Can legal formalism help save democracy? That is a question posed by a very interesting draft paper posted by Will Baude of the University of Chicago last week, “The Real Enemies of Democracy.” Baude’s paper is a response to Pam Karlan’s 2020 Jorde Symposium lecture, “The New Countermajoritarian Difficulty,” in which Karlan laments the recent Supreme Court’s failure to take action against anti-majoritarian forces that dilute the votes of, or outright disenfranchise, millions: the Electoral College, the filibuster, campaign finance, gerrymandering, and anti-suffrage laws.
But Baude has his eyes set on a different horizon: “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.” And he suggests a different bulwark to hold them back: “The shield against them may be more formalism, not less.”
I agree with Baude’s sense of the threats, but I think the hope that formalism—or even the rule of law generally—will save us is misplaced. It was often said of the Soviet Union that it had an extremely rights-protective constitution; better than that of the United States, even. But of course the problem was that the Communist Party was not really bound by it. Formal guarantees mean nothing with the will to back them up. Law without faith is dead.
Baude offers two examples of threats to the peaceful transition of power in the last election that formalism might combat. First, “[a]fter 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.” Elections had been held, but whether electors had thereby been chosen was precisely the issue. Baude notes that “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.” But there’s nothing inherent in the word “failed” that makes it clear that no state failed to choose electors on November 3. The dictionary definition of “failed” is simply “unsuccessful in achieving one’s goal.”
What makes it clear that no state “failed” to choose its electors is that no modern, professionally-trained lawyer would be likely to read the term in the statute in a way that would obviate the need for evidence of widespread electoral failures, where that evidence was presented in a way that, in the before times, was traditionally accepted as credible by the broader society. But what makes that interpretation of 3 U.S.C. § 2 so obvious is precisely because of the assumption that underlies it, that respecting the will of the majority of voters is a crucial foundational principle.
If you abandon that principle, there’s nothing about the word “failed” itself that forces state legislatures not to second-guess their election results. Baude derides contrary interpretations as “lawlessness” aided by “technicalities” that “sly lawyers might well be able to debate … into apparent ambiguity,” but “technicality” is just another way of saying “required by law.” What makes state legislatures overturning apparently valid elections “lawless” is not anything in the words of 3 U.S.C. § 2, or even the Constitution. It is because such an action would undermine the bedrock principle that elections without major problems (documented in a reliable way) must be respected.
And as for that documentation, it’s certainly convincing to people like Baude and myself—adherents of the old order—that there were no news reports of widespread electoral screwups issued by professional journalists working for reputable news organizations, no concerns by credible experts, and no formal statements by government officials responsible for the electoral process, that would call any of the state election results into question. Nothing that would succeed in a traditional hearing for preliminary relief in a standard U.S. court was produced. According to the 20th-century process of belief formation about public activity in the United States, there was no basis for asserting that any state had failed to choose electors on November 3. But all that, of course, requires a certain amount of faith that all of those processes are functioning correctly. Without that faith, there is no basis for saying that any state succeeded in choosing electors, let alone that no state failed.
Baude offers a second set of examples:
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.
Baude contrasts these events with the sort of maneuvering that Karlan is objecting to: taking advantage of the filibuster and Electoral College to thwart majorities indefinitely, and passing voting legislation for partisan advantage. “But at least,” he says, “those are the rules of the game, constrained by the rule of law.” The “baseless objections” and appeals to the Vice President, on the other hand, are the acts of the “real enemies of democracy, … those who try to ignore the rules of the game after they have already lost it.” This distinction doesn’t seem to do the work Baude thinks it does. Baseless or not, the objections raised by members of Congress violated no law or House or Senate rule. They were perfectly within the rules, not outside of them. And nothing in the text of the Constitution makes clear that “[t]he President of the Senate,” in “open[ing] all the Certificates,” has no role in determining which of them “shall then be counted.”
What makes both the baseless objections, and the notion that the Vice President might get the power to choose which votes for his own office should count, dangerous is that both of those actions are utterly inconsistent with fundamental democratic norms that are not written into the Constitution. The Constitution provides mechanisms, but doesn’t tell people what to believe. And if they don’t believe in respecting electoral majorities, then they won’t.
Baude’s reference to the “rules of the game” is informative. As game scholars have noted, all games have implicit rules—understandings between the players that constrain their actions, just like the formal rules, but are not typically specified in advance. Take Monopoly, for example. Here’s what the rules of Monopoly say about moving: “Place your token on the corner marked ‘GO,’ throw the dice and move your token in the direction of the arrow the number of spaces indicated by the dice.” Nothing in the rules of Monopoly puts any time limit on how long a player can take to roll the dice. A player with a high tolerance for delay could simply hold the dice as long as she wants, until the other players forfeit. There’s no rule against it.
Or take the Banker. Here’s what the rules say: “A Banker who plays in the game must keep his/her personal funds separate from those of the Bank.” But there’s no rule against the Banker dealing properties to herself, or short-changing other players, or any number of other shenanigans. It’s simply understood that the Banker acts as a fiduciary, not as a player, in operating the Bank, but there’s no rule that requires that.
Baude suggests that the way to defeat attacks on democracy like the state legislature end-run, or the baseless objector, or the choosy Vice President, is strengthening a commitment to legal formalism: the theory that judges and other legal actors can and should apply “the law” without consideration of the substantive outcome. “A very strong norm,” he offers, “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….” But “the rules” aren’t transmitted into our heads fully formed like some sort of heavenly pronouncement. They’re more like the Oracle of Delphi, and thus will always be subject to “crafty lawyering” and “technicalities.” A statement like “those are the rules” is in fact exactly the wrong response to the Monopoly player taking 24 hours to make a move. More apt would be, “that’s contrary to the whole point of playing this game.”
It turns out that the law is not what is keeping us safe from the enemies of democracy. What’s keeping us safe is the dwindling number of government officials, including judges, who, much like Bankers in Monopoly, take their fiduciary duties of acting in the public interest seriously—a “thin black line,” as it were. Once that line is gone, formalism won’t save us.