Popular Constitutionalism and Challenges to the 2020 Election

David Super

      As the farce of Four Seasons Total Landscaping evolved into the outrage of attempts to strong-arm state officials to change vote tallies and then the terror and tragedy of the assault on the Capitol, it is easy to lose track of the broader implications for our constitutional order.  Beyond a deeply unserious President, the cravenness of those seeking to curry favor with his extremist followers, and his misfiring legal team lie some important lessons about our constitutional regime.  In particular, these events raise serious questions about the role and effect of popular constitutionalism in our system. 

     Challenging Formally Adequate Election Returns

     Much of the public interest litigation of the past half-century was built on the procedural foundations of Ex Parte Young.  That 1908 decision holds that suits to enjoin government officials’ actions do not offend sovereign immunity because those officials are not truly representing the state when they act unlawfully.  Without Ex Parte Young and similar doctrines, much of the litigation that carried forward the Civil Rights Revolution would have been impossible. 

     The part of the challenge to the election that has any coherence is based on a similar theory:  that the states’ election results are legally invalid and thus can be disregarded.  Advocates of progressive constitutional change should be cautious in criticizing election opponents on purely formalist grounds when anti-formalist bars to litigation have repeatedly proven crucial to preserving the rule of law and protecting vulnerable people.  Indeed, conservatives’ new doubts about formalism should be welcomed.  The challenges to the election’s validity should be addressed squarely on their merits.

     Leaving aside patently absurd theories – such as the one that Vice President Pence could simply gavel his way to a second term – these challenges have three alternative bases, one factual and the other two legal.  All are problematic, but each bears important implications for popular constitutionalism.

     Factual Challenges to the Election’s Validity and Our Capacity to Deliberate

     The factual premise underlying the challenge to the election’s validity is that it was afflicted with massive fraud.  An initial question is whether this should still matter:  at what point do we become “holders in due course” of the results of the election, entitled to rely upon it?  As I teach my Property and Contracts students, the common law made a sharp distinction between forgery and fraud.  A forged deed or contract is literally not worth the paper it is written on:  no matter how much a third party relies on such a deed, it has no legal effect.  A deed or contract actually signed by a party can, however, become binding when relied upon in good faith by third parties even when that signature was obtained by fraud.  The question is which is the better analogy to the election returns. 

     Superficially, claims of election fraud are analogous to fraudulent deeds and contracts and thus may be relied upon by third parties, such as the U.S. Congress, once they are submitted through the proper channels.  In fact, however, what critics are alleging is a form of forgery:  reporting people to have cast votes opposite to those they actually rendered.  (By contrast, the Gore supporters misled into voting for Pat Buchanan in 2000 by “butterfly ballots” look much more like the victims of fraud.)  Hence, a purely procedural refutation of the claims of election fraud is difficult.  Those claims must be adjudicated on their merits. 

     Because I believe election integrity is everyone’s business, I have made a serious effort to examine the critics’ proffered evidence.  I cannot find anything remotely plausible.  Indeed, under Rule 104(b) of the Federal Rules of Evidence, most of what they offer would not even be relevant because it depends on premises for which the critics lack evidence sufficient to support a rational finding.  For example, storing boxes of votes under a table or moving them around a tabulation center is only relevant if the votes inside those boxes were improper, which the critics do not even begin to demonstrate. 

     Within the community of Trump supporters, the gaps are filled by the President’s unsubstantiated word that the election results are improper.  They similarly are untroubled by the adverse adjudications of numerous courts, which they regard as corrupted by their opponents.  Their confidence in the President is so strong that they are prepared to disregard other widely accepted methods of discerning the truth, including the discounts to the credibility of witnesses with bad reputations for truthfulness (see Rule 608), discounts to the credibility of witnesses with strong personal interests at stake (cf., Rules 611(c)(2) and 804(b)(3)), and draws adverse inferences against parties failing to carry burdens of production of evidence (Rule 311), particularly when those parties have the resources to obtain any evidence that might exist (cf., Rule 1004(c)). 

     Many of us have strongly-held beliefs that, while likely correct, we do not aggressively advance in political discourse because we recognize that we lack the sort of proofs that might persuade those starting from different commitments.  On other occasions, we sally forth with these beliefs but are not altogether surprised when our inability to produce proofs meeting societal standards means those ideas are rejected.  For example, despite fervent beliefs in the merits of a universal basic income, seemingly adverse results of two experiments removed this proposal from serious discussion for half a century. 

     It therefore is disappointing that so many of our fellow Americans see no need for proofs that can persuade those not sharing their affection for their leaders.  This is a real secession from a shared political community. 

     It is no coincidence that the leading popular constitutionalist of our time, Bruce Ackerman, is also intensely focused on improving our means of political discourse and deliberation.  He and James Fishkin imagine a “Deliberation Day” on which people meet to debate and reach decisions on crucial issues of the day.  However realistic that may have been when they first proposed it, our increasing polarization has made it much less so today.  A basic prerequisite to collective deliberation is acceptance of the need to make arguments from a common, shared set of norms about truth-finding, to make arguments that have a plausible appeal to other members of the political community. 

     Events since the election suggest that a large segment of the electorate feels entitled to enforce upon the nation a position that is only persuasive if one unquestionably accepts the word of its own leaders.  This effectively means we have lost the capacity for deliberation.  We can still make decisions by voting, but without the capacity to deliberate with such a large fraction of the country – very nearly half of those voting for president and an even larger fraction of those voting for lower offices – we cannot legitimately engage in constitutional change.  To be sure, the New Deal constitutional settlement and the Civil Rights Revolution were imposed over the objections of vehement minorities, but by the time those revolutions became entrenched the minorities were relatively small.  The President’s followers are a minority, but they are a very large minority and one that is thoroughly estranged from our political community. 

     Legal Challenges to the Election and the New Deal Constitutional Settlement

     The legal prongs of the election challengers raises equally important issues for popular constitutionalism.  Leaving aside the wild theories of unserious people, the critics make two main arguments. 

     First, they invoke Art. I, § 4, cl. 1, and Art. II, § 1, cl. 2, for the proposition that only Congress and the states’ legislatures may make laws concerning the selection of electors.  They argue that this delegitimizes accommodations made by executive officials for the pandemic and judicial decrees in response to various voting rights lawsuits.  This argument lumps together numerous wildly disparate policies:  many were attempts to interpret state election laws and others were attempts to apply federal law consistent with the Supremacy Clause.   

     More broadly, however, this sharp distinction between statutes, passed by legislatures, and other rules, resulting from executive actions reflects a view of the law is a throwback to the mode of legal thinking that characterized the period prior to the rise of the administrative state.  As early as 1928, the Court had indicated that it did not regard this sharp line as sustainable. 

     The settlement of the New Deal constitutional crisis with the legitimation of broad powers for the administrative state rendered untenable the sort of formal distinction on which the challengers’ argument depends.  That settlement was achieved through popular constitutionalism rather than Article V, leaving the election challengers two diametrically opposite choices.  Some evidently dispute the legitimacy of the New Deal settlement.  Others, however, are attempting a new, armed kind of popular constitutionalism in the spirit of Lexington and Concord.  The country thus is facing not just the usual question of what, if any, substantive changes to make in our constitution but also whether we should take procedural guidance from Bruce Ackerman or Rush Limbaugh. 

     The challengers’ second main legal argument is that Art. II, § 1, cl. 4, empowers only Congress to set the date for choosing electors, that Congress has chosen November 3, and that any rules that allow votes arriving after that date to be counted are unconstitutional even if those votes were cast on or before the specified date.  This argument depends on a certainty that “ch[oo]sing the Electors” does not mean the voters making their choices but rather election officials receiving and recording those choices.  Discerning this provision’s original meaning is difficult as it was written before states embraced the popular election of presidential electors:  casting and counting votes were virtually simultaneous when they occurred within a state legislature. 

     This is not as clearly a question of popular constitutionalism, but one’s reaction to it says a great deal about one’s attitude toward constitutional change.  The longevity of rules allowing late-arriving votes postmarked by Election Day is certainly more important to those accepting some form of dynamic constitutional interpretation than it would be to those rejecting popular constitutionalism.  Similarly, arguments that those objections should have been litigated prior to the election have more in common with the New Deal settlement’s pragmatic approach to constitutional interpretation than they do with earlier approaches to constitutionalism. 

     Popular Constitutionalism and the Unthinkable

     Emerging news reports show how very close the mob came to getting its hands on Members of Congress, how willing many of them were to commit violence even against the police officers they claim to support, and how the Pentagon inexplicably failed to respond while preventing the Maryland National Guard from entering Washington.  Reportedly, it was only a call from Vice President Pence – who is completely outside the official chain of command – that eventually persuaded the Secretary of Defense to allow the National Guard to rescue Congress.  This requires us to consider both the legitimacy of these actions and what would have happened had the mob succeeded. 

     Formal textual analysis takes us only so far.  Governor Hogan could have ordered Maryland’s National Guard into Washington under Art. I, § 10, cl. 3, allowing states to “engage in War [when] in such imminent Danger as will not admit of delay.”  Even there, some purposivist reasoning is necessary to understand that the assault on the Capitol was effectively an assault on Maryland (and all the states). 

     Section 3 of the Fourteenth Amendment arguably disqualified President Trump as soon as he aided the insurrection by tweeting anger at Vice President Pence while the mob demanding the Vice President’s execution was roaming the Capitol.  Although this betrayal of his oath had not yet been adjudicated, it justified the Vice President’s order that the Pentagon help suppress the insurrection.  Alternatively, Art. II, § 1, cl. 6, may have empowered the Vice President because the President’s failure to suppress, or even criticize, the insurrection showed an “Inability to discharge the Powers and Duties of [his] Office”.  Again, the constitutional purpose is crucial. 

     Textual analysis, however, can only go so far.  What would have happened if the mob had killed enough Democrats to give Republicans a majority in one or both houses of Congress?  Because the Constitution was written before the rise of the political party system, it provides no answer.  Yet surely it is clear that, at a bare minimum, a number of Republicans equal to the number of murdered Democrats would have been obliged to abstain from any contested votes.  Similarly, it would be improper for Republicans to run in the special elections for any seats opened by the murderous mobs.  And Republican governors would be obliged to defer to their state Democratic parties on whom to appoint to replace murdered Democratic senators. 

     Anything less in each instance would be tantamount to joining the insurrection, which was launched to deprive Democrats of positions to which they were elected.  The reason Republicans would have been constitutionally obliged to refrain from exercising any partisan advantage the mob might have handed them is that popular constitutionalism has embedded some version of the party system in our nation’s constitution.  A few hints of this are discernible in the Twelfth and Twenty-Fifth Amendments, which both reduce the chances that a different party will take the White House in the midst of a presidential term.  We the People have surely adopted a similar principle that murder may not change the control of Congress, at least in the case of a partisan insurrection.  Those denying a place for popular constitutionalism bear the burden of explaining why it is preferable to offer murderous partisan mobs the opportunity to shift control of the federal government. 

     The Nuclear Codes and Popular Constitutionalism

     A final issue on which popular constitutionalism has much to say is the danger that an embittered and lawless president poses to the nation and the world between now and Inauguration Day.  Speaker Pelosi has conveyed her concerns about President Trump’s possession of the nuclear codes to the Pentagon. 

     Although it occurred with far less fanfare than the Civil Rights Revolution, this nation also had a popular constitutional moment concerning nuclear arms during the roughly the same period.  This moment made two closely related changes to our Constitution.  First, because of the speed with which nuclear weapons could be launched against us, it was accepted that the President could initiate the most extreme war-making action imaginable – devastating another country – without a congressional declaration of war.  And second, because of their unparalleled danger, it determined that nuclear arms are fundamentally different from other means of war-making and are subject to vastly greater controls whether or not a declaration of war is in effect. 

     As with other constitutional moments, it was triggered from the White House.  This one, however, was launched by several different presidents.  President Truman sacked war hero Douglas MacArthur for risking nuclear war with his adventurism in Korea.  President Eisenhower turned a deaf ear to Hungarian democrats’ pleas because aiding them would have risked nuclear war with the Soviet Union.  For all the propaganda about President Kennedy’s steeliness during the Cuban Missile Crisis, he blinked every bit as much as Prime Minister Khrushchev did – and for good reason.  As devoted as President Johnson was to winning the war in Vietnam, he accepted the defeats that ended his presidency rather than tip the balance with nuclear weapons.  The constitutional change was finally ratified when President Nixon, ardent anti-communist and Cold War hawk, signed the Strategic Arms Limitation Treaty with the Soviet Union. 

     This constitutional transformation did not pass all the mile-markers that Professor Ackerman lays out because it had, almost from the beginning, a breadth of support that obviated the pitched battles of the Civil Rights Revolution.  Nonetheless, voters throughout this period marginalized politicians deemed not to adhere to this emerging constitutional principle.  Mushroom clouds featured in political advertisements against Barry Goldwater in 1964 and George Wallace’s running mate, Curtis LeMay, in 1968; both tickets were crushed.  As President Carter’s re-election campaign was falling apart in 1980, he made a desperate attempt to persuade voters that Ronald Reagan did not adhere to this unwritten amendment to the Constitution; when Governor Reagan responded with convincing fealty to the nuclear amendment, the election was effectively decided. 

     President Trump’s chaotic and murky bellicose rhetoric lacks the clarity even to begin a constitutional moment attempting to revise the last century’s nuclear amendment.  It certainly has not been ratified by the voters.  He did not choose to fight the 2016 election over any coherent counter-proposal.  And his loss in 2020 – while Republicans were doing well in congressional, gubernatorial, and state legislative elections – suggests that many conservatives had sufficient doubts about his stability to split their tickets. 

     Allowing this president, or any president, to initiate war without a declaration by Congress would violate the written Constitution.  Principled conservatives who reject the concept of popular constitutionalism should object to the very existence of the nuclear codes as giving the president an enormous power that the Framers assigned to Congress.  And for those overtly or implicitly accepting that popular constitutionalism changed the war-making power for the era of nuclear weapons, a president so heedless of the facts does not have the power to use nuclear weapons, or to commence a conflict that could lead to a nuclear attack, unless this country is demonstrably in imminent risk of nuclear attack. 

     In keeping with popular constitutionalism’s nuclear amendment to the war-making powers, surely the Pentagon can find an officer with transient dyslexia to transcribe the nuclear codes for the version carried around with the President.