[EL] Kavanaugh's avoid-chaos theory

[J.H. Snider]

I believe Rick P ignored a variety of obvious scenarios; for example, after the November election the president doesn’t die, just becomes incapacitated like Woodrow Wilson and Franklin Roosevelt were near the end of their terms, but perhaps even more so. Or something unfortunate happens to BOTH the president-elect and VP-elect after the November election. With such scenarios, Lessig’s basic argument for post-November flexibility is strengthened. In a world with weapons of mass destruction and black swan events, I would think that such flexibility should be an important electoral design criterion.

J.H. Snider, Ph.D.
Editor of The State Constitutional Convention Clearinghouse<https://concon.info/>


From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Doug Spencer
Sent: Friday, May 15, 2020 3:33 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Kavanaugh's avoid-chaos theory

Rick P's argument that Lessig is promoting a false equivalence is compelling to me. It's seems clear (to me) that the 20th Am does not raise similar risks as Hamiltonian electors. But I'm curious why a ruling in favor of the faithless electors would, in the words of Kavanaugh, "facilitate or create" chaos. I'm thinking about two different issues here:

First, I don't dispute that faithless electors could throw the country into turmoil. But how likely is that outcome? I'm reminded of the McCutcheon majority that, in response to a set of hypothetical worst-case scenarios, held that "this sort of speculation cannot justify the substantial intrusion on First Amendment rights at issue in this case." At what point does speculation become justiciable? Does the answer turn on a risk assessment? Or merely when the issues presented require a tiebreaker?

Second, how should one define chaos? What if the chaos Kavanaugh imagines in 2020 leads to a constitutional amendment eliminating the Electoral College in 2022? If the Court is open to speculation about time t should they be agnostic with respect to t+1? Rick P has argued<https://www.journals.uchicago.edu/doi/abs/10.1086/676638> this slope becomes slippery very fast, but in this case "chaos" has both a relative and an independent meaning.

I'll admit that I'm sympathetic to the "avoid chaos" theory, which I think helps explain a lot of living constitutionalism. But I think the implications run deeper than Kavanuagh perhaps recognized with his off-the-cuff remark at oral argument.

Doug

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