Friday, October 28, 2016
WARNING: THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE
In 1981, Republican organizations enlisted the help of supporters, including off-duty police officers, to patrol urban areas in New Jersey. The purpose of these efforts, according to critics, was to intimidate prospective voters. Members of the so-called “National Ballot Security Task Force” wore official-looking armbands, posted large “WARNING” signs directed at voters (which included the language I’ve used as the subject header for this post), and in some cases openly displayed firearms. Their activities prompted a lawsuit. To settle the claims, the Republican National Committee (RNC) entered into a consent decree (still in effect) whereby it agreed to, among other things, refrain from “undertaking any ballot security activities . . . where the racial or ethnic composition of such districts is a factor in the decision to conduct . . . such activities . . . and where a purpose or significant effect of such activities is to deter qualified voters from voting.”
After the 1986 elections in Louisiana, Republicans facilitated another voter-challenge program. As revealed in discovery, one Republican director predicted that the effort would “eliminate at least 60,000–80,000 folks from the rolls” and “[i]f it’s a close race . . . this could keep the black vote down considerably.” This led to a modification of the consent decree, which included the addition of a preclearance provision. More specifically, the decree was altered to prohibit the RNC from engaging in any “ballot security activities” unless it first received permission from a court. “Ballot security activities” were defined to include “any program aimed at combating voter fraud by preventing potential voters from . . . casting a ballot.”
In 1990, the court found that the RNC had violated the consent decree (based on a failure adequately to educate state parties, in matters related to alleged attempts to intimidate voters in North Carolina). In 2009, the court again modified the consent decree. Among the 2009 changes was an expiration date: absent any further violation, the decree would terminate on December 1, 2017. All of which brings us to today.
Donald Trump has been imploring his supporters to patrol urban areas. (“Watch Philadelphia. Watch St. Louis. Watch Chicago, watch Chicago. Watch so many other places.”) He’s been asking them to engage in this work in order to (to use the phrasing of the consent decree) “combat voter fraud by preventing potential voters from . . . casting a ballot.” (“So important that you watch other communities, because we don't want this election stolen from us.”) To take one (hopefully extreme) anecdote from the Boston Globe, one Trump supporter has described his reaction as follows:
“Trump said to watch your precincts. I’m going to go, for sure . . . . I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American . . . . I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”
In response, the RNC is back in court, with the Democratic National Committee (DNC) accusing it of violating the consent decree. As a result of this alleged violation, the DNC argues, the RNC should be held in contempt; the court should issue relief to ensure enforcement of the decree; and it should extend the decree for another eight years.
I have a few reactions. First, the DNC appears to have a strong claim here. Of course, one expects such a reaction after having only read the briefing from one party. (I have not yet located a responsive filing by the RNC.) The biggest obstacle for the DNC may be convincing the court that the activities of individuals (such as Donald Trump and his supporters) can be attributed to the RNC. Yet the DNC’s filing already chronicles evidence in support of such an argument, and in the 1990 litigation discussed above, a District Court concluded that the RNC had violated the decree not through its own voter-directed activities, but rather by failing to provide adequate guidance to local parties about the prohibitions. (This 1990 precedent may help to explain why the RNC emailed its members last week insisting that “[a]dherence to the Consent Decree is of the utmost importance” and that anyone engaging in “‘ballot security’ activities” would be doing so “not [as] an agent of the RNC.”) This all leads to the second observation, which is that one legal response by the RNC might be to argue that Donald Trump is not sufficiently representative of the RNC to constitute its “agent” for purposes of the decree. That legal strategy may or may not have potential (it depends on, among other things, how the RNC articulates this argument and how much proof the party can produce), but recent efforts to distance itself from its presidential candidate have had troubling political consequences for the party.
Finally, it is interesting that the consent decree includes a preclearance provision. So did Section 5 of the Voting Rights Act, which the Supreme Court (effectively) invalidated in 2013. Preclearance is a profoundly effective mechanism to counteract abusive forms of election administration or activity. This is because while elections keep happening, whether or not litigation is unfolding (and by extension, whether or not that litigation eventually will confirm the existence of illegal or unconstitutional activity), preclearance keeps the status quo in place. It also is effective because it tends to be easier for plaintiffs to prove a failure to receive preclearance than to prove a violation of the relevant substantive standards.
It will be interesting to see how the District Court in New Jersey responds. Will it take the approach of, for example, a recent decision by the Court of Appeals for the Fourth Circuit, which seemed eager to interpret the controlling law in a manner that protects voters against problematic efforts to combat “voter fraud”? Or will it follow an approach more similar to the Supreme Court as of late (at least, prior to the passing of Justice Scalia), which seemingly has been reluctant to interpret the law in a manner that tends to favor such protections? In my view, the history surrounding the consent decree—and the history of voting rights more generally—suggests that the former tends to be the better approach. It is true that, in the words of Chief Justice Roberts, “history did not end in 1965.” But neither did activities that have the very real potential to suppress votes.
Thursday, October 27, 2016
Levine on the "Hands-Off Approach to Religious Doctrine"
Prof. Samuel Levine (Touro) returns, here, to an issue that he has addressed thoughtfully and thoroughly in other work, namely, what he calls the Supreme Court's "Hands-Off Approach to Religious Doctrine," in light of the Court's recent religious-freedom cases (Hosanna-Tabor, Hobby Lobby, Holt, and Zubik). Here's the paper's abstract:
In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed — and seemed to resolve — a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically — though anticlimactically — in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter.
This article suggests that the Supreme Court’s inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court’s continuing, and arguably expanding, hands-off approach to religious doctrine. Courts and scholars have offered sound justifications for the Supreme Court’s hands-off approach to questions of religious doctrine grounded in constitutional principles of religious freedom as well as more general concerns over judicial competence and the role of judges. Nevertheless, as recent cases have illustrated, the hands-off approach raises concerns of its own, at times serving as a source of contention and confusion. The ongoing tensions and divisions among Justices and judges revolving around these issues may suggest a need for the Supreme Court to revisit and perhaps rethink the contours of the hands-off approach to achieve clarity for the future.
At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”
This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal churches in Virginia, on the one hand, and the Episcopal Diocese of Virginia, on the other; by the Supreme Court of Canada’s recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; by a federal judge’s ruling that the Georgia Institute of Technology had unconstitutionally taken on the task of instructing students about the merits of various traditions’ positions on sexual morality; and perhaps even by the Speaker of the House’s controversial pronouncements, on “Meet the Press,” about Roman Catholic teaching with respect to abortion. In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving the meaning or content of religious teaching.
But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an “increasing unwillingness,” and that they are doing so in accord with any identifiable principle or “approach”? If there is, in the Court’s law-and-religion toolkit, something like a hands-off “rule,” then what are that rule’s scope, content, and justifications? Which feared harms does it protect against, and which goods does it promote? When it comes to “matters that relate to the interpretation of religious practice and belief,” why is the Court doing, and should it be doing, what it is doing?
More SCOTUS Repeaters
Regular Prawfsblawg readers may be interested in my recent essay on SCOTUS Repeaters, or cases that the US Supreme Court hears more than once. Here's how the essay starts:
It’s every academic blogger’s dream to prompt an empirical study. Well, maybe not. But it was my dream, and Jason Iuliano and Ya Sheng Lin have made it a reality.
Last year, I wrote a blog post that discussed several possible explanations for what I called “SCOTUS Repeaters,” or cases that the U.S. Supreme Court has reviewed more than once. But while my post and its comment thread adduced a surprising number of Repeaters, I lacked more comprehensive knowledge of how frequently Repeaters occurred.
Now, in their illuminating paper, Iuliano and Lin have taken great strides toward identifying every Repeater that has received plenary consideration as a result of certiorari since 1925, discovering over eighty examples. In addition, the authors helpfully divide the resulting set of cases into three basic categories—procedural, supervisory, and incidental—with each category corresponding to a different explanation for the Court’s discretionary decision to exercise full merits review twice in the same case. Thanks to Iuliano and Lin, Repeaters have reached the academic big leagues.
Still, there is more to be done. This response essay explores a fundamental question that Iuliano and Lin raise but don’t fully answer: given that most certworthy issues arise in many cases, why does the Court regularly choose to review the very same case more than once?
Answering this question requires consideration of explanatory factors other than the ones that Iuliano and Lin use to define their three Repeater categories. Moreover, a full understanding of Repeaters requires consideration not just of the “Plenary Repeaters” that Iuliano and Lin study but also “Summary Repeaters,” or cases that are Repeaters by virtue of summary review following certiorari, such as summary reversals. Once these additional possible explanations and cases come into view, we will be in a position to deepen, supplement, and refine Iuliano and Lin’s proposed explanations for why Repeaters come about.
Needless to say, I look forward to seeing even more research into Repeaters and their causes.
[Note: The excerpt from my draft has been updated to reflect revisions.]
Wednesday, October 26, 2016
DNC motion to enforce and the rigged election
The DNC has filed a motion to enforce the consent decree against the RNC for supporting and collaborating in Donald Trump's "ballot security" measures that sound like intimidation of minority voters in places such as Philadelphia. The motion seeks enforcement, sanctions, and further preliminary injunctive relief prohibiting RNC funds and personnel from being used in such efforts in concert with the Trump Campaign. The motion does not go all the way to pinning the Trump Campaign's activities on the RNC because Trump is the party's nominee, but it does highlight its "coordination, encouragement, and support" of such activities.
Random items (Updated)
• Last term in Heffernan v. City of Patterson, SCOTUS held that a public employee can state a First Amendment retaliation claim where he suffers adverse job action because the employer believes he engaged in protected expression, even if he did not actually do so. Heffernan now has settled the action for $ 1.6 million, including attorney's fees.
• Senate Republicans are beginning to make noise about not confirming any Hillary Clinton nominees to SCOTUS, apparently for the whole of her Term. Clearly, no one is even pretending anymore that this is some principled stand in the name of democratic values (it never was, but at least some pretended). In pushing this position in a radio interview on Wednesday, Ted Cruz pointed for support to comments by Justice Breyer that the Court is doing just fine with eight Justices. It is impossible to know whether Breyer believes that or whether, as Dahlia Lithwick has argued, this is the Justices putting on a brave face to keep themselves out of the political thicket. If the latter, it is ironic that Cruz is using those efforts to pull the Justices even more into the mire.
Perhaps this is all posturing, in light of recent polls. It does hint that a lame-duck confirmation of Merrick Garland is not in the offing.
Update: I agree with several points Dahlia Lithwick makes here: 1) The Chief must play a role as an advocate for the institution, something Taft did well and which is entirely appropriate where the Court's structure is implicated; 2) This should play as FDR's court-packing plan redux--one party trying to manipulate the size of the Court for partisan gain. That it is not says much about the current partisan divide--FDR's plan failed because Democrats (who held the Senate majority) bailed on it; 3) Justice Breyer is at odds with others who have spoken out about this stonewalling. And that ups the irony of Cruz seizing on Breyer's attempts at optimism to draw out the dispute.
Lowering the Voting Age to 16 for San Francisco's Elections
A few years ago, the Maryland towns Takoma Park and Hyattsville lowered the voting age to 16 for their city elections. When I first heard about this, I was intrigued, but I did not have a strong view one way or the other on whether it was a good idea. The more I've researched, the more convinced I've become that lowering the voting age makes sense and is good for our democracy. This November San Francisco voters will decide whether to lower the voting age for their own elections. A recent poll suggests that the vote may be close. Whatever happens, there is a growing movement to lower the voting age in local elections.
- The current voting age of 18 is largely a historical accident. At the Founding, we adopted 21 simply because that was what the British common law provided. That was the British rule likely because that was the age at which men could wear the armor required to battle. The U.S. lowered the voting age to 18 in the 26th Amendment because of the Vietnam War, but that was only because we lowered the draft age during World War II to 18. There has never been a sustained conversation or debate about what age makes the most sense to begin voting.
- There are no legal impediments to lowering the voting age, at least in states that provide robust home rule powers to localities (like California). The U.S. Constitution says that states cannot deny the right to vote to those 18 and older, but it says nothing about whether states or localities can go lower. Some state laws do impose impediments to local election rules, but California does not (as I show in my new article, The Right to Vote Under Local Law).
- Lowering the voting age will improve turnout. Eighteen is an odd age to begin voting, as most people are leaving home for college or the workforce. They are less likely to jump through the administrative hurdles of registering and voting via absentee ballot. At age 16, by contrast, it will be easier to capture young individuals to begin participating in democracy. Most 16-year-olds are invested in their communities. Studies show that voting is habit-forming, so once people start voting they are more likely to continue doing so in future years. Turnout among 16- and 17-year olds in Takoma Park and Hyattsville has been about double that of all other age groups. It remains to be seen whether this high turnout is sustainable. If it is, then lowering the voting age will provide a significant boost to turnout among young people for years to come.
- Psychological studies all support lowering the voting age. Psychologists have identified two kinds of cognition: "hot" cognition and "cold" cognition. Hot cognition activities entail high stress, emotion, impulse, and peer pressure. Cold cognition, by contrast, requires deliberation and reasoned judgment. Voting is a cold cognition activity. Studies of cognitive development show that individuals gain the capacity for cold cognition by at least age 16. (By contrast, we are not really good at hot cognition capabilities until at least age 21, and maybe even 24 or 25.) Nothing magical happens at age 18 to make individuals cognitively ready to vote; but something magical does happen, neurologically, by age 16. A 16-year-old is as good as an 18-year-old, 28-year-old, or 58-year-old at having the cognitive capacity to make reasoned decisions required of voting.
- We already treat 16-year-olds like adults in many settings: allowing them to obtain drivers' licenses, work in part-time jobs, consent to sexual activity, and drop out of school (in many states -- [update - but not in California]), and we expect them to follow the driving laws and pay taxes on their wages. Fairness suggests that they should be allowed to participate in our democracy (so long as they are cognitively capable of doing so -- see #4). True, 18 is the age of legal majority in many other areas, but this fact does not obscure the reality that our society treats 16-year-olds like "adults" in many situations.
- By allowing cities to experiment with this innovation in voting rules, they can serve as "test tubes of democracy" to see if it works. The idea can then "trickle across" to other cities and eventually "trickle up" to state and national policy. In this way, incremental change can occur through local laws.
There is more detail in the Penn Law Review Online Essay and the San Francisco Op-Ed, which I hope you will read. In sum, although I was neutral at first, I'm convinced by the strong legal, psychological, and policy arguments to support Prop F to lower the voting age to 16 in San Francisco this November.
Tuesday, October 25, 2016
White House Non-Compete Announcement
Today is an important day for labor market mobility, as well as a very exciting day for me and others who research non-compete policy. Over the summer I was invited to the White House to present my research (for example here and here and here) and the arguments against non-competes I developed in my book Talent Wants to be Free. Since then, we've formed a White House working group and today the White House issued a call for action to push back against the over-expansion of non-competes and other practices, such as collusive agreements to not poach employees and anti-competitive wage fixing. As Vice President Biden writes "no one should have to sit on the sidelines" because of an unnecessary non-compete clause. In the next few days, I will post some more about the various aspects of the call for action that was announced today but for now let me just say - how great that my call to set talent free has now been given an official hashtag by the President's team!
Hashtag: #LetUsCompete @WhiteHouse @POTUS @VP
Monday, October 24, 2016
Superbosses Want Their Talent to be Free
As an employment law scholar, I regularly read books on management and leadership to see how industry and business school scholars are thinking about work. I was happy to read Sidney Finkelstein's newest bestseller, Superbosses: How Exceptional Leaders Manage the Flow of Talent. Finkelstein is a Management and Director of the Leadership Center at the Tuck School of Business at Dartmouth College and he studies the behaviors of the world's most successful business leadership across many different industries, ranging from tech to entertainment. One of the top insights he finds in the patterns of superbosses is they Say Good-Bye on Good Terms: "Nobody likes it when great employees quit, but superbosses don’t respond with anger or resentment. They know that former direct reports can become highly valuable members of their network, especially as they rise to major new roles elsewhere. Julian Robertson, the billionaire hedge fund manager, continued to work with and invest in his former employees who started their own funds."
As many of you know, I have argued that setting one's talent free, in the sense of allowing employees to leave their jobs without fear of being sued for a breach of non-compete, is something that benefits not only workers but also employers and regional growth more broadly. It's great to see that the best bosses intuitively understand that they can in fact benefit and celebrate their employees' mobility. This is an important moment for non-compete policy and the more we learn about the win-win benefits of talent flows the better our human capital law will be.
Biskupic on Garland
At CNN, Joan Biskupic offers some reasons that Hillary Clinton may renominate Merrick Garland if she wins the presidency and the lame-duck Congress does not confirm him. These include the connection Garland already has to the Clintons and to top Clinton allies, the desire to preserve political capital, and the assumption that she will have other appointment opportunities before 2021.
JOTWELL: Vladeck on Thomas on the loss of the jury
The new Courts Law essay comes from permaprawf Steve Vladeck (Texas), reviewing Suja Thomas's book The Missing American Jury: Restoring the Fundamental Constitutional Role of the Civil, Criminal, and Grand Juries.
The Story of Voting Rights is not All Doom and Gloom
It is easy to think, with numerous media reports of voter suppression, the adoption of strict voter ID laws, and talk of election rigging, that voting rights are in a perilous state in this country. But there is another side of the story too -- one of optimism. Various states and localities are experimenting with ways to make voting easier, more convenient, and more accessible.
As I explain in a new column for USA Today, "[l]ocal experiments in election rules are helping offset trends toward voting restrictions and floods of money."
Importantly, several of these democracy-enhancing measures are on the ballot in November. Maine is considering whether to adopt ranked choice voting. San Francisco will vote on whether to lower the voting age to 16 (more on that later this week). Various localities are looking to reform their campaign finance rules for local elections. Thus, even if you think your vote "won't matter" for the presidential election, there are likely important down-ballot races and issues that will make a difference for our democracy.
Here is the intro of the USA Today piece:
All politics is local, as the saying goes, and the same is true of election law. Although the U.S. Constitution protects the right to vote, local laws can expand its scope and influence democratic representation. Voters across the country are making choices this fall that will not only affect state and local elections, they will also serve as the catalysts for nationwide reforms.
Read the whole thing here.
Sunday, October 23, 2016
Five outs to go
I always have liked symmetry and patterns in events, not necessarily for signs but for fun coincidences. One under-reported thing over the years and at the time is that in 2003, the Cubs and Red Sox were each five outs away from meeting in the World Series. The Sox lead the Yankees with one out in eighth inning of Game 7, at which point manager Grady Little left a tiring Pedro Martinez in the game, the Yankees scored three runs to tie the game, and won the game and series in extra inning. The Cubs lead the Marlins with one out in the eighth inning of Game 6 (leading 3-2 in the series), before Bartman, an error on a possible double-play grounder by usually reliable shortstop Alex Gonzalez, and the collapse of pitching cost them that game. They never got closer to the Series than five outs. They then completed the collapse in Game 7, blowing a 5-3 lead. At the time, I though Five Outs to Go would be a great title for a book detailing both games in alternate chapters. The point became moot the following year, when the Red Sox won the World Series for the first time since World War I. Hopefully, it becomes more moot over the next ten days.
Still, I was most nervous last night came when Cub starter Kyle Hendricks got the first out in the eighth, then allowed his second hit of the game. Fortunately, the Cubs brought in closer Aroldis Chapman, who got a double play to end the inning, (finally) getting the Cubs closer than five outs from the Series. It was at that point I turned to my wife and said "Now I can relax."
Saturday, October 22, 2016
Cubs win! Cubs win! Cubs win! Holy Cow!
That is all.
Friday, October 21, 2016
Tradition Project Conference: Tradition in Law and Politics
I'm in New York today for a conference called Tradition in Law and Politics. It's the kick-off conference for the Tradition Project, an intellectual enterprise under the auspices of the Center for Law and Religion at St. John's Law School, which is directed by my friends Mark Movsesian and Marc DeGirolami. Although there are obvious strong links to the study of law and religion, both the conference and the project are broader in their concerns and topics. The sessions over the next couple of days will cover the definition of tradition, the American religious tradition, the American political tradition, the common law tradition, and the constitutional law tradition.
This is a great and timely project and topic. One assumption on hearing about this conference might be that it's timely in a rear-guard sense, in that the regnant culture and moment are antipathetic toward tradition, and the rejection of tradition as a basis or reason for doing (or not doing) something is achieving important victories in, say, decisions on substantive due process and equality and arguments about religion. (My equipment here doesn't allow me to hyperlink very easily, but one might want to take a look at Neil Siegel's Balkinization post and piece on Justice Alito's role on the Supreme Court. Although I assume Siegel is unlikely to agree very often with Alito, there are commendably scholarly and sympathetic strains, in Siegel's linked piece, of interest in and acknowledgment of the kinds of people for whom Alito may be said to be writing.)
In a different register, however, at least some of the current bewailing of the state of our political culture also involves a form of traditionalism. This time it comes from a broader leadership class, caste, or establishment that includes both establishment conservatives and establishment liberals--including the same regnant liberals who may well reject tradition in many areas. Here, although they might not talk in terms of tradition, there is a strong ongoing lament for the radical loss or disruption of a settlement, or set of customs and practices, that enabled some degree of civil and productive political discourse, compromise, fellowship within the political class and beyond, and so on. Abstracting away from the rather egregious current figurehead for challenges to that tradition, recent populist movements here and elsewhere, on both left and right, and their sometimes destructive power, have both emphasized the value of our traditions and served as a reminder of the way that those traditions can be hollowed out, or left isolated by changes in the broader culture, or be rendered vulnerable by the failure to include and involve larger communities of people: people of color, members of the working class, denizens of regions suffering from economic and/or cultural dislocation, etc. In that sense, although there's no doubt that many readers of this post, or for that matter people here at the conference table, might associate a "Tradition Project" with mourners or rear-guard fighters on the traditionalist conservative side, and have little sympathy for such a project, there are broader reasons why such a project is timely, and those reasons ought to make more people, including many who would tend to label themselves as anti-traditionalist, more sympathetic to this project than they might be inclined to be at first blush.
Unsurprisingly, there are plenty of representatives in the room of, as a speaker put it, people who are "disposed to respect tradition," many of them religious, politically and culturally conservative, or both. As I've written above, there are at least two reasons the appeal of the project and the subject should not be limited to those people: 1) if the "traditionalists" are a minority voice today, that fact can itself be interesting and worthy of study; and 2) people who see themselves as non- or anti-traditionalist may discover, upon reflection or in response to emergencies and other exigencies, that they are more traditionalist than they think. I certainly hope the makeup of the room widens, and that one of the reasons for this is that a more catholic group of scholars knock on the door and express their interest in participating. The prerequisite, such as it is, is not that one be a traditionalist, but that one be someone who takes tradition seriously.
As per usual, I find myself in the middle. I'm convinced that there is value in tradition itself and in tradition as a subject, and concerned about any approach to law, politics, or culture that sees it as irrelevant or negative or illegitimate as a source of practice or authority. To my mind, one of the potential long-term goals or values of this project should be to explore the ways in which soi-disant rationalist liberals or progressives, or indeed anyone of whatever political stripe who sees himself or herself as operating purely rationally or empirically, end up believing in and relying on tradition, and react hostilely to challenges to those traditions they hold dear--and the ways in which they suppress or deny their own traditionalism and their own reliance on tradition as an authority. But I am also in some sense a tradition skeptic, and think it's possible both to take tradition seriously and be somewhat sympathetic to it, and to be interested in finding ways of defying it, subverting it, or introducing viruses into it. All of thes activities, of course, have a tradition of their own and are part of tradition itself.
In any event, great topic and great conference and I'm delighted to be here. I may have more to say, but there are other bloggers here and no doubt they'll have some reactions and posts of their own.
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?
Perhaps these working class voters can be persuaded to buy into a Reagan-type Republican agenda again, but it seems unlikely that a group of voters convinced about the costs of free trade and immigration to their economic interests are suddenly going to embrace free trade and immigration any time in the near future. And while Democrats might be dreaming of a permanent majority (as all parties have since the beginning of the two party system), it is not clear that the Democratic Party can easily absorb these voters without exposing tensions within its own coalition. It is hard to imagine a party that has worked so hard to secure the Latino vote shifting to the anti-immigration position that might be necessary to appeal to a Trump coalition convinced that immigration is a primary source of their economic stagnation and decline.
A third alternative is that these core Trump voters go third party. While this might seem fanciful and a sure loser for all voters who pursue this route in an electoral college system that seems only capable of supporting two parties, the Trump coalition represents perhaps the biggest potential source of third party support since George Wallace's American Independent Party secured 13.5 percent of the vote and 46 Electoral College votes in the 1968 election (Ross Perot secured 18.7 percent of the vote in the 1992 election but zero Electoral College votes). But, of course, it is unlikely that there are too many people in this world with the force of personality or name recognition (or anything else you want to call it) to secure the level of devotion that he seems to have from his supporters, except perhaps the offsprings of Trump. Given the youth and apparent political ambitions of the Trump offsprings, could we be seeing the emergence of a true third party that we might label, the Trump party? If not to a Trump party, then 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.
The Infield Fly Rule was not invoked on the play, properly. The rule by its terms does not apply to line drives and umpires only will invoke it if the ball travels in a parabola with sufficient arc and height. This was a "humpback liner" (a cross between a pop-up and a line drive that stays low, then drops straight down); it can sometimes can be tough to judge, although this ball was obvious, given how low it was.* In fact, the ball was hit so low that Baez played it more like a groundball.
[*] I have been surprised by hearing several knowledgeable commentators complimenting the umpires for wise judgment in not calling infield fly on the line drive, ignoring that this is not a judgment call. The ball plainly was a line drive to which the Rule cannot apply.
The Cubs turned an odd double play on it, in part because other infielders seemed confused. Baez threw to Russell, who initially came across the bag and looked like he would throw to first. It is not clear why he did not follow through--whether the batter was too far up the line (unlikely, given how low the ball was, but it is impossible to tell from any video I have seen) or whether the runner on first was standing in the basepath, blocking the throw (and calling to mind a historic World Series controversy). Alternatively, Russell should not have caught the ball on the base, but instead might have tagged the runner on second before stepping on the base to force the runner on first. And a third alternative would have been for Baez to throw to third base to get the lead runner, then the third baseman to throw to second to complete the double play.
A couple thoughts.
First, line drives are excluded because most are hit too hard and straight, so they will not fall as easily at an infielder's feet. But this play shows that by excluding line drives from the Infield Fly Rule and allowing this type of double play, some unexpected and unfair double plays may arise on just these soft liners. The question is where to strike the balance, based on whether there are more hard liners that travel through the infield if not caught compared with balls like this.
Second, although infield fly was properly not invoked, the play shows why we need that Rule. This double play would be both easier and more common if an infielder could do the same thing on a soft pop-up that would fall at his feet, leaving the baserunners similarly hung up. We see how gently the ball falls to the ground and how easily and slickly a good infielder can scoop the ball off the ground and make the necessary short throw. Without the Infield Fly Rule, we would see infielders making this move on most (if not all) soft, high pop-ups.
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.
Moving forward, election officials should do what they can to mitigate these kinds of disruptions to the voting process. Online voter registration, for example, is an easy fix. Florida’s online voter registration system will begin in 2017. Those states without online voter registration – about 12 states according to the National Conference of State Legislators– must act now to expand voter registration rules. (Of course, online voter registration in Florida may not have avoided a lawsuit, but it would have made the voter registration problem from the hurricane a lot less severe.) Even better would be to adopt automatic voter registration, as California, Connecticut, Oregon, Vermont, and West Virginia have done, putting the onus on the state to register voters unless the voter affirmatively opts-out. (Both the Illinois and New Jersey legislatures passed automatic voter registration for those states, but the Governors vetoed the bills.)
Further, states and the federal government desperately need to allocate more money to election administration. Many voter hassles are avoidable if we simply harness existing technology to improve the voting process. For example, online voter registration, coupled with Facebook’s persistent reminders, vastly improved voter registration numbers for groups that typically have low turnout, such as young voters. Technology can also help make voting itself easier. For instance, in Doña Ana County, New Mexico, voters can use any of the vote centers in the county (such as near work), as opposed to having to go to their home precinct, greatly improving the convenience factor to vote. This change was possible only because Doña Ana County has electronic voting machines that facilitate vote centers. This is not to say that we should eliminate a paper trail to assist in ballot counting disputes and ward off fraud. We can couple voting technology, like online voter registration and enhanced voting machines, with the best practices for election administration. But states need the resources to do it.
Finally, courts should continue to serve as the prime protectors of voting rights, especially when voters face last-minute, unexpected obstacles. Although, as Professor Ned Foley points out, hurricanes themselves are not unconstitutional, the denial of the right to vote because of a hurricane is – even if the state is formally treating everyone the same. This is because the substantive constitutional protection of the right to vote should require a baseline level of access for everyone, separate from typical equal protection principles. In this way, we can think of the right to vote as really emanating from substantive due process, particularly in the wake of what amounts to a denial of this fundamental right through no fault of the voter. The U.S. Constitution does not explicitly confer the right to vote and U.S. Supreme Court jurisprudence looks at voting through the lens of the Equal Protection Clause. But it may make more sense to consider the right to vote as part of the core aspects of substantive due process. A “Hurricane Canon” for the constitutional right to vote puts us closer to an ideal of robust protection for the right to vote within the U.S. Constitution, at least for emergency situations.
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.
As I explain in my article, which is forthcoming in the Georgia Law Review, a combination of factors has produced an interpretative vacuum in response to the Article I, Section 5 mandate. Although we have authorities that normally are able to clarify questions of federal law—including federal court decisions and congressional legislation—such authorities are almost entirely absent in this area. The result is a chaotic set of ad hoc, state-based interpretations of the mandate that vary drastically by jurisdiction. As an example, take the hypotheticals above. The Pennsylvania courts likely could adjudicate a dispute between McGinty and Toomey. In Nevada, however, the state courts almost certainly could not adjudicate a dispute between Joe Heck and Catherine Cortez Masto. The legal reasoning behind each conclusion is complicated (and addressed at length in my article), but the upshot is simple. Due to deep uncertainty surrounding the law of Article I, Section 5, states like Nevada and Pennsylvania have reached different conclusions about its meaning, and those competing interpretations are what govern in the respective jurisdictions.
This uncertainty matters for many reasons. At the outset, even the appearance of manipulation of the rules can undermine an election’s legitimacy, and nothing triggers the appearance (and perhaps, at times, the reality) of manipulation quite like legal uncertainty. The uncertainty also matters because it has resulted in suboptimal forms of procedure governing contested elections. This is particularly problematic in states that have concluded that Article I, Section 5 flatly prohibits judicial proceedings of any sort. In these jurisdictions, it’s the Senate (or House), or bust.
This area of the law is one of the most complicated I’ve encountered, and there remains a lot to unpack. Ultimately, however, I think Congress owes it to the electorate to take the first step toward reform by clarifying its own position on the principal set of questions: that is, whether, and in what circumstances, courts may hear these disputes. Each House has the power to make these procedural decisions precisely because it is the “judge” of its own elections—or, at least, that’s my conclusion regarding how best to understand the Article I, Section 5 mandate. In any event, hopefully more eyes will turn toward this underanalyzed provision of the Constitution. It’s interesting; it’s important; and, like so much in election law, it’s best analyzed and addressed before a close election turns each point of uncertainty into a partisan battle.
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.
There are other criticisms of early voting—for example, the idea that it may make it harder for down-ballot candidates to challenge incumbents—that are not focused on the rights of individual voters, but rather on how the design of the election tends to affect outcomes. There are still other criticisms focused on abstract notions about, for example, how a “single Election Day creates a focal point that gives solemnity and relevance to the state of popular opinion at a particular moment in time.” But for most critics of early voting, these more abstract arguments do not appear to be central to their concerns. (And if they are, then the debate needs to shift, given that it is by no means settled that the nature of democracy should be defined in a given way or that certain electoral outcomes are better or worse than others.) Rather, most of the discussion about early voting is, as noted, about protecting the voters.
And this, for me, is precisely why early voting needs to be defended. Early voting is what protects voters. It allows voters—particularly those without the privilege of adequate flexibility in their schedules—greater access to the ballot. It also helps those voting on Election Day by shortening the length of polling place lines and reducing the burden on officials administering the elections. It assists all voters by facilitating the earlier identification and correction of errors. (These advantages, among others, are discussed in this report by the Brennan Center.) There’s a reason why so many jurisdictions, voters, and election experts are strongly in favor of the practice.
As for me, I mentioned I’m from Washington State, where virtually no one walks into a polling place on Election Day. Most of us receive our absentee ballot early, fill it out, then drop it in the mail when we have the chance. Most of the votes I’ve cast in my life have been through this same system. That being the case, it really does strike me as strange, and quite problematic, to require voters—who may have any number of commitments and complications that happen to fall on Election Day—to physically appear at a certain time, at a certain place, in order to access the ballot. And despite ample precedent across the country for long polling place lines, I continue to be shocked, and appalled, that Election Day voters are at times required to wait in line for hours in order to exercise their right to vote. Early voting directly responds to these problems, and, in so doing, it does a great deal to protect voters. Even as extraordinary events unfold in an extraordinary election, we should not lose sight of this basic fact.
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.This proposal raises several questions. First, should voters be permitted to cast an unlimited number of replacement ballots (since only the last one would be counted), or should it be limited to just one or two per election? Second, would the logistical burdens for election officials make this proposal impracticable? It's unclear that many people would take advantage of it, and it seem like a reform that could fairly easily be worked into the current procedures governing absentee ballot verification and counting. Third, it's not clear whether this would enhance opportunities for fraud. It may provide a way for unscrupulous activists, parties, or candidates to replace legitimate absentee votes with fraudulent ones.
Applying such a system to actual early voting in most jurisdictions would require more substantial reform. In most places, an early vote is treated just like a vote on Election Day: once the punch card is submitted, the lever is pulled, or the ballot is approved on the electronic voting machine, there is no longer a way of tracing any particular early vote back to a specific voter. Thus, early votes tend to be different from absentee votes, since an absentee ballot remains in the outer envelope containing the voter's information until nearly the end of the process.
In order to allow people to change their early votes, a jurisdiction would have to give early voters the option of casting their early vote on a provisional ballot. A provisional ballot is usually used when some potential concern exists over a voter's registration, identity, or eligibility to vote. As with absentee ballots, provisional ballots usually are submitted on paper and enclosed in an outer envelope bearing the voter's identifying information. Thus, if an early voter chooses to cast a provisional ballot, he would retain the option of returning later to cast another, replacement vote (either on another provisional ballot or a voting machine). Voting officials would then know to discard the original provisional ballot. If a voter does not submit any replacement votes, then the original provisional ballot is counted without any further action on the voter's part. The ballot can either be counted on Election Day itself (since there is no need to wait for the voter to correct any deficiencies), or later on, at the same time as the other provisional ballots.
The system may unnecessarily introduce additional opportunities for error or fraud to enter into the process; it would certainly add an additional layer of complexity to a process that already poses challenges for election officials. On the other hand, this proposal is one way of mitigating the effects of lengthy early voting and absentee voting periods. Even if early voting is limited to a period of 7-10 days before Election Day, the period for returning absentee ballots (particularly for military and overseas voters) is invariably longer. In an era of cell phone videos and hacks, the possibility for last-minute gamechanging developments in campaigns seems quite real.
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.
"You'd be in jail"
So how much will Trump's promise/threat to prosecute and jail Clinton be the takeaway from the debate? And will the popular public reaction be the cheering we heard from the audience? Or will it be horror that a major-party candidate announced it as a plan for his presidency, to the opponent's face and to the world? Not to mention announcing its outcome. This is not supposed to happen in a mature political system. But will enough people recognize the seriousness of that line?
The easy distinction is that the prosecution would not be for the "crime" of opposing Trump for office, but for her crimes while serving as Secretary of State. But that does not work. First, no one ever is prosecuted just for running for office, but for some other, hyped-up charge. Second, in the U.S., no matter the wrongdoing, no one has ever sought to punish the ancien regime, if for no other reason than appearances. It is why the Obama administration did not pursue investigations of those who enacted a system of what might have amounted to torture. It is impossible to separate law from politics in this situation (if it ever is), so we avoid a situation that would blur the line too much.
Not this time and not this candidate--Trump has a tweet quoting the exchange and highlighting the "you'd be in jail" line.
Sunday, October 09, 2016
Trump Sunlight Campaign
Now on GoFundMe (gotta love the picture of Justice Brandeis), to raise money to cover the legal fees and judgment for anyone leaking Apprentice footage showing Trump making further sexist, racist, etc. statements. Producers and staffers on the show signed non-disclosure agreements, apparently with a liquidated damages clause of $ 5 million for breach (any guesses on whether that might be deemed unconscionable?). Apprentice Exec Produce Mark Burnett, who is a Trump supporter, has vowed to sue anyone who leaks footage.
During the Kim Davis insanity in Kentucky, people attempted a similar campaign to pay Davis's contempt fines; the site shut it down, given the obvious moral hazard concerns. It will be interesting to see what GoFundMe does with this one, as raising money to pay someone's legal judgment would seem to raise the same moral-hazard concerns. (The likelihood political-viewpoint bias here is high). It might be different if the campaign was only to pay attorney's fees and costs or to provide a bounty for the leaker. But that would not make a difference as an incentive--the disincentive is not the cost of the lawsuit, it is the judgment at the end.
Anyway, the site had raised a little under $ 2000 in two hours. So I do not expect this to be a big money-maker or game-changer.
How Republicans Could Replace Trump Even if He Stays In
In a new piece for Politico, I've expanded upon (and attempted to organize more systematically) Electoral College analysis that I began in a couple of earlier posts here.
Extending Florida’s Voter Registration Deadline After Hurricane Matthew
The internet has been focused on the fallout from the Donald Trump tape, but I want to remind everyone that Governor Scott of Florida still has not extended the voter registration deadline, which is Tuesday. Nearly 500,000 Florida residents do not have power because of Hurricane Matthew, and I am sure that, for those who remain unregistered, there are more pressing things that they have to deal with at the moment. One issue that has come up, however, is whether the Governor has the power to extend the voter registration deadline. I believe that he does.
Under Section 101.733 of the Florida Statutes, “the Governor may, upon issuance of an executive order declaring a state of emergency or impending emergency, suspend or delay any election.” Michael Morley has argued, in a recent op-ed, that this language gives the Governor the power to move the election, but not to move the voter registration deadline. I think that this is an unduly narrow reading of the statute, and that the Governor’s authority to “suspend or delay any election” cannot be interpreted in a vacuum.
The statute gives the Governor the authority to move or delay the election “[b]ecause of the existing and continuing possibility of an emergency or common disaster occurring before or during a regularly scheduled or special election, and in order to ensure maximum citizen participation in the electoral process.” This language arguably allows the Governor to take actions beyond delaying or canceling the election in order to further the statute’s underlying goal, which is “ensuring maximum citizen participation.” The statute also speaks in terms of disasters occurring before the election, suggesting that the Governor's authority extends beyond Election Day, and could include broad power to change/alter electoral rules in order to accommodate a natural disaster.
A court would likely view the Governor's power to move the election under the statute as broad enough to include the power to move the registration deadline because voter registration is integral to the election. In my view, this is very similar to the White Primary Cases, a series of cases in which the Supreme Court held that Texas’ all-white primary violated the Fourteenth Amendment, but it was able to reach that conclusion only by viewing the primary as an integral part of the general election since, at the time, primaries were viewed as private affairs. In the Court’s view, voters were essentially disenfranchised if they could not participate in the primary, even if they could still vote in the general election because the primary determined which candidate would go on to win the election. One could argue that voter registration and voting on Election Day are connected in much the same way; if voters are unable to register, then they cannot vote on Election Day.
It is pretty clear why Governor Scott, a Republican governor in a swing state and chair of a SuperPac supporting Donald Trump, would resist extending the voter registration deadline. But partisanship aside, I think that it is important to highlight that the authority is there if he wants to use it. He is just refusing to make the accommodation for those individuals who want to register but were affected by the hurricane and likely won’t make the deadline.
Saturday, October 08, 2016
It's Too Late for Write-In Votes
Many Republicans have rescinded their endorsement of Donald Trump and said that they will write in a candidate they deem appropriate for the presidency (with most people focusing on Mike Pence, who incidentally did not receive a single vote from anyone besides delegates at the RNC).
But here's the problem: these votes will not count. Among all of the other legal problems for the Republican Party with Donald Trump at the top of the ticket, another one is that it is too late in most states for a candidate to register as a write-in candidate, and the state will not count any votes for a person not registered as a write-in candidate.
Rob Portman of Ohio, for example, said that he will be voting for Mike Pence for President. But Ohio law says, "Write-in votes shall not be counted for any candidate who has not filed a declaration of intent to be a write-in candidate pursuant to this section." Further, Ohio law forbids a person from declaring as a write-in candidate if that person is the nominee for any other office -- thereby precluding Pence from becoming a write-in candidate. It is also too late under Ohio law for anyone to declare as a write-in candidate; that needed to happen seventy-seven days before the election (Aug. 23).
John McCain similarly said that he "will write in the name of some good conservative Republican who is qualified to be President.” But Arizona law requires a person to declare as a write-in candidate by Sept. 29.
Here is a handy map of the write-in requirements in all 50 states. Notably, only 7 states have no advance filing requirements for write-in candidates. Nine states forbid write-in candidates for president, and the other 34 have a filing deadline that has likely passed.
In sum, these Republican politicians are attempting to distance themselves from Trump and pretend that they will vote for someone else. But that's not legally possible.
When Should Early Voting Begin?
My Moritz colleague Steve Huefner has some thoughts to contribute to this issue.
So, it's early voting's fault?
As (some, though not all) Republican leaders call on Donald Trump to withdraw as nominee, Rick Hasen lays out the possibilities. Rick suggests it is too late to replace Trump on the ballot, since ballots have been printed, absentee ballots mailed, and perhaps a half-million people have voted.
The lesson some are drawing from this is that early voting is a bad idea and we should get rid of it. Rick argues that "most early voters are committed partisans, and few who voted for Trump already would likely have second thoughts now." And even if not committed partisans, early voters presumably had sufficiently made up their minds about this election to cast their votes now. Moreover, while this is playing out as a mind-changer, it is not clear why it should be. What we heard from Trump on this recording does not seem to me different in kind, and not much different in degree, from everything else we knew and heard from and about Trump over the past year. So why should we protect some group of voters from themselves, given what they already knew (Perhaps the difference is that what Trump talks about here sounds like sexual assault--although most GOP leaders running for the hills seem more offended by the dirty words and underlying misogyny--both of which we have seen from Trump as recently as last week--than the suggestion of sexual violence).
Using this extraordinary situation to indict all of early voting as a concept also seems like throwing out the baby with the bathwater. Early voting exists, in part, because the existing, antiquated voting procedures cannot handle on a single day the 100 million+ people who want to vote in a presidential election. It exists, in other part, to make life easier for large numbers of people for whom waiting in the required Election Day lines who function as a poll tax, or worse. Neither of those benefits should give way because some number of voters might have buyers' remorse over a ridiculous candidate who, late in the game, highlighted his true colors that were clear all along.