Tuesday, October 11, 2016

Early Voting and Voting Updates

I concur with many of Steve Huefner's sentiments concerning the pros and cons of early voting.  Early voting offers a way of increasing voter turnout by making voting more convenient.  It also may facilitate efficient election administration by reducing the number of voters on Election Day itself.  On the other hand, lengthy early voting periods can place those who choose to vote at the very beginning of the period at something of a disadvantage.  Subsequent events may cause such voters to change their minds and wish to cast their votes for someone else, instead.  Most dramatically, the withdrawal or death of a candidate can effectively nullify the votes of those who cast their ballots early.    

A period of one week to ten days seems like an early voting period of reasonable length that balances these competing concerns.  For states that adopt longer periods, one possibility to consider is the notion of "vote updating."  Vote updating is easiest to understand and implement in the related area of absentee ballots.  If a person casts an absentee ballot a few weeks before Election Day, and something happens that causes them to shift their support to a different candidate, it should be possible to allow them to cast a replacement ballot, which would be counted instead of their earlier one.  Absentee ballots are typically enclosed within outer envelopes containing a voter's identifying information and are not opened for counting until Election Day itself or a few days before (depending on the jurisdiction).  Thus, if election records show that a voter submitted two absentee ballots, election officials would be able to identify the original ballot that should not be counted and set it aside.  Only the later-received ballot would count. 

This proposal raises several questions.  First, should voters be permitted to cast an unlimited number of replacement ballots (since only the last one would be counted), or should it be limited to just one or two per election?  Second, would the logistical burdens for election officials make this proposal impracticable?  It's unclear that many people would take advantage of it, and it seem like a reform that could fairly easily be worked into the current procedures governing absentee ballot verification and counting.  Third, it's not clear whether this would enhance opportunities for fraud.  It may provide a way for unscrupulous activists, parties, or candidates to replace legitimate absentee votes with fraudulent ones. 

Applying such a system to actual early voting in most jurisdictions would require more substantial reform.  In most places, an early vote is treated just like a vote on Election Day: once the punch card is submitted, the lever is pulled, or the ballot is approved on the electronic voting machine, there is no longer a way of tracing any particular early vote back to a specific voter.  Thus, early votes tend to be different from absentee votes, since an absentee ballot remains in the outer envelope containing the voter's information until nearly the end of the process. 

In order to allow people to change their early votes, a jurisdiction would have to give early voters the option of casting their early vote on a provisional ballot.  A provisional ballot is usually used when some potential concern exists over a voter's registration, identity, or eligibility to vote.  As with absentee ballots, provisional ballots usually are submitted on paper and enclosed in an outer envelope bearing the voter's identifying information.  Thus, if an early voter chooses to cast a provisional ballot, he would retain the option of returning later to cast another, replacement vote (either on another provisional ballot or a voting machine).  Voting officials would then know to discard the original provisional ballot.  If a voter does not submit any replacement votes, then the original provisional ballot is counted without any further action on the voter's part.  The ballot can either be counted on Election Day itself (since there is no need to wait for the voter to correct any deficiencies), or later on, at the same time as the other provisional ballots.

The system may unnecessarily introduce additional opportunities for error or fraud to enter into the process; it would certainly add an additional layer of complexity to a process that already poses challenges for election officials.  On the other hand, this proposal is one way of mitigating the effects of lengthy early voting and absentee voting periods.  Even if early voting is limited to a period of 7-10 days before Election Day, the period for returning absentee ballots (particularly for military and overseas voters) is invariably longer.  In an era of cell phone videos and hacks, the possibility for last-minute gamechanging developments in campaigns seems quite real.   

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

Monday, October 10, 2016

Florida Democrats win TRO extending voter registration

A federal judge in the Northern District of Florida has issued a TRO requiring Florida to extend the deadline for voter registration in the wake of Hurricane Matthew and the evacuation of thousands of would-be registrants. The court found that the refusal to extend the deadline violated the right to vote, applying strict scrutiny because the non-extension worked a complete denial of the right to vote. The TRO extends the deadline to Wednesday, when there will be a hearing on the motion for preliminary injunction. The court also quickly disposed of some preliminary standing issues. Best of all, the opinion uses the word "poppycock."

I would be curious to hear from a panel of election-law experts whether the constitutional analysis here is correct.

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

"You'd be in jail"

So how much will Trump's promise/threat to prosecute and jail Clinton be the takeaway from the debate? And will the popular public reaction be the cheering we heard from the audience? Or will it be horror that a major-party candidate announced it as a plan for his presidency, to the opponent's face and to the world? Not to mention announcing its outcome. This is not supposed to happen in a mature political system. But will enough people recognize the seriousness of that line?

The easy distinction is that the prosecution would not be for the "crime" of opposing Trump for office, but for her crimes while serving as Secretary of State. But that does not work. First, no one ever is prosecuted just for running for office, but for some other, hyped-up charge. Second, in the U.S., no matter the wrongdoing, no one has ever sought to punish the ancien regime, if for no other reason than appearances. It is why the Obama administration did not pursue investigations of those who enacted a system of what might have amounted to torture. It is impossible to separate law from politics in this situation (if it ever is), so we avoid a situation that would blur the line too much.

Not this time and not this candidate--Trump has a tweet quoting the exchange and highlighting the "you'd be in jail" line.

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

Sunday, October 09, 2016

Trump Sunlight Campaign

Now on GoFundMe (gotta love the picture of Justice Brandeis), to raise money to cover the legal fees and judgment for anyone leaking Apprentice footage showing Trump making further sexist, racist, etc. statements. Producers and staffers on the show signed non-disclosure agreements, apparently with a liquidated damages clause of $ 5 million for breach (any guesses on whether that might be deemed unconscionable?). Apprentice Exec Produce Mark Burnett, who is a Trump supporter, has vowed to sue anyone who leaks footage.

During the Kim Davis insanity in Kentucky, people attempted a similar campaign to pay Davis's contempt fines; the site shut it down, given the obvious moral hazard concerns. It will be interesting to see what GoFundMe does with this one, as raising money to pay someone's legal judgment would seem to raise the same moral-hazard concerns. (The likelihood political-viewpoint bias here is high). It might be different if the campaign was only to pay attorney's fees and costs or to provide a bounty for the leaker. But that would not make a difference as an incentive--the disincentive is not the cost of the lawsuit, it is the judgment at the end.

Anyway, the site had raised a little under $ 2000 in two hours. So I do not expect this to be a big money-maker or game-changer.

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

Extending Florida’s Voter Registration Deadline After Hurricane Matthew

The internet has been focused on the fallout from the Donald Trump tape, but I want to remind everyone that Governor Scott of Florida still has not extended the voter registration deadline, which is Tuesday. Nearly 500,000 Florida residents do not have power because of Hurricane Matthew, and I am sure that, for those who remain unregistered, there are more pressing things that they have to deal with at the moment. One issue that has come up, however, is whether the Governor has the power to extend the voter registration deadline. I believe that he does.  

Under Section 101.733 of the Florida Statutes, “the Governor may, upon issuance of an executive order declaring a state of emergency or impending emergency, suspend or delay any election.” Michael Morley has argued, in a recent op-ed, that this language gives the Governor the power to move the election, but not to move the voter registration deadline. I think that this is an unduly narrow reading of the statute, and that the Governor’s authority to “suspend or delay any election” cannot be interpreted in a vacuum.

The statute gives the Governor the authority to move or delay the election “[b]ecause of the existing and continuing possibility of an emergency or common disaster occurring before or during a regularly scheduled or special election, and in order to ensure maximum citizen participation in the electoral process.” This language arguably allows the Governor to take actions beyond delaying or canceling the election in order to further the statute’s underlying goal, which is “ensuring maximum citizen participation.”  The statute also speaks in terms of disasters occurring before the election, suggesting that the Governor's authority extends beyond Election Day, and could include broad power to change/alter electoral rules in order to accommodate a natural disaster. 

A court would likely view the Governor's power to move the election under the statute as broad enough to include the power to move the registration deadline because voter registration is integral to the election. In my view, this is very similar to the White Primary Cases, a series of cases in which the Supreme Court held that Texas’ all-white primary violated the Fourteenth Amendment, but it was able to reach that conclusion only by viewing the primary as an integral part of the general election since, at the time, primaries were viewed as private affairs. In the Court’s view, voters were essentially disenfranchised if they could not participate in the primary, even if they could still vote in the general election because the primary determined which candidate would go on to win the election. One could argue that voter registration and voting on Election Day are connected in much the same way; if voters are unable to register, then they cannot vote on Election Day.  

It is pretty clear why Governor Scott, a Republican governor in a swing state and chair of a SuperPac supporting Donald Trump, would resist extending the voter registration deadline. But partisanship aside, I think that it is important to highlight that the authority is there if he wants to use it. He is just refusing to make the accommodation for those individuals who want to register but were affected by the hurricane and likely won’t make the deadline.  

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

Saturday, October 08, 2016

It's Too Late for Write-In Votes

Many Republicans have rescinded their endorsement of Donald Trump and said that they will write in a candidate they deem appropriate for the presidency (with most people focusing on Mike Pence, who incidentally did not receive a single vote from anyone besides delegates at the RNC).  

But here's the problem: these votes will not count.  Among all of the other legal problems for the Republican Party with Donald Trump at the top of the ticket, another one is that it is too late in most states for a candidate to register as a write-in candidate, and the state will not count any votes for a person not registered as a write-in candidate.

Rob Portman of Ohio, for example, said that he will be voting for Mike Pence for President.  But Ohio law says, "Write-in votes shall not be counted for any candidate who has not filed a declaration of intent to be a write-in candidate pursuant to this section."  Further, Ohio law forbids a person from declaring as a write-in candidate if that person is the nominee for any other office -- thereby precluding Pence from becoming a write-in candidate.  It is also too late under Ohio law for anyone to declare as a write-in candidate; that needed to happen seventy-seven days before the election (Aug. 23).

John McCain similarly said that he "will write in the name of some good conservative Republican who is qualified to be President.”  But Arizona law requires a person to declare as a write-in candidate by Sept. 29.  

Here is a handy map of the write-in requirements in all 50 states.  Notably, only 7 states have no advance filing requirements for write-in candidates.  Nine states forbid write-in candidates for president, and the other 34 have a filing deadline that has likely passed.

In sum, these Republican politicians are attempting to distance themselves from Trump and pretend that they will vote for someone else.  But that's not legally possible.

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

So, it's early voting's fault?

As (some, though not all) Republican leaders call on Donald Trump to withdraw as nominee, Rick Hasen lays out the possibilities. Rick suggests it is too late  to replace Trump on the ballot, since ballots have been printed, absentee ballots mailed, and perhaps a half-million people have voted.

The lesson some are drawing from this is that early voting is a bad idea and we should get rid of it. Rick argues that "most early voters are committed partisans, and few who voted for Trump already would likely have second thoughts now." And even if not committed partisans, early voters presumably had sufficiently made up their minds about this election to cast their votes now. Moreover, while this is playing out as a mind-changer, it is not clear why it should be. What we heard from Trump on this recording does not seem to me different in kind, and not much different in degree, from everything else we knew and heard from and about Trump over the past year. So why should we protect some group of voters from themselves, given what they already knew (Perhaps the difference is that what Trump talks about here sounds like sexual assault--although most GOP leaders running for the hills seem more offended by the dirty words and underlying misogyny--both of which we have seen from Trump as recently as last week--than the suggestion of sexual violence).

Using this extraordinary situation to indict all of early voting as a concept also seems like throwing out the baby with the bathwater. Early voting exists, in part, because the existing, antiquated voting procedures cannot handle on a single day the 100 million+ people who want to vote in a presidential election. It exists, in other part, to make life easier for large numbers of people for whom waiting in the required Election Day lines who function as a poll tax, or worse. Neither of those benefits should give way because some number of voters might have buyers' remorse over a ridiculous candidate who, late in the game, highlighted his true colors that were clear all along.

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

Thursday, October 06, 2016

Hurricane Matthew and the Election

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, October 03, 2016

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

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

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

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

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

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

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

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

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

 

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

Sunday, October 02, 2016

Taking Bartnicki for a drive

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

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

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

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

Friday, September 30, 2016

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

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

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

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

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

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

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

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

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

Roy Moore suspended for remainder of term

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

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

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

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

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

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

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

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

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

Donald Trump . . .

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

Images

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

Monday, September 26, 2016

Random thoughts on a Monday morning

Because none was worth its own post:

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

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

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

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

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

 

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

Wednesday, September 21, 2016

Election Day and law schools

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

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

 

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

 

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

 

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

Thursday, September 15, 2016

I think I agree with this

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

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

Tuesday, September 13, 2016

House subcommittee hearing on complete diversity

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

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

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

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

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

Sunday, September 11, 2016

Designated Survivor

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

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

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

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

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

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

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

 

Posted by Howard Wasserman on September 11, 2016 at 07:39 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (17)

Wednesday, September 07, 2016

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

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

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

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

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

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

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

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

Tuesday, September 06, 2016

Letters to the powers that be

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

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

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

Thanks for sharing your thoughts!

 

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

Wednesday, August 10, 2016

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

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

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

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

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

Tuesday, August 09, 2016

Attorney advertising as jury tampering

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

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

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

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

Thursday, August 04, 2016

What type of voter fraud?

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

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

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

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

Monday, August 01, 2016

He has no right . . .

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

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

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

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

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

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

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

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

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

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

 

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

Tuesday, July 26, 2016

Philadelphia police and public protest

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

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

Saturday, July 23, 2016

Dudziak on Trump on Turkey (Updated)

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

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

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

More on athlete speech in the WNBA (Second Update)

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

Original Post:

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

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

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

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

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

I am more surprised by the following from Auriemma:

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

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

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

Clinton's VP and the Senate

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

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

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

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

Friday, July 22, 2016

But if you try sometime

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

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

Or am I giving them too much credit?

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

Thursday, July 21, 2016

Athlete speech and team dynamics

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

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

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

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

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

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

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

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

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

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

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

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

TRUMP: We need allies.

SANGER: And lecture inside their borders?

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

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

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

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

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

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

He Who Must Not Be Named

A new paper by Diana Mutz, a political scientist at Penn, finds an association between reading Harry Potter books and opposing Donald Trump.

Posted by Howard Wasserman on July 21, 2016 at 03:24 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, July 20, 2016

In defense of Paul Ryan (no, really)

Paul Ryan is taking heat, from right and left, for his speech last night and his general decision to support Trump's presidency. But Ryan's decision is defensible, in terms of his political and policy goals.

He wants to enact a particular conservative agenda, which he only can do with a Republican in the White House. Ryan may sincerely believe that Trump is not Mussolini or David Duke [or other non-Hitler authoritarian], but Warren Harding with verbal diarrhea--someone who lacks the ability or interest to govern and will turn things over to those around him. So Trump will travel the world and the country talking (sometimes stupidly, perhaps, but never to any real effect), leaving the business of governing to others. Ryan must believe that he will be that other (although it could be Mike Pence), with Trump coming back to sign the bills that Ryan passes. In a sense, Ryan is trying to make himself something like a Prime Minister--the head of government to Trump's figurehead head of state. It is telling that his speech last night spoke less of electing Trump than of establishing a "conservative majority" that could enact the conservative legislative agenda. Trump is necessary for that only in that he is more likely to sign that agenda into law than Hillary Clinton.

Ryan could be wrong about what Trump is and would be as President, of course, and this could blow up in his face. But if he genuinely believes Trump is not dangerous, then this move is the logical extension of the recent trend toward a system that only works if there is party unity between the legislative and executive branches. It no longer matters who is President, only his party affiliation.

Note that Mitch McConnell is making the same calculation in the Senate (with the added bonus that he is more likely to keep his job as Majority Leader if Trump wins, since a Clinton win may flip the Senate), although without taking the same heat. That must be because no one had any illusions that McConnell was anything other than a political hack.

Posted by Howard Wasserman on July 20, 2016 at 02:50 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, July 19, 2016

Black and Blue in Baltimore

Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?

I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.

Duff draws a line between ordinary moral wrongs and extraordinary criminal wrongs. What makes criminal wrongs so extraordinary, he thinks, is that they are wrongs that the public ought to take an interest in. Failing to buy a beer when it is your round is a wrong, but unless I’m one of the folks you are drinking beer with, it’s none of my business that you are stingy and selfish. Engaging in an act of domestic violence is a wrong, but even though it may occur in a private place, it is a wrong that affects the community as a whole, and which the public has an interest in seeing prosecuted. Moreover, the community enacts criminal laws to express the fact that it is the public’s business. People whose wrongs affect the community are not just ordinary wrongdoers; they are criminal offenders and have a duty to come forward to answer the community, to whom they are accountable, in a public forum, such as a trial.

Duff’s special significance as a theorist of punishment and criminal responsibility is (as Malcolm Thorburn points out) in identifying the trial (rather than the punishment) as the focal point of the criminal justice system. The trial is centerpiece of the accountability because it is a communicative forum. It is there, in public, that the offender answers to the community and (if the law provides) suffers public censure. Responsibility for wrongdoing demands (for Duff) that the offender answer to someone; responsibility for criminal activity requires an offender answer to the public through the trial process. The result of the trial (conviction or acquittal) is secondary to calling the offender to account.

Duff’s view suggests that whenever the community plausibly suspects that someone is a wrongdoer, then both the community and the wrongdoer have a positive duty discuss it: to demand and provide a rational accounting of the wrong. Where the wrong is one that touches the community as a whole, then the proper forum for such an accounting is the criminal trial.

Duff’s argument about communities and the criminal law is quite compelling. At the very least, it provides an important moral basis for criminal law: that it is the moral law of the public, the community; not just a set of wrongs that the politicians decide to sanction with an especially harsh or significant punishment. The wrongs of the criminal law are extraordinary ones which affect the community as a community. And when the wrongs are those engaged in by public officials, then the community and the state has an especial interest in ensuring that the official publicly accounting for those wrongs. (Duff has some radical and interesting things to say on this, which would take too much time here. See his Punishment, Communication, and Community at 183-17; see also Ekow Yankah, Legal Vices and Civic Virtues). [As a side note, Duff, Yankah, and Thorburn are not just theorists of criminal law; what they have to say about criminal procedure, and in particular its relation to political theory, deserves much more attention in the world of mainstream American criminal procedure than they are currently receiving). 

So trying the other Baltimore officers involved in the Freddie Gray killing is not a waste of time: it is an important way to treat the community as wronged and the officers as responsible—as individuals who are capable of being held responsible and so have a duty to answer in a public forum. It is not enough: if there was a wrong, then the officers in addition deserve public censure and should make some form of reconciliatory act to the public and the victims—the Freddie Gray family. If the court fails to acknowledge the officers’ wrong, they still remain on the hook as wrongdoers if not as offenders. But now the legal system too is on the hook, for failing to provide an adequate forum, not only for accountability, but also for censure and expiation. Without these further possibilities, the community—the public, the people—are inadequately valued by the state, and will continue to feel that they have been denied the justice they deserve as equal members of the polity.

One final thought: in her excellent book, Prosecuting Domestic Violence, Michelle Madden Dempsey also discusses the role of the prosecutor in constituting the community. While she and Duff have important differences, Dempsey's discussion of the ways in which the prosecutor constitutes the community on behalf of the state, and so the prosecutor's duties to the community as a public official, is essential reading for anyone interested in this topic. I hope to say a little more about Dempsey's work in a later post.

Posted by Eric Miller on July 19, 2016 at 12:54 PM in Criminal Law, Deliberation and voices, Law and Politics, Legal Theory | Permalink | Comments (13)

Saturday, July 16, 2016

Free assembly at the Cleveland RNC

Tabatha Abu El-Haj (Drexel) writes at Slate about the looming First Amendment disaster at next week's Republican Convention in Cleveland, given the severe restrictions on public assembly and speech the city has imposed and the current desiccated state of this area of the First Amendment. And this will be an improvement over what the city attempted; stricter regulations (for example, pushing protesters more than three miles away from the site of the Convention) were declared invalid by a federal district court.

Part of Tabatha's argument is the following:

While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.

I will add a procedural hook to this. This individual could sue for damages for the improper arrest or for removing her from the scene. But the arresting officers likely have qualified immunity. And any damages (against non-immunized officers or the city) will be limited, if not solely nominal, damages the city already has worked into the cost of doing business. The real financial risk to the city is attorneys' fees for prevailing plaintiffs, which similarly can be worked into the cost of doing municipal business (although they might be more substantial than the plaintiff's damages),* and, in any event, do nothing for the person whose rights were violated. These procedural realities also incentivize cities to do what Cleveland did here. Enact extreme restrictions (even ones officials believe cannot survive constitutional scrutiny) on the eve of the event, knowing there will not be enough time to redraft better (or substantially better) regulations. Even if, as happened here, a court steps in to declare invalid the extreme violations, a court, aware of time constraints, is unlikely to do the same for the entire plan and make the city start over. To the extent those regulations produce First Amendment violations during the Convention, the city can deal with the limited costs (nominal damages and attorney's fees) in ex post litigation.

[*] I have been arguing that attorneys' fees represent the greatest incentive for departmentalist states and executives to fall into line with judicial precedent.

Posted by Howard Wasserman on July 16, 2016 at 10:50 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, July 14, 2016

Privacy and Transgender Bathroom Access

In the litigation and public debate surrounding transgender people’s rights to use the bathroom, two of the principal issues are the meaning of “sex” and the privacy rights of everyone using restrooms or locker rooms. In this post, I’ll address the privacy claims because doing so highlights, to me, that separate and apart from the merits of any interpretive debate on the statutory meaning of “sex,” the underlying real world concerns of all involved are, in fact, not in conflict. Transgender bathroom access does not harm or implicate the privacy concerns of anyone else. Conversely, excluding trans people from bathrooms consonant with their gender identity publicly outs them every time they use the facilities.

Opponents of permitting trans people to use the bathroom corresponding to their gender identity seem concerned that a person’s genitalia will be seen by someone with different genitalia, or that a person may see genitalia different than their own. In terms of both logistics and law, these concerns seem overstated.

First, bathrooms provide private spaces—stalls. This is true even in men’s rooms. So, if someone has a concern about who sees their genitalia, or if one prefers not to view another person’s, one can use the stall and avoid the urinals. Even in locker rooms, practical solutions such as privacy curtains can be affordably installed to provide greater privacy to those who desire it. Such curtains have been endorsed by the Department of Education.  

Second, to the extent there is concern over someone’s prurient interest, those supporting bathroom bans overlook issues of sexual orientation. Transgender people—like cisgender people—can be straight, gay, or bi. Our gender does not dictate our sexuality. That’s to say, a straight transgender woman will have no sexual interest in other women in the restroom. But even if she did, we obviously permit gay men and lesbians to use public restrooms and changing facilities, so why should trans people be treated differently?

Third, the myth that transgender bathroom access somehow represents a risk of sexual violence has already been empirically refuted by government officials in jurisdictions that have trans-inclusive policies. Existing laws prohibit voyeurism and violence and transgender bathroom access doesn’t change that.

Although privacy is not endangered by the presence of transgender people, excluding trans people does endanger their privacy and safety. Forcing transgender individuals to use a bathroom that does not correspond with their gender identity and outward gender expression outs that person as transgender each time they use the public restroom.

Of course, transgender people should feel no shame over their identity or their bodies—quite the opposite. But unfortunately, misunderstanding and, at times, animus toward transgender individuals is not uncommon. As discussed in my previous post, transgender people are subject to high levels of violence, poverty, incarceration, and employment discrimination. And because comprehensive nondiscrimination protections for transgender people are lacking, maintaining privacy over one’s trans status may be critical to a range of activities from obtaining a job to keeping safe.

As such, to the extent this debate is about privacy, the real world harms seem to tilt in favor of access for transgender individuals, not exclusion.  

The same holds true for privacy law.

While in broad strokes case law supports constitutional limits on the government’s ability to disseminate our private, intimate information, the cases relied on by proponents of transgender exclusion do not support their argument here.

For example, proponents of trans exclusion have relied on cases involving a female police officer being videotaped partially nude by a male colleague after taking a decontamination shower, schools installing video cameras in student locker rooms, strip searches of students, and the forceful removing of an inmate’s underclothes. These are, of course, horrific privacy invasions. But they are quite distinct from the mere presence of transgender people using facilities corresponding to their gender identity. As the Fourth Circuit Court of Appeals acknowledged in its recent decision in G.G. v. Gloucester County School Board, it is doubtful that a trans student’s “use of the communal restroom of his choice threatens the type of constitutional abuses present” in such appalling privacy cases.

Instead, to the extent that the law recognizes limits on the government’s ability to disseminate personal information (and it does), courts enforce those limits most rigorously when information regarding a stigmatized characteristic is disclosed—for example, one’s HIV status, minority sexual orientation, or transgender identity. This is because disclosure of that information can result in further harm to the individual, including discrimination. And certain courts have specifically held that laws that out a person’s transgender status implicate this right to informational privacy.

In other words, the right to informational privacy—the right to limit disclosure of one’s information—appears to be at its zenith when dealing with information that might expose someone to stigmatization, discrimination, or some other concrete downstream harm.

As noted, in a world with continued misunderstanding and hostility towards trans people, there can be little doubt that outing of a person’s transgender status can lead to very real harms. The constitutional right to privacy restricts such outing.

*Parts of this post draw on articles of mine first appearing in Slate and Salon.

Posted by Scott Skinner-Thompson on July 14, 2016 at 11:20 AM in Constitutional thoughts, Gender, Law and Politics | Permalink | Comments (7)

As if on cue . . .

The ACLU and several other organizations have sued Baton Rouge, citing, among other events, the incident described in this story and this post. The requested TRO goes after several specific practices, including too readily declaring an assembly unlawful, arresting protesters for stepping into the street in the absence of any obstruction of traffic, and dispersing protesters off the sidewalks and into the street and then arresting them for being in the street. The suit also names the DA and seeks to enjoin continued prosecution of those previously arrested.

Note that there is no individual plaintiff named in the action. Plaintiffs are the local ACLU, local National Lawyers Guild, and three Louisiana advocacy groups.

Posted by Howard Wasserman on July 14, 2016 at 09:46 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, July 13, 2016

Violence and the future of public assembly

Since the Dallas shootings, I have been concerned about the possible effect on public protest. Local governments already cite vague concerns for public safety and risks of violence as grounds for restricting public assemblies, marches, and protests, and courts already accept those concerns too easily. An event such as the Dallas shooting makes those concerns more than abstract and allows government to argue for greater restrictions (if not for closing the streets entirely) with a "it-could-happen-here" argument. Reports of a link between a Baton Rouge burglary and a plot to shoot police (which the tiny conspiracy theorist in my brain finds a bit too convenient) have been used to justify police breaking up protests there.

See, then, this post from Michael Dorf, arguing that the threat of violence is unavoidably baked into the idea of public assembly and protest. This means government efforts to maintain order and safety, while legitimate, cannot be allowed to render hollow or meaningless the rights to assemble, speak, and petition. The balance to be struck must account for the risk inherent in the very nature of the First Amendment enterprise.

Posted by Howard Wasserman on July 13, 2016 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, July 12, 2016

Random free speech stories for a Tuesday

1) It is sad that an even-handed attempt to mourn police and victims of police violence--and thus to show that the problem affects all sides--nevertheless devolves among those who cannot accept the possibility that some police shootings are unjustified, that an antagonistic relationship between law enforcement and those they police cannot hold, or that police conduct is a legitimate subject of public discussion and protest.

2) If this story is even a bit true, I can hear the consent decree language ordering Baton Rouge to establish policies and training regarding "the right to criticize or complain about police conduct without being subject to retaliation" and "the right to engaged in lawful public protest." Part VIII offers a good start, as the same things keep coming up.

3) If Black Lives Matter is responsible for the "horrible" and "divisive" rhetoric of some protesters, then is Donald Trump responsible for the rhetoric of some of his supporters, not to mention himself? And will anyone point that out to Trump? Obviously, Trump is not responsible for his protesters' rhetoric. But then neither is BLM. And Trump cannot have it both ways.

4) The Republican Party apparently still believes it is 1986.

Posted by Howard Wasserman on July 12, 2016 at 02:06 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, July 07, 2016

Your first big news story

OK, here is a fun diversion for early July, started on Twitter:

What's the first major news story you can remember living through as a child?

(Note: This is not necessarily the same as "where were you when" or even the first story you could understand; it is the first story you remember hearing or knowing about, even in simplest terms):

For me, it was Nixon's resignation and the impeachment talk in the month-or-so leading to that.

 

Have at it in comments.

Posted by Howard Wasserman on July 7, 2016 at 09:20 AM in Howard Wasserman, Law and Politics | Permalink | Comments (30)

Thursday, June 30, 2016

Overview of ABF Research (Part III): Law & Globalization and Legal History

In this last post on ABF research, let me describe two parts of our research portfolio that reflect both our sense of the past and our transnational perspective on the present.  From its founding in the 1950s through today, the ABF has been focused on studying how law, legal institutions, and legal processes operate across place and time.  Our scholarship and programming on law & globalization and our work in legal history reflect these enduring commitments.

Let me start with a brief description of our research on law & globalization.

Law & Globalization

Globalization, to be sure, is not a new phenomenon, but it has taken on a greater sense of urgency in recent decades.  Like many academic and research organizations, the ABF has become increasingly interested in the causes and consequences of globalization and its relation to law.  For many years, we have had numerous international faculty members conducting research throughout the world. 

Most recently, our legal sociologists Terry Halliday and Sida Liu have been collaborating on a long-term project about Chinese criminal defense lawyers and their role in political mobilization.  As I’m sure many Prawf readers know the Chinese state in recent years has been intimidating and persecuting Chinese lawyers because of their political activism.  Terry and Sida have conducted hundreds of interviews with Chinese lawyers to learn more about how the everyday work of criminal defense lawyers has become a political project. Drawing on a long line of scholarship about lawyers and political liberalism (much of it written by Terry), their forthcoming book will one of the first to examine empirically how the seemingly ordinary work of criminal defense lawyers in China can have far reaching transnational political and social implications.  Although the book won’t be out for another year or so, this fascinating research has already garnered significant media attention across the globe.

Another area of ABF research on globalization focuses on comparative constitutions.  Our joint-appointee Tom Ginsburg (U. of Chicago Law & ABF) has been at the forefront of research about the origins and international diffusion of rights in national constitutions.  For many years, Tom and his collaborators have been collecting data on the countless constitutions that have been in existence since 1789 to the present (you can learn more about their Comparative Constitutions Project here).  This project has documented the important role of domestic political factors and country characteristics in understanding the development and diffusion of constitutional rights.

While Tom Ginsburg’s research focuses on the material aspects of the rule of law, one of our other colleagues working on globalization, Jothie Rajah, explores the more theoretical underpinnings of rule of law discourse.  Following up on her first book about rule of law in Singapore, Jothie’s latest project analyses the different ways in which global institutional actors (the UN, the World Bank, the International Commission of Jurists, the World Justice Project) define “rule of law.”  Through a close reading of the texts and practices of these institutions, Jothie analyzes the development of global norms and the efficacy of rule of law indicators.

ABF research on globalization also examines the diffusion of legal rules across nation-states.  Our joint-appointee Carol Heimer (ABF/Northwestern Sociology) is studying how laws, regulations and other rules are actually used in HIV research and treatment in the United States, Uganda, South Africa, and Thailand.  Her book project investigates what happens when laws, regulations, and guidelines, admittedly created with the best of intentions, are transported to new sites where they confront the realities of medical care, clinical research, and healthcare administration in developing countries.  Carol is currently finishing up a fellowship year at Stanford’s Center on Advanced Study in Behavioral Sciences, where she is completing her book manuscript.

Legal History

In addition to our work on Law & Globalization, the ABF has also had a long tradition of research on legal history, writ large.  Many years ago, the ABF had a Legal History Society of some kind that hosted regular events advancing scholarship in legal history.  Although the formal society doesn’t exist anymore, the ABF continues to play an important role in supporting and promoting legal history.  From our faculty members like Vicky Woeste, whose recent research focuses on hate speech (here’s a link to her latest book on Henry Ford and Hate Speech), to our regular Chicago-area seminar on legal history, to our recent support for a junior scholars conference on Law in Capitalism, the ABF remains committed to supporting innovative and influential research on how law and legal institutions have operated in the past, and on how these historical legacies continue to influence the present.

Indeed, our recent conference, which was co-hosted by the University of Chicago Law School, and supported by a consortium of schools and the American Society for Legal History, brought together a stellar group of junior scholars working at the intersection of law and the new histories of capitalism.  These advanced grad students and junior faculty members had a chance to share their work and receive feedback from senior scholars in the field.  We were delighted to host this group at our Chicago location, and we look forward to having more ABF events on legal history.

Like the other categories I’ve discussed earlier, these two ABF research streams are just examples of a much deeper body of scholarship.  To learn more about our research, please visit our website.

Now that I’ve given readers a sense of the type of empirical and interdisciplinary research the ABF conducts, perhaps in my last post (if I haven’t already over stayed my welcome as a guest blogger) I can address a couple of pragmatic issues about ABF funding and the role that legal academics play in both supporting and helping disseminate ABF research.

Posted by Ajay K. Mehrotra on June 30, 2016 at 06:37 PM in Books, Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (0)

Friday, June 24, 2016

Whole Women's Health

Three cases remain to be decided this term--Whole Woman's Health, McDonnell v. US, and Voisine v. US. Of these, only WWH seemed even remotely likely to be a 4-4 affirmance. The Court issued two 4-4 affirmances on Thursday, in DAPA and Dollar General. Can we conclude, therefore, that WWH is not going to be a 4-4 affirmance? Is there any reason the Court would issue two divided affirmances today but hold one out until next week?

If not a 4-4 split, the next likely result is a 5-3 opinion declaring the TRAP regulations unconstitutional, with Kennedy joining Ginsburg, Breyer, Sotomayor, and Kagan, and Kennedy assigning the opinion. If so, WWH will offer a nice counterpart to Fisher. As Steve pointed outFisher marks the first time Kennedy has declared valid a racial preference. WWH would mark the first time Kennedy has declared invalid a restriction on abortion since he co-authored the joined opinion in Casey.

Posted by Howard Wasserman on June 24, 2016 at 12:44 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 23, 2016

What now on DAPA?

Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.

Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can  convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).

[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.

Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.

[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.

Politically, I do not see this happening.  It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]

Posted by Howard Wasserman on June 23, 2016 at 02:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, June 21, 2016

O.J. and Rodney King

I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.

But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed,  that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.

 [*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.

It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**

[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.

Posted by Howard Wasserman on June 21, 2016 at 09:31 AM in Criminal Law, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, June 20, 2016

More on RJR Nabisco and extraterritoriality

Following on Andra's post on RJR Nabisco:

It makes no sense for a statute's private right of action not to be coextensive with the substantive law being applied. Ginsburg is correct that there should be a link, not separation, between prohibited activities and authorized remedies. At the very least, that should be the presumption, unless Congress provides otherwise in the cause of action itself. And a statute that says "[a]ny person injured in his business or property by reason of a violation" of some substantive law--where that substantive law has been (and, per Congress, can be) violated by that extraterritorial conduct--should allow for a claim for extraterritorial violation. By applying the presumption of extraterritoriality to the cause of action, the Court now requires Congress to draft the cause of action not only to link the right of action to the substantive law being enforced, but also to include language dealing with extraterritoriality. For example, I presume this case now means that, even if the Fourteenth Amendment applies extraterritorially, a § 1983 claim will not lie for such a violation, since nothing in the statute speaks to extraterritoriality (indeed, the purpose of that statute was bringing states into line within their own borders following the Civil War and has nothing to do with foreign conduct).

The culprit in this is Kiobel v. Royal Dutch Petroleum (2013), where the Court applied the presumption of extraterritoriality to the Alien Tort Statute, a purely jurisdictional provision. But the ATS is unique in that it grants not only adjudicative jurisdiction, but also prescriptive jurisdiction to create federal common law based on the law of nations as of 1789 and its analogues; the question in Kiobel was whether the grant of prescriptive jurisdiction could include common law applying extraterritorially. In other words, the courts were not only creating the right of action, they also were creating the law that "directly regulate[s] conduct or afford[s] relief." The end result in Kiobel is that the substantive common law the courts could create did not reach extraterritorial conduct (because Congress did not grant the courts the power to establish such common law), so neither could the court-created right of action.

Under RICO, however, the law regulating conduct does apply to extraterritorial conduct, per Congress. The right of action should, as well.

Posted by Howard Wasserman on June 20, 2016 at 05:16 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Veep, S5E9

We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.

For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.

The show went with Ericsson's plan, hinted at the end of last season--the final House vote is O'Brien 25, Meyer 22, 3 abstentions (Missouri, Vermont, and a third state we never saw). The Speaker adjourns the House. And the implication is that the Senate will elect James as VP and he will become President next week, because "a President shall not have been chosen."

Selina made one Hail Mary, trying to get Jonah to switch New Hampshire's vote to O'Brien. If O'Brien won, she could run against him in four years, but if James won, she would have to wait eight years, at which point she would be too old. Unfortunately, Jonah did not get the word in time (he was late for the vote because he spent the night with a high school senior/congressional groupie, then could not find the House chamber). After the session ends, he tries to change his vote, announcing "The Gentleman from New Hampshire puts forth on the floor a do-over."

So how did the show do on the Constitution and the electoral process? Not well--yes, I know it is a TV show and a great one; it just does not pass the Con Law exam).

• They got the dates wrong. The House election is taking place on January 3d and we see a flashback to Jonah's swearing in the day before (right before hooking up with the groupie). But under § 2 of the Twentieth Amendment, the new House convenes on January 3. And under 3 U.S.C. § 15, the House does not open and count the Electoral College votes until 1 p.m. on January 6. And the House cannot hold an election until it actually counts the electoral votes and determines that there is, in fact, a tie (what if there had been that faithless elector?).

• I am trying to figure out why three was the magic number of abstentions for denying a majority. There does not seem anything significant about that number. Also, no states had evenly divided delegations, which seems unlikely as a practical matter, given the number of states with even-numbered House caucuses (including New Hampshire, more on that below).

• On that point: I cannot find the answer to this question and do not feel like researching it at midnight: Are abstentions treated the same as divided caucuses? Or is divided caucus a vote for neither candidate, while an abstention is a non-vote? And does the Twelfth Amendment require a majority of all states or all states that case votes, with abstentions being non-votes that reduce the denominator? History is ambiguous. In 1800, all the representatives in Delaware (1) and South Carolina (4) abstained on the 36th ballot. Jefferson already had won 10 states, so he had the election anyway. But it is not clear whether his majority was out of 16 (total states) or 14 (states casting votes, since Delaware and South Carolina abstained because each of their members abstained)? Were the abstentions from those two states the same as, say, Maryland's earlier non-committal vote when the caucus split between Burr and Jefferson?

In the Veep-iverse, this matters for two reasons. If they are the same, James did not have to necessarily plot to get states to abstain, he could have just counted the votes and seen that there were a sufficient number of evenly divided even-numbered caucuses. If they are different, then O'Brien won the election, because the three abstention reduce the denominator to 47 (states voting), so O'Brien's 25 votes constituted a majority of that.

[Update: A participant in the Con Law Prof listserv offers the right way of looking at this: If every member of the caucus abstains, then the vote from the state is 0-0-X; this is an evenly divided caucus, just as much as a 1-1-1 caucus would be. So there are no non-votes, which means the denominator must be 50. But then we go back to James not needing states to abstain, but simply be divided, whether through true division or through strategic abstentions by individual members in a state that create a tie (we thought that is what he was doing two weeks ago in getting the seventh member of Colorado's caucus to abstain, producing a 3-3-1 division). So the show seems to err again, confusing abstentions by states with abstention by individual members that tilt the balance one way or another.]

• The House adjourns with no announcement or plans for another vote. Of course, in 1801 the House immediately dove into additional votes over the course of that day and the following days and weeks. Catherine's movie catches a snippet of a conversation in which Selina and one of her staffers mention that James likely got the Speaker to agree not to hold additional votes once the first produced no winner. But would the members of the House, especially those who support O'Brien (and thus are politically opposed to James), tolerate that? Would the public? Yes, James is popular and competent. But it seems too pat.

• Jonah, of course, makes a fool of himself. But the problem of placing him in New Hampshire arose again. New Hampshire has two representatives, so Jonah does not exclusively control the caucus vote. New Hampshire only voted for Meyer because the other New Hampshire representative also voted for Meyer.  So, again, Jonah was not necessary. More importantly, Jonah could not unilaterally switch the state's vote; switching his vote, assuming his colleague did not switch (and Jonah never had a chance to talk to him), would only render New Hampshire a split caucus going for no one, denying both candidates the possibility of a majority (unless abstentions do not count as votes).

• The show got its numbers wrong, at least for purposes of season-long consistency. The idea was that Jonah would cast the vote that would give Selina New Hampshire and the presidency. Put aside that NH could not play that role. It only works if NH would be the 26th state for Meyer. But the final vote with NH going for Selina, was 25-22-3. Even if all three abstentions would have been Meyer states, that still would not produce a victory for her.

• The show is setting up a Tom James presidency, continuing to ignore that James is not becoming President, he is only becoming acting President. Put differently, he does not hold the office of President, he only exercises those powers. The 22d Amendment expressly draws that distinction, as does the presidential succession statute. Even if it lasts four years, he still only acts as president during a period in which no President has been chosen. Neither the Constitution nor § 19 places a limit on the period in which someone can act as president or a limit on how long the period of non-qualification can last.

What the Speaker is allowing to happen is inconsistent with the purpose of the Twelfth Amendment. The amendment was motivated, in part, by the risk of "inversion," in which a party's preferred candidate for Vice President would win the House election and become President, against the preferences of the party and perhaps the public. The Federalists who voted for Burr did so because they hated Jefferson, but also because they knew it would mess with the Democratic-Republican plans to have Jefferson as President and Burr as VP. The Speaker is allowing the very inversion the amendment was designed to prohibit. Again, because James is so popular and so competent, the public in the Veep-iverse is okay with it, as he will get things done. Thinking about it, however, it starts to sound like a coup--the VP is conspiring with the Speaker to prevent a vote for the presidency, allowing him to exercise those powers for an entire four-year term. I think there would be strong opposition. And I also would expect both Meyer and O'Brien to lobby House members from their respective parties to force a vote--perhaps on bipartisan threat of removing the Speaker if he does not continue holding elections. Again, too pat.

Since the show is coming back for another season, it must be setting up what it hinted at in last season's finale--James nominating Meyer as his vice president, so next season she will be back where she started--doing nothing and waiting for the President to call.  Too bad that is a constitutional impossibility.

• And now for the big mistake (ed: Maybe). Selina explains to Amy her plan to have Jonah switch so she could run against O'Brien in four years, whereas if James is made (acting) President, he would serve for eight years. Amy corrects her--"Twelve, ma'am. Tom's first term won't count because technically he'll be an elevated Vice President." My initial reaction was this is unforgivably wrong and I cannot believe they missed that badly, even if only as a piece of exposition. The Twenty-second Amendment makes clear that someone who has acted as president for more than two years of someone else's term can only be elected President once. Since James will act as president  for four years (we presume, because the Speaker is blocking a vote), he could be elected once for four more years, but not a second time.

But then someone pointed out that the 22d Amendment says "held the office of President, or acted as President, for more than two years of a term to which some other person was elected President." (emphasis mine). The argument is that James is not acting in a term to which someone else was elected; he is acting because no one was elected. Textually that seems right. And it cannot be excused as drafting for an unforeseen situation, since the 12th and 20th Amendments both contemplated a VP acting as president for some period of time if the House failed to elect a President. So if they intended to include that in the 10-year limit, the drafters of the 22d should have accounted for that. Amy's exposition ("he'll be an elevated Vice President") is still wrong, but the substance is right.

But this reading is so inconsistent with the purpose of all three amendments related to a House election and presidential succession that it cannot be right. The 22d was intended to limit the number of years anyone can exercise executive power. And it would incentivize the very manipulations we see here, both in the Electoral College and in any House contingency election. And those incentives would not be limited to the VP-elect. If the House cannot pick a President and the Senate cannot pick a VP, the Speaker would act as president under § 19(a). So imagine the plots that could be hatched.

• The process the show followed for the House election is interesting. One member from each state, in alphabetical order, cast the entire state's vote publicly, presumably with individual votes having been taken in secret and within each caucus. In both 1800 and 1824, however, individual votes were recorded and each state's ballot was written and sealed. The procedures for the House vote are left to the House and changeable for each election, so nothing is set in stone. Lawrence Tribe wrote a nice essay on the process prior to the 1980 election, when it seemed possible that independent John Anderson might win some electoral votes, perhaps enough to deprive Reagan or Carter of a majority and throw the election into the House (spoiler: He didn't).

Posted by Howard Wasserman on June 20, 2016 at 08:19 AM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, June 09, 2016

Law, Psychology, and Impartiality

Donald Trump's suggestion that Judge Curiel should recuse himself seemed obviously wrong to me (and apparently to his own lawyers, who, as Neal Goldfarb pointed out in response to my prior post, did not even bother to raise the issue by motion). But today's Supreme Court decision in Williams v. Pennsylvania  raises all the difficult questions that the Trump University lawsuit does not about when disqualification is required because a judge's "impartiality might reasonably be questioned." Richard Re also has more here at SCOTUSBlog.

On the face of it, the main questions are fairly straightforward. The District Attorney who personally approved the decision to seek the death penalty in Williams' case was later elected to be Chief Justice of the Pennsylvania Supreme Court. Decades after the original conviction, he was part of a panel that ruled against Williams' subsequent habeas petition. The Pennsylvania Code of Judicial Conduct--based on the ABA's Model Code--forbids judges from acting in a case where they  "served as a lawyer in the matter in controversy, or w[ere] associated with a lawyer who participated substantially as a lawyer in the matter during such association." Chief Justice Castille participated in the Pennsylvania Supreme Court's ruling shortly before his retirement. After his retirement, the Court considered--and rejected--a motion for rehearing. 

The first question before the Court was whether the violation of this rule would amount to a violation of constitutional due process. The Court, in an opinion authored by Justice Kennedy, held that it did: "Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level."

The second question that the Court had to decide was whether the judge's participation in the Pennsylvania Supreme Court decision amounted to harmless error, given that the ruling was unanimously decided by a multi-member court. This, to me, is a much more difficult question. The Court held that harmless-error review was not appropriate, as the disqualified judge could have influenced the other members of the panel, and " it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process."

Chief Justice Roberts, joined by Justice Alito, wrote a dissenting opinion arguing that due process does not require recusal when the petition does not allege that the judge had  "any previous knowledge of the contested facts at issue in the habeas petition, or that he had previously made any decision on the questions raised by that petition." (emphasis in original).

Justice Thomas also wrote a dissenting opinion. He pointed out that the due process requirements of criminal proceedings are and should be different that those required by later habeas proceedings (a form of civil action), and argued in favor of greater deference to the relevant rules and legislative enactments. He also pointed out that the Pennsylvania Supreme Court's earlier decision to deny rehearing in the case--a decision made after Chief Justice Castille had retired from the court--might have "cured" the alleged due process violation.

So what, in my mind, makes this case so hard? Some of it involves law, politics, and difficult recusal issues.

(1) The Commonwealth argued that it was unreasonable to think that Castille would be biased given the amount of time that had gone by and given his relatively limited participation in the case. The murder at issue occurred in 1986, and the Pennsylvania Supreme court decision was issued in 2014. And although Castille had to personally sign off on the decision to seek the death penalty, the Commonwealth's brief called that an "administrative act," as Castille would have deferred to the prosecutors who worked up the case. But, as Justice Kennedy points out in the Supreme Court's opinion, this characterization of Castille's role is at odds with how he portrayed his role as district attorney when he ran for judge, as "multiple news outlets reported his statement that he 'sent 45 people to death rows' as district attorney." Perhaps this was mere campaign puffing, but it is hard for the state to walk back Justice Castille's involvement at this point. I am also personally troubled that the death penalty has become so politicized that these decisions have become effective fodder for judicial campaigns.

(2) The Supreme Court's decision points to the possibility of unconscious bias, a topic very deftly argued in an amicus brief by Yale's Ethics Bureau (and spearheaded by Lawrence Fox). But if the Court takes seriously the risk that a judge, in the Court's words,  "would consciously or unconsciously avoid the appearance of having erred or changed position" taken as a prosecutor, than isn't that doubly true of the current justices on the Pennsylvania Supreme Court? If we believe that Chief Justice Castille could have tainted the panel's decisionmaking, then wouldn't we expect the remaining judges on the Pennsylvania Supreme Court to be subject to the same unconscious bias hindering a change of position? One of my favorite social science articles suggests that people are very bad at identifying their own biases--and, in fact, that further reflection upon possible biases only makes people believe even more strongly that their views are neutral and unbiased--even when the evidence would suggest otherwise.  See Cynthia McPherson Frantz, I AM Being Fair: The Bias Blind Spot as a Stumbling Block to Seeing Both Sides, 28 BASIC & APPLIED SOC. PSYCHOL. 157 (2006)

(3) The underlying facts of the case are especially tragic, and show how various factors (including social stigma, overworked defense lawyers, and overly zealous prosecutors) can combine to create a miscarriage of justice. Williams, the defendant, was subjected to sexual abuse between the ages of 13 and 17. He later committed two murders--one at age 17 and one at age 18--and there was substantial evidence that both of the men he murdered were among those who had raped him. More importantly, the prosecutor's office knew that history, according to later-released notes stating that Williams' "relationship" to the two victims was "substantially similar." Williams' first attorney used that information as mitigation evidence in the trial for the first murder, and the jury returned a verdict of third-degree murder. In the trial for the second murder, however, Williams had new counsel and seemingly did not tell his attorney of this history. Perhaps a better attorney would have done a more careful job with the client interview and drawn out that information; certainly a better attorney would have examined the earlier proceedings. But for whatever reason, Williams' second attorney did not, and Williams himself testified falsely at trial that he had no earlier connection with the murder victim. All of this led to issues in the later habeas proceedings, including whether the defense attorney provided ineffective assistance of counsel and whether the prosecutor committed a Brady violation by failing to turn over evidence of the prior sexual abuse. Justice Thomas notes, in footnote 2 of his dissent, that it's an interesting question whether "a prosecutor could violate Brady by failing to disclose information to the defendant about the defendant’s motive to kill." Clearly, Williams knew of the prior abuse. But the stigma surrounding that abuse--particularly in the 1980s--may have hindered his willingness to raise the issue even when faced with a potential death penalty. But untangling the web of responsibility here is a difficult one: Williams admittedly committed perjury in the second proceeding; his attorney, at a minimum, did a bad job investigating the facts of the case; and the prosecutor knew of relevant mitigating evidence that defense counsel did not.

(4) Finally, I have to note one of the most offensive items from the briefing in the case. The Commonwealth's brief to the Supreme Court, at page 10, gratuitously  goes out of its way to describe Williams as "a double murderer who had sex with men for money." Given that he was between the ages of 13 and 17, Williams was below the age of consent for the majority of the time period at issue. Not only is this statement offensive (as has been repeatedly noted, "Sex without consent isn’t sex. It’s rape."), it is also terrible advocacy. Point out Williams' responsibility to testify honestly; point out that sexual abuse does not justify murder. But disparaging a child as young as thirteen for his own rape only perpetuates the stigma associated with sexual abuse and trafficking and stops other victims from coming forward before the tragedy cascades further. 

Posted by Cassandra Burke Robertson on June 9, 2016 at 04:19 PM in Judicial Process, Law and Politics | Permalink | Comments (3)

Permanent injunctions and no mootness in marriage equality litigation

I missed this yesterday, but Judge Granade entered a permanent injunction in Strawser v. Strange. She rejected the state's argument that the case was moot in light of Obergefell, pointing to the suspended Roy Moore and the Supreme Court of Alabama's refusal to vacate its March 2015 Mandamus and that court's continued criticism of Obergefell as demonstrating that the state officials cannot show that enforcement of the marriage ban is certain not to occur. That the court (including whoever is Chief and serving as the administrative supervisor of the state judiciary ) is especially salient in Alabama, where judicial-branch officials are charged with issuing marriage licenses.

Judge Granade's order follows on the heels (and relies on) a similar permanent injunction in Brenner v. Scott in Florida back in March (sorry to have missed it at the time). The court in Brenner was even more dismissive of the state's mootness arguments. The court pointed to the state's refusal to immediately comply with earlier orders, the legislature's failure to repeal or amend the ban on same-sex marriages and other laws affected by that ban, and requests of state officials to "clarify" the scope of the injunction on other issues that turn on recognition of same-sex marriage. For example, the State Surgeon General asked for clarification whether, under Obergefell and the injunction, they must identify a female non-biological parent on a birth certificate, even though the document says "father;" the judge insisted the answer should be easy (same-sex couples must be treated the same as opposite couples in all respects) and the request itself showed that the defendants have not "unambiguously terminated their illegal practices." These courts join the Eighth Circuit in rejecting the argument that officials' agreement to comply with Obergefell, without more, moots unrelated cases involving different parties and different laws.

There is a procedural morass here that makes this a lot more complicated and that I need to think through further.

On the one hand, SCOTUS precedent should not moot an unrelated case, given the general rule that voluntary cessation does not moot and especially given my departmentalist model in which state officials have no constitutional obligation to follow SCOTUS (or any other) precedent outside of a judgment against them as to particular parties. That keeps the controversy alive, since every new request for a license is a new controversy beyond the scope of any existing court order. That state officials are not rushing to apply Obergefell to new settings is a product of Obergefell not extending that far.

On the other hand, the limited scope of most injunctions (including the injunction in Brenner, although not Strawser, given the class certification) should make a permanent injunction inappropriate once the named plaintiffs received their marriage licenses on the strength of the preliminary injunction. The plaintiffs got what they wanted and the defendants gave the plaintiffs what they were entitled to, so there is nothing more for the court order to do as to these parties. Everything else is for further state compliance with respect to people and issues not before the court and, if necessary, further litigation and a new injunction involving those new parties and new issues. For example, Brenner recognized that the birth-certificate issue is "not well presented in this case," since none of the plaintiffs seeks a birth certificate; there are two separate lawsuits by unrelated parties against the Surgeon General for refusal to issue such certificates. And if those statutes are constitutionally invalid (as they assuredly are under Obergefell), then state officials will be enjoined from enforcing those laws as to those plaintiffs. But that should not provide a basis for the type of free-standing injunction against taking any "steps to enforce or apply" Florida's prohibition on same-sex marriage, unconnected to context or party, in a case in which the plaintiffs only sought marriage licenses.

Finally, an interesting side note: I found the Strawser order on the website for Americans United for Separate of Church and States, which is undertaking representation of couples seeking marriage licenses in Alabama (and presumably elsewhere), since the refusals are now grounded in officials' religious objections to performing this function. It is interesting how the constitutional valance of marriage equality, and thus of the advocacy groups involved, has shifted.

Posted by Howard Wasserman on June 9, 2016 at 09:35 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, June 08, 2016

Stern on liberals, sexual violence, and the justice system

I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his  light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases,  the right to confront witnesses, and general abandonment of due process in campus sexual assault.

To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.

Posted by Howard Wasserman on June 8, 2016 at 04:38 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (7)