Thursday, October 20, 2016
Peaceful transition of power
The big takeaway from last night's debate is Donald Trump's refusal to say that he would concede if he loses the election, stating that he would "look at it at the time" and that he would keep everyone "in suspense." Trumps's minions are spinning this roughly as follows: 1) He meant he would have to see if there is voter fraud about which something could be done and 2) Al Gore did not concede until December, with the implication from some now being that Gore was wrong to contest the result in Florida. (Update: An emailer reminds me that the recount was automatic under Florida law, given the closeness of the vote. So Gore was even more within his rights to argue that, as long as we were doing a recount, it should be done what he believed was the right way).
As to the second, we have laws in place to contest close elections for a reason, so there is nothing wrong with a candidate availing himself of those processes (especially when the state itself, not the candidate, triggers those processes). But the question last night clearly worked from the premise that the outcome was clear, either because it was not close or there were no more legal challenges to bring. As to the first, the problem with the argument is that for Trump, his losing the election is proof of voter fraud and a just basis not to accept the result, Q.E.D.
I do want to separate the effect of Trump's rhetoric and possible refusal along two lines-- democracy as an institution and the peaceful transition of power. I do not believe he threatens the peaceful transition of power. And that is because Trump does not currently possess political power or the resources that go with it (e.g., military or paramilitary forces). And most of the people who do possess that power would not back him up in refusing to recognize the results of the election. John Roberts is not going to refuse to swear-in Hillary Clinton on January 20. Barack Obama is not going to stand on a tank outside the White House and refuse to let Hillary Clinton in. Officials of states totaling 270 electors are not going to refuse to certify the slate of electors. And Congress, even if both houses are Republican-controlled, are not going to refuse to accept the electoral votes showing Clinton as the winner. Perhaps if they would, this might get more dangerous, but that does not appear to be likely. If anything, that the current President is a Clinton supporter weakens that rhetoric even more. Trump may provoke some violence among his supporters, which would be tragic, but it would remain on a small scale and still subject to legal control.
But Trump's words and actions do pose a danger for democracy as an institution, given democracy's dependence on the consent of the losers. A Trump concession would be symbolically important for the ability of the next President to govern and to be seen as legitimate by all The People, even those who did not vote for her. And that is ultimately what Trump's talk over the past month has been about--not to stop Clinton from gaining the presidency, but to undermine the legitimacy of her presidency.
I think it is important that we speak about this in those specific, and more accurate, terms.
Wednesday, October 19, 2016
Designated Survivor, The End
I just got around to watching Episode 4, which will be my final one (and this my final post). The idea seems so good, but the execution is horrible, even allowing for the relatively low bar on these things. Nothing changed from my assessment of Episode 2--It is just too simplistic, craven, and heavy-handed.
The show returned to the controversy with the governor of Michigan and mass arrests of Muslim citizens, culminating in the federal arrest of the governor, although I could not figure out what the charges were. Nor could I figure out why it was necessary to fraudulently induce the governor to fly to Washington to arrest him, rather than arresting him in Michigan--were there no FBI agents anywhere in the state? There were more comparisons of Kennedy and sending people to "watch" what was going on, without any discussion of the civil lawsuits in functioning courts*that gave the Kennedy watchers (and the calling of the National Guard) its force and that would have been the obvious solution here.
[*] One whopper I forgot to mention from Episode 2 was the governor, in explaining why he was free to do what he was doing, pointing out that there was no longer a Supreme Court. Of course, there is a Sixth Circuit and there is still an Eastern and Western District of Michigan, all of which are fully capable of issuing injunctions and bringing the governor and state police of Michigan to heel.
If anyone keeps watching and it gets better, please let me know.
End of the Filibuster?
In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.
If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.
This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?
I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?
A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.
By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works.
Tuesday, October 18, 2016
The Claim that the Media is Rigging the Election--and Citizens United
This post floats a tentative thought, welcoming reaction to it (but isn't that in part what blogging is for?):
Elsewhere, I've addressed the current claims that the election might be rigged through modern-day equivalents of old-fashioned ballot-box stuffing. Here, I want to consider the other current claim being made: that the mainstream media is rigging (or attempting to rig) the election, as Trump, Pence, and other supporters of their ticket are claiming.
My first reaction to this claim was straightforward: the freedom of speech being exercised by the media couldn't possible "rig" an election, because freedom of speech is essential to the functioning of a democracy. Free speech, far from rigging an election, promotes the fairness of elections by monitoring the voting and counting process to assure its accuracy and its compliance with the relevant rules.
While my follow-up thoughts are fully consistent with this initial reaction, I now think there is more that is worth considering on this point--and it relates to the public debate over the propriety of the Citizens United decision.
As I understand it, the Trump-Pence argument that the media could be rigging the election depends on the proposition that the media is improperly distorting the electoral process by persuading voters of the pernicious ideas that the media is disseminating. Persuasion must be the mechanism of the alleged "rigging" because the media is not paying voters to cast their ballots for a particular candidate (which would be a different type of mechanism for "rigging" the election). Perhaps part of the claim is that major media outlets (like CNN?) have some kind of monopoly position in the marketplace idea, which gives them an unfair advantage in the effort to persuade voters of what to think; but this kind of monopolization claim seems increasingly untenable given the diversity of media sources available to voters, who can choose whatever outlets they wish in an effort to gather information and develop their opinions.
Insofar as the media-rigging claim depends on the media's being effective in persuading voters, it is indeed a claim that is antithetical to the very premises of the First Amendment and the role that free expression plays in a democracy. Voters are entitled to be persuaded by whatever expression convinces them. If you disagree with the message that the media is sending to voters, then send the voters a different message of your own: the remedy for "bad" speech is counter-speech, and it is up to the voters to decide what to believe. And in this regard, of course, the media is not monolithic. If CNN is "slanted" in its particular point of view, then watch Fox for a different perspective. Likewise, read the Wall Street Journal and not the New York Times, if you think the Times is unduly liberal.
Now for the relevance of Citizens United: insofar as the attack on that decision rests on the premise that corporate-funded speech will distort the electoral process by persuading voters of its message, it seems the same sort of argument that Trump and Pence are making with respect to the media's capacity to influence what voters think. To be sure, there might be different types of arguments for attacking Citizens United--that corporate money, for some reason, should be off-limits in the process of persuading voters what to think. But if one rejects the idea that CNN and the New York Times are capable of rigging the election because the messages they send to voters about the competing candidates, then presumably to be consistent one should equally reject the idea that Citizens United and other corporations are capable of improperly distorting the electoral process because of the messages these other corporations send to voters.
Conversely, defenders of Citizens United should be taking the lead in condemning the Trump-Pence claim that the media is currently rigging the election because of its messages about the candidates. The First Amendment reasoning that underlies Citizens United rules out the Trump-Pence position on this issue.
One final thought: it seems to me that a well-functioning democracy requires some shared premises among the competing political parties about the nature of the democratic process itself. While the parties compete to win, they agree upon some basic ground rules. One of those basic ground rules, it seems to me, used to be the background condition of free expression as the basis upon which competing parties and groups will attempt to convince the electorate of the correctness of their respective positions. Perhaps, however, like so much else about the electoral process in this strangest of election years, the shared understanding of the role that free speech plays in a democracy is being frayed. If so, then let's hope that after this election we can begin a process of civic renewal that will enable restoration of the shared premises that are essential to a well-functioning democracy.
A lawyer's unexpected 15 minutes
Disenfranchisement and electoral losers
A quick thought in response to this piece arguing democracy depends on the consent of the losers and this Gerard Magliocca post arguing that Trump's rhetoric is not historically unprecedented: Immediately after Obama's inauguration in 2009, non-Obama voters began protesting, and the press began reporting, that they were "disenfranchised." They apparently used the term not to mean they were denied the right to vote,* but that they were "unrepresented" by a president who did not share their policy preferences and thus lacked any voice in government. And, again, the press reported it as a reasonable argument.
[*] Which would have been beyond ironic, given the political focus of recent attempts to limit the franchise.
This gets at another fundamental aspect of republican government that was ignored/misunderstood in the discussion: Being represented and being a full member of the polity does not mean you get all, some, or even any policies that you favor enacted by the candidate you favor. It means you get the opportunity to elect and try to influence people in office to your preferences. If your preferred candidates (and thus your preferred policies) lose, it does not mean you somehow are denied the rights of a full member of the society. It means you have a new opportunity at the next election to try to pick your preferred candidates who will enact your preferred policies. And in the meantime, public policy might go in a direction you do not like. But that is what we consent to.
"McConnell, denounce Trump's 'rigged election' comments"
I have written this Op-Ed for CNN, which debunks Donald Trump's "election rigging" comments and calls on Senator Mitch McConnell to denounce this dangerous and unfounded rhetoric. Here is the intro:
Mitch McConnell must end this nonsense.
The fact is that voter fraud occurs at such a minuscule level that it hardly ever affects a race. Moreover, it does not happen in the way that Trump and other Republicans seem to think: through in-person impersonation or individuals voting multiple times. The only proven fraud that exists, infrequent as it is, entails absentee balloting or paying off poll workers, typically to sway a local election. Voter ID laws, which Trump and others champion as a cure for our elections, would do nothing to solve that kind of fraud.
Read the full column here.
Whither the Trump Coalition?
Thanks Howard for the invitation to join this election symposium and apologies for my late arrival. I've been spending all this time trying to figure out who Billy Bush is.
So things are not looking great for Mr. Trump. The New York Times has put Secretary Clinton's odds for winning the election at 91 percent while Nate Silver has it at 88 percent in his polls only forecast and 85 percent in his polls plus forecast. Trump has resorted to claims that the election will be rigged and along with "America's mayor," Rudi Guiliani, he appears to be encouraging minority voter suppression. And the final days of the campaign leading up to the election has devolved into a battle of the headlines: Clinton emails versus Trump accusers. It would be kind of comical if it weren't happening in real time.
But while there is much to criticize about the Trump campaign, one thing that he successfully exploited to secure the Republican nomination was an obvious incompatibility in the Republican coalition between business republicans and the core Trump supporters of white, mostly male, working class voters with less than college education. President Reagan successfully aligned these two interests with an agenda focused in part on trickle down economics that justified tax cuts for the wealthy and anti-minority rhetoric that provided an excuse for white working class stagnation that trickle down economics would redress. Republican nominees since have campaigned on some version of the Reagan agenda ... hence the invocation of his name during every Republican primary debate.
But Trump decided in the primary to abandon the Reagan agenda and campaign on an anti-trade, anti-immigration agenda that appeals to white working class voters but is contrary to the interest of the business republicans who prefer fewer trade regulations and immigration. And rather than moving toward the middle in the general election through a renewed embrace of a version of the Reagan agenda, Trump has, as he has with many things, doubled down. Assuming Trump loses in 22 days, this Reagan coalition is not going to be easy to put back together. Republican business interests will find a home and that will likely be in the Republican party. But if the Republicans decide during their inevitable reset after the election to try to reclaim the Reagan agenda, while finding some other set of compatible voters to appeal to, whither the Trump coalition?
How a non-infield fly shows the need for the Infield Fly Rule
During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.
Monday, October 17, 2016
Law School Hiring, 2016-2017, Thread Two
Please leave comments on this thread regarding whether you have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments.
4. The year's first hiring thread is here. Comments to that thread are now closed.
5. If you would like to enter the information on a spreadsheet, the spreadsheet is available here:
You can also add your information to the spreadsheet via this Google form, which was created by someone on the market this year.
Here is a link to the last page of comments.
Originally posted October 17, 2016.
Sunday, October 16, 2016
Substantive Due Process Within Sunday Night's Florida Election Law Decision
Tonight a Florida district court issued an opinion enjoining a state law that does not allow voters to "cure" a signature mismatch in a vote-by-mail ballot. If a Florida voter mails in their ballot without a signature, the state notifies the voter and allows that person to submit an affidavit with a signature. But if the county election workers determine that the signature that is on the envelope does not match the signature on file from when the voter registered, then the vote is deemed "illegal" and is not counted. Tonight the court ruled that refusing to allow a voter to cure this signature mismatch violates the Equal Protection Clause of the U.S. Constitution.
Most people (at least on Twitter) are focusing on the last line of the opinion, which is a doozy: "Justice Stewart once quipped, in reference to pornography, 'I know it when I see it . . .' Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). Likewise, this Court knows disenfranchisement when it sees it and it is obscene."
But another line caught my eye, this one in a footnote:
Friday, October 14, 2016
If Trump Never Concedes ...
Chris Cillizza of the Washington Post's Fix observes that the escalation of Trump's rhetoric suggests that he's unlikely to concede defeat no matter what the results of the election show.
I've been thinking about this possibility over the last several days, beyond what I wrote a a couple of weeks ago for Politico.
It's important to recognize a few points:
- Election Night returns are not official certified results. No matter how much of a blowout in favor of Clinton, both in terms of the national popular vote and the Electoral College, that Election Night returns show, our system does not require that a candidate--or a political party--accept them as a definitive statement of the outcome. While we certainly have come to expect the tradition of the Election Night concession in the television era, especially when the results appear conclusive, it bears repeating that there is no official status to preliminary returns--and certainly none to the APs numbers. In short, we don't have a constitutional crisis on our hands if we don't have a gracious concession on Election Night even if the result appears a blow out.
- Our nation has withstood previous presidential elections in which the results were not known, and a concession was not forthcoming, until the canvassing of the returns were complete and the results officially certified. The election of 1884 took two weeks for the canvass in New York to be complete, and with it the official verdict that Grover Cleveland had defeated James Blaine. A similar situation occurred in 1916 as Charles Evans Hughes waited for completion of the canvass in California to confirm that he had lost to Woodrow Wilson. Neither of these examples, moreover, were ones that stressed the system in the way that 1876 and 2000 did. In other words, waiting for official results by itself does not constitute any serious threat to our democracy, which is far stronger than that.
- The key is the absence of violence. In both 1884 and 1916 there was no civil disorder as the nation peaceably waited completion of the official counting process. Whatever Trump does or does not say--assuming preliminary returns do show him to be losing decisively--the country will not be in crisis as long as his supporters do not engage in violent protests.
- To my mind, what will be key is the conduct and statements of Paul Ryan and Mitch McConnell as the leaders of the Republican party in Congress. If they publicly concede that Trump has lost, and the media appropriately reports the significance of their concession, the nation's democratic system can take that as the requisite sign of closure, whatever antics Trump might engage in. Remember, it is a joint session of Congress that constitutionally receives the Electoral College votes from the states under the Twelfth Amendment, and thus Ryan and McConnell have an official, constitutional role in congressional declaration of a president-elect. If and when Ryan and McConnell make clear to the public their intention to exercise this role in service of the Republic, the media should report that as the functional equivalent of the election being over.
- Mike Pence could also help in this process. If he acknowledges defeat, that will go a long way to helping those who voted for the Trump-Pence ticket to achieve closure, even if Trump is steadfastly refusing to acknowledge what would then be the reality of the situation.
- How much time should lapse before Ryan, McConnell, and Pence play this important role? Obviously, there will be intense media pressure for them to make concession-like statements on Election Night, especially if the results point to a Clinton landslide. But it seems to me that it would not be inappropriate for them to wait to give Trump a chance to do the right thing. Of course, the more belligerent Trump's rhetoric, the more important it becomes for Ryan, McConnell, and Pence to come forward quickly with responsible statements of their own.
- In sum, we have the capacity to navigate the situation even if Trump is inappropriately reckless after being defeated. Given our constitutional system, one aberrational individual cannot destroy our country--particularly if that individual has lost the election. (Finally, I'm obviously just assuming now that the Election Night returns may show a resounding victory for Hillary Clinton. Until we see what results the election actually brings, all these thought are simply by way of preparation.)
Former guest Prawfs Shima Baughman and her co-authors have a piece on TNR (originally published in The Conversation) calling for making police reports race-blind as a way to reduce implicit bias in prosecutors. Interesting read.
Number of Schools at FRC Over Time - 2016
In 2012, there were 142 AALS member or approved schools at the FRC.
In 2013, 94 schools.
In 2014, 81 schools.
In 2015, 89 schools.
In 2016, 86 U.S. law schools (the list provided by AALS was categorized differently this year but this is roughly equivalent to AALS member or approved schools).
(Say +/- 2 for each year due to vagaries of counting.)
More locking her up
To the extent there was any sense that Trump's explicit theme of prosecution/jailing Clinton was a one-off for the debate (or a quip, as campaign official Kellyanne Conway tried to argue on Monday), the last week has proven otherwise. Trump has referenced this in multiple rallies the past several days, including the specific detail about asking for a special prosecutor.
Charles Krauthammer (with whom I likely have not agreed about anything) argues that such rhetoric is dangerous and inconsistent with a mature, functioning democracy. A relevant excerpt:
Such incendiary talk is an affront to elementary democratic decency and a breach of the boundaries of American political discourse. In democracies, the electoral process is a subtle and elaborate substitute for combat, the age-old way of settling struggles for power. But that sublimation only works if there is mutual agreement to accept both the legitimacy of the result (which Trump keeps undermining with charges that the very process is “rigged”) and the boundaries of the contest.
The prize for the winner is temporary accession to limited political power, not the satisfaction of vendettas. Vladimir Putin, Hugo Chávez and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t.
One doesn’t even talk like this. It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.
Thursday, October 13, 2016
NYT to Trump: Go ahead and sue (Updated)
When I went to law school, one of my dream jobs was to be general counsel to The New York Times. So I have great respect for this letter responding to Trump's lawyer's retraction demand. The final paragraph is the meat, subtly arguing both the accuracy of the statements, their public import (and thus reminding that Trump is a public figure), and the absence of malice. The second paragraph is a bit more gratuitous, in essentially suggesting that Trump has made himself such a sleaze with his own public statements and actions that he is libel-proof. All-in-all, nice work (and the kind of ballsy, "let-me-tell-you-how-things-are, son" stand that I do not believe I have it in me to take with another lawyer--a conversation I was having with several people during break-fast yesterday).
It is interesting that one of the (many) political norms Trump has obliterated this election is that high-level government officials do not bring defamation actions, not only because Sullivan sets such a high hurdle, but also because it looks weak politically. But because Trump has made both the press and the First Amendment some of his punching bags, that weakness is gone.
The full letter:
Update: From the National Constitution Center Blog comes this essay on Barry Goldwater's successful suit against Ralph Ginzburg over something he published during the 1964 election about Goldwater's fitness. Goldwater managed to show actual malice and win a $ 1 million+, upheld on appeal. A few points: 1) It is telling that Goldwater waited until after the election, when he was (temporarily) out of office; 2) This was in the early days of the Sullivan regime and I wonder whether it would come out the same way today; and 3) Everyone hated Ralph Ginzburg, so he lost cases other people would win.
The Hurricane Canon for Election Law
I have written this post for the American Constitution Society blog, republished with permission:
When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.
That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.
Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)
The federal court’s ruling in Florida, then, follows similar decisions to favor voters who face an unexpected disaster that makes it harder for them to participate in the election. Call it the “Hurricane Canon”: election officials and courts should favor voter access when disaster strikes. Voting, as the most fundamental right to our democracy, must be as open as possible to all.
JOTWELL: Coleman on Rosenbaum on RICO and class action attorneys
The new Courts Law Essay comes from Brooke Coleman (Seattle), reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare (Iowa L. Rev.) (forthcoming), exploring the use of RICO actions against class-action plaintiffs' lawyers.
Wednesday, October 12, 2016
Your Honor, and May It Please Mitch McConnell
The race is tight for control of the Senate. According to the statisticians at 538, six states are experiencing (to use the technical term) “super close” elections, and those same races very well may determine which party exercises the exceedingly important powers wielded by this body of government. If the vote totals on Election Day are tight enough to invite disputes over the true winner of a Senate race, the question becomes: who should adjudicate those contests? If you thought to yourself “Mitch McConnell, Bernie Sanders, Elizabeth Warren, Ted Cruz, and their colleagues in the Senate; they should do it,” then you are in good company: the Founders agree with you.
As Article I, Section 5 of the United States Constitution reads, “[e]ach House shall be the judge of the elections, returns and qualifications of its own members.” What this means is that the Senators are charged with judging election contests over disputed Senate seats, while the Representatives are charged with judging election contests over disputed House seats. And judge they do: in this context, each House examines witnesses, manages discovery, and inspects ballots, among other tasks, all pursuant to a set of procedures (informal in the case of the Senate, and set by statute for the House). At the conclusion of the proceedings, each House publishes, through a committee, something that looks much like a judicial opinion. This report recommends a particular resolution of the claims, and if the full House agrees with that recommendation, it passes a resolution so ordering. As I explain in Judging Congressional Elections, the Houses of Congress already have resolved hundreds of contested elections in this fashion.
The arrangement may seem strange, but it has a long historical pedigree, and nearly every state has adopted a similar approach (that is, nearly every state also has vested power to judge state legislative elections in the legislative body itself). Still, a host of difficult questions remains. Among them is whether—and how—courts may also adjudicate these same disputes. Let’s take Pennsylvania, where the race between challenger Katie McGinty and incumbent Pat Toomey appears exceedingly close. Can the Supreme Court of Pennsylvania weigh in if either candidate disputes the results on Election Day? Or what about in Nevada, where the candidates are locked in a tight race over Harry Reid’s seat—can the state courts offer guidance if November 8 produces no clear winner? The answers largely depend on constitutional questions surrounding Article I, Section 5, and the resolution of those questions is, to put it lightly, unsettled.
Here is a compromise position on early voting that might bridge the gap between Michael and Lisa's well-written posts: Election Week. I wrote this piece for Reuters in 2012, but it is just as relevant today. A uniform, nationally-mandated Election Week would help everyone. It would reduce litigation regarding the manipulation of early voting rules. It would focus the country's attention on a particular, clearly-defined period. It would provide enough time for everyone to participate. Although it might cost states a little extra money to run more precincts throughout the week, the expenditure would be well worth it to remove this aspect of the "voting wars" while still providing enough opportunities to vote.
Here is an excerpt from the column:
On Election Week, polls would be open for seven days, all day for all voters. Beyond taking away one avenue for court involvement in vote-casting disputes, this could offer other significant advantages.
First, it would lead to greater access for more voters, making it easier for Americans to find a time to vote while reducing long lines throughout the week. It is absurd that some citizens have to wait hours in line to vote.
A full week would also avoid problems for religious voters, who might not want to vote on a particular day, while still allowing churches to have “souls to the polls” programs on a Sunday after church.
Second, it would reduce the number of absentee ballots, since more voters will likely be able to find a time to go to the polls.
Third, it could reduce the number of provisional ballots cast – a key area of potential post-election litigation. If voters show up at their precinct without a voter ID, for example, they could return by day seven with the correct documentation.
Fourth, Election Week would lighten the extreme burden on election administrators to run their precincts, tally the results, and announce a winner on a single night.
Fifth, Election Week would ease the hardship on voters dealing with an emergency or disaster, such as New Yorkers or New Jersey voters displaced by Hurricane Sandy.
Read the whole thing here.
Tuesday, October 11, 2016
The Gig Economy and the Future of Employment and Labor Law
This past April I had the honor of delivering the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. The lecture The Gig Economy and the Future of Employment and Labor Law is now up on SSRN- hope you download the article while it is hot. It is soon to be published in the USF Law Review.
In the article I ask what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? I propose four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work. I welcome your comments, reactions and thoughts.
In Defense of Early Voting
Coming from a state like Washington, where almost all voting is done by absentee ballot (and everyone has the option of voting in person, if desired, starting in late October), I may be favorably predisposed toward early voting. But I confess that I don’t entirely understand the concerns over the practice—and given the critical function that early voting serves, I think it warrants a robust defense.
The objections to early voting often center on the possibility that events happening in a narrow window (post-vote, pre-Election Day) will cause early voters to regret their decisions. There are two reasons why I have trouble understanding these objections. First, November 8 is the date we have set for the end of voting because a date needs to be set—not because events freeze in time at that point. Imagine terrible news emerging about a winning candidate on the day after Election Day. That news very well might cause voters to change their minds about the candidate they had selected and wish they had voted otherwise. But no one would suggest that we therefore re-open voting. Why is this concern over buyer’s remorse so much greater if the news emerges prior to Election Day? To me, it’s the same problem, with just a slightly increased chance that it will affect any given voter.
That said, the calculus is, indeed, different if the nominee withdraws (through death or otherwise) prior to Election Day. In that case, early voters could effectively be disenfranchised in a way that does not have a precise post-Election Day analogue. But this gets to the second point. Most of the concerns over early voting seem to stem from a desire to protect early voters. But no one is required to vote early. It is simply an option given to those who are (in my mind) fortunate enough to have the option. While some have questioned whether voters are able to understand the risks when they make the decision to vote before Election Day, this strikes me as a debater’s point: while surely this sometimes is true (that is, surely it is true that people sometimes vote early without considering the possibility that they would want to change their minds before Election Day), it’s hard for me to imagine that an information deficit of this sort really has much an effect on how or when people vote.
Most Important Election Law Question of the Decade: Local Rules on Voting Rights
Ned asks a really interesting and significant question: what will be the most important election law issue of the decade?
Regarding election law doctrine, I think that the potential of the Supreme Court adopting a standard for partisan gerrymandering is the most significant, as it will open the courthouse doors to a whole new round of litigation every redistricting cycle. Two cases are winding their way through the lower courts -- one from Wisconsin and the other from Maryland -- that could provide substantive scope to a new Court majority that wants to cabin the worst abuses in partisan gerrymandering.
But if "important" means "will most effect voters in how they participate within the political process," then perhaps we need to look more granularly to what is happening on the ground in states and even cities with respect to election law.
Indeed, this November voters around the country will decide whether to adopt various election-related reforms. In Maine, the voters will decide whether to adopt ranked choice voting, in which voters list the candidates in order of preference. Supporters say that this election system will produce a result that better reflects the sense of the electorate and will help third parties. Missouri voters will decide whether to amend their state constitution to allow voter ID laws in light of a 2006 Missouri Supreme Court case that invalidated the prior voter ID provision based on the state constitution. Wisconsin is trying to implement a voter ID law this year amidst various problems. Many states have adopted online voter registration, with others sure to follow.
At the local level, Seattle is now using "democracy vouchers," a unique form of public financing in which voters are provided four vouchers worth $25 each to donate to any candidate for office in the city. San Francisco voters may expand the voter rolls to allow sixteen-year-olds to vote in city elections and to allow noncitizens to vote in school board elections. Howard County, Maryland will vote on a public financing system for its own elections.
(If you know of other referenda on election laws on the ballot this year, can you let me know?)
We do not have one election system but thousands of election systems that all operate on the same day. How voters interact with their own local system has the biggest effects on their own political participation. These various election law changes, to me, represent the most important (and under-discussed) issues in the world of election law.
Greenberg, Koufax, and Yom Kippur
I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.
Biggest election law question of the decade (2010-2020)???
Since this month of guest-blogging is supposed to be a kind of round-robin, I'm very curious as to other participants thoughts on this question, and I suppose there are many possible candidates, including:
- Will new Supreme Court overrule Citizens United (and perhaps even reject the D.C. Circuit position in SpeechNow) in an effort to reign in superPACs?
- Will the Supreme Court resolve the indecision in Vieth and adopt an enforceable constitutional constraint on partisan gerrymandering?
- Will the new Supreme Court overrule Shelby County, or will Congress adopt new legislation, that will resurrect section 5 of the Voting Rights Act and its nonretrogression principle, or alternative will the Court use the Fourteenth Amendment and VRA's second 2 to moot the necessity of a resurrected section 5?
But, after watching the political events of the last 24 hours, I offer this morning one more plausible candidate for the most important election law question of the decade: will the GOP be able to change its internal party rules to avoid the kind of internecine split that we are witnessing this year? (Relatedly, does election law--which presumably is designed to serve the public's overall general interest in a competitive, healthy democracy--have a role to play if and when one of the two major parties in the existing political system seems incapable of managing its own internal deliberations about what it wants to offer to the electorate?)
Comparing Florida and Ohio federal court emergency decrees
In follow-up to a helpful clarifying comment to my previous post, my reference to the Ohio case was not to suggest that the federal district judge there was correct. On the contrary, as noted, the Sixth Circuit definitely rebuked the district judge for issuing the TRO in that situation. My point in mentioning the Ohio case was to note that, even if the federal court in Florida is correct in issuing the TRO there, it is necessary to recognize the limits to that federal judicial power. In my mind, the Ohio case reflects a failure to recognize those limits at the district court level. Obviously, emergency cases by their very nature are incredibly fast-moving in intense and difficult situations. The instinct on the part of the federal judge, in my view, should not be "what can I do?" or even "how are voters hurt?" but "what has the state government done unconstitutionally wrong that requires my intervention, since other institutions of government have shown themselves to be inadequate to handling the emergency in a constitutionally appropriate manner?" The Florida case is an important one because arguably federal court intervention was indeed warranted, as the district court itself determined, even under this fairly stringent test.
Early Voting and Voting Updates
I concur with many of Steve Huefner's sentiments concerning the pros and cons of early voting. Early voting offers a way of increasing voter turnout by making voting more convenient. It also may facilitate efficient election administration by reducing the number of voters on Election Day itself. On the other hand, lengthy early voting periods can place those who choose to vote at the very beginning of the period at something of a disadvantage. Subsequent events may cause such voters to change their minds and wish to cast their votes for someone else, instead. Most dramatically, the withdrawal or death of a candidate can effectively nullify the votes of those who cast their ballots early.
A period of one week to ten days seems like an early voting period of reasonable length that balances these competing concerns. For states that adopt longer periods, one possibility to consider is the notion of "vote updating." Vote updating is easiest to understand and implement in the related area of absentee ballots. If a person casts an absentee ballot a few weeks before Election Day, and something happens that causes them to shift their support to a different candidate, it should be possible to allow them to cast a replacement ballot, which would be counted instead of their earlier one. Absentee ballots are typically enclosed within outer envelopes containing a voter's identifying information and are not opened for counting until Election Day itself or a few days before (depending on the jurisdiction). Thus, if election records show that a voter submitted two absentee ballots, election officials would be able to identify the original ballot that should not be counted and set it aside. Only the later-received ballot would count.
Monday, October 10, 2016
Hurricanes and Voting Rights
In response to Howard's request, I hopefully will weigh in more deeply on the constitutional analysis when I get a chance. Meanwhile bottom line: it's complicated. There is deep conceptual uncertainty about the nature of the Anderson-Burdick balancing test, on which much of the Supreme Court's analysis of election regulations relies. Anderson-Burdick grew out of Equal Protection law, but also First Amendment. I've been writing recently that, if Equal Protection is at issue, then there needs to be differential treatment among citizens by the government with respect to the opportunity to vote--not just disparate impact of laws that treat all voters equally. If this is correct, then one would need to look for disparate treatment by Florida among voters with respect to the circumstances arising from the hurricane. The plaintiffs make such a claim, but I haven't had a chance to look at it closely.
But others see Anderson-Burdick as not requiring any differential treatment. More like substantive due process claims, and specifically the "undue burden" analysis for abortion regulation, these scholars and judges think there is no comparative inquiry necessary; as long as some voters are burdened with respect to voting, then there is a triggering of the sliding-scale balancing under Anderson-Burdick. I would say that many lower courts see it this way, but not necessarily the Supreme Court.
In a new article, forthcoming in the University of Chicago Law Review, I set forth an alternative "due process" analysis to the traditional Anderson-Burdick approach under equal protection. Although this article doesn't address the kind of emergency situation involved in the Hurricane Matthew case, the basic concept of the article could be applied. The article argues that Due Process employs a principle of fair play that constrains partisan overreaching on the part of state governments. Based on available evidence I've seen, one could easily argue--as the plaintiffs have (although not relying on Due Process)--that Governor Scott's refusal to extend the voter registration deadline was pure partisanship. He practically admitted as much, saying "this is politics" when explaining the reason for his refusal.
There's been a lot of important recent scholarship on what the Supreme Court should do to clarify the deep uncertainty associated with the Anderson-Burdick balancing test. Sam Issacharoff, Pam Karlan, and my Moritz colleague Dan Tokaji --as well as some of the other guest bloggers this month -- all have written major new articles addressing the issue, all of which (I think) are available on SSRN or elsewhere on the web. And there maybe be others (if so, I welcome hearing about them!).
Finally, I note that there was also a Voting Rights Act claim in the case, and there is parallel uncertainty about how the Court should develop the "results" test under section 2 of the Voting Rights Act, especially as applied to regulation of the ability to cast a ballot (rather than redistricting cases) in the wake of the Court's nullification of section 5 in Shelby County. Again, Pam and Dan (among others) have made important contributions to the scholarship in the area, but the Court has yet to settle the issue.
As I observed in a quick tweet after the TRO was announced today, hurricanes themselves are not unconstitutional--the weather itself is never state action--and thus the relevant question is the appropriateness of the government's laws and conduct to handle such emergencies. As one thinks about this Florida case, one should also compare the federal court order issued at the end of the day during Ohio's primary election this year, when there was a major car accident on a bridge. The court issued a TRO without there even being a plaintiff or a case.
Florida Democrats win TRO extending voter registration
A federal judge in the Northern District of Florida has issued a TRO requiring Florida to extend the deadline for voter registration in the wake of Hurricane Matthew and the evacuation of thousands of would-be registrants. The court found that the refusal to extend the deadline violated the right to vote, applying strict scrutiny because the non-extension worked a complete denial of the right to vote. The TRO extends the deadline to Wednesday, when there will be a hearing on the motion for preliminary injunction. The court also quickly disposed of some preliminary standing issues. Best of all, the opinion uses the word "poppycock."
I would be curious to hear from a panel of election-law experts whether the constitutional analysis here is correct.