The Volokh Conspiracy
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Why a "Patchwork" is Better than Being Uniformly Wrong: A Qualified Defense of Section 3 Federalism
The Supreme Court's ruling in Trump v. Anderson is in part rooted in fears of divergent state decisions on election issues. But a patchwork of divergent state rulings isn't necessarily bad.
A major consideration underlying the Supreme Court's recent ruling in Trump v. Anderson was fear of a "patchwork" of conflicting state determinations on the application of Section 3 of the Fourteenth Amendment to Trump (and, potentially, other candidates for federal office). This concern united all nine justices, even as they disagreed on a number of other key points. The majority per curiam opinion worries that "state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer." Similarly, the concurring opinion written by the three liberal justices invokes the specter of "a chaotic state-by-state patchwork, at odds with our Nation's federalism principles."
In previous writings, I have argued this issue is overblown because federal courts can review state decisions on federal legal issues. And, to the extent the concern is valid, it is a natural consequence of the Constitution's assignment of power over election administration to state governments, as opposed to a federal agency with authority to impose uniform nationwide rules. See also Michael Rappaport's and Chris Green's originalist critques of the Court's reasoning. They argue that state diversity on election policy is a part of the Framers' original design. As Green puts it, "lack of uniformity in the Electoral College is a feature, not a bug."
In this post, I argue that some divergence between states on Section 3 issues isn't necessarily bad. An election law "patchwork" has its flaws. But it may often be better than uniform wrongness. I do not claim that decentralization of election law is clearly superior to uniformity, merely that the issue is a much closer call than often assumed. If so, there is even less justification than there would be otherwise for the Supreme Court to base its decision in part on anti-"patchwork" policy considerations.
Imagine, for the sake of argument, that Trump or some other presidential candidate really is an insurrectionist who deserves to be disqualified under Section 3. Would it not be better if he is disqualified from running in at least some states, than if he is allowed on the ballot everywhere because the federal government takes no action or makes a mistaken decision that binds the entire country? In the former scenario, disqualification in some states might prevent the insurrectionist from winning the election, thereby saving the nation from having a constitutionally ineligible president who poses a grave menace to liberal democracy. Disqualification in some states might also incentivize the insurrectionist candidate's party to choose someone else instead, even if only to increase the chances of winning the general election.
In this scenario, a federalist patchwork seems clearly superior to a uniform-but-wrong decision imposed by the federal government. As David French puts it in a New York Times column on the Supreme Court's ruling, "[c]haotic enforcement of the Constitution may be suboptimal. But it's far better than not enforcing the Constitution at all."
The same logic applies to disqualifications for other federal offices. It's far better that insurrectionist candidates for the House and Senate be disqualified in only some states than that they be permitted to run and take office everywhere.
And the same goes for enforcement of other constitutional qualifications for the presidency and other federal offices, such as the Twenty-Second Amendment, the requirement that the president be at least 35 years old, and so on. Better to enforce them effectively in only some states than not at all.
The above assumes that enforcement of constitutional constraints on office-holding is generally good. I admit I think this is not true in the case of the Natural Born Citizen Clause, which I have argued is indefensible and unjust. But the other restrictions generally make good sense, including Section 3. Liberal democracies have good reason to bar some types of people from holding high office, especially those whose track record indicates they are incipient authoritarians. And even the Natural Born Citizen Clause is still binding law, unless and until revoked by a constitutional amendment.
The federal government might over-enforce constitutional constraints, as well as under-enforce them. Imagine a candidate who is unjustly accused of being an insurrectionist. Here, it's better if some states allow him or her on the ballot than if the federal government bars the candidate nationwide. The same goes for false accusations of violating other constitutional constraints on office-holding.
The above arguments might not move you if you think uniform federal resolution of these issues is highly likely to reach correct results. But if you believe federal officials are likely to err or simply under-enforce through inaction, then the case for a federalist patchwork approach becomes much stronger.
Under-enforcement through inaction is especially likely in the case of Section 3 disqualification. Particularly in our highly polarized age, it is highly unlikely that Congress will enact meaningful enforcement legislation of the kind the Supreme Court majority held is necessary. Thus, if such legislation is required, there will be no meaningful enforcement of Section 3 against candidates for federal office for a long time to come.
There is a tradeoff here: the risk of flawed decisions by some states must be balanced against the risk of uniformly wrong federal ones - and situations where the federal government simply lets constitutional provisions atrophy through inaction. From a pragmatic or consequentialist point of view, which is better depends on how likely the federal government's uniform determinations are to be wrong - and how likely the feds are to simply fall down on the job through inaction.
On balance, I think letting states take the lead, subject to the important constraint of judicial review by federal courts, is better than relying on the federal government exclusively. The latter can, of course, still enact enforcement legislation under Section 5 of the Fourteenth Amendment (for Section 3). But such legislation should not be a mandatory prerequisite to enforcement by states. Admittedly this is a tentative judgment, and people with greater confidence in the federal government's judgment may have good reason to doubt it.
On a variety of issues, I support decentralization because it empowers people to vote with their feet, thereby leading to better decision-making than is usually feasible under ballot-box voting. But it's unlikely many people will vote with their feet for states with better procedures for addressing candidate-disqualification issues.
Thus, the case for decentralization here is weaker than for decisions on many other issues. But, depending on how often the federal government is likely to err, it might still be strong enough to outweigh the case for total federally-mandated uniformity. A uniformly wrong decision is even worse than a patchwork.
Once we take account of the dangers of uniformly wrong federal decisions, it is far from obvious that a "patchwork" approach to issues like Section 3 disqualification is necessarily a bad thing. In my view, the tradeoff between the costs and benefits of uniformity is a policy issue that was determined by the framers and ratifiers of the Constitution, not a matter for the Supreme Court to decide.
But if the justices insist on basing their ruling on this policy question, they should at least have considered both sides of it. Instead, they overrated the risks of divergent state judgments, while completely ignoring those of misguided uniformity.
