Wednesday, January 18, 2017

Donald Trump and civil procedure

Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.

For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court.  It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.

Posted by Howard Wasserman on January 18, 2017 at 07:55 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, January 13, 2017

Procedure returns to SCOTUS docket

SCOTUS granted cert in sixteen new cases today. Several involve procedure/fed courts issues, including:

• The scope of general personal jurisdiction over a U.S.-based company in a state.

• In what court a fired federal employee can challenge rejection of the Merit Systems Protection Board decision, when the Board concludes that it lacks jurisdiction over a "mixed case" involving both a firing and a violation of federal employment-discrimination law.

• Whether intervenors in federal court must establish Article III standing or whether it is enough that the original parties have standing. (This issue has been around for awhile and came up back during the marriage-equality litigation).

Looks like I will have some stuff to write about late in the Term.

Posted by Howard Wasserman on January 13, 2017 at 05:15 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

The Blue Inhaler

IMG_0679
I carry an albuterol inhaler as my  quick relief medication for asthma. I use it infrequently, which is good news for me and good news for my asthma. Known in many other countries as the blue inhaler or the blue puffer, albuterol/salbutemol is a tremendously popular and effective relief inhaler.  First brought to market in the 1980's, sales of the blue inhaler have grown as have rates of asthma diagnosis.  

Traveling recently in the E.U., my albuterol inhaler stopped working short of its full number of available measured doses. And so I was off to my neighborhood pharmacy in  Ponta Delgada, hoping that a licensed pharmacist might be able to prescribe inhaled albuterol over the counter and spare me the quest for the Centro de Saude on New Year's Day.  Frequent travelers are no doubt aware that certain prescription only medications in the United States may be sold over the counter in other countries or dispensed at the discretion of a licensed pharmacist, even in the absence of a prescription, in still  other countries.

One glance at the Pharmacia Moderna receipt found above will tell you I was successful. I was seen quickly by a licensed pharmacist who discussed my symptoms, examined my current inhaler (stunned, it seemed, that the United States would allow a relief inhaler to be packaged in bright red or anything other than the blue that is the color coded signal to asthmatics the world over that a rescue inhaler is at hand), and sold me a full size blue salbutemol inhaler for just under 3.75 Euros.   I paid for it with pocket coins.

Today, I will not discuss drug pricing in the Açores beyond mentioning that Portugal (the Açores are an Autonomous Region of Portugal) uses a reference drug pricing system to set prescription drug prices.  The reference involved is to drug pricing in several other countries (varying  yearly, but often including Spain).  Portugal, in short, is not interested in being an outlier in prescription drug acquisition cost nor an outlier in prescription drug cost to consumers. For some years, in fact, Portugal's citizens paid less than other reference countries for certain pharmaceuticals, something that has been increasingly altered by a Memorandum of Understanding relating to drug costs, promoted by the E.U. after the latest financial crisis. 

The price to me was a remarkable ten percent of my U.S.  commercially health insured co-pay cost for the differently-named albuterol inhaler. The contents, however, were the same, though the color of the casing on my damaged inhaler disturbed my Açorean pharmacist and the lack of a dose meter mechanism on the blue inhaler sold to me in Ponta Delgada disturbed me. I have written elsewhere about the problems of relief or rescue inhalers without dose meters.

What was equally stunning, however, was the ease of the entire encounter.  I had a new relief inhaler in hand inside of ten minutes. No visit to the the clinic, no transferral of the prescription from the clinic to the pharmacia, no complicated health insurance negotiations over whether a new inhaler would be covered (it was broken) or not covered (my request for a new inhaler was untimely by calendar standards).

This made me want to know if the blue inhaler is an over the counter drug in other countries.  Sure enough, the blue puffer can be bought in a U.K. supermarket, in a drug store without prescription in Australia and Spain, and elsewhere all for about the price I paid at Pharmacia Moderna.  Tracking backward to check if a push had ever been made to allow Albuterol inhalers to be sold over the counter in the U.S., I learned of a relatively recent effort by the FDA to generate discussion about the possible creation of a third class of medicines: over the counter, over the counter with conditions of safe use, and prescription.  

Last widely discussed in 2012, the FDA held hearings on the OTC/SCU category's appropriateness for formerly prescription only items like steroidal asthma inhalers. Multiple days of hearing on the idea produced varied positions, including  AMA opposition to the encroachment on physician scope of practice. One AMA spokesperson supported pharmacist supervision of OTC/SCU prescribing, as soon as the relevant pharmacist had gone to medical school. The FDA proposal went nowhere.

I know of no place in the U.S. where OTC/SCU prescribing involving steroid inhalers has gained any traction after the 2012 blowup at 
the FDA, though pharmacist prescribing is developing a bit of a track record in Canada and in the U.K. Our own state-based experiments with pharmacist prescribing authority are a mixed bag of programs based on  dependent authority (collaborative practice with licensed physicians) and independent authority (think Oregon, Washington,  and California's hormonal contraceptives statutes) but they have proven extremely limited in scope.

And the blue inhaler? Google it, if you like, and read all the apparently U.S. based articles and  chat board discussions on how to survive an asthma attack without a relief inhaler. 

 

Posted by Ann Marie Marciarille on January 13, 2017 at 11:00 AM in Current Affairs, International Law, Law and Politics | Permalink | Comments (1)

Wednesday, January 11, 2017

Goodyear v. Haeger oral argument

I have a piece on SCOTUSBlog covering Tuesday's argument in Goodyear Tire & Rubber v. Haeger.

Here, I want to highlight (as I do in the SCOTUSBlog piece) the analogy offered by Haeger's counsel between litigation and a train. He explains that most sanctionable conduct merely delays the train or causes a detour, although the train still arrives at the intended station. Here, the “train jumped track and it went in an entirely wrong direction.”

But does a train continue moving in any direction, right or wrong, once it jumps the tracks? Isn't it more like the beginning of The Fugitive?

 

 

Posted by Howard Wasserman on January 11, 2017 at 07:50 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, January 09, 2017

Shorter White v. Pauly

Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.

Posted by Howard Wasserman on January 9, 2017 at 04:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (17)

Dialysis Care's Tangled Web

Thank you to PrawfsBlawg for the opportunity to guest blog this month. 

Christmas Day was the perfect day for the New York Times to publish its article on interesting goings on at The American Kidney Fund, one of the largest charities in the United States. Why? Well, Christmas Day is usually a slow news day and even trying to understand how dialysis care is funded for Americans is a slow read. It may be that all health insurance topics that span government-funded insurance as well as commercial insurance in the U.S. are a slow read. This is because our health insurance systems are complex but also because our health insurance systems are under-discussed.

Here, I am aiming for the fast read on the issues underlying  reports of recently issued subpoenas from the Justice Department to our two largest dialysis chains, Fresenius and DaVita. 

Renal failure patients have been  a special disease group under Medicare since 1972, when Congress extended Medicare coverage  to people of any age with kidney failure. The "kidney entitlement" (as it is sometimes known)  is distinctive in this regard. The story of the movement of dialysis from experimental to medical treatment, the rise of the dialysis industry,  and the sympathetic face of end stage renal failure patients all played a role in the dance of this legislation.  Indeed, a dialysis machine was reportedly brought to a Congressional hearing, though the account that a patient was actually dialyzed before members of Congress may be the stuff of urban legend. The early 1970's was also a time of  hope for comprehensive national health care reform, with the kidney entitlement seen by some as a stop-gap measure, not as an exercise in exceptionalism.   For all these reasons -- and more -- we saw the development of the extension of Medicare  coverage for dialysis to a disease group that included many who would formerly have been outside of the Medicare tent.

Dialysis evolved as did the dialysis industry. The nonprofit American Kidney Fund, from modest beginnings as a fundraising drive for a bankrupt dialysis patient, grew into a reportedly  majority dialysis industry funded charity whose premium support program allowed the American Kidney Fund, federal health care fraud and abuse law notwithstanding, to expand the relationship between the dialysis industry and the charity through collection and distribution of funds in the form of health insurance premium payment, including Medicare and commercial insurance premium payment for end renal failure patients. 

In health care delivery, payer mix is all. A health care delivery entity's business model necessarily revolves around a favorable payer mix. Fresnius and DaVita, for example,  were reported to receive $300,000 per patient per year from the Oregon state insurance pool for a year of dialysis treatment in 2011 as compared with the $82,000 they were reportedly able to bill Medicare in the same year. Now, allegations have been made that the American Kidney Fund excludes applicants from health care entities that do not contribute to the Fund, though this would be an apparent violation of the terms under which the premium support program was found not to violate health care fraud and abuse law.

In addition, litigation by United Health tips us off to the fact that the dialysis industry may  -- in light of the extraordinary reimbursement differentials -- have decided that the best use of premium support funds was to enroll  renal failure patients in commercial insurance. In addition, it has historically been the policy of the American Kidney Fund to terminate all premium support if a patient pursues transplant and dialysis terminates.

 

In this tangled story of dialysis treatment we have the larger American health care system's incentives written on a grain of sand: each insurer determined to push risk and cost on its competitors; each provider entity determined to retain its market share and maximize reimbursement rates; and a charity program perhaps operating as a demand-enhancement reimbursement maintenance control center.  

 

 

 

Posted by Ann Marie Marciarille on January 9, 2017 at 11:16 AM in Current Affairs, Law and Politics | Permalink | Comments (2)

Less Hollow Hope on the defensive side

Judicial appointments always seem to be less of a high agenda item for Democrats than for Republicans. At the voting level, polls show that voters who identified the composition of SCOTUS and the federal courts as the most or a very important issue broke strongly for Trump.*

[*] On an AALS panel about the presidential transition, Steven Calabresi argued that this means Trump's promises about judicial appointments, especially to SCOTUS, are the equivalent of Bush I's "read my lips," to which Republican voters will hold him. If Calabresi is right, this will affect the result of any systematic Democratic efforts to oppose any Trump nominee.

At the presidential level, Reagan appointed 50 more judges in his eight years than Obama did in his, and Obama leaves office with about twice as many judicial vacancies (more than 100) than Bush II left in 2009. (So however Obama transformed the federal judiciary likely will be undone by Trump, who has a significant number of lower-court vacancies to fill immediately, along with the Scalia seat). Although Obama nominated and praised Merrick Garland and did speak about the waiting nomination, he did not do it so loudly or so often to keep the issue from largely disappearing from the news. I do not know if more political heat would have changed anything--if Republican voters genuinely care more about the courts than Democratic voters, there was no constituency to force Republican hands on this.*

[*] Which may offer another reason that Democratic attempts to hold the Scalia seat open indefinitely will fail--the Republican voters outraged at the obstruction will be louder and more numerous than were the Democratic voters outraged over Garland.

Some of Obama's less-than-complete success is due to Republican obstruction and that the Republican-controlled Senate has confirmed virtually no nominees during the past two years. But Obama had six years of a Democratic Senate, the last two of those without a filibuster on lower-court nominees (although still blue slips), which might have allowed him to push through a bigger flood of lower-court judges into those vacancies, had he been so inclined. (And this is without getting into judicial ideology, where Obama's (and Bill Clinton's) nominees never appear to be as liberal as Bush's (and likely Trump's) have been conservative).

But Obama never seemed so inclined, at least not outwardly or forcefully. One possible explanation is that Obama adheres to the arguments of University of Chicago political scientist Gerald Rosenberg in The Hollow Hope that the courts are not effective agents of social and political change and that progressive activists must focus more on the political branches. (The greatest social-change success came during the 1960s, the one time in history when the courts and Congress were on the same page). Obama is, at heart, a believer in political activism on the ground, back to his days as a community organizer, rather than in the courts. And that seems to have affected his approach to filling judgeships.

But there is a defensive component to our hopes for the courts. Courts are essential to protect what activists achieve in the democratic process. Or, stated, differently, they offer the other side a great way to stop or reverse social change that comes from the political branches. Packing the courts with Democratic nominees is essential to secure those political-branch successes, even if the courts should not be the primary target for establishing rights in the first place.

And it is not only about protecting statutes and regulations from declarations of unconstitutionality.*

[*] See Voting Rights Act or the Medicaid expansion or DAPA. Or, historically, everything between 1933 and 1937. Or imagine if a Republican-controlled Court had come out the other way on the constitutionality of public-accommodations provisions.

It is, perhaps more importantly, about protecting against judicial interpretation and construction that sharply narrow the scope of those statutes and regs, thereby undermining their impact and social-change purposes.*

[*] See, e.g., restrictive interpretations of Title VII and other employment discrimination laws.

And we can add to that sub-constitutional procedural decisions closing the courthouse doors to those who would seek to avail themselves of statutory and constitutional rights.

[*] See Twiqbal or recent restrictions on class actions.

That is what Republicans achieve by dominating the courts and by making that dominance a central goal of every presidential administration. And what Democrats lose by not. The power to reverse that trend is what was lost by the failed Garland nomination, the failed Clinton candidacy,the failure of Obama to push more on judges, especially in his first six years, and the substantial number of vacancies he leaves to be filled by President Trump. (I recognize this reflects the "Disease of More": Obama achieved a lot with respect to the federal judiciary--it just never feels like enough).

And to put on a candidly partisan hat for a moment (remember, the banner says "almost always"): This, more than the probable loss of Roe as a constitutional doctrine or the loss of an opportunity to finally define and implement a vigorous liberal constitutionalism, is what saddened me most about the results of this election.

Posted by Howard Wasserman on January 9, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 07, 2017

Elevating judges during recess

Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.

It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.

The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.

But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.

Posted by Howard Wasserman on January 7, 2017 at 05:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 06, 2017

Elevating judges and creating vacancies

On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit.  After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.

A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s]  . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.

But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that  elevation means resignation and creates that new vacancy.

If anyone knows a basis for this that I am missing, please share in the comments.

Posted by Howard Wasserman on January 6, 2017 at 03:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, January 03, 2017

Goodyear v. Haeger argument preview

At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.

Posted by Howard Wasserman on January 3, 2017 at 01:27 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, January 01, 2017

Ode to a District Judge

The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.

[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.

A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.

Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.

Posted by Howard Wasserman on January 1, 2017 at 01:39 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, December 29, 2016

Give us your huddled victims of flying scales

In the category of things I should have known but just learned: Justice Cardozo and Emma Lazarus were first cousins. Esther Nathan and Rebecca Nathan were sisters, Esther older by nine years. Esther married  Moses Lazarus and begat Emma; Rebecca married Albert Cardozo and begat Benjamin. That piece of the family tree (from a family tree of the earliest Jewish families in America at the National Museum of American Jewish History) is here (forgive it turning sideways).  

GetFileAttachment

 

 

Posted by Howard Wasserman on December 29, 2016 at 09:39 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, December 21, 2016

Ahead and behind in the Merrick Garland debacle

Merrick Garland will not be on the Supreme Court. Garland has resumed participating in cases on the D.C. Circuit (for the past 240 days, he had only been performing his administrative chief-judge tasks) and is scheduled to sit on a panel in mid-January. Some still hold out hope that President Obama will surprise everyone and make a recess appointment on January 3. But as I wrote previously: 1) that is not Obama's style and 2) because the Republican Senate will not affirm the appointment, it would end at the close of the next session of Congress in December 2017, leaving Garland without a job (since he will have given up his D.C. Circuit seat) at only 65 years old, a deal I do not see him taking. We might add as a # 3 that if Obama did this, Congress could enact a law in January declaring the first session of the 115th Congress over immediately, thereby terminating Garland's recess appointment immediately.

For now, I want to consider who within or around the Court comes out ahead and who behind in this debacle.

Obviously, Garland is worst off, as he never will take a seat on the Court despite being as qualified as any recent nominee. The other person who is worse off is Justice Kagan, whose role on the Court has changed, perhaps for the whole of her tenure. She is now the best, most engaging writer on the Court. Given the opportunity to work with a liberal majority with Breyer or Garland as the Court's median, Kagan might have assumed the William Brennan role of the intellectual heart of the liberal majority, crafting doctrine and decisions to hold that majority together and perhaps even appeal to the rest of the Court more broadly. Particularly once Justice Ginsburg left the Court, Kagan might have been the intellectual center of a liberal Court.

The obvious person to come out ahead is whoever Donald Trump puts on the Court, who otherwise would not have gotten there. The other is Chief Justice Roberts. He avoids the prospect of being a Chief regularly in the minority and assigning dissents rather than majority opinions (the scramble to find an historical example of a Chief in that situation landed on Charles Evans Hughes during the New Deal, although he was not a consistent vote in favor of the validity of New Deal legislation). Or the alternative prospect of regularly moderating his own constitutional views to join the majority in order to retain the assignment power.

Posted by Howard Wasserman on December 21, 2016 at 11:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Monday, December 19, 2016

Under color?

Donald Trump plans to maintain a private security detail as President on top of his secret service team. If recent history is any guide, this group will overstep and violate someone's right. So: Do members of the detail act under color of federal law for constitutional purposes and, relatedly, are they subject to Bivens liability? And, if so, are they entitled to qualified immunity?

As to the first: One possible test is traditional public function, as protecting the President has, since 1901, been the exclusive domain of the Secret Service. A second is close nexus, which may depend on how much connection and collaboration there is between the private detail and the Secret Service or other White House and executive-branch personnel. A third possibility may depend on who is paying this detail--Trump himself or the government. Trump paid for the force during the campaign, much of it from campaign contributions; no word on whether that arrangement will continue. The trickier part may be Minneci v. Pollard, which could be read to reject "extending" Bivens to private actors, especially where state tort remedies (here, e.g., for assault) are available. At some level, this raises a situation of under-color-by-necessity: It would be intolerable for the President to be able to surround himself with a private security/intelligence detail operating above constitutional limitations.

As to the second: Filarsky v. Delia held that a private person hired by the government to perform public functions can claim qualified immunity. From this, it might follow that these private security officers enjoy the same immunity as federal agents (although it again may depend on who is paying and supervising them).

Update: Keith Schiller, a retired NYC cop and Navy veteran who heads Trump's security detail, will be named a personal White House aide. So that should clarify things: Schiller, as a federal employee, acts under color. And his close direction of private security personnel should be sufficient to place them under color.

Posted by Howard Wasserman on December 19, 2016 at 05:05 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, December 17, 2016

What is Obama supposed to do?

Many on the left are angry with Obama for not doing more, or at least shouting more, about the dangers of the looming Donald Trump presidency. The prevailing view is that this is not the time for Obama's "everyone chill the fuck out--I got this" style.

But what, exactly, should he be doing? One of the limitations of the office is that the current office-holder must ensure the peaceful transfer of executive power--screaming about the threat Trump poses to the nation and the world (or at least some parts of it) is not an option for someone in that office.* Nothing Obama does now can stop a Trump presidency or limit the power that Trump will wield as President (a la North Carolina). Perhaps if he had a Democratic Senate, he could at least put Merrick Garland on the Supreme Court (of course, he had a Democratic Senate, Garland already would be on the Supreme Court).

[*] There are some holding out hope that Obama will do that when the current Senate unavoidably ends on January 3. Putting aside that it is never been Obama's style. Because such an appointment would expire in December 2017, it would require Garland to give up being a judge for one year on SCOTUS. At 64, I do not believe he would make that deal.

Obama's power runs out on January 20 and there is nothing he can do to change that fact. Perhaps he believes that reminding everyone (including Trump) that actual power tends to sober people up is his best move. And if he is wrong about that, there is nothing he can do about it on December 16. The interesting question is whether Obama takes on an active opposition role as an ex-President; that is generally not done, even across party lines, but perhaps this will be the extraordinary exception. As for what he is doing about Russian interference, I assume that is happening behind the scenes.

Many believe that the transition from election to inauguration of roughly ten weeks is too long. Usually the complaint is raised because it delays the new President coming in during times of crisis, leaving a lame duck who cannot (or should not be the one to try) to handle the crisis. These complaints prompted passage of the 20th Amendment, which took effect in early 1933 during one of the two most obvious illustrations of the problem. Similar concerns were raised in 2008-09, with the economy cratering in fall 2008. Perhaps we now are seeing the flipside of the problem of the long transition--when there is nothing we can do to stop what looks like it is going to be a problematic presidency, the long delay in starting that presidency only exacerbates the fear and speculation. Let's get on with seeing what is going to happen and what we actually can do to stop the worst of it.

Think of it as the political version of ripping the band-aid off.

Posted by Howard Wasserman on December 17, 2016 at 11:45 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, December 13, 2016

Pennsylvania recount rejected

On Monday, District Judge Diamond of the Eastern District of Pennsylvania dismissed the action filed by Jill Stein seeking a recount in Pennsylvania. (H/T: Arthur Hellman of Pitt, who recommends it as a possible Fed Courts final).  The court found Stein and a voter co-plaintiff lacked standing and also dismissed on both Younger and Rooker-Feldman grounds. Some thoughts after the jump, but with one umbrella conclusion: This is a nice illustration of courts using jurisdiction and justiciability, mostly incorrectly, to avoid the merits of a dicey case.

1) Stein lacked standing because she would not win even if a recount were ordered, meaning she cannot show an injury-in-fact or redressability. The voter lacked standing because he could not show that his vote was hacked or improperly tabulated. The possibility of hacking because voting machines were "hackable" was too speculative to support an injury.

The surprising piece of this was the court's unwillingness, without much explanation, to accord Stein third-party standing to sue on behalf of voters, as a district court in Florida did during the campaign. Campaigns and candidates often are accorded third-party standing to challenge state laws impinging on the right of members of the public to vote. But the court dismissed such standing as a plaintiff asserting someone else's generalized grievance. It seems the court could not get past the fact that Stein could not win Pennsylvania, no matter what, and thus was not a "proper" plaintiff. So, absent a change in result to favor the named plaintiff, any violations of the rights of individual voters did not matter. But I wonder if future candidates will now have to show some chance of success in establishing standing.

2) The Rooker-Feldman analysis was problematic. Stein and the voters initially filed an action in state court seeking a recount; they voluntarily withdrew that action when the court, pursuant to state law, required them to post a $ 1 million bond. In federal court, plaintiffs acknowledged that the state-court decision was effectively a decision not to allow the recount. But the federal action did not challenge or seek review of the state-court decision to require the bond; it challenged the state law requiring such a bond in any court, along with a number of other provisions of state election law. The plaintiffs complained of the statutory bond requirement, not the state-court decision imposing that bond. And the remedy they sought--a declaration of unconstitutionality of various state laws and a recount--was not a result of the state-court judgment. That distinction--between a challenge to the state decision enforcing a law and a challenge to the validity of the law itself--existed in Feldman itself--the Court held that jurisdiction was lacking over the challenge to the bar-admission decision, but not to the underlying bar-admission regulation.

3) The Younger analysis was flat-out wrong. The court dutifully recited the three-prong test from Middlesex County, but it ignored Sprint, which held that Younger required abstention in deference to only three types of cases: 1) pending criminal proceedings; 2) pending quasi-criminal proceedings initiated by the state (e.g., state public nuisance lawsuits); and 3) "certain orders . . . uniquely in furtherance of the state courts' ability to perform their judicial functions" (e.g., contempt orders). The pending proceedings were actions before several state trial courts and county election boards. None of these was initiated by the state, none was criminal or quasi-criminal, and none involved state efforts to enforce its own laws. And the third category does not fit, because a federal injunction against the enforcement of the challenged state laws would not interfere with the ability of state courts to function.

4) The court ignored the two better arguments for getting rid of the case. As to the bond order, this seems to be simply a matter of preclusion--plaintiffs bringing in federal court the same claims they brought (and had rejected) in state court. I do not know if preclusion was warranted, but that should have been the focus of the analysis. But that does not reflect a jurisdictional defect. And recent SCOTUS decisions have explicitly urged courts not to conflate the jurisdictional defects involved with Rooker-Feldman with common law preclusion limitations on relitigation.

As to the still-pending state actions, Colorado River abstention exists for this very situation--concurrent and parallel proceedings. True, Colorado makes clear that abstention on these grounds is the exception rather than the rule and the typical approach to parallel state and federal proceedings is to let both actions go and give preclusive effect to whichever finishes first. Still, Judge Diamond seemed pretty determined to abstain--it would have been better to abstain on grounds that made sense.

Posted by Howard Wasserman on December 13, 2016 at 05:34 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

The downside of Bartnicki

In a short post, Slate's Ben Mathis-Lilly considers that journalists (including himself) abetted (likely) Russian interference with the presidential election by publishing leaked information. All adhered to the legal and ethical proposition that journalists can, should, and arguably must publish truthful, lawfully obtained information on a matter of public concern. And those principles do not distinguish among information leaked by an idealist whistle-blower, a bureaucrat with an axe to grind, or a hostile foreign government--indeed, Mathis-Lilly questions whether it is possible to draw such lines.

Posted by Howard Wasserman on December 13, 2016 at 10:59 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, December 12, 2016

Defining terms and talkng past one another

A great frustration in the conversation (especially in the press) over torture during the George W. Bush years was the failure to agree on terms or to discuss the disagreement over terms. Bush declared that the United States does not torture and was telling the truth--the U.S. did not torture, as he defined torture. But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced.

It appears we are about to repeat the pattern in the Trump years. Various Republicans (Mitch McConnell, John Bolton, the like # 2 at State, and even Trump himself) present the reasonable (and necessary) position that Russian interference with the election will not be tolerated and will be dealt with swiftly and harshly. Great. Except no Republican--certainly not Trump--is ever going to be convinced there is sufficient evidence that the Russians interfere, always insisting that we just don't know (they seem more likely to insist it was the Obama administration). And so the conversation, and any investigation, will never advance.

Posted by Howard Wasserman on December 12, 2016 at 10:30 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

What's good for Exxon

Reports that Donald Trump wants to make ExxonMobil Chairman/CEO Rex Tillerson Secretary of State have many concerned that Tillerson is going to put the company's business interests ahead of those of the United States, particularly with respect to Russian incursions in Crimea, Ukraine, and perhaps ultimately, the Balkans.

In 1953, President Eisenhower nominated General Motors President Charles Wilson as Secretary of Defense. During his confirmation hearing, Wilson insisted that while he would put the interests of the United States above those of GM, he rejected the premise "because for years I thought what was good for our country was good for General Motors, and vice versa." In that less-globalized era, Wilson may have been correct--a thriving GM meant good jobs for its workers and cheap cars for Americans. The question is whether that remains remotely true in a globalized economy (as Daniel Gross notes in the Slate piece linked above, Exxon's presence in the U.S. is minimal and functions more as a corporate citizen of the world). Exxon's need/desire to do business in and with Russia likely conflicts with U.S. needs to stand up to Russian expansionism. And Exxon certainly would prefer that Russia not remain under U.S. sanctions.

Posted by Howard Wasserman on December 12, 2016 at 10:13 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, November 30, 2016

Political parties and constitutional mechanisms

Piling on Lisa's post about the next steps in the presidential election (recounts in three states and the Electoral College vote on December 19):

1) Lisa correctly argues that 37 faithless electors are highly unlikely, because electors are party regulars. This shows another way that the not-accounted-for rise of political parties affects constitutional structures. The electors do exercise independent judgment. But the exercise of that judgment is affected by the existence of political parties as the unit around which elections, including the selection of electors, are organized. Electors retain independent judgment, but party affiliation affects how they exercise that judgment. It is the Daryl Levinson/Rick Pildes thesis applied to the election process.

This is why one proposed Electoral College gambit revolved around getting those 37 electors not to vote for Clinton (which partisanship deters them from doing), but to vote for a third, acceptable, competent, compromise Republican (e.g., Kasich or Romney seems to have been seduced by the cuisine of the Dark Side), who could then be chosen by the Republican-controlled House (with support from Democrats) in the contingency election.

2) In early writing on presidential selection and succession, I argued that selection mechanisms could be based on any of three competing structural principles: Political parties and partisanship, democracy, or separation of powers; one or another rising to the top on different issues, principles interact in unexpected ways, and principles change over time. There is no right or wrong answer on any of this; it is a matter of which principles one favors and why.

The current discussions illustrate the point. I argue above that the current operation of the Electoral College represents the triumph of political partisanship. The calls from many that faithless electors should vote for Clinton because she won the national popular vote obviously preference democracy (at the national level).

3) Lisa points out that Clinton needs to flip all of Michigan, Pennsylvania, and Wisconsin to flip the election.

There are arguments that a nationwide popular vote is unworkable in a country the size of the United States and that it makes sense to run things as a series of 51 statewide elections, as we functionally have under the Electoral College (where electors will virtually always vote for the winner of their state election). The undemocratic nature of that system is due, in part, to the inclusion of equal Senate representation in the total for each state. So one way to keep the current system, but to make it slightly more popularly representative, is to base the number of votes from each state solely on population-based House representation. (Note that I am not endorsing this idea, only pointing out the arguments).

Under that system,  there are 436 electoral votes (sorry, Nate Silver, you will have to rename your site), with 219 necessary for a majority.* Trump would have 246 (including MI, PA, and WI) and Clinton 190, with Clinton needing to flip 29 to win. Under this system, she could win by flipping only MI (14 votes) and PA (18), even without WI (8), although WI and one of the other two would not be enough.

[*] Under this system, Al Gore would have won in 2000 even without Florida, 225-211.

4) If any of those threw the election into the House (that is, if life imitated Veep), what would that election look like? Remember that each state caucus casts one vote based on its internal caucus vote. The likely breakdown for the new House will be 33 majority-Republican states (this includes Louisiana, whose results are not in, but which was 5-1 R this Congress and unlikely to change), 17 majority-Democratic states, and one evenly divided state (Maine). (New Jersey will flip from evenly divided to majority-Dem).

Now a lot depends on what structural principle individual House members choose to honor. It could be partisanship (as I expect it would be), in which case the Republican wins handily. It could be democracy, by looking to popular-vote results, although each must consider what level to look at--national, home state, or home district.

Posted by Howard Wasserman on November 30, 2016 at 05:01 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)

Recent days have seen a surge in efforts to change the 2016 presidential results. Jill Stein is spearheading calls for recounts. Democratic-affiliated electors are joining attempts to convince their Republican-affiliated counterparts to vote faithlessly on December 19. In response to questions about these post-election developments, I thought I would provide a few quick thoughts. The punchline is straightforward: none of this activity is likely to change who will become the 45th president. The following discussion provides more context.

First, for those trying to understand the recounts, state law is what governs. As a result, the rules governing recounts vary, and the answers to legal questions—including when and how to demand a recount and which standards govern the proceedings themselves—depend on whether one is seeking to recount votes in Wisconsin, or Michigan, or Pennsylvania. Despite such variation in the rules, the ultimate outcomes of these recounts are likely to be the same. Because taken either together or individually, they are very unlikely to make a difference in the 2016 presidential race.

By my count, the outcome of the 2016 presidential race changes only if recounts flip the results in all three of these states. This is because Donald Trump’s current elector total is 306, which means he has 36 more than he needs. In other words, Trump would need to lose the votes of 37 electors in order to drop below 270. Wisconsin provides 10, Michigan provides 16, and Pennsylvania provides 20. (There is, of course, the possibility that some of the Trump electors—that is, some of the electors who were selected based on Trump’s statewide victories—will prove to be “faithless,” thereby dropping Trump’s totals under 270 without all three of these states necessarily being flipped. See below for why this is unlikely to occur and why, even if it did occur, it is unlikely to change the result.)

What are the odds that recounts will change the outcomes in all three of these states? Based on historical evidence, the odds are minuscule.

In recount terms, the apparent margins of victory in the 2016 election are huge. As a result, there is not a single modern precedent for even one of these states to experience a reversal. Supporting the conclusion that there is “essentially zero chance” that recounts in these states will reverse Trump’s lead, Josh Douglas observes that, in the last 15 years, a statewide recount has flipped the outcome of an election only three times. Each of these reversals occurred in a really close race. According to FairVote, the first of these unicorns was spotted in 2004, where a recount in Washington State swung the margin by 390 votes, which translated into 0.014% of the votes cast. The second emerged in Vermont in 2006, where the recount swung the margin by 239, or 0.107% of the votes cast. The third could be found in Minnesota in 2008, where the recount swung the margin by 440 votes, or 0.018% of the votes cast. As FairVote concluded, based on its comprehensive analysis of all the recounts (consequential or otherwise) over a ten-year period, recounts tend to “change the margin by insignificant numbers.”

The problem for Stein and others hoping for game-changing recounts? The 2016 presidential vote totals do not turn on insignificant numbers. Current estimates indicate that in Wisconsin, Donald Trump is ahead by over 20,000 votes (equaling approximately 0.8% of the total votes cast); that in Michigan he is ahead by over 10,000 votes (approximately 0.3% of the total); and in Pennsylvania he is ahead by over 65,000 votes (approximately 1.2% of the total). The idea that standard-issue recount proceedings would flip the outcome not only in one of these states, but in all three, seems beyond the realm of possibility. This reality might help to explain why Marc Elias, the lead attorney for the Clinton campaign, has repeatedly insisted that “Hillary Clinton’s campaign didn’t want this recount and doesn’t think it will change anything.”

Some nevertheless have suggested that illegal hacking—rather than innocuous errors—might explain Donald Trump’s leads. Under this theory, the prior recount precedents are not on point. The trouble with this theory is that there appears to be no compelling evidence to back up the hacking claims—and under any of the states’ election laws, unsubstantiated theories about the possibility of hacking (or other forms of fraud) are far from enough to overturn the results. This is, incidentally, a very good thing; the democratic process is threatened by baseless accusations of election malfeasance.

In short, it seems close to certain that recounts in Wisconsin, Michigan, and/or Pennsylvania will fail to change the outcome of the 2016 presidential race. In making this assertion, it’s appropriate to acknowledge that many observers of the 2016 elections placed far too much faith in historical precedent and various forms of statistical analysis when predicting how the election itself would turn out. And it’s important not to do the same here. Still, given the wide margins in these three states (and the fact that a “recount” is, at core, simply a reconsideration and re-tallying of an already analyzed set of ballots), it really is hard to understand how the ultimate outcome of the presidential race possibly could be flipped.

This, finally, leads to the question of whether a separate effort—that is, the effort to convince sufficient electors, among those who were selected based on Trump’s statewide victories, to go rogue and vote for someone other than their candidate—has any chance of changing the result. Again, the magic number is 37; anything less than that, and Trump still has the 270 votes he needs. (And, to be clear, the 37 electors need to come from states that went for Trump; it doesn’t change anything if, for example, a Washington State elector carries through with his loudly proclaimed promise not to vote for Hillary Clinton.) Among the 306 Republican-affiliated electors who have signed up to vote for the Republican candidate, is it possible that over 10 percent of them will refuse, in the face of clear election results, to cast a vote in favor of their state's preferred candidate?

Such a development is not literally impossible, and it is true that at least one such elector (from Texas) already is refusing to vote for Trump. But this outcome again seems exceedingly unlikely. Remember that these electors are not random voters or dispassionate observers; quite to the contrary, these are people selected through Republican party apparatuses to be entrusted to vote on December 19 for the candidate selected by the party. Moreover, refusing to vote for Trump would not be the same as deciding, in a vacuum, which candidate happens to be the elector's preferred choice. Rather, it would require each of these political operatives to disregard the will of their own states’ voters, who just a few weeks ago voted not for Hillary Clinton, and not for some third party candidate, but for Donald Trump. To this end, it is telling that the Trump-averse elector from Texas will not be voting for another candidate on December 19; rather, he has resigned his position as elector, thereby allowing someone who is willing to vote for Donald Trump to replace him.

And here’s the kicker to all this: even if dozens of Republican-affiliated electors were indeed to refuse to vote for Trump, thereby reducing his total to under 270 electoral votes, even that likely would not stop him from taking office. Rather, the 12th Amendment requires that, in the absence of any candidate receiving 270 votes, the decision then go to the House of Representatives. Which will be Republican controlled. And which therefore, in all likelihood, would then vote for (you guessed it): Donald Trump.

What's more, as Ned Foley has pointed out, a bizarre and convoluted statute—the Electoral Count Act of 1887—very well may empower Congress to reject rogue electors’ votes even without the 12th Amendment backstop. Without getting too much into the (deep, disorienting) weeds, the Electoral Count Act seems to empower Congress to choose between competing claims over electors. In the face of Trump challenging votes cast by faithless electors, and with Republicans set to control both the Senate and the House, it seems highly likely that Congress would avail itself of this option.

Assuming (notwithstanding all indications to the contrary) that Congress would not take such a step, it is true that there does exist a route for avoiding a Trump presidency. In this scenario, at least 38 Republican-affiliated electors (note that an additional elector, in this scenario, would be necessary) would need to cast their votes for Hillary Clinton, rather than for Donald Trump, or for some other candidate, or for no one. At that point—again, assuming Congress simply were to accept such an unprecedented and controversial result rather than to resist it via the Electoral Count Act—that would bring Clinton’s electoral vote total to 270, and she would be entitled to the Presidency. A similar outcome would adhere if at least 270 (!) electors collectively broke ranks and voted for what faithless-elector advocates are referring to as a "compromise candidate." It is an understatement to say that neither of these developments seems practically or politically realistic, particularly when their success would require the tacit acquiescence of a Republican-controlled Congress.

I have one final point concerning the idea that sufficient electors might break ranks to change the outcome. In the exceedingly unlikely case that the scenario somehow were to come to pass, it is hard for me to imagine what the reaction might be from the approximately 62 million people who voted for Trump—that is, from the approximately 62 million people who voted for the candidate who seemed to have won the election but, as a result of faithlessness on the part of a handful of political insiders, suddenly lost the presidency. For those who suggest that this development could garner legitimacy—for reasons that purportedly are candidate-neutral—I would invite them to consider what their own reactions might be if the shoe were on the other foot. If an Election Night victory for Hillary Clinton, when set against the faithlessness of a relatively small number of electors, turned into a Donald Trump presidency, would they accept such a result? Do they really predict that Trump voters would?

All of this is not to say that these post-election efforts have no value. To the contrary, they constitute a protest of sorts by those who are deeply concerned about the results of the 2016 presidential election. Still, for various practical, political, and legal reasons, these efforts remain exceedingly unlikely to change which candidate, come late January, will be facing the Chief Justice with one hand in the air.

Posted by Lisa Manheim on November 30, 2016 at 03:19 PM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (7)

Tuesday, November 29, 2016

Five lessons on body cams

Elizabeth Joh (UC Davis) has this piece in Slate identifying five problems that have arisen with the implementation of police body cameras, which she turns to five lessons on the limits of technology to, alone, resolve problems. I especially appreciate points # 2 (do not adopt technology without also working out the regulatory details of how the tech will be used) and # 3 (rank-and-file police may, and have, resisted new technology). I have covered both in my writings on the subject.

Posted by Howard Wasserman on November 29, 2016 at 09:18 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, November 25, 2016

What the what? Ben Carson to head HUD!

(And the real story of segregation, Detroit, AFFH, and busing)

Far be it for me to try to make rhyme or reason of Trump's cabinet picks(!), but while I wondered and worried last week about who he'd tag for HUD, Ben Carson's name didn't even come to mind. I hoped for someone like Pamela Patenaude or even former Senator Scott Brown, who instead now seems headed to be secretary of Veterans Affairs. And I worried that Trump would, instead, name someone like Robert Astorino, Westchester County Executive who has been long been fighting HUD on fair housing issues in suburban NY. Instead, we have Dr. Ben Carson, whose only experience with fair/affordable housing issues seems to be that he grew up in center-city Detroit. Carson is not a housing expert, but he has made a few discouraging (and fairly incomprehensible) statements on housing policy, for example in his 2015 op-ed in the Washington Times.

In his Washington Times op-ed, Carson calls HUD's AFFH rule "another failed socialist experiment" and draws parallels with mandated busing to de-segregate schools.  In his op-ed, Carson says that busing was a failure because (1) it did not improve school integration (the percentage of blacks attending majority black schools stayed essentially the same), and (2) was "unpopular among both blacks and whites."  Carson then states that mandated busing led to white flight because anyone with the means to do so moved to the suburbs "to escape mandated busing" which "contributed to a blighted inner cities in which poverty and school segregation became even more concentrated."  

What the what?

First of all, I'm pretty sure that Carson means "social experiment" not "socialist experiment" (and yes, Mr. Brain Surgeon, there is a big difference).  

As far as Carson's bizarre description of school busing and white flight, let's do a brief history lesson about segregation and busing in Carson's home town, Detroit.

Housing Segregation - and why we have it: Detroit is, and has long been, one of the most racially segregated cities in America (if not THE most segregated). As in other cities, segregation in Detroit was not just a naturally occurring social phenomenon. Rather, it is product of decades of deliberate governmental policies:  

  • The Federal Housing Administration actually created maps that disallowed lending in minority neighborhoods and then created a handbook to help neighborhoods keep their communities white (ahem..."financeable") by creating racial restrictive covenants.
  • At the same time as the federal government was teaching real estate professionals how to best discriminate, it was subsidizing white home-buying in white communities into the suburbs.
  • And local governments got into the discrimination game with use-based zoning laws designed to keep poorer populations "in their place" away from the more affluent, white communities.

White flight: Carson's decried "white flight" actually really started when the FHA (remember - the agency that would only lend to whites) established all sorts of policies and procedures to promote homeownership as "The American Dream," and then eased the burden of buying a home in the new, white suburbs. This is what started the trend of massive flight of whites from inner cities. So, yes, white flight was, in fact, caused by a social engineering funded and directed by the federal government, but the social experiment that caused this was the FHA policies of the 1930s-60s, not busing in the 1970s (to which Carson refers). (And since the federal gov't broke it, it has to buy it!)

During Carson's youth in Detroit (and in the decade before he was born), the demographics of the city profoundly shifted as whites fled to, but blacks were kept out of, new suburbs.  This all started with post-war industrialization, when black workers migrated into the city, much to the alarm of its white residents. White residents moved into white-only suburbs when blacks moved into the city, this move aided by federal funds with segregation provided by the FHA and local zoning boards.  Although it is true that banks, landlords, realtors, and wealthy homeowners had joined in a strong unholy alliance to keep minority households concentrated in high-poverty areas, it was the federal government who legally and financially established and enabled these efforts and for decades turned a blind eye to the horrific inequalities that resulted. 

Race Riots and Fair Housing:  When Carson was 16 years old, (1967), the Michigan Civil Rights Commission (the “CRC”) determined that 90% of the state’s nonwhite population lived in residentially segregated areas, having been “forced to live apart in urban ghettos.” (Note - This was BEFORE the busing that Carson mentioned in his op-ed.)  This was not a separate-but-equal situation: minority neighborhoods had vastly inferior and higher-rent housing.  The huge disparity in opportunity and quality of life that this intense segregation and inequity caused is what exploded in the deadly 1967 Detroit race riots (which, surely, Carson remembers since he was there and a teenager at the time). Michigan's fair housing legislation, enacted in 1968 just before the federal Fair Housing Act, was pushed through under the leadership of Governor George Romney (Republican) and attempted to address the huge social consequences of government (and private) housing discrimination. 

Fractionalization of Detroit and Busing Schemes: Detroit is cut up into small political subdivisions - the city proper and numerous small white suburban enclaves. This reflected the white-flight development patterns of the 1940s, 50s, and 60s, and was enabled by the home-rule political approach to municipal authority in Michigan.  Once the Fair Housing Act and Brown v. Board of Education became the law of the land, the Detroit region was legally required to affirmatively further fair housing AND integrate schools "with all deliberate speed." But if each small suburban enclave was its own school district, there would be no diversity in the schools at all. Furthermore, the predominantly minority areas would have far less resources (property tax revenues) to spend on schools (as well as more municipal fiscal demands). So the Detroit Board of Education passed an integration and decentralization plan that redrew school district boundaries in order to increase school population diversity, but a group of white citizens lobbied to recall the board members and got the Michigan State Legislature to pass legislation voiding the redistricting plan. This legislation also localized school districts and further fractionalized the metro area. 

The NAACP tried to fight back by filing a lawsuit claiming that the legislation was unconstitutional because it perpetuated historic segregation. The district judge agreed and struck it down. On appeal, the 6th circuit affirmed that holding and further held that since there was no longer a proposal on the table to redistrict in a way that increased diversity, Detroit metro area would have to engage in busing as the only possible way to fulfill Brown v. Board's mandate of school desegregation. (So the busing plan was NOT put into effect by HUD, Dr. Carson. Rather, it was the only option left to de-segregate schools after the housing de-segregation efforts flopped and local governments used home-rule to defeat school redistricting plans).  Not only was this busing plan unpopular (as Carson states), it was eventually rejected as not constitutionally required by the US Supreme Court in Milliken v. Bradley (1974).  It was the Supreme Court’s decision in Milliken v. Bradley that accelerated white flight, expanded the inner-city racial ghetto, and spelled the end of school desegregation in Detroit. 

FYI: Here's what I've said about busing and housing segregation (in an an upcoming law review article) "Admittedly, mandatory busing schemes are emotionally charged and politically difficult. So perhaps the problem could be better addressed directly, in terms of affirmatively desegregating housing. Instead of attempting to have a regional school desegregation occur through busing, integration of residential housing would achieve desegregated schools in a more natural way. Much like the issue of school segregation, the segregation problem in housing must be considered and addressed at the regional level, not individual by each small political subdivision. Localism in housing control must give way to fairness, sustainability, and fair housing (and fair schooling) constitutional mandates."

And now -- Back to Carson's Housing Op-Ed:

After his false statements and intimations re: busing and white flight, Carson criticizes the Affirmatively Furthering Fair Housing Rule of HUD as relying on a "tortured reading of the Fair Housing laws to empower HUD to “affirmatively promote” fair housing, even in the absence of explicit discrimination."  In fact, no tortured reading is required at all - the affirmatively further mandate has been there since 1968, in the original Fair Housing Act. 

The Fair Housing Act: The Fair Housing Act (and most state fair housing legislation) actually has two mandates. First, it outlaws overt discrimination based on a protected class (race, but also several other impermissible grounds). Second, it requires that local communities who receive HUD funding "affirmatively further fair housing." This second mandate was acknowledged and promoted by George Romney back when he became the Republican secretary of HUD (although he had to fight Pres. Nixon to do so).  Even now, affirmatively furthering fair housing remains not only the letter of the law but somewhat of a bipartisan issue in an era of party politics extraordinare. When some republicans (Sen. Mike Lee from Utah) tried to defund HUD after the most recent rule implementing the 1968 affirmatively furthering mandate, 13 Republicans crossed the aisle to vote down that measure.  

Carson, in his op-ed, characterizes the AFFH approach as a brand new approach, but of course that isn't true. This is a return to the actual mandate of the 1968 Act - a revival that took 50 years of struggle to achieve, sadly, because Washington hasn't shown too much concern with the intractability of racially segregated housing in our society - even though it is incredibly harmful. 

Housing segregation harms include, but are not limited to:

  1. de facto school segregation & disparate educational opportunities & outcomes for children of different races
  2. gap in achievement in school & graduation (high school) and college attendance
  3. gap in labor force participation rates & earnings
  4. high single parenthood in minority communities
  5. racial wealth gap and homeownership gap
  6. increased rates of infant and adult mortality in minority communities
  7. lower civi participation in minority communities
  8. increased incidence of predatory lending (and destabilized capital, housing, and financial markets )
  9. neighborhood decline, failing urban cores, and distressed neighborhoods w/vacant homes and high crime
  10. racial tensions and violence

etc. etc. etc. 

Detroit is the poster child for the public harm that housing segregation causes.  The city spun into an accelerating cycle of decline.  Loss of its wealthiest residents and their contributions to the city in which they worked (the city's per capita income fell 20% in the first decade of the 21st century and its population has fell by 25% during that time) ultimately led Detroit to declare bankruptcy in 2013 - the largest municipality to ever do so.   

Ben Carson to head HUD

Trump offered Carson the HUD position on Wednesday, and although Carson said that he wanted to ponder the offer over the long weekend, in a Facebook post today (and as reported on FoxNews and confirmed in online media late Thursday evening), it appears that Carson is set to accept the appointment. In his Facebook post (and can I just pause here to note how bizarre it is that we are quoting public figures' policy beliefs based on their social media postings nowadays), Carson states that "I feel that I can make a significant contribution particularly to making our inner cities great for everyone. We have much work to do in strengthening every aspect of our nation and ensuring that both our physical infrastructure and our spiritual infrastructure is solid."

Already many in the media have decried the selection of Carson for HUD.  (See this thoroughly articulated New York Times story, this snarky NY Magazine piece, this interesting piece from The Atlantic, and this Slate article suggesting that Carson will "lobotomize" HUD.)

It is hard to know what impact Carson's leadership will have on HUD. As I mentioned, he has zero experience in housing, and his sparse commentary on HUD and housing issues disclose a profound lack of understanding of history and the Fair Housing Act. Based on the cryptic statements in his Facebook post and his negative statements re: placement of affordable housing units in single-family suburbs, it may be that HUD under Carson will focus on repairing and improving inner cities (gentrification with an eye to desegregation, perhaps? We can hope), rather than efforts to integrate poorer minority housing aid recipients into white affluent suburbs. 

I nope that Ben Carson will not turn out to be a horrible choice for HUD. After all, he does have a personal background that should allow him to sympathize with and perhaps understand the challenges faced by declining urban cores - and it is hugely important to address inner cities in terms of infrastructure/community decline, rental affordability, and persistent segregation.  Maybe his anti-affirmatively furthering fair housing statements in that one op-ed merely are the result of his lack of knowledge of the issue and the Fair Housing Act. 

The New York Times article on Carson's appointment helpfully explains (to Carson, perhaps?) that the AFFH Rule actually is not some ill thought-out governmental meddling in local affairs. It states: 

"In practice, the rule provides those communities with detailed data on factors like racial demographics, poverty rates, school quality and housing voucher use to help them determine whether lower-income and minority families are isolated from good schools or segregated from opportunity. The rule requires communities to use that information to draft plans to reduce segregation where it exists. Those that habitually defy the requirements risk lose funding from the agency."

 

Our country is in the grips of a housing affordability crisis.  Fifty-year-old fair housing legislation has done little to de-segregate housing in the nation, and racial tensions continue to intensify.  At the same time, pockets of the nation (many city centers) are in steep decline. Even though under many Republican presidents, the HUD secretary was a throwaway appointment, Housing and Urban Development is actually a critically important Department in the government. I hope that Dr. Ben Carson is up to the job, I hope he studies and learns about both aspects of fair housing law as well as affordability and revitalization issues with an open mind. And I hope that in the next 4 years we can take a step forward when it comes to housing equity in this country, rather than take two steps back.

Posted by Andrea Boyack on November 25, 2016 at 01:33 AM in Constitutional thoughts, Current Affairs, Law and Politics, Property | Permalink | Comments (4)

Thursday, November 24, 2016

And still more restrictions on student-athlete speech

So the Harvard soccer and Columbia wrestling teams were suspended over the speech--private schools all, dealing with arguably "official team" speech. Then four ULL football players were suspended over a "fuck Trump" video--justified by some as occurring in the locker room and thus in the team context.

Now we have four Kansas cheerleaders suspended over a snapchat photo in which three male cheerleaders were photographed standing side-by-side in what appear to be intentionally-ugly Christmas sweaters with the Kansas "K," over the message "Kkk go Trump." (Photo after the jump). The female cheerleader/photographer insists someone took her phone and posted the picture; the mother of one of the men insists they were old sweaters.

The photo apparently was taken at a dorm party. It was not in the locker room, not part of an official team or university function, and not made in any team-wide forum or context. Moreover, the photo cannot be squeezed into any category of unprotected expression and reflects, albeit in a snarky way, a political message. So we now have a clear case of treating student-athletes differently than their non-athlete classmates for First Amendment purposes even when they are speaking as students and not as athletes.

The only justification is if student-athletes are employees who speak for and represent the university--a tough sell, given the rest of the NCAA's agenda (as a commenter on a prior post noted). And even employees (including university employees) do not speak in their employment positions at all times and enjoy something closer to ordinary First Amendment protection when speaking as citizens on matters of public concern. We long ago rejected the Holmesian idea that "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman," at least as the First Amendment limit. We would similarly reject the idea that "There may be a constitutional right to speak, but there is no constitutional right to be a Kansas Jayhawk cheerleader." Somewhere there must be a point at which a student-athlete speaks for herself and not as the university, and thus cannot be stripped of her university position because of her private speech.

Zxljhmwkf2xpfushhusk

Posted by Howard Wasserman on November 24, 2016 at 09:01 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Housing Bubble (Toil & Trouble)

The 2008 Foreclosure Crisis seems like only yesterday.  Surely we must still remember the lessons learned from the crash and will not again allow real estate prices to inflate above a sustainable level... right?  But here's a little chart that sort of scares me - note that we're at the top of the second peak in this roller coaster ride called the housing market:

Case-Shiller-SF-natl5-15

Yesterday the FHFA announced an increase to the loan limit for prime loans, with the new maximum home mortgage loan for one-unit properties set at $424,100 for 2017 (more in higher-priced markets). This is the first maximum loan dollar increase since 2006. Unless you follow real estate or are in the market for a large mortgage loan, you may not have recognized the significance of this increase. The Housing and Economic Recovery Act of 2008 prohibited any increase in the loan limit above $417,000 unless and until the average U.S. home price returned to its pre-decline level.  That hasn't happened until this year.  The FHFA just announced that "that average home prices are now above their level in the third quarter of 2007."  I guess we're back, baby.

In a way, it isn't that surprising that housing prices have been growing back toward their record peak levels, particularly in some parts of the country.  The government has done its utmost to help us "recover" from the market meltdown.  For one thing, the Federal Reserve has aggressively pushed down interest rates for the past several decades - and they keep setting a new record for "how low can you go?"   Such extremely low interest rates means very low cost of capital, and cheap capital makes it smart to borrow and stupid to save.  Is it any wonder that rational consumers borrow and borrow and borrow, and hardly ever save? (this chart shows interest rates over time - better version of it is here).

NEW-LISTY-FED-TARGET-Artboard_5

Now, some types of borrowing are more available than other types. There were times when anyone with a pulse could get a credit card, and for several years in the run-up to 2008, anyone who owned or wished to own a home could obtain a mortgage loan for nearly the entire sticker price or appraised value of the home. A little not-so-long-ago-history primer: easy mortgage credit fueled a buying and re-fi frenzy for homes that drove up prices, all premised on the idea that real estate values always go up. It couldn't last. It didn't last. 

While it has been popular during the past 8 years to blame lack of regulation for the Housing Crisis, I concluded back in 2010 that the low interest rates played a very key role (along with imaginary underwriting) in the out-of-control mortgage lending. Other analysts have agreed (see also here and here). The Economist is similarly skeptical that high housing prices indicate a booming economy, pointing out that "despite efforts to fix the plumbing of the American mortgage market, housing in the United States remains a dangerous menace to the world economy" and explaining that soaring property prices in America are "underpinned by low interest rates."

The "bubble" that we now find ourselves in is different. For one thing, mortgage credit has become more difficult to obtain, due in part to the (somewhat) more attentive FHFA underwriting approaches, the (slightly) more stringent requirements for loans to qualify as prime, and the (marginally helpful) disclosure obligations mandated by the CFPB.  But if you can get a home loan, it's cost is still very low because of low interest rates. Cheap capital enables rising prices.  Another thing that is arguably different this time around is that the supply of homes has not increased as quickly as previously, and in some parts of the country, shortage of supply may be helping to prop up property sale prices (see CNBC story here). 

The Trump win, analysts believe, will lead to multiple increases in these record-low interest rates, policy makers have indicated that this could happen in December 2016, and bank stocks have brightened at this news (after initially falling, Wall Street rallied after Trump's unexpected victory - see story here). Of course, the Fed had previously promised to raise interest rates this year, but that has not really happened (see NY Times story here).  If interest rates really do increase (and I tend to think they finally will, see Wall St. J article here), will this cause housing prices to drop in 2017? Would that necessarily be a bad thing?

For more stories re: Housing bubble 2.0, the 2016-17 edition, see herehereherehere and here.  Some of these are major news outlets, others more fringe-y, but they raise issues that those of us who watch the housing market with baited breath should not ignore.

Posted by Andrea Boyack on November 24, 2016 at 12:55 AM in Corporate, Current Affairs, Law and Politics, Property | Permalink | Comments (0)

Wednesday, November 23, 2016

Another random predictor: Ending sports droughts

Returning to random sports-related electoral predictors: It occurred to me that there is a correlation between teams (in all sports) breaking legendarily long championship droughts and Republican electoral success. Consider:

1980: Philadelphia Phillies win their first World Series, becoming the last original/non-expansion team to win a Series. Ronald Reagan wins the presidency, beginning the political regime in which we still find ourselves.

1994: New York Rangers win the Stanley Cup for the first time since 1940, a 54-year drought. Republicans take the Senate and the House (for the first time since 1954) in the Gingrich Revolution.

2004: Boston Red Sox win the World Series for the first time since 1918, an 86-year drought. George W. Bush reelected, surprising many pollsters and commentators.

2010: Chicago Black Hawks win the Stanley Cup for the first time since 1961, a 49-year drought. Republicans reverse most of the Democratic gains of 2006-08, retaking the House, closing the gap in the Senate, and ending Barack Obama's opportunity to achieve anything through the legislative process.

2016: Chicago Cubs win the World Series for the first time since 1908, a 108-year drought. And we know what happens in the election.

This is nothing we could use as a regular predictor, since legendary droughts are not broken that often. And, of course, we have to figure out how long or how much attention must be paid to make a championship drought "legendary." Still, the correlation is interesting.

Can people think of other examples? Are there counter-examples, in which some significant streak was broken and the Democrats achieved electoral success?

Posted by Howard Wasserman on November 23, 2016 at 09:03 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (2)

Saturday, November 19, 2016

2016 Election and random predictors

Apparently it was not only the polls that were fooled in this election. So were the random predictors/correlations, sports-related and otherwise.

1)  The World Series was wrong: A Republican won the presidency despite a National League team winning the Series. This is the first miss of the 21st century. It is now 17/28 overall, 12/18 since the end of World War II.

2) A twist on the World Series connection: In 8 of the years in which the Series winner predicted the election winner, the World Series went seven games. And those represent all 8 times a World Series had gone seven games in a presidential election year prior to 2016. The one time before this year that a Series went the distance without predicting the winner was 1912; that Series went 8 games (one game ended in a tie), with the AL Red Sox winning the Series and Democrat Woodrow Wilson winning the presidency. Seven-game Series are now 8/9 as a predictor.

3) Irony alert: The first World Series played in a presidential election year was 1908 (the World Series began in 1903, but was not played in 1904), when Republican William Howard Taft was elected. Which, of course, was the last time the Cubs won the World Series before this year. So we can look at this two ways: 1) When the Cubs win the World Series, a Republican wins the presidency, or 2) the Cubs just screw up the World Series/president connection.

4) The Washington Professional Football team was wrong. The team won its final home game before the election (beating the Eagles on October 16), which usually means the incumbent party retains the White House. This is now 17/20, although it has missed the last two years (the WPF lost its final home game in 2012, but the Democrats retained the White House).

5) Harvard and Yale were right. Yale beat Harvard today, which correlates (ex post, since the game is almost always played after the election is over--2000 was the lone execption) to a Republican president. This is now 21/33 historically, 10/13 since 1968, and 9/10 since 1980.

6) Finally, a semi-sports one: My daughter's Reform Jewish day school went overwhelmingly for Clinton. Looking at the schools attended by her seven basketball teammates (among whom the election was a regular subject of conversation between shooting drills): a Conservative Jewish day school, a public school, and  a secular private school went strongly for Clinton; an Episcopal school went close for Clinton; and two Catholic schools went for Trump. Make what you will of those last bits of information.

Posted by Howard Wasserman on November 19, 2016 at 05:41 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Friday, November 18, 2016

What if the press is only a bulwark of its own liberty?

One reason many people (including me, I admit) believed Donald Trump would not win the presidency was that political institutions designed to protect against untruthful authoritarians and demagogues would expose him and his lies and his threats to American liberty, and the public would take heed. Chief among these was the institutional media. That did not happen, for a variety of reasons that people will be writing about for many years, especially if the Trump administration goes as badly as many fear.

But one idea floating around is that the election exposed a fatal flaw in the narrative of the press as bulwark of liberty: It cares about  its own institutional liberty and stands up only against threats to that liberty. But where the threat is directed elsewhere (e.g., Muslims or Mexican immigrants or his political opponents or African-Americans or the rest of the world), the dogged and outraged coverage wanes (or is outweighed by other shiny objects, such as emails). There might be something to this. If we think about the conduct and statements that triggered media coverage and outrage during (and after) the election, most involved direct actions or threats against the institutional media: stripping publications of access to rallies (and the similar threat to deny White House credentials); successfully ginning up anger at rallies directed toward the media generally and news organizations such as CNN in particular; direct attacks on particular journalists (Megyn Kelly, Katy Tur, etc.); the promise to "open up" libel laws; the refusal to disclose his tax returns (which would be reported through the press to the public). The latest is Trump ditching the press pool to go to a restaurant, after informing reporters he was done for the evening, a breach of the "transparency" the media demands.

These are not unimportant acts, they do threaten the ability of the press to perform its "Fourth Estate" function of checking government abuse and informing the public, and they warrant discussion and publicity. But they arguably receive outsize coverage, more coverage than many of Trump's other, arguably more serious, sins.

Posted by Howard Wasserman on November 18, 2016 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, November 16, 2016

The voting/protesting fallacy

Building on some comments from an earlier post:

A recurring theme of the past week (and counting) of anti-Trump protests is whether the protesters have voted. This report notes that of 112 protesters arrested in Portland, 39 are registered in Oregon but did not return ballots and another 36 are not registered in Oregon (although they gave Oregon addresses, indicating they did not vote elsewhere). The reporter adds that "[n]ot turning up to vote and then taking to the streets to protest the result of the election is a tough position to defend." Actually, it is not a tough position to defend. But this has become a recurring theme, and we should reject it in strongest terms.

Whether someone voted should never be relevant to whether they can or should engage in protest or otherwise speak out on public issues, including the election result.  There are many ways to express one's political views and to try to bring about political change--voting is one, public protest is one,  and there are others. None is necessarily preferable to any others. More importantly, none is a condition precedent to any other. The right to petition government for redress of grievances is not conditioned on a person first having tried to affect the content of the government through the vote; voting and petitioning are independent rights.

The argument seems to be that a person cannot complain about something (such as the election results) if she did not first try to affect that thing (such as by voting in the election).  There are several problems with these assumptions.

First, one voter does not affect the result of the election, which is why many regard voting as an irrational act for an individual. Second, this point is heightened for the Oregonian protesters. They voted (or would have voted) in a state election that Clinton was certain to win, such that their additional individual votes in Oregon would not have affected the outcome in that state. And they would not have affected the presidential election, which depended on separate elections in 50 other places, unaffected by the margin of victory in Oregon. (One of the arrested protesters made this point in explaining why he did not vote).

Third, one perhaps can better make herself heard as one voice among hundreds of protesters than as one compulsorily anonymous voter among millions. The Tea Party garnered more attention and influence for the movement, at least initially, through its public protests during 2009-10 than through the ballot in 2008. (And, for what it is worth, I do not recall Tea Party protesters, many of whom complained about "feeling disenfranchised" under the new Obama administration, being asked whether they had voted). Fourth, this all assumes that people are protesting the election result and Trump becoming president (a legal inevitably), as opposed to what Trump stands for and what he will try to implement as President. Protesters can, and should, make their voices heard in an attempt (futile though it might be) to get Trump to think about what he will do as President and not to pursue particular policies that the speaker does not like. (This is why "not my president" is an unfortunate slogan--it allows for conflation of the two).

Fifth, the underlying assumption is that speech and protests are not mechanisms for change or results, but merely complaining and whining (and, again, you cannot complain about something if you did not first try to change it). But that is a hollow conception of speech.

Finally, we protect speech in part as a "safety valve," giving people an opportunity to blow off anger about something, rather than turning that anger into violence or forcing it underground. So even if the protests reflect disappointed non-voters blowing off steam, there is constitutional value in their blowing off steam.

The last week has revealed  a frightening attitude towards public protest, certainly among Trump and his transition team, but also reflected in media coverage. Speaking out in public is whining and complaining by thugs and spoiled millenials, worthless and meaningless, unavailable to non-voters, who are not entitled to question the "will of the majority" (according to a leading choice for Secretary of Homeland Security). It could be a bad few years.

Posted by Howard Wasserman on November 16, 2016 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Tuesday, November 15, 2016

Three Neutral Principles for Civil Political Discourse

As the recent election illustrated, Americans disagree foundationally on many substantive issues. I’d like to think though that while there may be profound divisions on core political values, one thing we may be able to agree on is that it would be helpful to our democracy to improve our public discourse about these matters.

But what does it mean to have a truly democratic, and perhaps even productive, public discourse? This aim may seem like a lost cause after over a year of toxic mudslinging, disingenuous character assassination, and an increasing unwillingness to tolerate opposing viewpoints—all of which were amply in evidence from supporters on both sides of the aisle.

I was given some sense of hope on this issue, though, during an incident shortly before the election in which President Obama was interrupted by a Trump-supporting protester during Obama’s speech at a political rally. The crowd immediately began to boo in order to shout down the protester, but Obama pushed back in his defense, and his reasons for doing so, I’ll argue below, may be taken as three core, nonpartisan principles that we may all be able to agree on as baselines for engaging in civil political discourse.


I enumerate these three principles after the break.

“First of all, we live in a country that respects free speech.” That platitude is obvious. But what Obama said before this was more meaningful. His lead-in to this statement was: “You’ve got an older gentleman supporting his candidate. He’s not doing nothing. You don’t have to worry about him.”

“He’s not doing nothing.” The idea that others’ political expression does not harm us should be obvious too (it’s really just a version of the old schoolyard rhyme about sticks and stones not breaking bones), but in modern America, it’s not. Expressing a point of view that others disagree with is increasingly more likely to get you shouted down than heard out. It might even get you suspended on a liberal college campus or beat up at a conservative political rally.

The empirical point behind the informally phrased “He’s not doing nothing” is that the expression of others’ viewpoints are nothing more than what they are: Descriptive claims about another person’s state of mind. Another person’s claim about their own beliefs does not make those beliefs true, and it certainly does not compel us to agree with or even respond to it, or do us any harm.

This attitude is easier to describe than to adopt. Hearing someone express an opinion that you consider wrong or even profoundly harmful can be infuriating, as the level of public discourse in this past election season illustrates. But this is why adopting the “he’s not doing nothing” perspective is so important. The notion that others’ political opinions are nothing more than data indicating their viewpoint (rather than traumatizing or treasonous) not only facilitates core constitutional speech rights, it also enables a psychological freedom from others' expression that makes us free to form our own opinions as well.

Because like it or not, we're a nation that is committed to honoring free speech. This principle means something only if it requires tolerating respectfully even speech with which we profoundly disagree. And that toleration becomes much easier when we regard such speech as nothing more than information about someone else’s state of mind, rather than a threat or a harm being inflicted on us.

Second of all, it looks like maybe he might have served in our military and we got to respect that. Third of all, he was elderly and we got to respect our elders.” These next two points can be collapsed into one very simple principle: See others generously, including and even especially those with whom you disagree. When this Trump supporter popped up at the rally the other week, the attendees may well have dismissed him as a threatening, unstable crank bent on shouting down the President, possibly even for racist reasons—hence their desire to shout him down in turn.

But these kind of uncharitable assumptions are as baseless as they are unhelpful. Maybe the protester lost his job to outsourcing and was trying to express support for protectionist trade policies that he felt were critical to having a job and being able to support his family. Maybe he was unhappy with the direction of the country under a Democratic administration and expressing his passionate support for going in a different direction.

Seeing the protester in a generous light—an elderly man with possible military service—is a key step in having a decent conversation. Stereotyping political opponents makes them easy to demonize and dismiss them without engaging. Regarding a Trump supporter as a fanatic foaming at the mouth with irrational race-hate makes it easy to conclude that he does not merit respect or deserve to be heard out. But seeing that same person as an older gentleman who fought in Vietnam and cares deeply about the fate of the country yields a different result.

Much the same is true in reverse. An effete urbanite reflexively supporting Obama and Hillary out of a sense of liberal guilt amounts renders the speaker a mere stereotype that can be categorized and ignored with ease. But if you regard the same person as someone who is partaking in a tradition of dissent that dates to the Revolution in the interest of protecting values like racial and social justice that are embedded in our Constitution you’re more likely to take them and their ideas more seriously.

Regardless of political valence, the choice to see someone in a more generous light is thus a prerequisite for having the kind of decent discussion about issues that has a better chance of producing mutual understanding rather than descending into a pointless shouting match.

“Fourth of all, don’t boo. Vote.” At first glance, this one may appear a bit more complicated. “Don’t boo”? Isn’t cheering and booing what people do at rallies? It certainly is, and I don’t think the point is that people should sit quietly and clap only on cue when they are attending these kinds of events. Rather, I think the general idea expressed by this statement goes something like this: If you hear an opinion you disagree with, it’s better to create a positive dialogue that expresses your own point of view rather than spending your efforts attacking the speaker or trying to eliminate their speech from the public sphere.

Because while I said above (and still believe) that others’ opinions need not lead us to want to shut them out or shout them down, democracy also cannot function if people do nothing more than engage in calm observation when they hear ideas they think are wrong or dangerous. The problem is that increasingly the immediate reaction to opposing viewpoints is to personally direct animus or worse toward the speaker. The suggestion of “don’t boo, vote” is that there are more and less effective responses to speech you disagree with. Silencing speech tends to be ineffective and harmful. By contrast, using one’s disagreement as a call to democratic engagement in the interest of your own beliefs, whether that action is the simple act of voting or a deeper commitment to a movement or cause, is the more productive alternative.

Let me be clear about the limits of my claim: I have no idea if Obama was intentionally trying to propound core principles for engaging in civil political discourse in his brief interaction with the protester at the rally, but regardless I think at least a few of those principles (first, you are not harmed by others’ speech; second, see others in a generous light; third, add your voice rather than squelching others’) are immanent in his response.

Finally, I should emphasize that while I think these are constructive principles for civil political discourse, this does not mean they are easy to practice. On the contrary, we’re hardwired to do pretty much the opposite in all of these instances. Hearing opposing viewpoints tends to engage the fight-or-flight response, which helps explain both the rancor of this election and the growing polarization of our nation as people increasingly surround themselves with other like-minded people to avoid the discomfort of regularly facing disagreement.

But nothing truly valuable is easy. And restraining our immediate instincts—tolerating speech we dislike, accepting a President we didn’t vote for—is in many respects what defines democracy, and distinguishes it from its many inferior alternatives. It is this kind of restraint in the interest of the greater good of our country and the maintenance of our system of government that represents the “better angels of our nature” that Lincoln described in his first inaugural address, and that I hope may still prevail even after a dispiritingly ugly election season.

Posted by Dave_Fagundes on November 15, 2016 at 12:45 PM in Constitutional thoughts, Culture, Current Affairs, Deliberation and voices, Law and Politics | Permalink | Comments (1)

Sunday, November 13, 2016

Several post-election things I agree with

1) This, from Clare Foran at the Atlantic. Blaming women for not coming around or blaming Clinton for not being sufficiently appealing to women is both empirically inaccurate (she won with women overall and with every category except non-college-educated white women) and reflects the misogyny that marred the election.

2) This, from Frank Pasquale at CoOp. The question is whether it is possible to solve modern problems in such a non-complex way. Or, alternatively, whether it is possible to sell complex solutions in these simpler terms.

3) "Not my President" is an unfortunate slogan, if only for its ambiguity. If it means that Donald Trump is not the President of the polity of which I am a citizen and the head of the executive branch of my federal government, it is: a) wrong, b) smacks too much of the nonsense that many Republicans pulled the last four years, and c) opens protesters to the simplistic insistence that they "get over it" because Trump will, in fact, be President. If it means that I do not support Trump or the things he is likely to do as President, that should be shouted from the rooftops. I reject the idea that Clinton voters must "give Trump a chance," just as Tea Partiers were not obligated to give Obama a chance in 2009. The problem, as I discussed, is that media coverage of Tea Party accepted the idea that Obama was doing something wrong or denying some core of the public its rights by proceeding with his agenda, even in the face of those who were not giving him a chance. I doubt the media coverage of Trump's first 100 days will drop similar suggestions that Trump should try to win over the people protesting in the streets. Trump's first Twitter reaction (from which he, or someone working for him, backtracked) was that the protesters were not real citizens, but professional agitators ginned up by the media and that they all were being unfair to him. Trump's prerogative to govern as he sees fit, helped by legislative majorities, means all his opponents have left is taking to the streets to protest. And that must be non-negotiable. It is why I agree that the best chant from Saturday's New York City protests was "This is what democracy looks like."

4) The idea of a mandate is one of the dumbest political concepts going right now. George W. Bush entered office having lost the national popular vote and won a close electoral vote, but  insisted he had a mandate, governed as if he did, and the media fell in line. Donald Trump is setting up the same narrative. by contrast, Barack Obama won, in modern terms, popular and electoral landslides. But Republican officials and activists he did not have a mandate and the media fell in line. All it takes is people shouting loudly enough that someone does or does not have a mandate to make it so.

Posted by Howard Wasserman on November 13, 2016 at 07:44 PM in Howard Wasserman, Law and Politics | Permalink | Comments (8)

ULL suspends four players for caring about the election

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue  has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity.  So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.

Posted by Howard Wasserman on November 13, 2016 at 10:42 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Saturday, November 12, 2016

A post-election thought on athlete speech

This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.

But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.

Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.

The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.

Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.

Posted by Howard Wasserman on November 12, 2016 at 05:33 PM in First Amendment, Law and Politics, Sports | Permalink | Comments (4)

Wednesday, November 09, 2016

The Divided States of America

The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues.  This presidential election provided empirical evidence of how divided we remain as a nation.  We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female.  Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it.  In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people."  These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division."  In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead."  Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."

It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X."  Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections.  But we must do even more than that.  Lawyers are fundamentally society's problem solvers.  And we have a problem of disunity.  We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur.  Because I write on Fair Housing,  making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society.  Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country.  Therefore, we have to unite these Divided States.

It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect.  Let's take a deep breath, roll up our collective sleeves, and get to work.

Posted by Andrea Boyack on November 9, 2016 at 12:47 PM in Current Affairs, Deliberation and voices, Law and Politics | Permalink | Comments (12)

Tuesday, November 08, 2016

Law School Election Night Blogs

This year at least three law schools are holding Election Night events to watch returns come in and provide election law commentary.  I'm currently with 10-12 members of the UK Election Law Society, and students are blogging here (after I approve the posts).  William & Mary law students are blogging here.  And Ohio State's Election Law @ Moritz students and faculty are providing insights here.  

These events are a great way to engage students in election law issues while also providing important commentary to the community.  I'm proud that a few years ago some students formed the UK Election Law Society on their own, and the event tonight is largely student-driven.  Please hop on over to the website throughout the evening!

Posted by Josh Douglas on November 8, 2016 at 06:46 PM in Blogging, Law and Politics, Weblogs | Permalink | Comments (0)

Lawsuits on Keeping Polls Open Late

One story of election law tonight will be requests to courts to keep the polls open late because of some mishap today.  We already have one lawsuit filed in Durham, NC, and another one is brewing in Colorado.  I've written an Op-Ed for CNN suggesting that courts, in general, should grant these requests.  Here is the intro:

Long lines are a routine part of Election Day in many places. So too are requests that courts order polls to stay open late. When in doubt, judges should grant these requests.

Florida Democrats already won an order to keep polls open late in one Miami polling site during early voting on Sunday night due to road closures earlier in the day. The judge wrote that extending the polling hours was necessary "to avoid abuse and to protect and preserve the Constitutional and statutory voting rights of Miami-Dade County citizens."
 
In previous elections, however, some courts have not been so welcoming of requests to keep the polls open past the statutory closing time. During the 2000 election, a Missouri court of appeals reversed a trial court decision that had ordered the polls open late in some St. Louis precincts. The court wrote that "commendable zeal to protect voting rights must be tempered by the corresponding duty to protect the integrity of the voting process."
 
Similarly, in 2002, the Arkansas Supreme Court reversed a lower court decision that had extended the closing time for an hour and a half in one county because that county did not have enough voting booths or supplies. The state supreme court ruled that the closing hour under the state's election law was "clear," failing to recognize that the decision would have a tangible effect in disenfranchising some people who had come to the polls earlier but had not been able to cast a ballot.
 
This formulation is backward.
 
Read the full piece here.

Posted by Josh Douglas on November 8, 2016 at 06:03 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Yet more support for cameras in the courtroom

Tuesday's hearing in the Trump Campaign's absurd lawsuit in Clark County, NV, was livestreamed. So everyone got to see (or go back to watch), in real time and with their own eyes, an unprepared and ill-informed lawyer and a knowledgeable judge who was, quite properly, having none of it (and likely more than a little aware that the purpose of the suit was not any sort of legal relief, but to set-up the "rigged" narrative for this evening).

Posted by Howard Wasserman on November 8, 2016 at 04:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

New RegBlog Essay: "Expanding the Right to Vote"

Looking for some mid-Election Day reading?  RegBlog at the University of Pennsylvania Law School has just published my essay, Expanding the Right to Vote.  Here is the intro:

A common storyline on voting rights is that conservative legislatures, like those in North Carolina, Texas, and Wisconsin, are attempting to pass strict laws that make it harder for some people to vote—all in the name of curbing so-called “voter fraud.” Yet in the face of these unfortunate new rules, a positive trend is developing in other places: states are enfranchising more people and making voting easier. As voters head to the polls today, we should take note of and learn from these successes so that we can replicate them nationwide, extending them far beyond Election Day 2016.

From expanding the electorate, to adopting online voter registration or automatic voter registration, to making the voting process itself easier and more convenient, states and localities are actively engaged in democracy-enhancing efforts.

Read the whole thing here.

Posted by Josh Douglas on November 8, 2016 at 01:15 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Monday, November 07, 2016

Mickey Mouse for President? The Law of Write-In Voting

Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin).  But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog).  Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state.  It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out).  There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).

States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)). 

Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).

In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).  

People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).   

All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech.  The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day.  This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced.  If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates.  If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.

Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow. 

Happy Voting, everyone!

 

Posted by Andrea Boyack on November 7, 2016 at 04:41 PM in Constitutional thoughts, Current Affairs, Deliberation and voices, First Amendment, Law and Politics | Permalink | Comments (4)

Weak parties, strong partisanship

This Ezra Klein piece is instinctively appealing--our system has weak parties that are unable to control who is nominated (because of the relatively modern prevalence of primary elections) combined with polarization of the parties combined with strong partisanship such that most supporters and leaders of one party will fall in line with the party nominee, whoever she/he is. Klein argues that this explains how Trump, for all his beyond-the-pale craziness, is as close as he is to the presidency. Klein closes with the following:

But if he loses, it will be because he is a crude, undisciplined demagogue. The world also produces clever, disciplined demagogues. And they are the ones who truly threaten republics.

It helps that parties are not built into the federal constitutional system and may have been a somewhat unexpected development. That the Constitution itself does not speak to, or control, this practical feature of the political system means it is free to develop on its own, perhaps in a way that undermines the constitutional structure.

Posted by Howard Wasserman on November 7, 2016 at 04:13 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

How Would a Disputed Presidential Election Proceed?

It is the scenario virtually no one wants to face: a presidential election that goes into overtime.  Yet over the past week I have received a steady stream of questions on how a post-election dispute would proceed.  Each of the fifty states has its own, detailed procedure for resolving an election contest over its presidential electors (or any other election).  

As I write in a new piece for CNN:

As polls tighten and Donald Trump has cast doubt on the reliability of the election system, talk inevitably has turned to whether we might be in for another postelection dispute.

In addition to the possibility of federal court litigation, each of the 50 states has its own, detailed mechanism for handling a disputed presidential election. Although the procedures vary by state, they all generally suffer from the same destabilizing mechanism: a lack of safeguards to root out the appearance of partisanship.
 
The CNN Op-Ed further notes that although many states send an election contest to their state courts like a regular lawsuit, other states have different procedures: sending a case directly to the state supreme court, using a specially-constituted court, creating a non-judicial tribunal, sending it to the legislature, and in one state even having the governor decide!
 
My article Procedural Fairness in Election Contests includes an Appendix with a 50-state chart of the election contest procedures in every state, describing the procedural mechanisms for election contests for every type of election (president, congress, governor, state legislature, etc.).  It's a good resource, I think, but let's hope we don't need it tomorrow night!

Posted by Josh Douglas on November 7, 2016 at 10:33 AM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Sunday, November 06, 2016

How Voter Intimidation, in a State with a Strict Voter ID Law (Texas), Happens on the Ground

A Facebook post from a woman in College Station, Texas is going viral regarding her experiences voting under Texas's strict voter ID law.  Earlier this year a federal court expanded the law to allow voters who show a "reasonable impediment" to having the required ID fill out an affidavit and then vote.  Here is how this person described her experience invoking that rule:

As I’m writing this down, what happened doesn’t sound as bad as it felt at the time; but I felt threatened and I still feel very upset and I want to share my story. This morning, I excitedly took the bus to my university polling center to cast my vote. I was armed with my Utah driver’s license, ready to sign a declaration stating my reasons for not having a Texas ID. I was met by a kind older woman, who asked to see my ID, and then asked to see my supporting document (my utility bill). In comes our guy, let’s call him Jim, “Excuse me, you must have an acceptable photo ID.” I explained that I looked up the rules, and that I brought with me two forms of ID. Jim, “Do you have a passport?” I said I did not. Jim, “Well why not? Are you registered to vote in this county?” Yes, sir, I am. Jim, “Well if you were able to register to vote you should have one of the acceptable forms.” He was being extremely rude and physically in my face. Unfortunately, as a minority female, it’s not the first time an older white man has attempted to patronize or intimidate me. The girl behind me leaned forward and whispered, “He did the same thing to me yesterday, and wouldn’t let me vote.” I decided to just be nice about it and say, “Jim, I’m just here to vote. Please don’t make me cry,” because at this point the adrenaline was flowing a bit and I was on the verge of tears. “Well you’ll need to sign an affidavit.” As he walked me over to the table of forms, he felt the need to say, “You know there’s lot of people are coming in here trying to vote illegally… a federal judge made an exception for this election allowing some people to vote…” And I was so upset at this point, I said, “I’m sorry sir, but I don’t really need to hear your opinions this morning. I just need your help voting.” How many people have been intimidated by this guy, and left without voting? I almost left in tears and if I do say so myself, I’m not easily intimidated. He stood over my shoulder and watched me check the boxes “work schedule” and “family responsibilities” because the man doesn’t know me, he doesn’t know my life, and it’s not up to him to decide who gets to vote. His job is to give me the form and watch me sign it. Then I voted. I got my sticker. Then I turned around and said, “What was your name again?” He said, “Jim.” I said, “No, your full name.” He looked surprised and told me his full name. He knows I’m filing a complaint and so does everyone in that room. The woman behind the desk winked at me.

Those who follow politics may be tempted to think that because I live in Texas, which is not a toss-up state, a few voters turned away by this guy won’t make a big difference. I think it makes a huge difference. Whether it’s because I’m a woman, because I’m brown, because I’ve never needed a passport because I don’t have the money to travel, because I haven’t found the time to get a Texas DL (because, you know, I’m only a wife, mother, and graduate student) or just because I’m from Oregon and not Texas, my vote counts. And like it or not, Texas is getting browner. And one day some people might wake up to find themselves in a new political climate of all kinds of diversity. That’s the America I believe in.

For reference: If you do not possess a form of acceptable photo identification and you cannot obtain one due to a reasonable impediment, you may present one of the supporting forms of identification and execute a Reasonable Impediment Declaration. “Your reason may not be questioned.” www.votetexas.gov

Yes, this stuff actually matters on the ground to individual voters.

Posted by Josh Douglas on November 6, 2016 at 11:39 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

Friday, November 04, 2016

Upstream, downstream, and dry markets

Paul's post on ballot-selfie laws offers a good framework and illustration of what states are trying to accomplish with these prohibitions. And, as he argues, the justifications are real. But Paul's explanation reveals why First Amendment challenges are succeeding--the laws are based on a "dry-the-market" rationale, prohibiting expressive behavior to eliminate undesirable upstream or downstream behavior leading to or following from the speech. So as Paul explains it: Prohibiting photographs of the completed ballot dries the market for those who might attempt to coerce people to vote a certain way and to demand proof that they did so--if the voter cannot take the photo, then no one can demand photographic proof, while the option to photograph makes it possible to demand that proof.

But courts are generally hostile to dry-the-market laws, at least when regulating categories of protected speech. So, for example, the Court refused to allow punishment of the production and sale of dog-fighting videos in order to dry the downstream market for such videos and thus dry the upstream market for the depicted behavior. Similarly, the Court refused to punish publication of a a recording lawfully obtained by a publisher to deter unlawful interception upstream. So here, the courts will say that government can and should prohibit downstream coercion and demands for proof of votes, but it cannot prohibit the upstream expression of taking the photo.

Posted by Howard Wasserman on November 4, 2016 at 04:13 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Locker room talk

One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including around high-level college basketball coaches and players, in the '80s and '90s (a considerably less-enlightened time); I never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.

All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).

Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.

[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.

Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.

Posted by Howard Wasserman on November 4, 2016 at 03:37 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (10)

Thursday, November 03, 2016

Eamus catuli 000000

EamuscatuliThey certainly did not make it easy, in a game in which our supposed strength--our brilliant manager--went horribly awry.

Of course, I am most happy because of what it (hopefully) portends for the presidential election connection--National League winner means Democratic president. So maybe I can stop panicking about that. (Of course, two of the times it has not held since World War II were 1992 and 1996, when an AL team won the Series but a Democrat named Clinton won the presidency). We will see in less than a week.

Meanwhile, I am going to celebrate and order some World Champions stuff.

Posted by Howard Wasserman on November 3, 2016 at 01:15 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

How I Voted in Washington State

Every election, we hear stories about the crazy complications facing both voters and election administrators. Long lines. Voter intimidation. Poll-worker confusion. Ballot selfies. Here’s a story that’s much less exciting. It’s the story of how I voted in Washington State.

Around October 24, I received my ballot in the mail. It’s like an absentee ballot. But I didn’t receive this ballot because I had requested one; to the contrary, vote-by-mail is the default here in Washington. My own voting process began with a hunt for that most precious of spaces in my home (that is, a space prominent enough to be helpful, but sufficiently out-of-the-way for the kids not to have commandeered it), where I set the ballot aside until I had an evening free. Then, with a touch of dramatic flair, I spread my tools of democracy across the dining room table—my ballot, my voting guide, my laptop, and my chocolate—and I filled out the ballot as best I could, making notes on where I needed more information. (People voting in similarly initiative-happy states will understand.) Over the next few days, I took the time I needed to gather the missing information—including through civic-minded discussion with family and friends—and eventually completed the ballot. I signed it, sealed it, and by the end of last week, found a stamp for it and put it in the mail. That was the end of the matter until yesterday, when I decided to confirm that everything was fine. To that end, I Googled “confirm vote received washington state.” This slapdash search brought me to a website where I was able to type in my basic information and immediately receive an update on my ballot. Here’s the message I received:

  • We have received your ballot, your signature has been verified, and your ballot will be counted.
  • Thank you for voting.

You’re welcome! All done, so pleasant and straightforward, a week before the election. I encountered no lines, no intimidation, no poll-worker confusion, and no selfies. (Notwithstanding the fact that our Secretary of State has assured us that, in Washington, ballot selfies are “not directly prohibited.”)

Are there potential problems with voting in this way? Of course; no system is perfect. Whenever a jurisdiction creates the possibility that its voters won’t vote in private (i.e., whenever voting isn’t necessarily done in secret), there’s an increased chance of both vote buying and vote coercion. (To understand why, imagine what you’d need in order to effectively buy or coerce a vote. At the top of the list: some way of verifying that your co-conspirators/victims actually voted the way you wanted them to.) Moreover, while voter fraud is exceedingly rare in this country, the voter fraud that does exist is more likely to occur via absentee ballot than by in-person voting. So all else being equal, mail-in states would seem to have an increased susceptibility to fraudulent voting. An additional problem with mail-in ballots relates to voters (for example, people who are homeless) who have difficulty voting by mail—though this is less of a structural concern, given that there are ways for a mail-in jurisdiction to accommodate such individuals. The more intractable issues relate to the potential for voter fraud, vote coercion, and vote buying.

Yet Washington State does not suffer from widespread problems relating to fraud, coercion, or vote buying. (Before anyone posts a link purporting to contradict this assertion, please confirm that the link in question directs to a reliable source actually supporting a different conclusion; there’s a lot of misdirection out there.) And what Washington definitely does not suffer from is all the problems associated with trying to get millions of people to go to the same limited number of locations to do the same thing at more-or-less the same time—i.e., all the problems associated with in-person voting. From my perspective, mail-in ballots are great for voters. Unless or until I learn that the problems theoretically associated with this form of voting (including the aforementioned buying, coercing, and defrauding) actually materialize, I will continue to support the practice, and be grateful that my state has adopted it.

Posted by Lisa Manheim on November 3, 2016 at 12:30 AM in Current Affairs, Law and Politics | Permalink | Comments (2)

Wednesday, November 02, 2016

"Protecting the Right to Vote in Missouri"

All 50 state constitutions explicitly confer the right to vote.  This is in contrast to the U.S. Constitution, which protects the right to vote merely implicitly through the Equal Protection Clause as well as through passive language in various amendments ("The right of citizens of the United States to vote shall not be denied or abridged...").  Moreover, in Article I, Section 2 and the Seventeenth Amendment, the U.S. Constitution contemplates that federal voter qualifications are subject to state control, saying that those who may vote for Congress are those who may vote for the state legislature (subject, of course, to the constitutional floor within the various voting amendments).  Thus, our constitutional structure recognizes a broad role for states to determine the scope of the constitutional right to vote.

Understanding this broader state constitutional grant of voting rights, several state supreme courts, including the Missouri Supreme Court in 2006, have held that strict voter ID laws infringe on that right by, in essence, adding an additional "qualification" to vote that goes beyond what the state constitution allows.  Given that the U.S. Supreme Court refused to strike down Indiana's voter ID law under the Equal Protection Clause in Crawford v. Marion County Election Board in 2008, this state constitutional protection is significant.

But Missouri voters will decide next week whether to overrule this precedent and amend the state constitution to allow the legislature to adopt a restrictive voter ID requirement.  This is a bad idea, and voters should reject Amendment 6.  I explain why in a new Op-Ed for the St. Louis Post-Dispatch:  

As the nation debates so-called election rigging and voter fraud, one bright spot in our democracy is the robust protection for the right to vote in the Missouri Constitution.

Missouri was among the first states on the right side of history in the debate over voter ID laws. In 2006, the Missouri Supreme Court ruled that the state constitution vigorously protects the right to vote and that the state’s photo ID law infringed that fundamental right.

Yet this year Missouri will decide whether to amend the state constitution to allow voter ID requirements. Voters in Missouri, and elsewhere, should continue to allow the state constitution to provide robust protection for voting rights and reject Amendment 6, the proposed state constitutional amendment that would denigrate the right to vote.

 The piece concludes:

By amending the state constitution, then, Missouri would be courting significant harms. It would disenfranchise valid voters for no good reason. It would turn back 10 years of admirable jurisprudence on robust protection for the right to vote under the state constitution. It would invite additional federal court litigation on the potential discriminatory aspect of the new rule. And it would — dangerously — greatly weaken a recognized fundamental right within the state constitution.

Missouri elections do not suffer from in-person voter fraud — the only kind of fraud that a photo ID provision would prevent. Missouri elections do, however, enjoy a positive attribute: a state constitution that vigorously protects the right to vote and a state Supreme Court that recognizes the significance of this state constitutional safeguard. Amending the state constitution to overrule this precedent will only harm the state’s elections.

If there has been a positive story of the right to vote over the past several years, it is that state courts, at least in some places, have gone beyond the U.S. Constitution to protect the right to vote under state constitutions.  We should continue that tradition.

 

Posted by Josh Douglas on November 2, 2016 at 09:26 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

But first, let me take a ballot selfie!

Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.

Purported Risk of "Vote Buying" Schemes

Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote.   I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless).  Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.

Freedom of Speech (er... Freedom to Snap & Post)

Even if there is a remote possibility that such photographs could be part of nefarious vote-purchasing schemes, ballot selfie bans also raise serious free-speech issues, and upon examination, federal courts in two jurisdictions have already declared such bans unconstitutional. An Indiana law that banned ballot selfies was struck down last year when Federal Judge Sarah Evans Barker of the state's Southern District found that the law could not survive strict scrutiny because the state "entirely failed to identify any such problem in Indiana relating to or evidencing vote buying, voter fraud, voter coercion, involuntary ballot disclosures, or an existing threat to the integrity of the electoral process" (Indiana Civil Liberties Union v. Indiana Sec'y of State, 2015 WL 12030168).  On September 28, 2016, the 1st Circuit ruled that a similar ban in New Hampshire also impermissibly impinged on freedom of speech. The 1st Circuit went so far as to call ballot selfie bans “antithetical to democratic values.” (Rideout v. Gardner, 2016 WL 5403593).

On Friday (October 28, 2016), the 6th Circuit bucked the trend by reversing the district court-issued injunction that prevented the enforcement of Michigan’s ballot selfie ban with respect to the coming election. (Crookston v. Johnson, 2016 WL 6311623.) Judge Jeffrey Sutton, writing for a divided court, held that although the “interesting First Amendment issues” would eventually be adjudicated, for the purposes of November 8th, the Michigan ban on ballot selfies would stand.  The Michigan ballot selfie ban operates to disqualify a ballot that has been photographed. The plaintiff in this case, Joel Crookston, actually had his vote invalidated in 2012 after he snapped and posted a photo of his completed ballot. The majority of the 6th Circuit seemed insufficiently concerned that Crookston’s free speech would be impermissibly curtailed in the coming week by virtue of a ballot selfie ban. “A picture may be worth a thousand words,” wrote the court, “but social media users can (and do) post thousands of words about whom they vote for and why.” Although admitting that “lingering issues remain” with respect to the First Amendment effects of the selfie ban, the 6th Circuit concluded that “there will be time for due deliberation” after the election. 

Chief Judge Cole dissented, holding that because the penalty for taking and posting a ballot selfie was nullification of the vote, the majority had effectively caused voters to choose “between their freedom of expression and their right to vote.” Cole explained that restrictions on speech must serve a significant government interest and be narrowly tailored, and the Michigan ballot selfie ban fails to meet either requirement. Judge Cole was not convinced by the three alleged “important government interests,” namely (1) discouraging vote-buying and coercion,” (2) ensuring “that the polling place is a sanctuary for all,” and (3) preventing delays. “While all of these may be government interests in the abstract, there is disproportionality between the interests stated and the ballot selfie prohibition created by these laws and instructions,” wrote Judge Cole. Yesterday (October 31, 2016), citing the dissent, Crookston’s attorney filed an emergency motion for rehearing in the hopes that the issue can, in fact be definitively addressed prior to the election.

Ballot Selfie Bans - A Constitutional Open Question

The law regarding ballot selfie bans is inconsistent and in flux. On October 23, the Associated Press reported on the state of the law, state-by-state, but this listing is already outdated because of the recent Michigan ruling.  A brief glimpse at the AP's 50-state survey shows how widely varying state laws on this issue. Some states (like Hawaii, Utah, and Nebraska) have laws specifically protecting a voter’s right to take a ballot selfie. Many states neither prohibit nor explicitly allow photographs of ballots. Some states have recently repealed laws that prohibited ballot selfies (for example, California – although this change will not take effect until January), and similar legislative measures are pending in other jurisdictions (for example, New Jersey).  A few states allow photographs of mail-in ballots, but do not allow photographs at polling places in general (for example, Iowa, Maryland, Texas, and Tennessee).  

At least 18 states, however, explicitly outlaw the practice of photographing and showing one’s own ballot, whether at the polling place or (for a mail-in ballot) at home. Although a few state spokesmen (Alaka, Massachusetts) have stated that a state law ban on ballot selfies could not be practically enforced, other states lay out clear penalties for violation of the rule. In Michigan, a ballot selfie will lead to invalidation of the ballot. In several states, a ballot selfie is a misdemeanor that could carry a fine. In Illinois, knowingly showing your completed ballot to another person is a felony that carries a prison sentence of one to three years.

Infographic from NBC News:

50 state ballot selfie ban

 

 

It will be interesting to see if a national consensus develops over the next several months as the ACLU, Snapchat, and various individuals continue to challenge these laws. The next expected opinion pertains to the New York law, and Judge Castel (S.D.N.Y.) says he’ll issue his opinion by the end of this week.  

Meanwhile, the ACLU just sued in Northern California seeking a restraining order that would prohibit enforcement of the selfie ban law, even though a bill repealing that ban has already been signed into law.   The ACLU points out, however, that the new law’s effective date in early 2017 comes too late to matter for Election 2016. “This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way," Michael Risher, an attorney with the ACLU of Northern California, said in a statement. "On November 9, it will be too late for them to do that.” Risher called ballot selfies "core political speech at the heart of the First Amendment," however the sought-after injunction seems more symbolic than pragmatic.  “In its 125-year history, California's ban on sharing one's marked ballot has not been enforced.” The California hearing is set for November 2nd.  On that same date a thousand miles to the east, another federal judge will hear near-identical arguments in a federal case challenging the Colorado ballot selfie ban.   

Outdated or Necessary Protections?

Are ballot photograph bans anachronisms? Or is do these laws serve a valid purpose? Colorado Deputy Secretary of State Suzanne Staiert argues that selfie bans are still needed. “We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” said Staiert. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.” 

Another argument against repealing the bans is that prohibitions on ballot selfies do not really stifle free speech in any substantive way. The lawyer representing New Hampshire in the 1st Circuit case argued that that under that state’s law (pre-invalidation), “You're free to go out into the community and scream at the top of your lungs how you voted and who you support in the election. You just can't use your marked ballot to do so."  

I suppose that those who are concerned with the practice of taking and posting ballot selfies worry about the social pressure involved and are concerned that the expectation of proving your vote publicly can create peer pressure to vote a particular way.  If ballot selfies become socially expected, it could remove the protection from retribution (social as well as political) that complete anonymity offers. For Snapchat-happy millenials, the social pressure to post a ballot might make it difficult to vote one’s conscience rather than what is most acceptable in one’s social circle. I’m not too worried about vote buying being enabled by photos of ballots posted on social media, but perhaps there are other legitimate reasons to step back from free speech in the name of protecting the right to anonymously cast one’s vote.

Posted by Andrea Boyack on November 2, 2016 at 12:48 AM in Constitutional thoughts, Culture, Current Affairs, Deliberation and voices, First Amendment, Law and Politics | Permalink | Comments (12)

Tuesday, November 01, 2016

Only Republican justices need apply?

With comments from Sen. Richard Burr about doing everything to prevent President Clinton from making any SCOTUS appointments, the question of the Republican endgame with respect to the Court is coming into stark relief. First it was "the next President should appoint." Now it is "the next President should appoint, unless it is a Democrat replacing a conservative such as Justice Scalia." None of this was ever a principled stand. But the absence of a meaningful principle now means that this is a moving line that Republicans are moving (and likely will continue to move) with impunity and without political repercussion and without logical (beyond pure politics) end.

So imagining that we have President Clinton/Republican Senate:

  • A Democratic President should not replace the "swing vote" (Justice Kennedy) because that shifts the balance of the Court when a Republican eventually appoints Scalia's successor.

  • A Democratic President should not replace a Democratic appointee (Ginsburg/Breyer) because that reifies the balance of the Court for another two generations. So the Dem seat should remain open.

   • If the Court can survive with 8, it is better off with 7 (assuming the lost Justice is not Kennedy), because that is an odd number that will avoid ties.

   • Hey, the original Court had 6 Justices. What was good for the Jay Court is good for the Roberts Court.

The caricature of the Republican position is that only Republican Presidents should be able to appoint to SCOTUS. That is looking less like a caricature. Especially since all of these arguments will be ignored (and forgotten) under President Rubio in 2021.

Two final points: First, this new rhetoric nothing to do with the argument that Eric Segall (Georgia State) has been making in favor of an evenly divided Court with seats permanently identified with one party. No one is expressing (or going to express) any reservations about having President Trump replace Justice Ginsburg. Second, while the Carrington Plan for the Court (a new Justice appointed every two years, with the 9 juniormost justices constituting the Court for all cases, except in the event of recusal) was designed to create term limits, the feature of regular and automatic biennial appointments also would ease some of the political controversy. Given the current climate, that is looking like the more significant piece of the proposal.

Next Wednesday, I am scheduled to do a talk for a Northwestern Alumni Association event on the election and the future of the Court. I have not begun to prepare the talk because I genuinely have no clue what is going to happen and thus no clue what I am going to say. Except that the center cannot hold and something--Segall's plan, the Carrington Plan, something else--is necessary.

Posted by Howard Wasserman on November 1, 2016 at 12:14 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Yes, You Can Change Your Vote (in some places); But It's a Bad Idea

Call it buyer's remorse: a person voted early and then regrets their choice, perhaps because of new information that is revealed about the candidates.  Maybe new evidence supposedly emerges about emails or about a candidate's apparent ties to Russia.  Can the voter change their vote?

It turns out, surprisingly, that the answer is yes in at least a few places.  Voters who have already submitted ballots in a few states may cancel those ballots to change their votes.  It's not the same as voting twice, as Donald Trump has been accused of advocating in Colorado; but it does give voters another bite at the apple.

This issue has gained salience over the past few days.  A image that had appeared on Fox News was circulating on Twitter over the weekend, in light of the James Comey letter re-elevating the issue of Hillary Clinton's emails, suggesting that voters in some states can change their early votes:

Change early vote

The Louisiana Secretary of State tweeted that the map is wrong with respect to Louisiana election law, which does not allow this practice.

But in the other states, how does this process work?  And is it a good idea?  I provide some thoughts after the jump.

The Minnesota Secretary of State's Office has this guidance on changing one's vote:

WHAT IF I RETURNED MY BALLOT AND WANT TO CHANGE MY VOTE?

You can ask to cancel your ballot until the close of business one week before Election Day. After that time, you cannot cancel your ballot. To cancel your ballot, contact the election office that sent your ballot. Your options are to have a new ballot mailed; vote in person at your local election office; or vote at your polling place on Election Day.

In Wisconsin, voters apparently have up to three chances to "correct" their ballot.  Here is how one news story describes the process:

"All the ballots are secured in the vault at city hall. We would pull that from the group. We would let the individual, the voter, vote again and document that this was their second ballot issued. We’d keep a record of that, so they would only have up to three opportunities.”

Voters in New York can seemingly also "vote twice" and have their later-filed ballot count:

If there is more than one ballot envelope executed by the same voter, the one bearing the later date of execution shall be accepted and the other rejected.  If it cannot be determined which envelope bears the later date, then all such envelopes shall be rejected.  N.Y. Election Law § 9-209(a)(i)(B).

This seems like a particularly wrongheaded idea.  Part of the goal of early voting is to minimize administrative hassles to election officials while making voting more convenient.  Allowing voters to re-do their ballots harms the first goal of administrative efficiency, while also inserting a degree of unpredictability into the process.  Although some may lament that early voting is problematic because it means that people will make their decisions without the benefit of all information leading up to Election Day, that is their choice.  They can certainly decide to wait if they want.  If they have made up their mind, however, states should not give them a do-over -- even if new information comes out.  That is, people should understand that, if they vote early, they are taking the risk that they might learn new information about the candidates or issues after they cast their ballots.  

Moreover, those who are talking about voter fraud or election rigging should oppose the ability to change one's vote. Given that most voter fraud (rare as it is) occurs through absentee balloting, it would seem that voiding or changing someone's early vote also could pose similar problems.  This weekend Donald Trump stoked unsubstantiated voter fraud fears once again by imploring his supporters in Colorado to obtain a new ballot to "make sure it gets in."  Of course, it would be illegal to actually vote twice.  But if Trump turns his attention to the states where changing one's vote is possible, it could sow even more doubt about the election system -- especially if people do start trying to change their votes at the last minute or begin coercing others to do so.  

I think early voting is a great idea to increase the convenience of voting -- although I would also support a uniform Election Week.  But we should not allow voters to change their votes after they cast their ballots.  The harms simply outweigh the benefits to this small subset of people who might take advantage of this process.

The Comey letter already destabilized the campaign at the last minute.  The alleged Trump-Russia ties might do the same.  We should not let these "October surprises" also destabilize the election process itself for those who already made up their minds.

Posted by Josh Douglas on November 1, 2016 at 09:27 AM in Law and Politics | Permalink | Comments (5)