A Harvard Law Professor Wants Democrats to Disenfranchise Republican Voters By Dan McLaughlin
We should not lightly disregard this as simply harmless academic scribbling.
R emember that brief moment between November and January when Democrats and their voices in the media told us that asking legislators to overturn elections and attacking the legitimacy of the results of elections was a bad thing? Well, Democrats’ old tricks of rejecting outcomes, attacking legitimacy, arguing that it is rigged when their side loses, and spinning conspiracy theories are never far from hand. The latest example comes from Democrat Rita Hart’s ongoing effort to get House Democrats to reverse the election of Republican Mariannette Miller-Meeks by the people of Iowa’s second district to represent them in the House.
It is concerning enough that Democratic politicians act in self-serving fashion — that’s what politicians do — but it should particularly alarm us that the progressive intellectual class is continually pressing them to go even further. If misbehaving Republican politicians often embarrass the party’s intellectuals, misbehaving Democrats have their side’s scholars and pundits whispering in their ears like Iago, urging them to ever-more-radical steps. In this case, that means pursuing systemic and draconian “reforms” that aim explicitly at ensuring that a brief moment of narrow Democratic partisan control of the federal government is weaponized to prevent another peaceful transfer of power back to Republicans. This is branded as “majoritarianism,” but it is ultimately the politics of “one man, one vote, one time.”
Take, for example, a forthcoming law-review article by Harvard law professor Nicholas Stephanopoulos (no relation, so far as I know, to George). Stephanopoulos argues that “majoritarian democracy” is “under siege.” He draws his diagnosis from the recent writings of former Stanford law professor Pamela Karlan, who now serves in the Biden administration as principal deputy-assistant attorney general for the civil-rights division of the Department of Justice (conveniently, a post not requiring Senate confirmation). Both are activist lawyers as well as law professors: Before joining the Biden administration, Karlan was the lead lawyer arguing Bostock v. Clayton County; Stephanopoulos was one of the driving forces behind Whitford v. Gill, which tried to get the Supreme Court to throw out partisan gerrymanders. Given the close relationship between Stephanopoulos’s article and Karlan’s writings — along with Karlan’s powerful government position — we should not lightly disregard this as simply harmless academic scribbling.
Stephanopoulos frets that Democratic schemes to entrench their party’s power are currently blocked by our constitutional system of government, given the thresholds to pass legislation through the Senate or amend the Constitution:
In tandem, the elected branches have many tools to make American government more majoritarian. They could admit new states, like Washington, D.C. and Puerto Rico, that would offset the conservative skew of the current Senate. They could entice (maybe even induce) states to assign their presidential electors to the winner of the national popular vote. . . . [However,] as of this piece’s writing, the House and Senate are almost evenly divided and the filibuster remains in force, a virtually insurmountable obstacle to the bold steps [that] I would like the elected branches to take . . .
To get around these obstacles — all of them imposed by elected representatives — he wants to encourage the use of the unilateral powers of two branches of the federal government to promote progressive and Democratic Party views of how elections should be run. The first is Congress’s power to refuse to seat members under the judging elections clause of Article I, Section 5:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.
Stephanopoulos wants the House and Senate to use this power to refuse to seat members whose elections are conducted under Republican-written state election laws. The second is the president’s emergency power to enforce the guarantee clause of Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Stephanopoulos proposes the president dictating election-law terms to states by executive fiat, invalidating their elections, and possibly even forcing the redrawing of their congressional districts.
Stephanopoulos explicitly pitches these arguments to the current Democratic majority in Congress and the current Democratic administration in the White House. While his article acknowledges some of the potential for abuse — which he attributes entirely to the possibility of these powers falling into Republican hands — the proposals are geared toward helping Democrats find pretexts to deny office to elected Republicans in defiance of their voters. He is open about his intent to work around the checks and balances provided by the Constitution’s separation of powers:
I focus here on a pair of non-legislative powers . . . because these powers aren’t legislative, they aren’t subject to the hurdles a bill must vault to become law: bicameralism, presentment, and (for now) the filibuster. Accordingly, federal authorities can exercise these powers immediately, even in the absence of bipartisan, supermajority support for their use. Under current law, moreover, actions taken under these powers can’t be reviewed by the courts. So such measures would circumvent not just the usual impediments to legislation but also the anti-majoritarian tendencies of the Roberts Court.
Consumers of progressive legal writing will recognize this “aha! I have found the secret to letting us get our way!” tone. These are radical and novel uses of these constitutional powers. In light of that purpose, it is worth beginning with the things that Stephanopoulos (and Karlan) treat as ailments demanding the use of emergency powers:
American democracy is in real peril thanks to the malapportioned Senate, the obsolete Electoral College, voter suppression, gerrymandering, and so on. . . . Conventional roads won’t lead us out of this morass. . . . That leaves the novel powers I analyze in this response: tools that can be blunted by neither a Senate filibuster nor a hostile Court. Yes, the Judging Elections Clause and the Guarantee Clause could be abused by future Congresses and Presidents, respectively, even with the precautions I suggest. But this is a risk we should be willing to incur. Desperate times call for desperate measures.
Stephanopoulos’s definition of the conditions creating “desperate times” includes two things that were explicitly created by the Constitution itself — i.e., the Electoral College and the Senate — and a third (gerrymandering) that has existed since the first Congress, as evidenced by the fact that it is named after a man (Elbridge Gerry) who signed the Declaration of Independence, was a delegate to the Constitutional Convention, and served as James Madison’s vice president. “As of this piece’s writing,” Stephanopoulos laments, “Karlan’s worst fears about American democracy seem to be coming true. The Senate and the Electoral College . . . remain stubbornly in place. So does the Roberts Court.” If this is an emergency, it is a permanent one, and the “desperate measures” it calls forth will be permanent emergency powers as well.
A permanent emergency is also in place if you accept Stephanopoulos’s tendentious definition of “voter suppression” as extending to “Photo ID requirements for voting, restrictions on mail-in voting, purges of the voter rolls” — the first of which is massively popular with ordinary Americans who plainly do not see it as restrictive, the second of which merely rolls back a recent innovation in voting to where it stood in 2018, and the third of which is an entirely necessary task currently mandated by bipartisan federal laws.
The Judging Elections Clause
Let’s look more closely at Stephanopoulos’s argument for House and Senate Democrats padding their slim majorities by refusing to seat Republicans elected to the next Congress. He writes:
Imagine that, in the wake of the 2020 election, states under unified Republican control enact stringent new voting restrictions: photo ID requirements, cutbacks to early and mail-in voting, voter roll purges, and so on. Also imagine that, in these states, several Republican candidates receive slightly more votes than their Democratic opponents in the 2022 election. Then, after that election, it would be a conventional application of the Judging Elections Clause for a chamber to decline to seat these Republican candidates-elect (and even to seat their rivals) because they owed their victories to voter suppression.
As an alternative — a “novel strategy,” he admits — Congress could dictate in advance that any candidates elected under such rules would not be seated. The problem for Stephanopoulos is that even the history he cites does not support using the judging elections clause as a lever to micromanage the granular details of state elections without the expedient of passing federal election laws as provided in the elections clauses of Articles I and II.
To start with, a great many of the uses of the judging elections clause came during Reconstruction, when Southern state governments were under military occupation. Even aside from that, Stephanopoulos concedes that the primary use of this power has been against elections that were tainted by fraud:
Ballot fraud — “stuffing the ballot box, stealing and destroying ballots, or intentionally miscounting ballots” — has been the basis for more than two hundred challenges. Registration fraud, in the form of preventing registered voters from casting ballots or bringing nonregistered voters to the polls, has given rise to more than 150 disputes. Somewhat less common, though still accounting for more than fifty cases each, have been the bribery of voters and the resort to violence to deter people from voting.
That is a far cry from throwing out elections on the theory that they went too far to prevent fraud. Among the four examples he cites that supposedly bolster his case, the closest to a fig leaf of support is a South Carolina election from 1894 — the second consecutive election cycle in which Congress threw out the result in the same majority-black district — in which black voters were denied the right to vote on a wide scale. Stephanopoulos cites the fact that the House found a constitutional violation because voters could be registered only in one place, and only on one day a month from December to June. Moreover, as the House report found, “The testimony shows that many voters, some of them coming 30 or 40 miles, appeared regularly at the places of registration from month to month, and were denied registration by means of a systematic obstruction” so the issue went well beyond even a purposely onerous law. This was not a case of hypothetical “suppression”: Over 7,000 legally qualified voters signed petitions stating that they had attempted to vote and had been refused.
Stephanopoulos’s other examples are even less helpful to his cause. In one, a Virginia case where a House committee voted not to seat a member on grounds that his district was unreasonably gerrymandered, the full House voted to reject the challenge, overruling the committee. That is a precedent against an expansive use of the judging elections clause to police gerrymandering.
Then there is William Vare, the Republican boss of Philadelphia who won the 1926 Pennsylvania Senate election, but was never seated. Stephanopoulos would have his readers believe that the sole reason Vare’s election was not accepted by the Senate was concern over his excessive campaign spending. In fact, a special committee investigating the election
found ample evidence of corruption, including thousands of cases of fraudulent registrations. “The fraud pervading the actual count by the division election officers is appalling,” the committee charged, adding that a Philadelphia voter had only a 1-in-8 chance of having his or her ballot counted correctly. More than two thousand people voted who were not registered, and hundreds of repeat voters were found, as well as evidence of stuffed ballot boxes.
True, the story was further complicated when a full committee report concluded that Vare would have won even without all the fraud, and by the time the Senate voted, three years had passed and Vare was badly incapacitated by a cerebral hemorrhage and likely unable to serve anyway. Some reform-minded senators used the campaign-spending issue as an excuse to put the whole race behind them, and the Senate voted against seating either Vare or his opponent. Pennsylvania’s governor then appointed a different Republican to fill the seat.
The last of Stephanopoulos’s examples is the most rightly infamous, the 1984 “bloody eighth” district in Indiana, in which Democrats counted absentee ballots that had violated Indiana law in order to throw the election to the Democrat by four votes over the objections of every single Republican in the House. The major players in that contest — Leon Panetta on the Democratic side, Dick Cheney and Newt Gingrich on the Republican side — would have long memories of the bitterness of that fight. The Democrats’ naked use of power to entrench their 30-year-old majority is often cited as the start of Congress’ descent into today’s polarized, poisonous climate.
Stephanopoulos offers to forestall 1984-style post-election disputes by having Congress declare ahead of time which state laws will cause it to invalidate elections. This is typically what we call “legislating,” not “judging,” and it is hard to see how it can be constitutional for Congress to do this without passing laws through the usual legislative procedures. Stephanopoulos further urges Congress to delegate this lawmaking power to “a panel made up of administrators experienced in running elections, attorneys involved in election litigation, and academics (like political scientists and law professors) who study the theory, doctrine, and practice of elections.” In other words, people like Nicholas Stephanopoulos. Then, Congress would just declare that it intends to “rubberstamp” (his word) their recommendations. Setting this in place in advance, he assures us, would avoid the messy complication in which “everything hinges on when the status of these contested seats is determined. If (as I urge) the previous Congress makes these rulings (consistent with the panel’s recommendations), then most likely these candidates-elect won’t be seated and the chamber won’t change hands.” (Emphasis added). Given that he has described this throughout as a process to target Republicans, the aim is plain: allow Democrats to outsource to left-wing academics the writing of a rulebook for entrenching themselves in power.
The Guarantee Clause
Stephanopoulos’s argument for presidential action under the guarantee clause is, if anything, even more alarming:
The President . . . is the head of the executive branch of the United States. Thanks to this position, she could take whatever steps she thinks are necessary to prevent states from lapsing into nonrepublicanism or to remedy antirepublican abuses. The only limits on the President’s discretion are that exigent circumstances must exist and that Congress must be unwilling or unable to act.
“She” is an interesting pronoun choice throughout the article, given that Stephanopoulos is discussing the president’s role in elections conducted next year. The scope of this power, in Stephanopoulos’s telling, is startling:
The President’s power to enforce the Guarantee Clause is far broader than the authority of each congressional chamber to judge its members’ elections. The President’s power isn’t limited to federal elections. . . . It extends, rather, to elections at all levels and even to non-electoral policies the President might deem unrepublican. . . . The President might decide that particular voting regulations are unrepublican because they make it needlessly hard to vote [and] issue an executive order preventing states from implementing these policies. Alternatively, the President could embrace the view, popular in the academy, that partisan gerrymandering offends the core republican value of popular sovereignty. On this ground, the President could declare that gerrymandered maps are invalid and must be judicially reconfigured. Even more aggressively, the President could order the establishment of independent redistricting commissions that would draw the lines instead of self-interested politicians.
The guarantee clause is recommended to Stephanopoulos by the fact that “the assent of just a single individual, the President, is necessary prior to the exercise of this power.”
There are grave textual and historical problems with this. The guarantee clause never mentions the president, and is not contained in Article II’s list of presidential powers. Nearly all of the presidential precedents that Stephanopoulos invokes were steps taken by Abraham Lincoln or Andrew Johnson during the Civil War and Reconstruction. Those powers were deeply constitutionally controversial at the time and remain so; Lincoln was particularly eager to have them reinforced by acts of Congress or constitutional amendments. While one can certainly defend the expansive powers claimed by Lincoln and Johnson, the basis for those powers was the extremis of states at war with the federal government or under military occupation, in which case the president’s Article II powers as commander in chief are at their apex.
His other precedent is the 1842 Dorr Rebellion in Rhode Island, in which President John Tyler prepared the militia for a potential call-up to support the government of Rhode Island against a rival government. Stephanopoulos notes that Tyler had to decide which government represented the people of Rhode Island in order to invoke his power over the militia, a decision that was upheld by the Supreme Court in Luther v. Borden (1849), still the primary judicial precedent on the guarantee clause.
Inconveniently for Stephanopoulos, Tyler did not back the rebels who argued that property qualifications for voting made the existing government illegitimate. Moreover, as Chief Justice Roger Taney’s opinion made clear, the presidential power to decide who represented Rhode Island was bolstered by authority vested in him by Congress under the Insurrection Act, and the decision fell to the president precisely because it involved deploying military force. Stephanopoulos considers it significant that the Taney Court said that “the President’s Guarantee Clause power ‘is conferred upon him by the Constitution.’” But fuller quotation to Luther makes it apparent that the primary federal power under the guarantee clause belongs to Congress, not the president:
Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not . . . its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.
Tyler’s power to make that decision arose because of military exigency:
By [the Insurrection Act], the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. . . . If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress.
When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. . . . [This power] is conferred upon [the president] by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals.
Congress could not be expected to intervene in a military crisis in the 1840s because Congress at the time was out of session for months at a time and (in the years before the telegraph) could not even be notified promptly, let alone recalled to Washington. (Taney, for his part, would take rather a dimmer view of deference to the president during the Civil War.) Notice also that Stephanopoulos’s standard for the president invoking the guarantee clause is that “exigent circumstances must exist and that Congress must be unwilling or unable to act.” Not only has he stretched “exigent circumstances” beyond all sensible bounds, but from where in Luther or in history does he get the “unwilling . . . to act” part of the formulation? That much, he seems to have invented from whole cloth in order to allow the president to use Congress’s powers merely because Congress chooses not to.
Even Stephanopoulos acknowledges that he is playing with a certain amount of fire here, and recommends that the guarantee-clause power be “channeled and constrained by congressional legislation,” although he appears to suggest that Congress would step in only after the fact if it disapproved of presidential action — a bias toward unilateral presidential power quite different from constraining the president to act only as previously authorized by a law passing both Houses. He also suggests some form of Administrative Procedures Act process: notice and comment, judicial review. But, he assures us:
My recommended regulations would less often block benign presidential action under the Guarantee Clause: for example, steps targeting voter suppression or gerrymandering. Congress would be more apt to agree that these are genuine problems — dire problems imperiling majoritarianism and requiring an urgent response. (Emphasis in original).
At least, Congress would be apt to go along with this White House so long as it is using its own power to prevent the seating of Republicans.
There will always be people on both sides of the political spectrum scheming to change and subvert the rules of our constitutional order to ensure that their side wins. We should be much more concerned when those people occupy positions of cultural power and influence in the academy and government, and spin out theoretical justifications for their will to power.
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