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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Reflection And Choice About A True Constitutional Imbecility
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Sunday, October 11, 2020
Reflection And Choice About A True Constitutional Imbecility
Sandy Levinson
For the Balkinization Symposium on Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020). Although this symposium was originally envisioned as discussing
only Jesse Wegman’s Let the People Pick the President: The Case
for Abolishing the Electoral College and Alex Keyssar’s Why Do
We Still Have the Electoral College?, I am including as well Edward B.
Foley’s equally fine book, Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration
of the Jeffersonian Electoral College. It
was published somewhat earlier in the year, but all of them deserve readers and
discussion. Wegman, a former lawyer who
is now on the editorial board of the New York Times, has written, as
Jack Rakove suggests, a book designed for the widest audience. It is a forthright and, to my mind,
completely convincing attack on retaining the electoral college at all; it
would make a perfectly suitable gift to any friend who wants to know what the
fuss about the electoral college is about. It is written in a conversational
style that is truly reader-friendly. Keyssar
and Foley are both academics, Keyssar at Harvard, Foley at Ohio State, and
their books are, perhaps necessarily, denser.
But all are extremely well written and accessible. One could do much worse than give all three
as presents! My blurb for Foley’s book
reads, “Nobody writes more thoughtfully about the theory and historical
practices of American elections than Foley.
This book is a model of careful argument.” I happily stand by that, just as I would
write equally enthusiastic, though somewhat differently phrased, endorsements
of the other two. To put it mildly, this is a more extended
essay than originally envisioned, and not only because I have added Foley to
the mix. I am therefore dividing it into
two parts, the first of which will be published today, the second
tomorrow. I will focus first mostly
(though not exclusively) on Keyssar’s book, which is both the longest and
contains the most historical material.
Tomorrow I will turn more to the suggestions offered by Foley and Wegman
as to how we might escape the current iron cage constructed by the present
electoral college system. Keyssar is less of an
advocate than the other authors; he is primarily interested in what accounts
for the endurance of a part of the Constitution that has been systematically
attacked since at least 1816, though one of his explanations is the barriers
placed in the way of formal constitutional amendment. This did not, obviously, prevent the
important Twelfth Amendment, a focus of Foley’s book, from being proposed and
ratified after the fiasco of the Jefferson-Burr tie vote of 1800, in time for
the 1804 election. But that is the last
such amendment, and all three authors appear to agree that the prospects for
amendment in the foreseeable future are minimal. Wegman, like Foley, offers enthusiastic
support for a “workaround” that avoids climbing the Mount Everest of the
amendment process. Their respective
suggestions, though, are quite stunningly different. I shall elaborate them tomorrow. Keyssar has given us the
definitive book not so much on the pros and cons of the electoral college—save
indirectly through quotation from many of the congressional debates he
analyzes—but, rather, on the political history of the now 200-year saga of proposals
to modify or get rid of it, all of which have failed. Along with learning a lot about the electoral
college and its operation as a part of American politics, one also learns a
great deal about American politics. As
Rakove suggests in his contribution to this symposium, perhaps the most
important single lesson involves the effective stranglehold over important
aspects of our national polity enjoyed by white Southern segregationists (and,
obviously, white supremacists) basically since the end of the very limited, and
ultimately unsuccessful, attempt at “regime change” that we label
“Reconstruction.” From the very origins
of the electoral college until today, it has served as an ally first of
slaveowners and later of those determined to minimize the participation in the
electorate of African-Americans. The
mechanism by which electors in effect creates incentives for ruling elites in
any given state to suppress the actual vote.
A 1-0 vote in favor of one’s political favorite is far “better,” from
the perspective of a ruling class, than a one million to 999,999 vote in favor
of their opposition. The first will, in
almost all states (save Maine and Nebraska) award the entirety of the state’s
electors to the hegemons’ favorite candidate.
The second, obviously, works to the opposite effect. The “rational choice” of those in power is as
much to minimize the turnout of one’s political opponents as to generate
turnout from their supporters, especially, of course, if one suspects that one
would lose if everyone in fact turned out in a fair and open election. The Fifteenth Amendment
was a practical nullity in roughly one-quarter of the country from the end of
the 19th century until the aftermath of the passage of the Voting
Rights Act of 1965. That Act, perhaps
the most important single piece of legislation in the 20th century
from a systemic perspective, had the consequences that Lyndon B. Johnson
predicted: It destroyed the existing
Democratic Party in the South, based as it was on white supremacy, and created
at the same time the modern Republican Party, itself all-too-willing to fully
adapt to Donald Trump’s ill-disguised racist dog whistles and, altogether
relevantly, to devote itself, often with the approval of the Republican Supreme
Court, to various measures designed to suppress the turnout of
African-Americans who tend to be disproportionately Democratic in their
sympathies. I was tempted to
describe the electoral college as perhaps the defining example of “American
exceptionalism,” but it is essential to realize that none of the fifty American
states now come close to emulating the national practice. The closest was
Georgia, which used for many years what they called the “county-unit” system
that, as the name suggests, gave significantly more practical power to
Georgia’s rural (and whiter) counties than to the Atlanta area; this, however,
was declared unconstitutional by the Supreme Court as a blatant violation of
what has come to be called the “one-person/one-vote” requirement. No
reasonable person could defend the electoral college system as complying with
such a standard. Consider only the fact that in the 2016 election, the 39
million people of California—roughly two million more than live in the
twenty-one smallest state, plus the District of Columbia, combined, received
only 55 electoral votes, while the 21 states plus D.C. got a total of 95.
Even though Keyssar
demonstrates, much to the reader’s surprise, that small states have not
necessarily been avid supporters of retaining the status quo, they clearly do
benefit, at least collectively, even if not so much as in the egregious United
States Senate. After all, in the
remarkable election of 2000, while all of the attention was placed on Florida
and “hanging chads,” nobody noticed that Al Gore received only five electoral
votes for carrying New Mexico even as George W. Bush won the presidency, in
effect, by receiving nine votes by carrying Wyoming and the two Dakotas.
Not surprisingly, their total populations were almost identical, but it just
didn’t matter. This is just the way the “state unit” system works,
whatever the Supreme Court had suggested in Gray v. Sanders when
invalidating Georgia’s “county unit” system. There is, as Wegman
suggests, no principled defense for the difference in the way these two systems
are treated in our constitutional order. So what does explain the
maintenance of a system that has been relentlessly criticized since at least
1816, when Senator Abner Lacock of Pennsylvania became the first solon to
suggest reforming the electoral college system to provide for a national
vote? Keyssar offers a suitably complex explanation. First there is sheer path dependence, that
is, the inertial force behind any decision made or structures adopted by the
Framers in 1787. One must also account for the vagaries of history and, very
importantly, the degree to which shifting partisan political considerations
operated to make reform, whether in 1816 or today, seemingly impossible.
That is particularly true if one envisions reform as requiring a constitutional
amendment proposed by Congress. One must first get the assent of
two-thirds of each House of Congress and then ratification by three-quarters of
the states. Unlike the case with, say, the Equal Rights Amendment, we
will never know whether the three-quarters requirement would in fact prove
fatal to a congressionally proposed amendment; it has simply never been the
case that both the House and Senate agreed to suggested reforms. Each, on
occasion, has, but the other body did not agree. So nothing
happened. Again, the central
question is why. One answer, particularly attractive to modern political
scientists, might simply focus on the fact that the Electoral College is in
fact a complex system that consists of four quite different aspects, each of
which poses its own problems: The first is that it generates the
possibility that the candidate who comes in first in the popular vote loses the
presidency to the candidate who gets a majority of the electoral vote; this
occurred, of course, in 2000 and 2016, as well as 1888 and, arguably,
1876. Second, there is the fact, recognized early on, that the “general
ticket” system—what we today call the “winner-take-all” feature by which all
states except Nebraska and Maine allocate the entirety of their vote to the
winner—leaves the supporters of the losing candidate without any representation
at all among the multiplicity of “electors” who officially cast the ballots
that in turn “really” elect the president. If, as the Supreme Court
suggested in Reynolds v. Sims, the 1964 decision that
established “one-person/one-vote” as the ideological standard for the operation
of American democracy, that principal entailed “fair and effective
representation,” then the electoral college hopelessly flunks the test. Imagine that a state
elected all of the members of its state legislature by a state-wide
winner-take-all vote. The party getting
the most votes in a state-wide election for the state house of representatives
or senate could get all of the seats. As David Boies
argued before the First Circuit Court of Appeals last year, in a suit
challenging the constitutionality of “winner-take-all,” it would be as if
Republicans could be completely frozen out of the Massachusetts legislature (or
Democrats from the Texas legislature) if they came in second in a state wide
at-large election. In fact, if the electoral college were the model, it wouldn’t
even be necessary for the Democrats or Republicans in these two states to gain
an actual majority of the votes; it would be enough simply to come in first in
a multi-party contest. So, for example, George W. Bush got all of
Florida’s electoral votes, and therefore the presidency, even though he
received only roughly 48% of the popular vote in that state. Why
shouldn’t the GOP get 100% of the legislative seats with, say, 40% of the vote,
if that is more than the 38% won by the Democrats and 22% won the the Green
Party? I mean this to be a rhetorical
question, but the way the electoral college is structured makes it all too
relevant. But wait, there’s
more. What if no candidate receives a majority of the electoral vote (or,
as happened in 1800, the top two candidates tied)? Well, the
Constitution provides for what became called the “contingent
election”: The House of Representatives would pick the winner, on a
one-state/one-vote basis. This meant that the smallest and largest states
would have equal power to determine who became president. Twice we have
been subjected to such “contingent” elections, in 1800 and 1824, and in neither
case was it a pretty process. Civil war seemed possible in 1801 before
Delaware’s Federalist representative James Bayard assented, on the 36th ballot,
to accept the election of Thomas Jefferson over Aaron Burr by abstaining (and
encouraging some other Federalist representatives similarly to abstain and thus
allow their hitherto tied delegations to vote for Jefferson). In 1824,
what Andrew Jackson and his supporters quickly termed the “corrupt bargain”
allowed John Quincy Adams to prevail even though he had failed to come in first
in either the popular or electoral vote. As Keyssar demonstrates, almost
literally no one defends this feature of the electoral college
system; defenders of the electoral college—and there are some—simply avert
their eyes from the possibility of a “contingent election,” offering their
hopeful assertions that it just couldn’t happen today. As he notes, many
presumably astute observers assured the public in the 1970s and ‘80s that there
was no real possibility of a “wrong winner,” since that hadn’t happened since
1888 and was, therefore, simply, like amber, a feature of a past that we could
simply ignore. One of the things that Keyssar’s book does is to point out
the foolishness of many such confident assertions about the operation of the
system. And, in fact, there’s
still more: Are electors to be viewed as having genuine discretion in
casting their ballots or, instead, are they basically mindless agents of those
appointing them? Generally speaking, the Constitution does not allow
for “instructed” federal representatives.
There are various incentives for representatives and senators to take their
constituents into account when voting, but it is also true that, unlike in some
other countries, they are permitted not only to vote against their party
leaders (and, possibly, their constituents’ wishes), but also even “to cross
the aisle” and, like Alabama Senator Richard Shelby or Pennsylvania Senator
Arlen Specter, betray their respective Democratic and Republican supporters and
take on new political spots. However,
the Supreme Court decided only this past July, in Chiafalo v. Washington,
that presidential electors are different, that they can indeed, be “instructed”
by their state legislators, on pain of punishment, to mindlessly adhere to
their voters’ presumed partisan desires.
Even if one agrees with the decision as a matter of policy—and I don’t—the
Court’s unanimous decision was a travesty of what several of the justices claim
to care about, i.e., “original intent,” however defined. As Hamilton made crystal clear in Federalist
68, perhaps the principal defense of the electoral college was precisely
that the electors, as leaders of the political community, would protect the
public from a demagogue in the presidency.
They would serve as an indispensable filter against someone clearly
unsuitable to hold the office. The Court
was stunningly indifferent to retaining that possibility. As political scientists
delight in pointing out, it is extremely difficult, even in the best of
systems, to achieve closure where a given public policy problem includes more
than two possibilities. That is precisely the case with the electoral
college system. For a variety of reasons, it has never been possible to
focus simply on one of the problems and to ignore the others. The
“contingent election” system, for example, greatly enhances the power of small
states and it is unclear that they would be altruistic enough to give it up,
any more than one would expect them to agree that the
affirmative-action-plan-for-the-residents-of-small-states that we call the
Senate is also indefensible. Getting rid of the winner-take-all system, another
reform that some believe is devoutly to be wished, would require the approval
of the dozen or so “battleground” states that benefit from the quadrennial
pandering of candidates and the inordinate attention paid their residents by
journalists. And it’s not clear that
ruling elites in large non-battleground states would readily offer their
political opponents the opportunity to get at least some electoral votes
instead of realizing that their participation in presidential elections is
truly irrelevant if they are not part of the privileged majority. So one has to put together a “reform”
proposal that addresses all of the most problematic features of the electoral
college system: the “general ticket” depriving political minorities
within a state of an iota of representation in the “college” that chooses
presidents; the fact that the electors can be awarded without the winner
gaining even a majority of the vote within a given state; the fact that a
candidate can unequivocally lose the national majority vote and still win a
majority of electoral votes; and, finally, the possibility that should, for
example, there be a viable third party candidate who in fact picks up some
electoral votes, none of the candidates would get the magic majority and the
decision would be made by the House of Representatives on a one-state/one-vote
basis. (The Senate, incidentally, would
choose the Vice President, so it is thinkable, given a “divided” Congress, that
we could revert to the halcyon days of 1796, when John Adams had as his vice
president his bitter opponent Thomas Jefferson.)
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