to time. But we have this set of rules that is supposed to govern the process neutrally and fairly in all circumstances. Studying those rules before the big contest, or the fight about who is going to win or lose, fascinates me.
We have a unique government system in the United States where the state and federal powers often overlap. So, we vote for the president and for members of Congress, but those elections are largely administered at the state level. This system of federalism means big national issues are regulated at the state level, which creates complexity.
PM: Is there anything about politics or elections in general that you wish people understood?
DM: I think a lot of times people get really upset with the process. Any time something goes wrong in an election, we tend to blame a conspiracy or voter suppression or an effort to thwart the will of the people. In reality, many things that happen in our elections are being administered by people of good faith who do want the right outcome in these disputes, but may have some disagreements about what the end ought to be. Sometimes there are bad actors, but many times these are people acting in good faith.
Sometimes there is a disconnect between what people want to happen and the process behind how it happens, and thinking that they always have to line up. But that might not always be the case. At the local level, it’s usually community volunteers who are helping at the polls or county clerks who are setting up the polling stations. These are low-level officials who are doing their best to administer how we vote and how we go about the political process.
PM: What do you want people to know about the 2016 presidential election?
DM: People need to be aware that presidential elections are the ones that get the most media attention, but there are many things on the ballot that are fairly significant, especially at the local level.
In California, residents voted on 17 ballot initiatives. Those were opportunities to change the law, in some ways pretty dramatically. That’s something that people need to keep in mind—that there are many things to be voting for and it takes a lot of work to think about those things in advance and come up with your own decisions about what ought to happen.
Don’t get lost in the presidential election that everyone might be talking about. Instead, also focus on some of the other issues that might affect you much more directly in the long run.
PM: Has anything about this current election surprised you?
DM: There were many instances where people projected some potential catastrophes that could happen in terms of changing election laws, voting hours, polling places, and registration. Additionally, there was a lot of worry that the presidential primaries—which typically shake out in such a way that results in many questioning their legitimacy— would be closely decided or deeply divisive, and that the conventions would play out the same way.
We’ve had a relatively ordinary process, even if a lot of people might not be happy with the outcome. That’s sometimes just what happens in elections. There have certainly been some hiccups along the way, but nothing that has been so catastrophic that it’s been insurmountable.
PM: What should government officials be aware of during elections?
DM: People should recognize that the rules politicians and citizens come up with affect the outcome of votes. For example, regulating which groups are allowed to vote in primaries, when the elections are going to be held—and in what order—for presidential primaries, and deciding how many candidates can appear on the ballot all have dramatic consequences at the end of the day.
Therefore, election officials and government agencies need to be very careful in thinking through the potential consequences of these decisions to avoid the suggested notion that the outcome may not have necessarily been what people wanted.
PM: Which of your scholarly works or political contributions are you most proud of?
DM: A few years ago I started writing about the procedures to challenge President Obama’s eligibility. focused on who can bring these lawsuits in court, and whether or not they are able to bring these lawsuits the first place. It also suggested that candidate litigations were a relatively new problem and would happen again in the near future.
Sure enough, here we are in 2016 and have seen the same kind of dispute over Ted Cruz’s eligibility for the presidency. It’s less about determining whether somebody is a natural-born citizen and more about the procedures that should or should not be in place, if the decision to remove a candidate from the ballot should be in the hands of voters or courts, and whether a citizen can bring litigation to federal or state court.
These sound like picky details that might affect only a few lawyers who care about these things, but setting up these rules can dramatically impact whether a candidate appears on the ballot. I’m pleased with work that focuses on trying to think about the best ways to design a fair election system that provides the greatest opportunity to voters while at the same time maintaining the integrity of our process.
PM: How has Pepperdine influenced your work?
DM: It’s exciting to be at a place where I’m able to pursue this area of research and for it to have a broad impact in the legal community and in the public policy sphere. The opportunity to flourish here has been really valuable.
It’s always great to speak to my colleagues about my work and get their feedback because in the field of law—despite the fact that it might not be your niche area—you are generally able to understand legal arguments and some of the concepts that are at play, and to challenge and tease out the issues. I’ve had a lot of support from colleagues here to sharpen my writing and my arguments.
PM: Would you ever run for office?
DM: I don’t think so. There is an off chance I might run for a local type of office, but it’s not really in my blood to be a politician. I’m much more of a policy wonk, thinking about what the laws ought to look like and maybe advising lawmakers about how they would go about changing that, rather than being the politician myself.