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.

Posted by Howard Wasserman on October 26, 2016 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

I've authored an Essay for the Penn Law Review Online and an Op-Ed in the San Francisco Examiner on why I support lowering the voting age in San Francisco.  Here are some highlights:

  1.  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.
  2. 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).
  3. 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.
  4. 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.
  5. 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.
  6. 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.

Posted by Josh Douglas on October 26, 2016 at 10:13 AM in Law and Politics | Permalink | Comments (12)

Monday, October 24, 2016

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.

Posted by Howard Wasserman on October 24, 2016 at 03:33 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Josh Douglas on October 24, 2016 at 09:27 AM in Law and Politics | Permalink | Comments (1)

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.

Posted by Howard Wasserman on October 20, 2016 at 10:01 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, October 19, 2016

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. 

Posted by Lisa Manheim on October 19, 2016 at 12:55 AM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (9)

Tuesday, October 18, 2016

A lawyer's unexpected 15 minutes

David McCraw, the New York Times attorney who responded to Trump's threatened lawsuit, discusses the unexpected reaction to that letter.

Posted by Howard Wasserman on October 18, 2016 at 11:21 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on October 18, 2016 at 10:11 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

"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.

McConnell, the Senate majority leader from Kentucky, must take a stand against Donald Trump's irresponsible claims of vote rigging and election fraud. They are untrue, unproven and dangerous for the rule of law. McConnell, as the top establishment Republican, will do the country a great service if he calls it what it is: inaccurate fear-mongering.

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.

Posted by Josh Douglas on October 18, 2016 at 08:44 AM in Law and Politics | Permalink | Comments (0)

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:  

The Supreme Court has consistently held that the right to vote is analyzed under equal protection. So, this Court does so. But, left to its own devices, this Court would hold that the right to vote is a fundamental right subject to substantive due process analysis and should always be subject to strict scrutiny. See, e.g., Terry Smith, Autonomy versus Equality: Voting Rights Rediscovered, 57 Ala. L. Rev. 261, 266 (2005) (“A continuing lamentation of scholars of voting is the failure of the Court to locate the right to vote within the contours of substantive due process rather than equal protection.”).
This relates to something I wrote with respect to the "Hurricane Canon" for election law cases and what I've written about more generally in my scholarship: courts should protect vigorously the fundamental right to vote and require states to provide actual evidence of its need for a law, especially if the law makes voting harder.  I've often wondered whether substantive due process is a better mechanism than equal protection for this purpose.  This judge agrees.

Posted by Josh Douglas on October 16, 2016 at 10:37 PM in Law and Politics | Permalink | Comments (0)

Friday, October 14, 2016

Blind prosecutions

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.

Posted by Howard Wasserman on October 14, 2016 at 01:23 PM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (2)

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.

Posted by Howard Wasserman on October 14, 2016 at 12:21 AM in Howard Wasserman, Law and Politics | Permalink | Comments (15)

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.

Posted by Howard Wasserman on October 13, 2016 at 03:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

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.

Posted by Josh Douglas on October 13, 2016 at 02:45 PM in Law and Politics | Permalink | Comments (1)

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.

Posted by Lisa Manheim on October 12, 2016 at 10:40 PM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Election Week

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.  

Posted by Josh Douglas on October 12, 2016 at 10:18 AM in Law and Politics | Permalink | Comments (6)

Tuesday, October 11, 2016

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.

Posted by Lisa Manheim on October 11, 2016 at 04:39 PM in Current Affairs, Law and Politics | Permalink | Comments (9)

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.

Posted by Josh Douglas on October 11, 2016 at 04:39 PM in Law and Politics | Permalink | Comments (0)

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.   

Posted by Michael T. Morley on October 11, 2016 at 02:26 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Monday, October 10, 2016

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.

Posted by Howard Wasserman on October 10, 2016 at 08:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

"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.

Posted by Howard Wasserman on October 10, 2016 at 01:08 AM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

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.

Posted by Howard Wasserman on October 9, 2016 at 07:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

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.  

Posted by Franita Tolson on October 9, 2016 at 09:54 AM in Law and Politics | Permalink | Comments (0)

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.

Posted by Josh Douglas on October 8, 2016 at 10:45 PM in Law and Politics | Permalink | Comments (4)

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.

Posted by Howard Wasserman on October 8, 2016 at 02:02 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, October 06, 2016

Hurricane Matthew and the Election

All of our thoughts are on the safety of those in the path of Hurricane Matthew, which looks like it could wreak havoc on anyone and anything in its path.  Ensuring the safety of everyone involved is, of course, the most pressing matter today.  

But as Rick Hasen noted on Twitter, for good or bad, in the aftermath thoughts will also inevitably turn toward the implications of the storm on the presidential election.  Rick has a nice thread exploring some of the issues here.  

Four years ago the country also experienced a hurricane, Hurricane Sandy, just before the election.  At the time I wrote some commentary that unfortunately seems relevant once again.  Perhaps, especially in this vitriolic political environment, Hillary Clinton and Donald Trump can come together to do some good.  Specifically, they should agree that Florida and other states should be allowed to do what it can to ensure people can register and vote, and they should both donate a significant amount of their campaign funds to hurricane relief efforts. Here is what I said four years ago:

States that Hurricane Sandy hit shall be given leeway and flexibility to conduct their elections while also recovering from the storm. This might mean keeping polls open an additional day or providing more access for absentee and provisional balloting. (For example, the Pennsylvania Governor has extended the application deadline for absentee ballots.) The underlying principle shall be greater access for voters to cast their votes, and neither candidate will challenge a state’s decision to expand voting opportunities for those dealing with the storm. Of course, however, states should do all they can to complete their elections on November 6 if at all feasible. States not affected by the storm should not count or report their voting numbers until the last state that the Hurricane hit has completed its Election Day procedures. That is, all states should count their ballots and report the results on the same day. This will ensure that the country is not waiting on a single state (such as Virginia or New Hampshire) that could determine who wins the Electoral College. Although the federal government or the candidates cannot prohibit states from counting their ballots, both candidates should call on all states to wait to tally the results until all states have finished voting, with of course the hope that all states can actually complete their elections by next Tuesday. Neither candidate will contest the result in a post-election challenge on the basis of reasonable actions that the states might take to increase electoral access to their residents because of the storm – so long as those actions are non-discriminatory. That is, the only permissible challenges based on post-Hurricane voting accommodations will be to changes that are clearly unreasonable or that have the purpose or effect of favoring certain classes of people (i.e., race, sex, political affiliation, etc.). The Department of Justice will agree not to object to a voting change in a Voting Rights Act Section 5 “covered” jurisdiction (which includes Virginia and parts of New York and New Hampshire) stemming from the storm. The candidates should agree to suspend all negative advertising through Election Day. In a time when the country is trying to “come together” to help storm victims, negative ads—throughout the country—can adversely affect public discourse The candidates should agree to donate at least half of the amount in their campaign bank accounts to Hurricane relief efforts. The Federal Election Campaign Act allows candidates to donate money to charity, and donating this money to the recovery will provide a bipartisan display of support that can help to improve political discourse—and may facilitate compromise in the other logistical areas regarding the election.

To everyone in the storm's path: you are in our thoughts! Stay safe.  To the presidential candidates: it's time to come together for the good of the country.

Posted by Josh Douglas on October 6, 2016 at 08:03 PM in Law and Politics | Permalink | Comments (4)

Cities as "Test Tubes of Democracy" for the Right to Vote

Over eighty years ago, Justice Louis Brandeis famously referred to states as “laboratories of democracy” that can experiment with different laws to see what works best. “A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” As I show in a new article (abstract after the jump), if states are laboratories of democracy, then cities and towns can be "test tubes of democracy" that can and should experiment with election law rules on an even smaller scale.  (Side note: my twitter handle is @JoshuaADouglas. Can we figure out a way to make #TestTubesofDemocracy start trending?!)

Local experimentation on the right to vote is already occurring around the country.  Cities and towns have expanded voting rights for 16- and 17-year-olds, noncitizens, and nonresident property owners (e.g., in vacation towns).  That is, cities have expanded the electorate for their own elections.  

This November, San Francisco voters will decide on whether to lower the voting age to 16 for all city elections and allow noncitizens to vote in school board elections.  At first I was skeptical when I began looking into these local laws, especially on the merits of lowering the voting age to 16.  But the more I researched -- particularly studies on cognitive development -- the more convinced I became that it is a good idea.  Later this month I'll spend some more time on the policy merits of lowering the voting age.  Here, I want to focus on where this is occurring: at the local level.

Most people think of the right to vote as a federal constitutional right, or perhaps a right derived from state constitutions.  But focusing on these two sources leaves out an important level of inquiry: local laws.  A complete understanding of the right to vote requires three levels of analysis: federal constitutional law (and statutes), state constitutional law (and statutes), and local laws for local elections.

The common understanding of the right to vote is that it enjoys protection under the U.S. Constitution, specifically within the Equal Protection Clause.  But as I have discussed in previous research, the Supreme Court has unduly cabined the federal constitutional protection of the right to vote.  Indeed, the Court has said that the U.S. Constitution does not confer the right to vote to anyone.  All that the Constitution requires is that once a state grants the right to vote, it must treat everyone equally.

State constitutions, however, explicitly confer the right to vote.  In fact, 49 of the 50 state constitutions have specific language that goes beyond the U.S. Constitution in explicitly granting and protecting voting rights (Arizona is the only exception, but its courts have ruled that other language in the state constitution protects the right to vote).  In the wake of restrictive federal court jurisprudence, litigants have turned to state constitutions.  This strategy has seen some successes; for example, in recent years at least 3 state courts have invalidated voter ID laws under state constitutions.

But federal and state constitutions do not tell the whole story.  Municipalities have expanded the electorate for their own elections.  In essence, cities and towns have adopted a broad theory of their own local democracy to include additional voters, such as younger people or noncitizens.  To understand fully the right to vote, then, we need to include a discussion of these local laws.

We should encourage local experimentation on the right to vote.  Ours is a history of continued expansion of voting rights.  From a normative perspective, democratic representation is enhanced with greater participation of those who are cognitively capable and have a genuine and actual stake in the outcome.  Local expansions of the right to vote adhere to a notion of localized federalism.  People are closest to their local representatives and local democracy.  Further, municipal laws are easier to enact than state or federal laws, so novel local experimentation is a lot more likely to pass.  And if it shown to "work" in one courageous city, then local laws can have a "trickle across" effect to other cities and eventually may "trickle up" to state policy.  Thus, broader movements on expanded voting rights can start at the local level, with local successes serving as catalysts for more widespread reforms.

I explore all of these issues in a forthcoming article, The Right to Vote Under Local Law.  The abstract is below.  I'll turn to some additional findings from this article in future posts -- including a policy defense of lowering the voting age!  The takeaway for now is that localities can, and should, serve as test tubes of democracy for election law.

A complete analysis of the right to vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting rights for municipal elections. But most voting rights scholarship focuses on only federal or state law and omits any discussion of the third category. This article — the first to explore in-depth the local right to vote — completes the trilogy. Cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. San Francisco, for example, will decide soon whether to lower the voting age to sixteen for its elections. This article highlights these developments, encourages local voter expansions, and provides a test for courts to use when facing a judicial challenge to these rules. If states are “laboratories of democracy” that may experiment with social policies, then municipalities are “test tubes of democracy” that also can try out novel democratic rules, such as broadening the right to vote, on a smaller scale. Historically, some voter expansions, such as the elimination of property requirements and the women’s suffrage movement, enjoyed early successes at the local level. Local voting rights, then, can serve as catalysts for broader reforms as they “trickle across” to other municipalities and “trickle up” to states and Congress. As a matter of policy, local jurisdictions should enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them — which might include sixteen- and seventeen-year-olds, noncitizens (who are legal permanent residents), nonresident property owners, felons, or others. States with barriers to local voting laws, through substantive voter qualifications or lack of “home rule” authorization to localities, should amend their state constitutional provisions or statutes. (An Appendix presents a 50-state chart on the possibility in each jurisdiction of enacting local voting laws.) Courts should defer to local laws that expand the right to vote as a means of local democracy, but should not defer to restrictions on the right to vote because limiting who may vote harms the ideal of democratic inclusion. Robust protection of the right to vote depends on local voting rules as an early component of the reform effort. Enhanced local voting rights will produce a more representative local government, create a habit of voting for various groups such as younger voters that will ameliorate low turnout, and strengthen local democracy.

Posted by Josh Douglas on October 6, 2016 at 09:23 AM in Article Spotlight, Law and Politics | Permalink | Comments (3)

Monday, October 03, 2016

The Nightmare Scenario: Trump v. Clinton at the Supreme Court

It's the first Monday in October, so attention has turned to the new term of the U.S. Supreme Court.  Predictably, many stories, such as this excellent N.Y. Times Editorial, point out the unprecedented nature of the Senate Republicans' refusal to consider the nomination of Judge Merrick Garland.  That Times Editorial also highlights the downsides of a less-than-full Court on voting rights issues:

Meanwhile, some of the nation’s most pressing legal issues are awaiting substantive rulings by the court. Most urgent among these are lawsuits against the efforts of Republican legislatures to suppress voting by minorities, young people and others who tend to vote Democratic.

For example, in July a federal appeals court panel struck down a 2013 North Carolina law that one election-law scholar called "possibly the largest rollback of voting rights" since 1965. That court found the law had been enacted intentionally to reduce black voter turnout.

North Carolina appealed that ruling to the Supreme Court, which split 4-to-4 without issuing any explanation, meaning that the lower court’s decision was upheld. While that was the right result, a full court could have set a legal standard on voter suppression efforts that would have applied nationwide.

Missing from this analysis is the nightmare scenario: a disputed presidential election that goes to the courts.  Call it Bush v. Gore, round 2: Trump v. Clinton.  The more Donald Trump suggests that he will not accept the results of a Clinton win, the more likely this could occur.

Let's say that there are disputed ballots in Florida, Ohio, Colorado, or another state with a close result.  Trump contests the election through whatever procedures the state has created (detailed here).  The final step is the Supreme Court.  And the Court ties 4-4.  That result would simply affirm the lower tribunal's decision, without a precedential opinion.  If people think Bush v. Gore was illegitimate -- or at least overly partisan -- then this would be 1000 times worse.  

Not many people are discussing this nightmare scenario, probably because the likelihood is fairly small that the Court would take the case.  Chief Justice Roberts surely would try to avoid harming the legitimacy of the Court by, in essence, deciding another presidential election, especially one so hard fought and vitriolic.  The Court would likely try to stay out of it -- which itself could be problematic depending on what happens in the lower courts.

But this scenario is not entirely implausible.  And it keeps me up at night.


Posted by Josh Douglas on October 3, 2016 at 09:58 AM in Judicial Process, Law and Politics | Permalink | Comments (6)

Sunday, October 02, 2016

Taking Bartnicki for a drive

The working assumption is that Donald Trump's old tax forms were released unlawfully, but that The Times was not involved in any leak. If so, the publication is protected by Bartnicki v. Vopper and Florida Star v. BJF as publication of truthful, lawfully obtained information on a matter of public significance. Even Justice Breyer, who concurred in Bartnicki but was hesitant to grant a broader constitutional immunity to the press, would agree that a candidate's tax returns are of "unusual public concern," outweighing any privacy interest Trump may have in these forms.

Of course, that assumes the source of the forms is not Marla Maples, Trump's former wife and co-signer on the returns.

Update: Ron Collins writes about the First Amendment protections The Times enjoys here, including comments from leading First Amendment attorneys and scholars, who uniformly agree that Trump has no chance of prevailing in a lawsuit, not only under Bartnicki, but also under The Pentagon Papers (which, while a prior-restraint case, reinforces the right to publish truthful, lawfully obtained information on a matter of public concern).

Posted by Howard Wasserman on October 2, 2016 at 05:21 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, September 30, 2016

How Does an 8-Member Court Decide Bush v. Gore?

Thanks to Howard for organizing this discussion about the upcoming election. I’m excited for the conversation.

As if this particular election cycle needed more complications, a massive obstacle faces courts and litigants (and, by extension, everyone else): the Supreme Court remains shorthanded. In a world of unanimity, this wouldn’t pose too many problems. But in election law, where opinions are lengthy and consensus is fleeting, you’re lucky if you get a majority opinion, much less anything that garners the support of more than five justices. (See, for example, the many messy splits in the Court’s landmark decisions in this area.)

As a result of these deep fractures, the Supreme Court’s response to the impending election might be summed up as: paralysis. An illustration emerges from North Carolina, where plaintiffs allege that the state enacted voting restrictions with racially discriminatory intent. In an opinion issued two months ago, the Court of Appeals for the Fourth Circuit agreed—and in an effort to stay the mandate, the defendants filed an emergency application with the Supreme Court. This is an important case, with considerable practical and legal implications. The Supreme Court’s response? It needed only three sentences to tell us the single thing it could agree on: right now, it can’t count to five.

It is, of course, not unusual for the Supreme Court to dispose summarily of emergency applications. But usually that is because at least five Justices agree that such treatment is warranted. Cases like the one from North Carolina, by contrast, are now turning on a fundamentally different calculation: will the Justices’ 4-4 split once again preclude a decision that could even possibly change the status quo? This problem—somewhat obscured by the posture of the North Carolina case, which was presented to the Supreme Court as a stay application—becomes even clearer once the Supreme Court has granted cert, which only requires four Justices. A petitioner very well might have its petition granted and its argument heard, but if all it can muster is a tied vote, it will never get anything it’s asking for.

This problem already has knocked the wind out of multiple cases; the last Term was defined “as much by what the Court did not decide as what it did.” Given how fractious the Supreme Court has been in the election-law context, the problem of the 4-4 split is likely to dominate this area with particular potency.

There are several ways the Supreme Court might respond to such a problem. It might attempt to minimize the appearance of paralysis by refusing to entertain cases on discretionary review and by declining to note dissents when summarily disposing of others. As Will Baude has explained, these sorts of orders reveal very little about the Court’s inner workings, including with respect to each Justice’s assessments of the merits. Alternatively, the Court might dispose of such cases through enigmatic, compromise opinions that accomplish little more than a remand. This is what the Supreme Court appeared to do a few months ago, for example, in Spokeo v. Robins, a terrifically impenetrable case on standing that initially seemed like it might have blockbuster potential. (Another high-profile example of this approach emerged out of the ACA-related dispute in Zubik.) Or the Court might do what it did in the case discussed above. It might acknowledge, quite openly, that it cannot do its job. In the North Carolina case, this distress signal was tapped out through the four noted dissents, which countered (but did not offset) the four justices voting to deny. Earlier in the Term, in the context of several deeply important cases that needed, but did not receive, resolution, the Court accomplished the same through a stark statement, framed in blank-page white: “The judgment is affirmed by an equally divided Court.”

How the Court responds each time it faces this problem will depend, as it should, on a number of case-specific considerations. Overall, however, I think that the best approach tends to be the third. Masking its own paralysis may suggest consensus, a value that we know the Chief Justice favors, but it risks confusing the courts and others watching to figure out where the law might be headed. It also makes it harder to determine—and, as appropriate, to protest—the effects of the nomination deadlock. Taking the second approach and issuing a compromise opinion, like the Court appeared to do in Spokeo, provides the litigants with at least some resolution, but the inscrutable decisions that emerge barely accomplish even this, and they threaten to muddle the case law in a way that will confound even after the Court reaches full capacity. Taking the third approach—openly acknowledging that, in this context, the Court is failing—seems to be the most effective way for this eight-member body to accomplish what little it can right now: signaling that it needs help, and minimizing the harm going forward.

Posted by Lisa Manheim on September 30, 2016 at 11:13 PM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (3)

Roy Moore suspended for remainder of term

The Alabama Court of the Judiciary suspended Chief Justice Roy Moore for the remainder of his term in office. The focus of the charges was a January 2016 administrative order, in which Moore advised the state's probate judges that the court's March 2015 (pre-Obergefell) mandamus order prohibiting issuance of marriage licenses to same-sex couples remained in effect. In part, Moore stated that the judgment in Obergefell bound only the parties and only declared unconstitutional the marriage-equality bans in four states, thus it did not undermine SCoAL's earlier orders.

The judiciary court rejected those arguments, relying on long quotations from Cooper v. Aaron and the view that a SCOTUS declaration of constitutional meaning is, without more, binding on everyone everywhere. So Moore's order/advice regarding conduct by probate judges in conflict with the holding of Obergefell violates various judicial canons. The court's analysis of Cooper is inconsistent with the model of judicial departmentalism I have been urging--holdings judicial opinions do not formally bind anyone beyond the parties, including lawyers and public officials, until they are reduced to judgments against those individuals, which they will be because the holdings bind lower courts. The decision also overreads Cooper by forgetting what the Court really was upholding against state resistance--not Brown, but a Brown-based lower-court injunction. Plus, it was unnecessary in this case--Moore's real violation here was ordering/advising probate judges to violate not Obergefell, but a federal district-court order to which every probate judge was party and unquestionably bound that was made enforceable in light of Obergefell. That judgment gets passing reference, but the real focus was how Moore disregarded Obergefell.

Oh well. It is tempting to say Moore's judicial career is over. But I have no doubt he could win reelection to the court if he tried.

Further Update: This is among the most inaccurate things I have read by someone with a law degree. Writing about Moore trial:

This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.

“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.

Just, no. State courts are not "below" lower federal courts; they are co-equal courts that are all inferior tribunals to SCOTUS. Lower-federal court precedent is not binding on state courts or state judges (unless the state court chooses to be bound by that precedent). State courts and lower federal courts do have co-equal authority as to federal law. Congress was not obligated to even create lower federal courts; had it not done so, state courts would have been the only courts interpreting federal law other than SCOTUS.

We can debate departmentalism and the binding effect of SCOTUS precedent (as opposed to judgments) on non-judicial actors. But to say that state courts are inferior to lower federal courts reflects a complete misunderstanding of the judicial structure in the United States.

Posted by Howard Wasserman on September 30, 2016 at 02:31 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Donald Trump . . .

is not Hitler; he is Woody Allen's character in Bananas.


Posted by Howard Wasserman on September 30, 2016 at 12:19 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, September 26, 2016

Random thoughts on a Monday morning

Because none was worth its own post:

1) Having now watched the pilot of Designated Survivor, I still cannot decide whether to stay with it. As I said before, some of the exposition about succession and about Kirkman's position--designed to show his resolve and the Kal Penn character coming to believe in him--would never be uttered by anyone working in the White House. (Although I did like that the Penn-Kirkman conversation began through the wall of a bathroom stall, so Penn had no idea who he was talking to). Otherwise, the show looks like a story of 1) hero FBI agent who wasn't even supposed to be on the scene shows up, convinces boss to let her stay rather than to do what she is supposed to, and immediately starts ordering everyone around as if no one beside her had any clue about how to do an investigation and 2) evil deputy chief of staff and evil warmongering Chair of Joint Chiefs plot to seize power away from the only lawfully authorized executive (hint: That is more than "close to" treason). And neither of those types of shows interests me (your mileage may vary, obviously). I will watch again next week, but I am not sure how long I will stick around.

2) Sandy Levinson hypothesizes a 269-all tie (or faithless Republican electors worried about President Trump) producing Acting President Kaine, followed by Acting President Kaine being displaced by President Romney or Ryan soon thereafter. Of course, what Sandy describes is, in part, the last season of Veep, confirming my point that such events would produce a genuine constitutional and political crisis, not the calm, happy, celebratory (for everyone but Selina) inauguration the show depicts in the final episode. Sandy's further point is that it would fly in the face of any conception of how a rationally democratic electoral system should work.

3) I will not watch the debate this evening. I already know the outcome: Trump will be deemed to have "won" the debate because he "seemed Presidential" by standing behind a podium and speaking without behaving like a raving lunatic or explicitly calling for the arrest or assassination of his debate opponent (implicit calls will, of course, be fine). And that will be true even though the words spilling from his mouth will be 1) provably false (but unchallenged), 2) incoherent word salad betraying a complete lack of understanding beyond the simplest of ideas and slogans, and 3) provably false. Nothing Clinton can do--no matter her policy expertise and ability to debate ideas--will overcome media comments about her demeanor and appearance and the lowered expectations for Trump, under which he wins by looking a normal human being, regardless of what he actually says. And that will carry the "conventional wisdom" day.

4) I have shut-out all election news for the past few days (in particular, no peaking at poll forecasters). Count me among the anxious. I, as an unabashed Democrat, rooted for Trump to win the GOP primary because I believed he would be the easiest opponent to beat--I simply did not conceive of a world in which someone so obviously unqualified and ill-suited for high office could capture sufficient votes. What I did not realize until the past few weeks is that the institutional mechanisms for checking Trump's worst abuses--lies, media manipulations, inability to control himself, appeals to some subset of voters attracted to bigoted ideas and policies, economic ties to a frisky foreign rival, policies that are constitutionally suspect, lack of basic understanding, incompetence, and more lies about all of it--did not exist, at least not in the robust fashion I imagined. Either the press is not talking about it. Or, to the extent they are, no one who matters is listening. I do not know if it is possible to float through this as ignorant as possible and be surprised (one way or another) on November 9. But I may try.

5) To the extent anyone is talking about Merrick Garland anymore, the comment is often made that this would be the first time since 1968 the Court had a Democratic majority. But to the extent that is code for it being the first time since 1968 there has been a liberal majority, the two do not overlap. The 1968 Democratic majority was Black, Douglas, White, Fortas, and Marshall. But the liberal voting bloc was comprised of Warren and Brennan, not White, who was not a consistent judicial liberal on many issues The distinction matters and should be highlighted, because it illustrates the shift in who gets appointed to the Court by both parties. As has been the case since Sotomayor and Kagan replaced Souter and Stevens, judicial ideology perfectly aligns with party affiliation.


Posted by Howard Wasserman on September 26, 2016 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, September 21, 2016

Election Day and law schools

The following comes from Beau Tremitiere, a 3L at Northwestern-Pritzker School of Law, the EIC of the Law Review, and the organizer of the Election RAVE Campaign. Administrators, faculty, and/or students interested in finding out more can contact Beau at ( Thanks to Friend-of-Prawfs Jim Pfander for passing this along.

Law faculty may want to know about a burgeoning nonpartisan national movement, the Election RAVE Campaign, which encourages law students to participate on election day in the 2016 Presidential Election. Northwestern Law has cancelled all classes for this purpose, and at least five other law schools have taken the day off. Many others are encouraging professors to reschedule election-day classes individually. By encouraging students to spend the day volunteering at the polls, law faculty can provide an enriching learning experience, reaffirm our profession’s commitment to public service, and significantly reduce the risk that voter suppression, intimidation, tampering, and honest mistakes will disenfranchise large swaths of voters.


We believe active participation in our elections should be part of American legal education, offering experiential learning to enrich the classroom discourse and contextualize abstract concepts. Moreover, active engagement may enable law schools to satisfy their institutional commitment to public service. By dispatching volunteers into our local communities to assist elderly, ESL, and otherwise at-risk voters, we can improve our schools’ standing within a sometimes skeptical public. Finally, your students could be the difference between a free, fair, and peaceful election and one that further entrenches distrust and conflict. Law students offer problem-solving skills and familiarity with technology that can shorten wait times and prevent honest administrative errors; in many instances, their mere presence can deter would-be troublemakers.


We recognize that rescheduling class is an inconvenience, but among your students are future professors, deans, judges, legislators, and governors. By rescheduling one day of class and encouraging your students to be active civic agents, you can empower, inform, and inspire this next generation of legal, intellectual, and political leaders.


Posted by Howard Wasserman on September 21, 2016 at 06:22 PM in Law and Politics, Life of Law Schools, Teaching Law | Permalink | Comments (0)

Thursday, September 15, 2016

I think I agree with this

From David Wasserman (no relation) at Cook Political Report: "Beginning to think beyond-pale Trump statements are the oxygen Clinton needs to sustain large polling leads. Last few weeks, been in a lull." We can debate whether there has been a lull in beyond-the-pale statements or whether the press has stopped reporting on them because they have become so commonplace and the press would rather write about emails. But I think the basic idea is correct.

Posted by Howard Wasserman on September 15, 2016 at 11:57 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, September 13, 2016

House subcommittee hearing on complete diversity

The House Judiciary Committee/Subcommittee on the Constitution and Civil Justice held a hearing (includes video) Tuesday on whether to eliminate the requirement of complete diversity in the basic jurisdiction statute. Witnesses were attorney Charles Cooper, Joanna Shepherd (Emory), and Ronald Welch (Dean, Baltimore). (H/T: Jim Pfander and Patricia Moore). Both Cooper and Shepherd argued for adopting minimal diversity as the statutory standard, Cooper for constitutional reasons (that do not hold up to the prevailing doctrine or theory) and Shepherd because it would have only a minimal effect on the federal docket that could be minimized by filling judicial vacancies or ratcheting up the amount-in-controversy requirement (which has not moved in more than 20 years).

The paradox of expanding the jurisdiction of the federal courts in this way (largely for defendants seeking to remove) is that the goal is to take advantage of the merits-based and procedural narrowing of access to the federal courts (via Twiqbal, limits on discovery, etc.) against the plaintiffs. In other, moving to minimal diversity would open the courthouse doors in order to slam them shut.

The proposal will not go anywhere, not least of all because federal district judges, who were not heard from here, hate diversity jurisdiction. Nevertheless, it is interesting to see how the shifting political positions with respect to federal jurisdiction, particularly in these state-law cases, in which the supposed Republican commitment to federalism would require deference to state power and state institutions.

Two additional points, as I think of them. First, Cooper's testimony recasts diversity as a measure for protecting interstate commerce generally, as opposed to protecting outsiders who cross state lines. So recast, diversity becomes about anti-corporate bias writ large, since corporations are the ones seeking to "be" everywhere at once. Second, I wonder what Cooper would make of the Hulk Hogan/Gawker case, where the big conservative money was Peter Thiel and Hogan, but minimal diversity would have allowed Gawker to remove and likely to win before a smarter federal judge more willing to respect the First Amendment.

Posted by Howard Wasserman on September 13, 2016 at 04:05 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, September 11, 2016

Designated Survivor

I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.

I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.

Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.

Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president).  Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.

Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.

Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.

Anyway, I look  forward to beginning to watch this. I hope they do something good with it.


Posted by Howard Wasserman on September 11, 2016 at 07:39 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (16)

Wednesday, September 07, 2016

Watching a Tragedy Unfold—the Spread of the Zika Virus and some teachable material about Federalism

While it’s considered sensationalistic in public health circles to make an analogy to AIDS every time a new virus emerges, the FDA’s recommendation that we begin screening all blood donations for Zika raises that question on its own. So far, there is no effective treatment or vaccine.

 Congress has the power to authorize funding to develop both, but they also have the power to stand by and watch.  Starting with a vote last February, Congress has refused to authorize the $1.1 Billion that the CDC and the Department of Health & Human Services (and other Agencies) need to develop a vaccine, treatment, and prevent strategies. Congressional dysfunction is hardly a surprise.  Nor should it be a surprise that the latest pretext is that Planned Parenthood may be involved in what is so far the only effective way of preventing pre-natal infection, contraception.

Could it be that we will look back at Congress’ failure to fund a Federal response to the Zika virus as another tragically lost opportunity?   Is Zika really that bad?  Well, the WHO released new guidelines today that although couched in terms intended to reassure, are no better than a placebo.  It’s couched as helpful, but Zika isn’t like some kind of soil contamination that can be avoided by cordoning off a few blocks in a major city.  Not only are the mosquitos quite good at hitching rides, it is clear that the virus can be transmitted through bodily fluids and, very much so, from mothers to their unborn children.  And, as both the CDC and WHO well know, advice to avoid pregnancy is not realistic.   By some estimates, over 45% of pregnancies in the US are unplanned and there’s no reason to think the number is significantly lower anywhere else. 

As is almost always the case in a time of public health crisis, there are balance of power lessons to learn.

The President of the United States does not have direct power to protect the public’s health—that authority rests in the individual States under the Police Powers Doctrine. But he could act alone to combat Zika if he were willing to declare it a threat to national security.   The CDC has compiled a very helpful document outlining these powers, but as explained, in presidential transition memo the consequences to the rule of law in using them are enormous.  And in retrospect almost never justified.

So the coming of Zika to the United States presents a clear illustration of the limits of our powers of federalism. As so often happens in these cases, states are trying to fill the gaps.  But in the end, no individual state has the resources to mount the billion dollar response required to get ahead of this menacing threat.  For now, the CDC is diverting its own resources to the states, but that is at best a “stopgap.”

Posted by Jennifer Bard on September 7, 2016 at 04:27 PM in Current Affairs, Law and Politics | Permalink

Tuesday, September 06, 2016

Letters to the powers that be

I am a junior (untenured) assistant professor at Howard University School of Law. Although I do not (yet?) self-identify as a public intellectual, I do produce scholarship that seeks to critically study and reflect upon problems in society and that proposes solutions for those problems. It seems that the very act of seeking to affect the public discourse makes me a public intellectual (at least according to Wikipedia).

I've found myself reflecting on my status recently because I've been offered several opportunities to sign letters that seek to influence rules being promulgated by the Consumer Financial Protection Bureau. See, e.g., this letter. My gut reaction is usually a bit of self-doubt. Do I really know enough about all sides of the issue to weigh in? Have I thought about the problem long enough and adequately reflected on the appropriate solutions? In addition, I wrestle with how much time to devote to getting up to speed on the issue covered by the letter.

I assume that others have much more experience in this area than I do. As such, I'm curious what other folks think about signing (or drafting) such letters. What factors affect your decision to either draft such letters in the first instance or to sign ones that come across your desk? How much time do you invest in making sure that the comment letter you sign is as perfect as it can be? Put differently, do you treat these letters like a blog post or a law review article? Finally, did you think differently about these issues when you were untenured? Should you have?

Thanks for sharing your thoughts!


Posted by Matthew Bruckner on September 6, 2016 at 09:56 AM in Current Affairs, Jr. Law Prawfs FAQ, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4)

Wednesday, August 10, 2016

Florida congresswoman is anti-Trump, does not know Florida law

Florida congresswoman Ileana Ros-Lehtinen said yesterday that she would not vote for Donald Trump for President, but instead would likely write-in Jeb Bush (since she also cannot support Hillary Clinton).

But it will not be that easy. Florida law does not automatically provide a write-in space for an office, but only if one or more people qualify as write-in candidates. And then a voter only can write-in the name of that qualified candidate, not some random person; writing in a random name results in an invalid vote. I do not know whether anyone has qualified as a write-in in Florida, but presumably Jeb! has not bothered. So Ros-Lehtinen's planned move would result in an invalid vote for President (which she may not mind, if he goal is just to make a point by not voting for either of the main named candidates).

How do I know all this? Because four years ago, I wanted to use a write-in so I could vote against Ileana Ros-Lehtinen for Congress. She ran unopposed, so there was no named candidate to vote for. But since no write-in candidate had qualified, I did not have that option, either. In fact, the office did not appear on the ballot at all, also depriving me of the option of a symbolic non-vote).

Posted by Howard Wasserman on August 10, 2016 at 12:45 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, August 09, 2016

Attorney advertising as jury tampering

While at Amelia Island for SEALS over the weekend, we caught a TV ad for a personal-injury lawyer. The entire ad focused on the legal rule prohibiting juries in personal injury cases (the ad focused on automobile accidents) from learning that the defendant has liability insurance. This is a common law rule in Florida, codified in the Federal Rules. The ad argues that juries are too sympathetic to, and thus unwilling to find against, defendants in these cases, erroneously believing, because they lack this one piece of information, that finding for the plaintiff will impose crippling liability on a powerless individual. The ad announces that almost all drivers have insurance and will not bear the cost of civil judgment, which instead will be borne by the big, bad insurance company. And it urges viewers to "spread the word" about the state of the law. Presumably, although only implicitly, these are cases in which the evidence otherwise shows that the defendant should be liable, and the plaintiff loses because of this misplaces sympathy. Of course, it ignores the flipside concern--a jury imposing liability against a defendant despite the evidence, believing an adverse verdict is "costless" to the insured defendant.

I am being tongue-in-cheek about calling the ad jury tampering. I believe it paints with too broad a brush, unconnected to any case, geographic, or potential juror (although I welcome the correction if jury tampering can be defined more broadly). Nevertheless, we can wonder about the ethics of an attorney "spreading the word" to the public about something they are not supposed to know as jurors and encouraging them (even if not explicitly) to use something they are not supposed to use as jurors.

This reminds me of a controversy that cropped up in the '90s, where people in parking lot or sidewalks outside courthouses gave potential and actual jurors information about the power of nullification.

Posted by Howard Wasserman on August 9, 2016 at 04:01 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, August 04, 2016

What type of voter fraud?

In setting up his pre-narrative of a stolen election, Donald Trump has decried recent lower-court decisions declaring invalid voting laws in North Carolina, Wisconsin, Kansas, Texas, and North Dakota, including voter ID requirements. These laws were designed to prevent impersonation fraud--someone voting as John Smith who is not, in fact, John Smith.

But note that Trump has not been complaining about impersonation fraud, but about repeat-voter fraud--"If you don’t have voter ID, you can just keep voting and voting and voting." (Chicago's old "Vote early, vote often"). But voter ID laws do nothing to eliminate repeat-voter fraud and do not seem designed to do so. The defense against that practice is the voter list; the poll worker  does not allow someone to vote  if she is not on the list (or allows only a provisional ballot) and she crosses the voter's name off the list once that person appears. Repeat voting is possible only if: 1) the poll worker fails to cross the name off or 2) the voter goes to other precincts, where she is not on the list, to vote. But requiring ID does not stop that practice. If the poll workers are not vigilant, I can repeat-vote to me heart's content with an ID, just as I could without an ID. That is, if I show an ID proving I am John Smith but the poll worker does not cross my name off the first time, I can come back again and again and vote as John Smith, showing my ID each time. Similarly, if I then drive to the wrong precinct with an ID proving I am John Smith but the poll worker allows me to vote despite my name not being on the list, I can cast that repeat vote as John Smith, showing my ID.

Unfortunately, most of the news reports of Trump's comments have repeated the (true) line that there is virtually no evidence of in-person voter fraud, without specifying that the fraud Trump is talking about is not even the type that ID laws are designed to redress. Which, also unfortunately, means the news reports are missing the fact that Trump is not aware enough to understand his own conspiracy theories.

Posted by Howard Wasserman on August 4, 2016 at 03:05 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Monday, August 01, 2016

He has no right . . .

Presumably because he cannot resist, Donald Trump is fighting back against Khzir Khan over his speech at the DNC. In response to Khan's move of asking Trump whether he had read the Constitution, displaying his pocket copy, and offering to lend it to him, Trump tweeted "Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, which is false."

People are having fun with the circularity of this--Trump asserts that Khan has no right to stand in front of millions of people and criticize him, but that right quite clearly is in the Constitution, thereby confirming Khan's point about Trump reading the Constitution. But I want to give Trump the benefit of the doubt. The key is the last clause--"which is false." Trump is not saying Khan has no right to criticize him, only that that Khan has no right to make a false statement about him, or, really, no right to defame him.

So let's break this out and see if Trump is right that Khan had no right to say what he did in front of millions of people.

For starters, this is why I have thought the "pulling out the Constitution" move (historically pulled by Libertarians, but now seemingly fair game) is nonsense as part of a political discussion. The language in the Constitution does not answer most specific questions. For our purposes, Khan does not have a right to stand in front of millions of people and engage in unprotected speech. But the First Amendment's reference to "the freedom of speech" does not tell us anything about what is or is not protected

Diving deeper shows how disturbingly ignorant Trump is about the meaning (beyond the simple words) of the First Amendment.* First, Khan did not say that Trump had never read the Constitution; he asked whether he had and offered him a copy to read. Second, even if Khan's rhetorical question contained an assertion and that implied statement was false, that alone does not mean he did not have the right to say it in front of millions of people, since false statements are not per se unconstitutional.

[*] This is not news, of course. Just another illustration of the obvious point.

The real question is whether, if false, Khan's statement was unprotected defamation that Khan had no right to make. That depends on what Khan was asserting.

In context, the best understanding of Khan's statement is that  Trump proposes policies and makes statements that violate, ignore, or disrespect the Constitution, suggesting a lack of understanding of what the Constitution protects (recall that, after pulling out his pocket copy, Khan pointed to liberty and equal protection, although, curiously, not free exercise, as concepts within it). Whether Trump has actually, literally "read" the Constitution is beside the point that Khan was making--someone could read the Constitution and still act contrary to it. So saying Trump has not read the Constitution is rhetorcal hyperbole, not meant literally or as a provable fact, but only as overstatement to make a larger point. The assertion that Trump's policies are contrary to the Constitution should be protected as an opinion, an expression of the speaker's own constitutional views, that is not provably false and that cannot form the basis for defamation liability. Finally, even if Khan was asserting as fact that Trump has not read the Constitution, I am not sure that is defamatory. Most people have not read the entire Constitution and there is nothing negative about not reading the whole thing; the harm comes from the negative  implication that someone who has not read the Constitution lacks knowledge or respect for it, which, again, is protected opinion.

So while it is not as simple as those on Twitter and Reddit are saying, the point is accurate--Khan had a clear constitutional right to say what he did and the suggestion from a presidential candidate to the contrary is wrong as a matter of established First Amendment law.

By the way, am I the only one imagining Trump, sitting in a gold-plated bunker, doing this:


Posted by Howard Wasserman on August 1, 2016 at 10:17 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (16)

Tuesday, July 26, 2016

Philadelphia police and public protest

Interesting discussion of how the Philadelphia police are responding to public protest during the current DNC (as well as how they have responded to more recent Occupy and Black Lives Matter events). And he contrasts it with the city's absurd overreaction to the 2000 RNC, which produced 400 arrests in four days, few or no convictions, and unknown amounts in civil settlements. I was clerking in Philly during the 2000 convention and it was walking around a police state, in the pre-9/11 days, when that was not the norm.

Posted by Howard Wasserman on July 26, 2016 at 04:24 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, July 23, 2016

Dudziak on Trump on Turkey (Updated)

Mary Dudziak (Emory) critiques Donald Trump's comments about not lecturing Turkey about civil liberties in light of our problems at home. A legal historian, Dudziak describes how this argument--that the United States could not exercise moral authority abroad because of problems at home--was made by the Soviet Union, not Presidents of the United States. Instead, those Presidents responded by seeking to remedy domestic injustice (she points to Eisenhower sending troops to Little Rock and Kennedy's response to Birmingham), expressly to bolster international standing.

But as I argued, Trump is not making the same argument that the Soviets made during the Cold War, that we cannot exercise moral standing on matters of justice because we have not corrected racial injustices at home. He is not arguing that we are estopped to exercise moral leadership because of our own failings, failings these other Presidents then tried to correct. He is arguing we should not care about exercising moral leadership until we get our house in order. And getting our house in order means not eliminating barriers to racial equality, but eliminating barriers to police maintaining law and order. Trump does not want to convince Turkey to be more like us; he wants to make us more like Turkey.

Posted by Howard Wasserman on July 23, 2016 at 03:02 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

More on athlete speech in the WNBA (Second Update)

Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.

Original Post:

Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.

Unfortunately, I fear a different explanation. The recent deaths of police officers has made them untouchable in the realm of public debate. You no longer can criticize or protest police officers, as by memorializing the victims of police-involved shootings (even as part of a general statement against all violence by memorializing everyone). The Orlando memorials no longer work as analogue, because the shooter there was a terrorist, not to mention an "other," so honoring those victims does not implicate police. We may be entering a time in which athletes can speak through the game, but only to express certain messages or certain positions on an issue.

As I said in the prior post, this is playing out on a smaller stage. The question is whether the same limitations are imposed on NBA or NFL players.

Update (Saturday afternoon): In my prior post, I argued that the key question is the extent to which athletes should be able to use the game, on the field/court, as a platform for their expression. The answer from the WNBA, according to this ESPN story, is that the players should keep their activism off the court. The league and the union have been trying to negotiate some arrangements, such as allowing players to wear what they want during early warmups (until, say ten minutes before the game), then change into official shirts for the national anthem; so far, they have been unable to reach an agreement.

The story includes comments from USA Coach Geno Auriemma, who seems to expect some players to attempt to speak out during the Olympics, which would become a matter for Olympic and basketball authorities. I hope we have come far enough in 48 years that the USOC would not respond as it did to Tommie Smith and John Carlos, by kicking them out of the Olympic Village.

I am more surprised by the following from Auriemma:

"I respect Tina (Charles) and the players in the WNBA for their concern and their voices and the passion that they have and for their beliefs. I really do," he said, citing the former UConn player and Liberty star for wearing her warmup shirt inside-out before Thursday's game. "I'm really proud of some of my former players and the way they've stepped forward and spoken their conscience and express their feelings."

This is a change in tone from Auriemma. In 2003, a small-college basketball player named Toni Smith began protesting the Iraq War by turning her back on the flag during the pre-game playing of the national anthem (what I described as "symbolic counter-speech"). Her coaches and teammates accepted her protest. But coaches and commentators criticized her actions, if only for distracting from the team. Auriemma, among others, insisted that whatever a player's right to speak, she did not have right to be part of the UConn women's basketball team (or to speak through her participation in the UConn women's basketball team). I am happy to see he has come around on this.

Posted by Howard Wasserman on July 23, 2016 at 11:05 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Clinton's VP and the Senate

I do not pretend to know anything about Hillary Clinton's political calculations in choosing Tim Kaine (forever a/k/a, "The Boring Choice") as her running mate. There was a lot of media discussion about the effects on the Senate. Four of Clinton's choices were sitting Senators--Kaine, Cory Booker (NJ), Sherrod Brown (OH), and Elizabeth Warren (MA)--who would resign their seats if elected VP. All but Kaine would be replaced by a temporary appointee appointed by a Republican governor, possibly costing the Democrats control of the Senate, which might come in at 50-50. In theory, that was a factor in his favor.

But this also means the Democrats will have to defend that seat in a special election in a purple state, a low-turnout situation in which Democrats tend not to fare well. Which means if the Senate is 50-50 beginning in January 2017, Clinton may have her majority only for a year. By contrast, at least with Brown Booker and Warren, Democrats would have had the opposite problem--a lost or weakened majority at the beginning of the term (because those seats would be filled by Republican governors), but a greater chance to win the special election in a deep-blue state (Booker won his seat in a 2013 special election), giving or increasing that majority for the second year of Clinton's term. Moreover, the calculus likely assumes that Democrats will lose the Senate in 2018, when they have to defend 25 seats, including a number of people in Republican states who won on the strength of Obama turnout in 2012. So is it better to have the bigger majority in the first year or the second year? Probably the first, since by 2018, the Republicans will be gearing up for a landslide mid-term.

Advocates for selecting Warren had been pushing a way to make the appointee term even shorter. Massachusetts requires a special election 145-160 days after a vacancy occurs (in the other states, the special election would be in November 2017). So if Warren had resigned on January 20, the  election would have been in June; if she resigned November 8 (or whatever date it became clear she and Clinton had won and that she would be VP absent some catastrophe), the special election would have been in April. The Democrats likely would have won that seat (having learned the lesson of Scott Brown), so Clinton would have gotten her majority 3-6 months into the first year of her term.

Posted by Howard Wasserman on July 23, 2016 at 07:54 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, July 22, 2016

But if you try sometime

The Rolling Stones' "You Can't Always Get What You Want" has become a staple at Donald Trump rallies, including following last night's acceptance speech (the band objected months ago, but the campaign has not relented). Some questioned the choice, that it seems odd for a political candidate to adopt a theme of settling because you could not get what you wanted to get.

But the theme of last night's speech-- "I alone can fix it"--suggests that the key phrase is what comes later in the chorus--"if you try sometime, you might find you get what you need." Trump is positioning himself as the essential person, the only person to save the nation from, apparently, a dystopian hellscape. The American people need Donald Trump, and only Donald Trump, to be President. By electing him, the American people will find they got what they need.

Or am I giving them too much credit?

Posted by Howard Wasserman on July 22, 2016 at 08:48 AM in Howard Wasserman, Law and Politics | Permalink | Comments (10)

Thursday, July 21, 2016

Athlete speech and team dynamics

Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.

This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.

The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.

Posted by Howard Wasserman on July 21, 2016 at 06:25 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Trump, Turkey, and the "problem" of civil liberties

Donald Trump's interview with The New York Times would be the story of the day, but for Ted Cruz's act of political courage/political suicide. Trump was asked about the situation in Turkey, where President Recep Endrogan survived a coup attempt and is consolidating power, declaring a three-month state of emergency, purging political rivals, and imposing restrictions on speech and press. Trump's short answer was that the US has too many problems at home and has no right to lecture other countries about civil liberties.

Some have read that as Trump saying that we have issues with limits on civil liberties here, so we cannot speak to anyone else about their own limits. That is what people usually mean by "no right to X"--we don't have the right to lecture anyone about X, because we do X ourselves. It is an argument about hypocrisy and inconsistency between word and deed.

But a closer look at Trump's remarks reveals the opposite. Trump is arguing that we have anarchy here, implicitly because we have too many civil liberties. So we need to restore order (which fits with his new Nixonian Law-and-Order theme) before worrying about urging other countries to be less repressive on their own people. It is an odd use of the "no right to" argument, but it better fits with his views of dissent and speech he does not like.

Here is the exchange (from the transcript, which The Times released when--stop me if you heard this one before--the campaign denied Trump had said what the newspaper reported).

SANGER: Erdogan put nearly 50,000 people in jail or suspend them, suspended thousands of teachers, he imprisoned many in the military and the police, he dismissed a lot of the judiciary. Does this worry you? And would you rather deal with a strongman who’s also been a strong ally, or with somebody that’s got a greater appreciation of civil liberties than Mr. Erdogan has? Would you press him to make sure the rule of law applies?

TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.

SANGER: So that suggests that you would not, as, say, President Bush did, the last President Bush, make the spread of democracy and liberty sort of a core of your foreign policy. You would say, “We need allies, we’re not going to lecture them about what they do inside their borders.”

TRUMP: We need allies.

SANGER: And lecture inside their borders?

TRUMP: I don’t know that we have a right to lecture. Just look about what’s happening with our country. How are we going to lecture when people are shooting our policemen in cold blood. How are we going to lecture when you see the riots and the horror going on in our own country. We have so many difficulties in our country right now that I don’t think we should be, and there may be a time when we can get much more aggressive on that subject, and it will be a wonderful thing to be more aggressive. We’re not in a position to be more aggressive. We have to fix our own mess.

His point is that we should not be worried about civil liberties elsewhere. But implicitly he is arguing that we also should not be worried about civil liberties at home, but instead about the government gaining control against the "riots and the horror"and "our own mess."*

[*] The party flip between optimism and pessimism and how great America is right now is fascinating. It will be interesting to see how and if the Democrats strike at this theme next week.

Also interesting is Trump's reference to "Ferguson" as a single word with an understood meaning. But what is that meaning? To Trump, Ferguson means riots and destruction of property.  To others, however, Ferguson means a police officer shooting an unarmed Black person with impunity, generally abusive police practices,  and a massive overreaction to peaceful-if-angry public assembly speech, and protest. Trump obviously hopes that substantial numbers of people adopt his meaning of the single word. On the other hand, there is a consent decree in the Eastern District of Missouri--explicitly requiring changes in policy and training with respect to responding to public expression, handling of encounters with suspects, and the operation of fine offensives in municipal courts--that suggests the former may be the better narrative. So is the problem of Ferguson too much speech (or at least too much speech critical of police)?

Similarly, what does Trump understand "Baltimore" to represent? Wrongfully prosecuted police officers? Is outrage at the death of a person in policy custody part of the riots, horror, and mess in this country?

Posted by Howard Wasserman on July 21, 2016 at 03:58 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)