The "chaos" we fear and the chaos we ignore

Sandy Levinson

Justice Kavanaugh made a great deal of the possibility of "chaos" ensuing should the Court rule that electors can no more be "instructed" by state law on how to vote than can those other representatives elected to the House or Senate.  "Chaos" has become a mantra for those, such as the editorial board of the Washington Post, who believe that states should in fact be able in effect to instruct electors.  It is as if they suddenly perceive Godzilla threatening an otherwise stable American constitutional order.

My own view, for what it is worth, is that Larry Lessig was completely correct in his argument and that this should be regarded as a relatively easy case, especially if one purports to be an originalist.  If the Court in fact rules against Lessig, as most people apparently believe will be the case, it will be entertaining, to say the least, to see how the self-styled denizens of originalism explain their willingness to ignore what is quite clear about the "original meaning" of the electoral college as representatives of the public called upon to make decisions in the public interest as to who would be best suited to take on the roles as president and vice president.  The fact that electors are very particularistic "representatives" does not in the least change that fundamental character.  If we wanted direct democracy (which I am more sympathetic to than most people I know), we'd simply scuttle the electoral college in favor of a national vote.  We haven't.  As a matter of fact, Kavanaugh's concerns about "chaos" seem overblown inasmuch as Lessig demonstrated that we've had the "problem" of "independent," "rogue," "faithless," or "Hamiltonian" electors, depending on your own nomenclature, since at least 1796, and they have not generated chaos.  To be sure, one can envision a situation when that is possible--the black swan possibility.  But if one adopts as a general rule of constitutional interpretation (or construction) that one must always decide in terms of imagining the worst possibility, however small, and crafting doctrine accordingly, that would have significant consequences indeed.  In Printz, for example, the Court seemingly said that no circumstances at all would every justify the national government's "commandeering" state officials to implement national policy.  Perhaps that makes sense as a general practice, though I have my doubts even there.  But it is idiotic to say that even in times of genuine emergencies, state officials should be free of being "conscripted," if that is the proper term, to serve vital national goals.


But my real point is that it is the electoral college itself, and not the exceedingly slim possibility that an independent elector could indeed be decisive, that generates "chaos."  It is Godzilla, and we wish to avoid any serious discussion of that reality and instead focus on what is really one of the most trivial features of the electoral college system.  It is as if we suddenly became aroused when observing that Godzilla refused to stop at a traffic light and simply ignored the destruction he had already wreaked on the country.  Twice in this century, the "people's choice" as measured by votes actually cast was deprived of the White House, with undoubtedly disastrous consequences for the country generally.  (Even if one now looks at George W. Bush somewhat more kindly than was true at the time, this is only because the sociopathic Donald Trump has become the baseline of comparison.)  But it is also crucial to realize that Richard Nixon in 1968 and Bill Clinton in 1992 took the White House with only 43% of the popular vote.  Neither could make a genuinely plausible claim to truly democratic legitimacy even if they did come in first and got a majority of the electoral vote.  And, most importantly, Abraham Lincoln took the White House in 1860 with only 39.8% of the popular vote, and civil war ensued.  If, say, the US emulated France or several American states, there would have been runoffs, and the final results might have been different. (Or not. Obviously we'll never know for sure.)  One might also think of the 1912 election, when Wilson won because of Teddy Roosevelt's third-party candidacy.  The US has what is undoubtedly the worst presidential election system among all so-called democracies.  Imagine, for example, the not completely unlikely possibility that Donald J. Trump will lose the popular vote in November by, say, 5 million votes, but will nonetheless eke out an extremely narrow electoral vote victory, in part because GOP stooges like Texas's own Attorney General do whatever they can to prevent the move toward mail-in ballots and to engage in other forms of voter suppression.  My own view is that that result would certainly generate "chaos" and perhaps even a move toward civil war.  There would be no reason at all for Democrats to be "good sports" and view such a "victory" as legitimate, given the nature of  Donald J. Trump as a president.  That's what should concern us.  But that, of course, is just too scary, so instead Kavanaugh and others become hysterical about legitimating a practice that has in fact been with us now for almost 225 years.

Kavanaugh's and Alito's professed concerns about "chaos" are interesting principally as exemplifications of the peculiar world that they live in.  They cheerfully join in agreeing that the Supreme Court can do nothing with regard to the democracy- and legitimacy-destroying reality of partisan gerrymandering while professing great worry about the behavior of individual electors.  Why do we take them seriously as sages about our political system?  They have had no relevant experience within the American political system; it is not clear that their legal education forced them to think about the realities of the American political system; and now they get to make authoritative pronouncement about what is or is not potentially "chaotic" about it.

[ADDENDA:  Instead of a brand new posting, it seems better to add the following:

Some countries prohibit elected representatives from "crossing the aisle" by leaving the party that elected them and joining one of the other parties.  So in such countries one could not have, say, Richard Shelby, re-elected in 1992 as a Democratic Senator from Alabama.   The day after the Republican capture of Congress in 1994, he betrayed his party and his voters by switching to the Republican Party.  It was clearly a good political move insofar as he has been re-elected ever since.  Much more recently, New Jersey Representative Jeff Van Drew became a turncoat, at Donald J. Trump's invitation, and switched Republican after being re-elected as a Democrat in the 2018 election.  I suspect that most readers of Balkinization will be fonder of Senator Jim Jeffords of Vermont, who switched the Senate from Republican to Democratic control in 2001 when he discovered that he could not stomach the Bush-Cheney GOP.  That switch might even be described  as "chatoic" for those with certain political views, but the point is that no one suggested that Jeffords could legitimately be penalized in any way (other than being tossed out by the voters in the next election) for what many of his supporters undoubtedly viewed as his betrayal of their legitimate expectations.  One might argue that the most important single act of a senator is to cast his or her vote on how to organize the Senate.  It is the direct equivalent of an electoral vote.

So, if I'm correct, that Shelby, Van Drew, Jeffords, and other "aisle crossers" in our history did nothing objectionable under the Constitution and, more to the point, were protected in their independent judgment, why exactly should it be different with regard to electors?  There is a good answer, but it rests entirely on one's views of desirable public policy and has nothing truly to do with "constitutional interpretation" save as a cover for one's political preference.  As an often hardcore "legal realist," I have no principled objection to this, so long as one is honest in admitting it.  But we're told by the current majority of the Supreme Court not only that they are not "politicians in robes," but also that they are (or at least most of them) genuinely constrained by obedience to the wishes or the words of the Framers, come what may).
Posted 12:14 PM by Sandy Levinson [link]