Monday, January 25, 2021

Reply to the Electoral College Symposium

Guest Blogger

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).

Jesse Wegman

I hope you will forgive my extremely belated response to this excellent and thought-provoking symposium. I read the contributions when they were published, and I intended to write my response immediately. At the latest, I thought, I would write immediately after Election Day, when the Electoral College would no longer be the issue of the day.


As the past few months of absurdity, instability and violence have unspooled, I’ve been alternately horrified and gratified that the Electoral College stayed at the center of the national debate for so long — giving Americans a better opportunity to absorb the depth of its complexities, its inequities and, especially this year, its vulnerabilities to mischief-making.

And so while it’s hard to take pleasure in any sequence of events that resulted in a loss of life, I do feel like the nation had a unique opportunity to give extended consideration to a topic that so often suffers from only a brief quadrennial flurry of feeling.

I am also so honored, and grateful to Jack Balkin and to the symposium’s contributors, to have my book included in a deep and wide-ranging discussion on one of my favorite legal blogs. This, for me, is as meaningful as any review in a mainstream publication. As a journalist-cum-law student-cum-legal journalist, I have long had a foot in two different but connected worlds, and I am well aware of the differing methods of analysis, narrative and argument in each. I admire all of you greatly, have read your work, and have spoken to some of you at length about the issues at hand.

In particular, I have been deeply influenced by Alex’s work on the history of voting in America, and especially the emphasis on the role of race and racial subjugation. I agree with the other contributors here that his book is, as it was always destined to be, the definitive historical account and analysis of the Electoral College and why it persists despite all the dissatisfaction and dysfunction surrounding it.

I am also happy that Sandy pulled in Ned Foley’s book, which I agree is an essential work on the topic. Ned has been particularly generous with his time and insights, both while I was working on the book and in the past year, as I have written about electoral quirks like the “blue shift,” his term for the phenomenon that (as he rightly predicted) played a major role in the tumult and discord following the 2020 election.

Given the nature of the expertise of those involved in this symposium, I appreciate that it can be hard to talk about a book like mine and books like Alex’s and Ned’s in the same breath. As Jack Rakove wrote, they are “very different books,” written in different styles and aimed at different audiences. I realize also that it can be frustrating when journalists like me boil down, sometimes to the point of oversimplification or elision, complex and nuanced legal and historical points.

So I accept, with perhaps a touch of envy, Jack Rakove’s observation that, for readers of this blog, Alex’s book has a “real value” that mine does not. I would take some issue with his characterization of my book as “snappy,” but I readily admit that it is aimed at a broad and general audience, and thus necessarily had to streamline many of the complex and conflicting details that Alex and Ned so ably focused on. (I also agree with Sandy that both Alex and Ned are superb writers.)

To that end, I take pride in having written a book “replete with short sentences, brief paragraphs, and bursts of rhetorical questions,” because as a wise elder writer once told me, the easiest thing a reader can do is stop reading.

The bottom line is that all of these books serve a purpose, and in doing so I believe they complement rather than conflict with one another.

With that out of the way, I will address some of the recurrent themes I saw in these contributions. One of the main criticisms of my book was that I was too supportive, and perhaps too credulous, of the popular vote interstate compact plan. Jack was skeptical about its ability to survive a Compact Clause challenge. As a political-judicial matter, he might well be right. But I think he is a bit too dismissive of John Koza’s analysis, however non-professional, of the jurisprudence on this issue.

For instance, Koza says that there is no infringement of federal sovereignty because state legislatures have plenary authority to choose the method of appointing their electors. In response, Jack writes that, “because the efficacy of the whole scheme requires legally binding interstate cooperation, that line of argument does not reach the real point of contestation.” My question here, and it’s not a rhetorical one: Isn’t this the definition of an interstate compact? And if it is, what argument is there that any compact could evade the consent requirement? Again, I am not saying that this particular Supreme Court would not be likely to require consent in this case (indeed, in my book I quote Koza speculating to that effect) — only that I don’t think the argument to the contrary can be so readily dismissed. (Of course, in a Democratic-controlled Congress, it’s possible that consent could be tacked onto HR1/S1, although that, like so much else, would probably require a reform if not abolition of the filibuster.)

I agree strongly with Jack’s points regarding what the American public at large needs to comprehend about the current system if we’re to have any hope of reforming it. First, a renewed emphasis on political equality, the articulation of which (as Guy Charles put it so well at Larry Lessig’s Electoral College symposium in October 2019) has been at the heart of all major expansions of the franchise.

Second, the essential point that we do not behave as state-based actors when voting for president (or, as is becoming increasingly clear with the decline of ticket-splitting, in nearly any other election at any level). In retrospect, I think Jack is right that I could have spent more time on this observation, because it eviscerates so much of the “big-city/small-state” mythmaking that we currently hear in defense of the existing Electoral College system.

Sandy makes an excellent point: the difficulty, “even in the best of systems, to achieve closure where a given public policy problem includes more than two possibilities.”

This is surely a bigger obstacle to reform than I gave it credit for, although to some extent my goal in writing the book was primarily to generate broader engagement with the topic among the public — because when energy and timing line up (rare, yes) it can overcome a lot.

Sandy also flagged a very important point that I wish I’d made more explicit: that “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.” This explains why, for instance, an Electoral College system inhibits rather than encourages expansion of the franchise, regardless of the role of racism and sexism and classism. (I.e., how much sooner might we have reformed the system if there was an actual electoral cost to disenfranchising large groups of people? In theory, Section 2 of the 14th Amendment was supposed to solve that problem, but we know how that has turned out.)

I take some issue with a couple of Sandy’s points. First, in discussing Chiafalo v. Washington he writes, “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 we know, Hamilton’s language in Federalist 68 is not dispositive on the generally-understood purpose of the Electoral College at the time. Even if it were, however, I’d suggest he is in a sense estopped from making that argument, because of his own letter to James Wilson on January 25, 1789, in which he suggests a way to ensure Washington’s victory by gaming the electoral vote in precisely the manner he had just ensured the American people the Electoral College was designed to prevent. In other words, I think one could reasonably argue that the Court was, in fact, honoring the ‘original intent’ of the College, which (as Franita rightly emphasizes) has always been about politics.

The other quibble I take with Sandy is his concern regarding states reneging from the compact if the political winds shift. He asks why California electors would vote for Trump (or Texans for Biden) if they were member states and the compact were in effect. Unless I’m misunderstanding his point, this misconstrues how the compact works. Under its terms, a member state sends the slate of electors pledged to the candidate who won the most votes in the country. By definition, those electors want to vote for that candidate. They will experience no cognitive dissonance in doing so. The real threat comes from a state legislature that might try to change the rules when it sees things turning south — and of course it could do that before July 20 of election year, at which point the compact stipulates a blackout period lasting until the inauguration. I realize there are several points along this path where states might try something sneaky, or where there would be litigation under the Article II powers, but that’s a different matter from whether electors themselves would be obligated to vote for someone they didn’t support.

Anyway, Sandy is surely correct that all of these debates are largely moot until the compact gets anywhere near 270 electoral votes’ worth of member states.

Finally, if I came off as blasé about the genuine concern about non-majority winners, that’s my fault. I did spend a few pages discussing the benefits of ranked-choice voting as a solution to this problem, but perhaps that deserved even more attention given the likelihood of multiple candidates and parties under a popular-vote election. (Of course, given Trump’s threats in recent days, we might soon see that scenario even under the current system.)

Franita Tolson and Ned Foley both rightly point a bright light at the 12th Amendment and its ongoing significance to our debates over how we elect the executive. This is one issue I do wish I had spent more time on. As Franita writes, “The debate over the Twelfth Amendment reveals that there is nothing about our system that requires democracy.”

This is such a good point and one that I do think I elided in my own somewhat-rosy articulation of American history and the march toward a more inclusive democracy. She writes, “majoritarianism is not a term that is inherently democratic or plutocratic or anything really.  Who constitutes the majority is defined by state law, and by extension, partisan politics.  The possibility of anti-democracy within our system is a feature, not a bug, of the Electoral College.”

Point well taken.

I am pleased that Franita picked out one particular thread of my book, the attempt to capture “the conflicting ideals of the founding generation”—and especially the James Wilsons of the world. I was fascinated by his personal history and intellectual/political evolution, which I could only very quickly cover in a short book, and while he was of course as complicated and contradictory as any human, the degree and depth of his faith in the popular will was unusual, and worthy of more attention as we resurrect and re-resurrect our founders in our attempts to understand the deeply imperfect system they designed.

As I said above, I am in complete agreement with Ned that ranked-choice voting might, if broadly and properly implemented, be the answer to many of our electoral maladies, not just at the presidential level but at all levels of political office.

To the extent that he sees a route forward for the adoption of RCV through state ballot initiatives, I do harbor a great fear regarding the fate of AZ Redistricting Commission in a Supreme Court where Brett Kavanaugh, of all people, represents the swing vote. The chief justice was, as we know, exceedingly hostile to the majority opinion in that case, and it is hard for me to see how it survives even a first run-in with the newly-weaponized hard-right bulwark at One First Street. If that comes to pass in the next term or two, I am deeply concerned for the future of basic remedies for representational inequities promulgated by self-interested politicians and parties. Anyway, that’s a debate for another symposium.

For now, I want to say thank you again to the scholars and thinkers who participated in this symposium, and who were so generous with their time and analysis of this critical topic. I feel lucky to have been included and I look forward to speaking with you all in the coming months and years.

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