The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last February, Professor Pam Karlan delivered the Jorde Lecture at the University of Chicago Law School. Her lecture, "The New Countermajoritarian Difficulty," discussed the increasingly undemocratic consequences of the Senate and the Electoral College as well as the Supreme Court's failure to protect democracy in various election law cases. You can watch it here.
The lecture will be published in the California Law Review along with responses from the commentators. I am one of the commentators, and I have posted a draft of my response, The Real Enemies of Democracy, on SSRN.
Here is the introduction:
The Constitution is undemocratic and the Supreme Court is not helping. That is Professor Karlan's sobering assessment in "The New Countermajoritarian Difficulty." The structural problems include the non-majoritarian effects of the Senate and the Electoral College, combined with the demographics and polarization of the American electorate.The doctrinal problems include the Supreme Court's failing to intervene against voter-identification legislation or partisan gerrymandering while at the same time having the temerity to invalidate part of the Voting Rights Act.
I don't exactly disagree. The Constitution is flawed and hard to amend, and the Supreme Court is not going to fix it. But I would urge some perspective. It isn't the Supreme Court's job to fix the Constitution, it is ours, and we will get to it as best we can.
More fundamentally, however, I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard wired law of succession in office. The shield against them may be more formalism, not less. So we destabilize our current imperfect arrangements at our own peril.
And from Part II:
This past election, the real challenge to democracy came not from the Senate, the Electoral College, or the Supreme Court, but from those who sought to subvert these hardwired rules. The facts are surely well-known by now, but lest they be forgotten: After the states chose their electors on November 3, some Republican agitators tried to pressure state officials to back alternate choices. This would violate the law because the electors had already been chosen on November 3.
Federal law does contain an exception for a state that "has failed to make a choice on the day prescribed by law," but that was inapplicable. Every state had chosen its electors. It was simply that some Republicans objected to the way they were chosen.
After the electors cast their votes on December 14, some Republican agitators tried to disrupt or derail the count. On January 6, 139 Representatives and 8 Senators, at least some of whom surely knew better, raised baseless objections. Other agitators tried to convince Vice President Mike Pence that he had the authority to reject or remand some of the votes. And of course still others simply stormed the Capitol.
These rules, and these events, should put the countermajoritarian difficulty in perspective. Yes, there is something undemocratic about taking advantage of structural voting rules, and something worse about crafting and enforcing voting rules for partisan advantage. But at least those are the rules of the game, constrained by the rule of law. The real enemies of democracy, at a more fundamental level, are those who try to ignore the rules of the game after they have already lost it. This past election, that means the real enemies of democracy were President Donald Trump and those who fought for him.
This is not just about the invasion of the Capitol on January 6, 2020. That was the most eye-catching attempt to subvert the rules, and of course if it had turned more violent more quickly it could easily have led to a constitutional crisis. (Imagine, for just a dark moment, if a large number of members of Congress had been killed or disabled before completing their constitutional duties. Our rules for quorums and continuity of Congress may not be up to such a disaster.) But because that was such an obvious offense to democracy under law, it was not the most insidious. We will prosecute and punish many of the offenders. We will put it behind us. We will probably even laugh it off.
By contrast, had a few key state legislatures taken the bait to try to unchoose their electors after Election Day, it is easier to imagine them getting away with it. Because the lawlessness of this act turns on technicalities, sly lawyers might well be able to debate it into apparent ambiguity. They would not wear Viking helmets. And for those reasons it may still happen in another close election.
And consider just how much the Republic owes to Vice President Mike Pence. The Vice President has no independent power to judge the validity of electoral votes and had no basis to declare the 2020 electoral votes invalid. Vice President Pence deserves credit for seeing this and sticking to it, even when pressed. But what would have happened if he had given in to the urging that he try? We are fooling ourselves if we are confident that it would have failed. Between crafty lawyering, partisan motivation, and the power of focal points, he may well have been able to sow uncertainty or rally Republican elites to resist the lawful President-elect Joseph Biden.
It is too soon to say that these antics are behind us. Protecting democracy requires careful attention to these rules for the peaceful transfer of power. And it requires those rules to be upheld by those of the losing party. Without that, we won't need to worry about the Electoral College.
And one more:
By all means, let us pay more attention to the basic mechanics of democracy. But we should not let long-term imperfections in our democratic structure distract us from more immediate threats. Indeed, there is a tension between surfacing the flaws in our rules for democracy and enforcing those rules against democracy's enemies. It is no more than a tension – one can very well say that it is important to enforce the Constitution's rules for transferring power and also that those rules can and should be improved or understood in freer or fairer ways. But it is important to be careful of the tension lest we get carried away. Attack the legitimacy of the Constitution too much, and those attacks might catch on. If those attacks catch on, it is harder to convince members of the other party that they are bound by the rules they don't like. A very strong norm of saying "I'm sorry, those are the rules, and we don't accept special pleading" turns out to be a very useful thing to have during an emergency – especially when the only person standing between the transfer of power and a constitutional crisis is the Vice President.