Sunday, November 13, 2016
ULL suspends four players for caring about the election
I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.
But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.
If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity. So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.
We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.
This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.
Saturday, November 12, 2016
A post-election thought on athlete speech
This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.
But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.
Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.
The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.
Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.
Wednesday, November 09, 2016
The Divided States of America
The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues. This presidential election provided empirical evidence of how divided we remain as a nation. We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female. Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it. In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people." These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division." In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead." Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."
It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X." Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections. But we must do even more than that. Lawyers are fundamentally society's problem solvers. And we have a problem of disunity. We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur. Because I write on Fair Housing, making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society. Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country. Therefore, we have to unite these Divided States.
It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect. Let's take a deep breath, roll up our collective sleeves, and get to work.
Tuesday, November 08, 2016
Law School Election Night Blogs
This year at least three law schools are holding Election Night events to watch returns come in and provide election law commentary. I'm currently with 10-12 members of the UK Election Law Society, and students are blogging here (after I approve the posts). William & Mary law students are blogging here. And Ohio State's Election Law @ Moritz students and faculty are providing insights here.
These events are a great way to engage students in election law issues while also providing important commentary to the community. I'm proud that a few years ago some students formed the UK Election Law Society on their own, and the event tonight is largely student-driven. Please hop on over to the website throughout the evening!
Lawsuits on Keeping Polls Open Late
One story of election law tonight will be requests to courts to keep the polls open late because of some mishap today. We already have one lawsuit filed in Durham, NC, and another one is brewing in Colorado. I've written an Op-Ed for CNN suggesting that courts, in general, should grant these requests. Here is the intro:
Yet more support for cameras in the courtroom
Tuesday's hearing in the Trump Campaign's absurd lawsuit in Clark County, NV, was livestreamed. So everyone got to see (or go back to watch), in real time and with their own eyes, an unprepared and ill-informed lawyer and a knowledgeable judge who was, quite properly, having none of it (and likely more than a little aware that the purpose of the suit was not any sort of legal relief, but to set-up the "rigged" narrative for this evening).
New RegBlog Essay: "Expanding the Right to Vote"
Looking for some mid-Election Day reading? RegBlog at the University of Pennsylvania Law School has just published my essay, Expanding the Right to Vote. Here is the intro:
A common storyline on voting rights is that conservative legislatures, like those in North Carolina, Texas, and Wisconsin, are attempting to pass strict laws that make it harder for some people to vote—all in the name of curbing so-called “voter fraud.” Yet in the face of these unfortunate new rules, a positive trend is developing in other places: states are enfranchising more people and making voting easier. As voters head to the polls today, we should take note of and learn from these successes so that we can replicate them nationwide, extending them far beyond Election Day 2016.
From expanding the electorate, to adopting online voter registration or automatic voter registration, to making the voting process itself easier and more convenient, states and localities are actively engaged in democracy-enhancing efforts.
Read the whole thing here.
Monday, November 07, 2016
Mickey Mouse for President? The Law of Write-In Voting
Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin). But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog). Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state. It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out). There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)).
Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).
In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).
People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).
All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech. The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day. This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced. If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates. If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.
Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow.
Happy Voting, everyone!
Weak parties, strong partisanship
This Ezra Klein piece is instinctively appealing--our system has weak parties that are unable to control who is nominated (because of the relatively modern prevalence of primary elections) combined with polarization of the parties combined with strong partisanship such that most supporters and leaders of one party will fall in line with the party nominee, whoever she/he is. Klein argues that this explains how Trump, for all his beyond-the-pale craziness, is as close as he is to the presidency. Klein closes with the following:
But if he loses, it will be because he is a crude, undisciplined demagogue. The world also produces clever, disciplined demagogues. And they are the ones who truly threaten republics.
It helps that parties are not built into the federal constitutional system and may have been a somewhat unexpected development. That the Constitution itself does not speak to, or control, this practical feature of the political system means it is free to develop on its own, perhaps in a way that undermines the constitutional structure.
How Would a Disputed Presidential Election Proceed?
It is the scenario virtually no one wants to face: a presidential election that goes into overtime. Yet over the past week I have received a steady stream of questions on how a post-election dispute would proceed. Each of the fifty states has its own, detailed procedure for resolving an election contest over its presidential electors (or any other election).
As I write in a new piece for CNN:
As polls tighten and Donald Trump has cast doubt on the reliability of the election system, talk inevitably has turned to whether we might be in for another postelection dispute.
Sunday, November 06, 2016
How Voter Intimidation, in a State with a Strict Voter ID Law (Texas), Happens on the Ground
A Facebook post from a woman in College Station, Texas is going viral regarding her experiences voting under Texas's strict voter ID law. Earlier this year a federal court expanded the law to allow voters who show a "reasonable impediment" to having the required ID fill out an affidavit and then vote. Here is how this person described her experience invoking that rule:
As I’m writing this down, what happened doesn’t sound as bad as it felt at the time; but I felt threatened and I still feel very upset and I want to share my story. This morning, I excitedly took the bus to my university polling center to cast my vote. I was armed with my Utah driver’s license, ready to sign a declaration stating my reasons for not having a Texas ID. I was met by a kind older woman, who asked to see my ID, and then asked to see my supporting document (my utility bill). In comes our guy, let’s call him Jim, “Excuse me, you must have an acceptable photo ID.” I explained that I looked up the rules, and that I brought with me two forms of ID. Jim, “Do you have a passport?” I said I did not. Jim, “Well why not? Are you registered to vote in this county?” Yes, sir, I am. Jim, “Well if you were able to register to vote you should have one of the acceptable forms.” He was being extremely rude and physically in my face. Unfortunately, as a minority female, it’s not the first time an older white man has attempted to patronize or intimidate me. The girl behind me leaned forward and whispered, “He did the same thing to me yesterday, and wouldn’t let me vote.” I decided to just be nice about it and say, “Jim, I’m just here to vote. Please don’t make me cry,” because at this point the adrenaline was flowing a bit and I was on the verge of tears. “Well you’ll need to sign an affidavit.” As he walked me over to the table of forms, he felt the need to say, “You know there’s lot of people are coming in here trying to vote illegally… a federal judge made an exception for this election allowing some people to vote…” And I was so upset at this point, I said, “I’m sorry sir, but I don’t really need to hear your opinions this morning. I just need your help voting.” How many people have been intimidated by this guy, and left without voting? I almost left in tears and if I do say so myself, I’m not easily intimidated. He stood over my shoulder and watched me check the boxes “work schedule” and “family responsibilities” because the man doesn’t know me, he doesn’t know my life, and it’s not up to him to decide who gets to vote. His job is to give me the form and watch me sign it. Then I voted. I got my sticker. Then I turned around and said, “What was your name again?” He said, “Jim.” I said, “No, your full name.” He looked surprised and told me his full name. He knows I’m filing a complaint and so does everyone in that room. The woman behind the desk winked at me.
Those who follow politics may be tempted to think that because I live in Texas, which is not a toss-up state, a few voters turned away by this guy won’t make a big difference. I think it makes a huge difference. Whether it’s because I’m a woman, because I’m brown, because I’ve never needed a passport because I don’t have the money to travel, because I haven’t found the time to get a Texas DL (because, you know, I’m only a wife, mother, and graduate student) or just because I’m from Oregon and not Texas, my vote counts. And like it or not, Texas is getting browner. And one day some people might wake up to find themselves in a new political climate of all kinds of diversity. That’s the America I believe in.
For reference: If you do not possess a form of acceptable photo identification and you cannot obtain one due to a reasonable impediment, you may present one of the supporting forms of identification and execute a Reasonable Impediment Declaration. “Your reason may not be questioned.” www.votetexas.gov
Yes, this stuff actually matters on the ground to individual voters.
Friday, November 04, 2016
Upstream, downstream, and dry markets
Paul's post on ballot-selfie laws offers a good framework and illustration of what states are trying to accomplish with these prohibitions. And, as he argues, the justifications are real. But Paul's explanation reveals why First Amendment challenges are succeeding--the laws are based on a "dry-the-market" rationale, prohibiting expressive behavior to eliminate undesirable upstream or downstream behavior leading to or following from the speech. So as Paul explains it: Prohibiting photographs of the completed ballot dries the market for those who might attempt to coerce people to vote a certain way and to demand proof that they did so--if the voter cannot take the photo, then no one can demand photographic proof, while the option to photograph makes it possible to demand that proof.
But courts are generally hostile to dry-the-market laws, at least when regulating categories of protected speech. So, for example, the Court refused to allow punishment of the production and sale of dog-fighting videos in order to dry the downstream market for such videos and thus dry the upstream market for the depicted behavior. Similarly, the Court refused to punish publication of a a recording lawfully obtained by a publisher to deter unlawful interception upstream. So here, the courts will say that government can and should prohibit downstream coercion and demands for proof of votes, but it cannot prohibit the upstream expression of taking the photo.
Locker room talk
One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including around high-level college basketball coaches and players, in the '80s and '90s (a considerably less-enlightened time); I never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.
All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).
Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.
[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.
Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.
Thursday, November 03, 2016
Eamus catuli 000000
Of course, I am most happy because of what it (hopefully) portends for the presidential election connection--National League winner means Democratic president. So maybe I can stop panicking about that. (Of course, two of the times it has not held since World War II were 1992 and 1996, when an AL team won the Series but a Democrat named Clinton won the presidency). We will see in less than a week.
Meanwhile, I am going to celebrate and order some World Champions stuff.
How I Voted in Washington State
Every election, we hear stories about the crazy complications facing both voters and election administrators. Long lines. Voter intimidation. Poll-worker confusion. Ballot selfies. Here’s a story that’s much less exciting. It’s the story of how I voted in Washington State.
Around October 24, I received my ballot in the mail. It’s like an absentee ballot. But I didn’t receive this ballot because I had requested one; to the contrary, vote-by-mail is the default here in Washington. My own voting process began with a hunt for that most precious of spaces in my home (that is, a space prominent enough to be helpful, but sufficiently out-of-the-way for the kids not to have commandeered it), where I set the ballot aside until I had an evening free. Then, with a touch of dramatic flair, I spread my tools of democracy across the dining room table—my ballot, my voting guide, my laptop, and my chocolate—and I filled out the ballot as best I could, making notes on where I needed more information. (People voting in similarly initiative-happy states will understand.) Over the next few days, I took the time I needed to gather the missing information—including through civic-minded discussion with family and friends—and eventually completed the ballot. I signed it, sealed it, and by the end of last week, found a stamp for it and put it in the mail. That was the end of the matter until yesterday, when I decided to confirm that everything was fine. To that end, I Googled “confirm vote received washington state.” This slapdash search brought me to a website where I was able to type in my basic information and immediately receive an update on my ballot. Here’s the message I received:
- We have received your ballot, your signature has been verified, and your ballot will be counted.
- Thank you for voting.
You’re welcome! All done, so pleasant and straightforward, a week before the election. I encountered no lines, no intimidation, no poll-worker confusion, and no selfies. (Notwithstanding the fact that our Secretary of State has assured us that, in Washington, ballot selfies are “not directly prohibited.”)
Are there potential problems with voting in this way? Of course; no system is perfect. Whenever a jurisdiction creates the possibility that its voters won’t vote in private (i.e., whenever voting isn’t necessarily done in secret), there’s an increased chance of both vote buying and vote coercion. (To understand why, imagine what you’d need in order to effectively buy or coerce a vote. At the top of the list: some way of verifying that your co-conspirators/victims actually voted the way you wanted them to.) Moreover, while voter fraud is exceedingly rare in this country, the voter fraud that does exist is more likely to occur via absentee ballot than by in-person voting. So all else being equal, mail-in states would seem to have an increased susceptibility to fraudulent voting. An additional problem with mail-in ballots relates to voters (for example, people who are homeless) who have difficulty voting by mail—though this is less of a structural concern, given that there are ways for a mail-in jurisdiction to accommodate such individuals. The more intractable issues relate to the potential for voter fraud, vote coercion, and vote buying.
Yet Washington State does not suffer from widespread problems relating to fraud, coercion, or vote buying. (Before anyone posts a link purporting to contradict this assertion, please confirm that the link in question directs to a reliable source actually supporting a different conclusion; there’s a lot of misdirection out there.) And what Washington definitely does not suffer from is all the problems associated with trying to get millions of people to go to the same limited number of locations to do the same thing at more-or-less the same time—i.e., all the problems associated with in-person voting. From my perspective, mail-in ballots are great for voters. Unless or until I learn that the problems theoretically associated with this form of voting (including the aforementioned buying, coercing, and defrauding) actually materialize, I will continue to support the practice, and be grateful that my state has adopted it.
Wednesday, November 02, 2016
"Protecting the Right to Vote in Missouri"
All 50 state constitutions explicitly confer the right to vote. This is in contrast to the U.S. Constitution, which protects the right to vote merely implicitly through the Equal Protection Clause as well as through passive language in various amendments ("The right of citizens of the United States to vote shall not be denied or abridged..."). Moreover, in Article I, Section 2 and the Seventeenth Amendment, the U.S. Constitution contemplates that federal voter qualifications are subject to state control, saying that those who may vote for Congress are those who may vote for the state legislature (subject, of course, to the constitutional floor within the various voting amendments). Thus, our constitutional structure recognizes a broad role for states to determine the scope of the constitutional right to vote.
Understanding this broader state constitutional grant of voting rights, several state supreme courts, including the Missouri Supreme Court in 2006, have held that strict voter ID laws infringe on that right by, in essence, adding an additional "qualification" to vote that goes beyond what the state constitution allows. Given that the U.S. Supreme Court refused to strike down Indiana's voter ID law under the Equal Protection Clause in Crawford v. Marion County Election Board in 2008, this state constitutional protection is significant.
But Missouri voters will decide next week whether to overrule this precedent and amend the state constitution to allow the legislature to adopt a restrictive voter ID requirement. This is a bad idea, and voters should reject Amendment 6. I explain why in a new Op-Ed for the St. Louis Post-Dispatch:
As the nation debates so-called election rigging and voter fraud, one bright spot in our democracy is the robust protection for the right to vote in the Missouri Constitution.
Missouri was among the first states on the right side of history in the debate over voter ID laws. In 2006, the Missouri Supreme Court ruled that the state constitution vigorously protects the right to vote and that the state’s photo ID law infringed that fundamental right.
Yet this year Missouri will decide whether to amend the state constitution to allow voter ID requirements. Voters in Missouri, and elsewhere, should continue to allow the state constitution to provide robust protection for voting rights and reject Amendment 6, the proposed state constitutional amendment that would denigrate the right to vote.
By amending the state constitution, then, Missouri would be courting significant harms. It would disenfranchise valid voters for no good reason. It would turn back 10 years of admirable jurisprudence on robust protection for the right to vote under the state constitution. It would invite additional federal court litigation on the potential discriminatory aspect of the new rule. And it would — dangerously — greatly weaken a recognized fundamental right within the state constitution.
Missouri elections do not suffer from in-person voter fraud — the only kind of fraud that a photo ID provision would prevent. Missouri elections do, however, enjoy a positive attribute: a state constitution that vigorously protects the right to vote and a state Supreme Court that recognizes the significance of this state constitutional safeguard. Amending the state constitution to overrule this precedent will only harm the state’s elections.
If there has been a positive story of the right to vote over the past several years, it is that state courts, at least in some places, have gone beyond the U.S. Constitution to protect the right to vote under state constitutions. We should continue that tradition.
But first, let me take a ballot selfie!
Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.
Purported Risk of "Vote Buying" Schemes
Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote. I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless). Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.
Freedom of Speech (er... Freedom to Snap & Post)
Even if there is a remote possibility that such photographs could be part of nefarious vote-purchasing schemes, ballot selfie bans also raise serious free-speech issues, and upon examination, federal courts in two jurisdictions have already declared such bans unconstitutional. An Indiana law that banned ballot selfies was struck down last year when Federal Judge Sarah Evans Barker of the state's Southern District found that the law could not survive strict scrutiny because the state "entirely failed to identify any such problem in Indiana relating to or evidencing vote buying, voter fraud, voter coercion, involuntary ballot disclosures, or an existing threat to the integrity of the electoral process" (Indiana Civil Liberties Union v. Indiana Sec'y of State, 2015 WL 12030168). On September 28, 2016, the 1st Circuit ruled that a similar ban in New Hampshire also impermissibly impinged on freedom of speech. The 1st Circuit went so far as to call ballot selfie bans “antithetical to democratic values.” (Rideout v. Gardner, 2016 WL 5403593).
On Friday (October 28, 2016), the 6th Circuit bucked the trend by reversing the district court-issued injunction that prevented the enforcement of Michigan’s ballot selfie ban with respect to the coming election. (Crookston v. Johnson, 2016 WL 6311623.) Judge Jeffrey Sutton, writing for a divided court, held that although the “interesting First Amendment issues” would eventually be adjudicated, for the purposes of November 8th, the Michigan ban on ballot selfies would stand. The Michigan ballot selfie ban operates to disqualify a ballot that has been photographed. The plaintiff in this case, Joel Crookston, actually had his vote invalidated in 2012 after he snapped and posted a photo of his completed ballot. The majority of the 6th Circuit seemed insufficiently concerned that Crookston’s free speech would be impermissibly curtailed in the coming week by virtue of a ballot selfie ban. “A picture may be worth a thousand words,” wrote the court, “but social media users can (and do) post thousands of words about whom they vote for and why.” Although admitting that “lingering issues remain” with respect to the First Amendment effects of the selfie ban, the 6th Circuit concluded that “there will be time for due deliberation” after the election.
Chief Judge Cole dissented, holding that because the penalty for taking and posting a ballot selfie was nullification of the vote, the majority had effectively caused voters to choose “between their freedom of expression and their right to vote.” Cole explained that restrictions on speech must serve a significant government interest and be narrowly tailored, and the Michigan ballot selfie ban fails to meet either requirement. Judge Cole was not convinced by the three alleged “important government interests,” namely (1) discouraging vote-buying and coercion,” (2) ensuring “that the polling place is a sanctuary for all,” and (3) preventing delays. “While all of these may be government interests in the abstract, there is disproportionality between the interests stated and the ballot selfie prohibition created by these laws and instructions,” wrote Judge Cole. Yesterday (October 31, 2016), citing the dissent, Crookston’s attorney filed an emergency motion for rehearing in the hopes that the issue can, in fact be definitively addressed prior to the election.
Ballot Selfie Bans - A Constitutional Open Question
The law regarding ballot selfie bans is inconsistent and in flux. On October 23, the Associated Press reported on the state of the law, state-by-state, but this listing is already outdated because of the recent Michigan ruling. A brief glimpse at the AP's 50-state survey shows how widely varying state laws on this issue. Some states (like Hawaii, Utah, and Nebraska) have laws specifically protecting a voter’s right to take a ballot selfie. Many states neither prohibit nor explicitly allow photographs of ballots. Some states have recently repealed laws that prohibited ballot selfies (for example, California – although this change will not take effect until January), and similar legislative measures are pending in other jurisdictions (for example, New Jersey). A few states allow photographs of mail-in ballots, but do not allow photographs at polling places in general (for example, Iowa, Maryland, Texas, and Tennessee).
At least 18 states, however, explicitly outlaw the practice of photographing and showing one’s own ballot, whether at the polling place or (for a mail-in ballot) at home. Although a few state spokesmen (Alaka, Massachusetts) have stated that a state law ban on ballot selfies could not be practically enforced, other states lay out clear penalties for violation of the rule. In Michigan, a ballot selfie will lead to invalidation of the ballot. In several states, a ballot selfie is a misdemeanor that could carry a fine. In Illinois, knowingly showing your completed ballot to another person is a felony that carries a prison sentence of one to three years.
Infographic from NBC News:
It will be interesting to see if a national consensus develops over the next several months as the ACLU, Snapchat, and various individuals continue to challenge these laws. The next expected opinion pertains to the New York law, and Judge Castel (S.D.N.Y.) says he’ll issue his opinion by the end of this week.
Meanwhile, the ACLU just sued in Northern California seeking a restraining order that would prohibit enforcement of the selfie ban law, even though a bill repealing that ban has already been signed into law. The ACLU points out, however, that the new law’s effective date in early 2017 comes too late to matter for Election 2016. “This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way," Michael Risher, an attorney with the ACLU of Northern California, said in a statement. "On November 9, it will be too late for them to do that.” Risher called ballot selfies "core political speech at the heart of the First Amendment," however the sought-after injunction seems more symbolic than pragmatic. “In its 125-year history, California's ban on sharing one's marked ballot has not been enforced.” The California hearing is set for November 2nd. On that same date a thousand miles to the east, another federal judge will hear near-identical arguments in a federal case challenging the Colorado ballot selfie ban.
Outdated or Necessary Protections?
Are ballot photograph bans anachronisms? Or is do these laws serve a valid purpose? Colorado Deputy Secretary of State Suzanne Staiert argues that selfie bans are still needed. “We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” said Staiert. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.”
Another argument against repealing the bans is that prohibitions on ballot selfies do not really stifle free speech in any substantive way. The lawyer representing New Hampshire in the 1st Circuit case argued that that under that state’s law (pre-invalidation), “You're free to go out into the community and scream at the top of your lungs how you voted and who you support in the election. You just can't use your marked ballot to do so."
I suppose that those who are concerned with the practice of taking and posting ballot selfies worry about the social pressure involved and are concerned that the expectation of proving your vote publicly can create peer pressure to vote a particular way. If ballot selfies become socially expected, it could remove the protection from retribution (social as well as political) that complete anonymity offers. For Snapchat-happy millenials, the social pressure to post a ballot might make it difficult to vote one’s conscience rather than what is most acceptable in one’s social circle. I’m not too worried about vote buying being enabled by photos of ballots posted on social media, but perhaps there are other legitimate reasons to step back from free speech in the name of protecting the right to anonymously cast one’s vote.
Tuesday, November 01, 2016
Only Republican justices need apply?
With comments from Sen. Richard Burr about doing everything to prevent President Clinton from making any SCOTUS appointments, the question of the Republican endgame with respect to the Court is coming into stark relief. First it was "the next President should appoint." Now it is "the next President should appoint, unless it is a Democrat replacing a conservative such as Justice Scalia." None of this was ever a principled stand. But the absence of a meaningful principle now means that this is a moving line that Republicans are moving (and likely will continue to move) with impunity and without political repercussion and without logical (beyond pure politics) end.
So imagining that we have President Clinton/Republican Senate:
• A Democratic President should not replace the "swing vote" (Justice Kennedy) because that shifts the balance of the Court when a Republican eventually appoints Scalia's successor.
• A Democratic President should not replace a Democratic appointee (Ginsburg/Breyer) because that reifies the balance of the Court for another two generations. So the Dem seat should remain open.
• If the Court can survive with 8, it is better off with 7 (assuming the lost Justice is not Kennedy), because that is an odd number that will avoid ties.
• Hey, the original Court had 6 Justices. What was good for the Jay Court is good for the Roberts Court.
The caricature of the Republican position is that only Republican Presidents should be able to appoint to SCOTUS. That is looking less like a caricature. Especially since all of these arguments will be ignored (and forgotten) under President Rubio in 2021.
Two final points: First, this new rhetoric nothing to do with the argument that Eric Segall (Georgia State) has been making in favor of an evenly divided Court with seats permanently identified with one party. No one is expressing (or going to express) any reservations about having President Trump replace Justice Ginsburg. Second, while the Carrington Plan for the Court (a new Justice appointed every two years, with the 9 juniormost justices constituting the Court for all cases, except in the event of recusal) was designed to create term limits, the feature of regular and automatic biennial appointments also would ease some of the political controversy. Given the current climate, that is looking like the more significant piece of the proposal.
Next Wednesday, I am scheduled to do a talk for a Northwestern Alumni Association event on the election and the future of the Court. I have not begun to prepare the talk because I genuinely have no clue what is going to happen and thus no clue what I am going to say. Except that the center cannot hold and something--Segall's plan, the Carrington Plan, something else--is necessary.
Yes, You Can Change Your Vote (in some places); But It's a Bad Idea
Call it buyer's remorse: a person voted early and then regrets their choice, perhaps because of new information that is revealed about the candidates. Maybe new evidence supposedly emerges about emails or about a candidate's apparent ties to Russia. Can the voter change their vote?
It turns out, surprisingly, that the answer is yes in at least a few places. Voters who have already submitted ballots in a few states may cancel those ballots to change their votes. It's not the same as voting twice, as Donald Trump has been accused of advocating in Colorado; but it does give voters another bite at the apple.
This issue has gained salience over the past few days. A image that had appeared on Fox News was circulating on Twitter over the weekend, in light of the James Comey letter re-elevating the issue of Hillary Clinton's emails, suggesting that voters in some states can change their early votes:
The Louisiana Secretary of State tweeted that the map is wrong with respect to Louisiana election law, which does not allow this practice.
But in the other states, how does this process work? And is it a good idea? I provide some thoughts after the jump.
The Minnesota Secretary of State's Office has this guidance on changing one's vote:
WHAT IF I RETURNED MY BALLOT AND WANT TO CHANGE MY VOTE?
You can ask to cancel your ballot until the close of business one week before Election Day. After that time, you cannot cancel your ballot. To cancel your ballot, contact the election office that sent your ballot. Your options are to have a new ballot mailed; vote in person at your local election office; or vote at your polling place on Election Day.
In Wisconsin, voters apparently have up to three chances to "correct" their ballot. Here is how one news story describes the process:
"All the ballots are secured in the vault at city hall. We would pull that from the group. We would let the individual, the voter, vote again and document that this was their second ballot issued. We’d keep a record of that, so they would only have up to three opportunities.”
Voters in New York can seemingly also "vote twice" and have their later-filed ballot count:
If there is more than one ballot envelope executed by the same voter, the one bearing the later date of execution shall be accepted and the other rejected. If it cannot be determined which envelope bears the later date, then all such envelopes shall be rejected. N.Y. Election Law § 9-209(a)(i)(B).
This seems like a particularly wrongheaded idea. Part of the goal of early voting is to minimize administrative hassles to election officials while making voting more convenient. Allowing voters to re-do their ballots harms the first goal of administrative efficiency, while also inserting a degree of unpredictability into the process. Although some may lament that early voting is problematic because it means that people will make their decisions without the benefit of all information leading up to Election Day, that is their choice. They can certainly decide to wait if they want. If they have made up their mind, however, states should not give them a do-over -- even if new information comes out. That is, people should understand that, if they vote early, they are taking the risk that they might learn new information about the candidates or issues after they cast their ballots.
Moreover, those who are talking about voter fraud or election rigging should oppose the ability to change one's vote. Given that most voter fraud (rare as it is) occurs through absentee balloting, it would seem that voiding or changing someone's early vote also could pose similar problems. This weekend Donald Trump stoked unsubstantiated voter fraud fears once again by imploring his supporters in Colorado to obtain a new ballot to "make sure it gets in." Of course, it would be illegal to actually vote twice. But if Trump turns his attention to the states where changing one's vote is possible, it could sow even more doubt about the election system -- especially if people do start trying to change their votes at the last minute or begin coercing others to do so.
I think early voting is a great idea to increase the convenience of voting -- although I would also support a uniform Election Week. But we should not allow voters to change their votes after they cast their ballots. The harms simply outweigh the benefits to this small subset of people who might take advantage of this process.
The Comey letter already destabilized the campaign at the last minute. The alleged Trump-Russia ties might do the same. We should not let these "October surprises" also destabilize the election process itself for those who already made up their minds.
Friday, October 28, 2016
WARNING: THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE
In 1981, Republican organizations enlisted the help of supporters, including off-duty police officers, to patrol urban areas in New Jersey. The purpose of these efforts, according to critics, was to intimidate prospective voters. Members of the so-called “National Ballot Security Task Force” wore official-looking armbands, posted large “WARNING” signs directed at voters (which included the language I’ve used as the subject header for this post), and in some cases openly displayed firearms. Their activities prompted a lawsuit. To settle the claims, the Republican National Committee (RNC) entered into a consent decree (still in effect) whereby it agreed to, among other things, refrain from “undertaking any ballot security activities . . . where the racial or ethnic composition of such districts is a factor in the decision to conduct . . . such activities . . . and where a purpose or significant effect of such activities is to deter qualified voters from voting.”
After the 1986 elections in Louisiana, Republicans facilitated another voter-challenge program. As revealed in discovery, one Republican director predicted that the effort would “eliminate at least 60,000–80,000 folks from the rolls” and “[i]f it’s a close race . . . this could keep the black vote down considerably.” This led to a modification of the consent decree, which included the addition of a preclearance provision. More specifically, the decree was altered to prohibit the RNC from engaging in any “ballot security activities” unless it first received permission from a court. “Ballot security activities” were defined to include “any program aimed at combating voter fraud by preventing potential voters from . . . casting a ballot.”
In 1990, the court found that the RNC had violated the consent decree (based on a failure adequately to educate state parties, in matters related to alleged attempts to intimidate voters in North Carolina). In 2009, the court again modified the consent decree. Among the 2009 changes was an expiration date: absent any further violation, the decree would terminate on December 1, 2017. All of which brings us to today.
Donald Trump has been imploring his supporters to patrol urban areas. (“Watch Philadelphia. Watch St. Louis. Watch Chicago, watch Chicago. Watch so many other places.”) He’s been asking them to engage in this work in order to (to use the phrasing of the consent decree) “combat voter fraud by preventing potential voters from . . . casting a ballot.” (“So important that you watch other communities, because we don't want this election stolen from us.”) To take one (hopefully extreme) anecdote from the Boston Globe, one Trump supporter has described his reaction as follows:
“Trump said to watch your precincts. I’m going to go, for sure . . . . I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American . . . . I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”
In response, the RNC is back in court, with the Democratic National Committee (DNC) accusing it of violating the consent decree. As a result of this alleged violation, the DNC argues, the RNC should be held in contempt; the court should issue relief to ensure enforcement of the decree; and it should extend the decree for another eight years.
I have a few reactions. First, the DNC appears to have a strong claim here. Of course, one expects such a reaction after having only read the briefing from one party. (I have not yet located a responsive filing by the RNC.) The biggest obstacle for the DNC may be convincing the court that the activities of individuals (such as Donald Trump and his supporters) can be attributed to the RNC. Yet the DNC’s filing already chronicles evidence in support of such an argument, and in the 1990 litigation discussed above, a District Court concluded that the RNC had violated the decree not through its own voter-directed activities, but rather by failing to provide adequate guidance to local parties about the prohibitions. (This 1990 precedent may help to explain why the RNC emailed its members last week insisting that “[a]dherence to the Consent Decree is of the utmost importance” and that anyone engaging in “‘ballot security’ activities” would be doing so “not [as] an agent of the RNC.”) This all leads to the second observation, which is that one legal response by the RNC might be to argue that Donald Trump is not sufficiently representative of the RNC to constitute its “agent” for purposes of the decree. That legal strategy may or may not have potential (it depends on, among other things, how the RNC articulates this argument and how much proof the party can produce), but recent efforts to distance itself from its presidential candidate have had troubling political consequences for the party.
Finally, it is interesting that the consent decree includes a preclearance provision. So did Section 5 of the Voting Rights Act, which the Supreme Court (effectively) invalidated in 2013. Preclearance is a profoundly effective mechanism to counteract abusive forms of election administration or activity. This is because while elections keep happening, whether or not litigation is unfolding (and by extension, whether or not that litigation eventually will confirm the existence of illegal or unconstitutional activity), preclearance keeps the status quo in place. It also is effective because it tends to be easier for plaintiffs to prove a failure to receive preclearance than to prove a violation of the relevant substantive standards.
It will be interesting to see how the District Court in New Jersey responds. Will it take the approach of, for example, a recent decision by the Court of Appeals for the Fourth Circuit, which seemed eager to interpret the controlling law in a manner that protects voters against problematic efforts to combat “voter fraud”? Or will it follow an approach more similar to the Supreme Court as of late (at least, prior to the passing of Justice Scalia), which seemingly has been reluctant to interpret the law in a manner that tends to favor such protections? In my view, the history surrounding the consent decree—and the history of voting rights more generally—suggests that the former tends to be the better approach. It is true that, in the words of Chief Justice Roberts, “history did not end in 1965.” But neither did activities that have the very real potential to suppress votes.
Wednesday, October 26, 2016
DNC motion to enforce and the rigged election
The DNC has filed a motion to enforce the consent decree against the RNC for supporting and collaborating in Donald Trump's "ballot security" measures that sound like intimidation of minority voters in places such as Philadelphia. The motion seeks enforcement, sanctions, and further preliminary injunctive relief prohibiting RNC funds and personnel from being used in such efforts in concert with the Trump Campaign. The motion does not go all the way to pinning the Trump Campaign's activities on the RNC because Trump is the party's nominee, but it does highlight its "coordination, encouragement, and support" of such activities.
Lowering the Voting Age to 16 for San Francisco's Elections
A few years ago, the Maryland towns Takoma Park and Hyattsville lowered the voting age to 16 for their city elections. When I first heard about this, I was intrigued, but I did not have a strong view one way or the other on whether it was a good idea. The more I've researched, the more convinced I've become that lowering the voting age makes sense and is good for our democracy. This November San Francisco voters will decide whether to lower the voting age for their own elections. A recent poll suggests that the vote may be close. Whatever happens, there is a growing movement to lower the voting age in local elections.
- The current voting age of 18 is largely a historical accident. At the Founding, we adopted 21 simply because that was what the British common law provided. That was the British rule likely because that was the age at which men could wear the armor required to battle. The U.S. lowered the voting age to 18 in the 26th Amendment because of the Vietnam War, but that was only because we lowered the draft age during World War II to 18. There has never been a sustained conversation or debate about what age makes the most sense to begin voting.
- There are no legal impediments to lowering the voting age, at least in states that provide robust home rule powers to localities (like California). The U.S. Constitution says that states cannot deny the right to vote to those 18 and older, but it says nothing about whether states or localities can go lower. Some state laws do impose impediments to local election rules, but California does not (as I show in my new article, The Right to Vote Under Local Law).
- Lowering the voting age will improve turnout. Eighteen is an odd age to begin voting, as most people are leaving home for college or the workforce. They are less likely to jump through the administrative hurdles of registering and voting via absentee ballot. At age 16, by contrast, it will be easier to capture young individuals to begin participating in democracy. Most 16-year-olds are invested in their communities. Studies show that voting is habit-forming, so once people start voting they are more likely to continue doing so in future years. Turnout among 16- and 17-year olds in Takoma Park and Hyattsville has been about double that of all other age groups. It remains to be seen whether this high turnout is sustainable. If it is, then lowering the voting age will provide a significant boost to turnout among young people for years to come.
- Psychological studies all support lowering the voting age. Psychologists have identified two kinds of cognition: "hot" cognition and "cold" cognition. Hot cognition activities entail high stress, emotion, impulse, and peer pressure. Cold cognition, by contrast, requires deliberation and reasoned judgment. Voting is a cold cognition activity. Studies of cognitive development show that individuals gain the capacity for cold cognition by at least age 16. (By contrast, we are not really good at hot cognition capabilities until at least age 21, and maybe even 24 or 25.) Nothing magical happens at age 18 to make individuals cognitively ready to vote; but something magical does happen, neurologically, by age 16. A 16-year-old is as good as an 18-year-old, 28-year-old, or 58-year-old at having the cognitive capacity to make reasoned decisions required of voting.
- We already treat 16-year-olds like adults in many settings: allowing them to obtain drivers' licenses, work in part-time jobs, consent to sexual activity, and drop out of school (in many states -- [update - but not in California]), and we expect them to follow the driving laws and pay taxes on their wages. Fairness suggests that they should be allowed to participate in our democracy (so long as they are cognitively capable of doing so -- see #4). True, 18 is the age of legal majority in many other areas, but this fact does not obscure the reality that our society treats 16-year-olds like "adults" in many situations.
- By allowing cities to experiment with this innovation in voting rules, they can serve as "test tubes of democracy" to see if it works. The idea can then "trickle across" to other cities and eventually "trickle up" to state and national policy. In this way, incremental change can occur through local laws.
There is more detail in the Penn Law Review Online Essay and the San Francisco Op-Ed, which I hope you will read. In sum, although I was neutral at first, I'm convinced by the strong legal, psychological, and policy arguments to support Prop F to lower the voting age to 16 in San Francisco this November.
Monday, October 24, 2016
Biskupic on Garland
At CNN, Joan Biskupic offers some reasons that Hillary Clinton may renominate Merrick Garland if she wins the presidency and the lame-duck Congress does not confirm him. These include the connection Garland already has to the Clintons and to top Clinton allies, the desire to preserve political capital, and the assumption that she will have other appointment opportunities before 2021.
The Story of Voting Rights is not All Doom and Gloom
It is easy to think, with numerous media reports of voter suppression, the adoption of strict voter ID laws, and talk of election rigging, that voting rights are in a perilous state in this country. But there is another side of the story too -- one of optimism. Various states and localities are experimenting with ways to make voting easier, more convenient, and more accessible.
As I explain in a new column for USA Today, "[l]ocal experiments in election rules are helping offset trends toward voting restrictions and floods of money."
Importantly, several of these democracy-enhancing measures are on the ballot in November. Maine is considering whether to adopt ranked choice voting. San Francisco will vote on whether to lower the voting age to 16 (more on that later this week). Various localities are looking to reform their campaign finance rules for local elections. Thus, even if you think your vote "won't matter" for the presidential election, there are likely important down-ballot races and issues that will make a difference for our democracy.
Here is the intro of the USA Today piece:
All politics is local, as the saying goes, and the same is true of election law. Although the U.S. Constitution protects the right to vote, local laws can expand its scope and influence democratic representation. Voters across the country are making choices this fall that will not only affect state and local elections, they will also serve as the catalysts for nationwide reforms.
Read the whole thing here.
Thursday, October 20, 2016
Peaceful transition of power
The big takeaway from last night's debate is Donald Trump's refusal to say that he would concede if he loses the election, stating that he would "look at it at the time" and that he would keep everyone "in suspense." Trumps's minions are spinning this roughly as follows: 1) He meant he would have to see if there is voter fraud about which something could be done and 2) Al Gore did not concede until December, with the implication from some now being that Gore was wrong to contest the result in Florida. (Update: An emailer reminds me that the recount was automatic under Florida law, given the closeness of the vote. So Gore was even more within his rights to argue that, as long as we were doing a recount, it should be done what he believed was the right way).
As to the second, we have laws in place to contest close elections for a reason, so there is nothing wrong with a candidate availing himself of those processes (especially when the state itself, not the candidate, triggers those processes). But the question last night clearly worked from the premise that the outcome was clear, either because it was not close or there were no more legal challenges to bring. As to the first, the problem with the argument is that for Trump, his losing the election is proof of voter fraud and a just basis not to accept the result, Q.E.D.
I do want to separate the effect of Trump's rhetoric and possible refusal along two lines-- democracy as an institution and the peaceful transition of power. I do not believe he threatens the peaceful transition of power. And that is because Trump does not currently possess political power or the resources that go with it (e.g., military or paramilitary forces). And most of the people who do possess that power would not back him up in refusing to recognize the results of the election. John Roberts is not going to refuse to swear-in Hillary Clinton on January 20. Barack Obama is not going to stand on a tank outside the White House and refuse to let Hillary Clinton in. Officials of states totaling 270 electors are not going to refuse to certify the slate of electors. And Congress, even if both houses are Republican-controlled, are not going to refuse to accept the electoral votes showing Clinton as the winner. Perhaps if they would, this might get more dangerous, but that does not appear to be likely. If anything, that the current President is a Clinton supporter weakens that rhetoric even more. Trump may provoke some violence among his supporters, which would be tragic, but it would remain on a small scale and still subject to legal control.
But Trump's words and actions do pose a danger for democracy as an institution, given democracy's dependence on the consent of the losers. A Trump concession would be symbolically important for the ability of the next President to govern and to be seen as legitimate by all The People, even those who did not vote for her. And that is ultimately what Trump's talk over the past month has been about--not to stop Clinton from gaining the presidency, but to undermine the legitimacy of her presidency.
I think it is important that we speak about this in those specific, and more accurate, terms.
Wednesday, October 19, 2016
End of the Filibuster?
In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.
If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.
This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?
I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?
A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.
By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works.
Tuesday, October 18, 2016
A lawyer's unexpected 15 minutes
Disenfranchisement and electoral losers
A quick thought in response to this piece arguing democracy depends on the consent of the losers and this Gerard Magliocca post arguing that Trump's rhetoric is not historically unprecedented: Immediately after Obama's inauguration in 2009, non-Obama voters began protesting, and the press began reporting, that they were "disenfranchised." They apparently used the term not to mean they were denied the right to vote,* but that they were "unrepresented" by a president who did not share their policy preferences and thus lacked any voice in government. And, again, the press reported it as a reasonable argument.
[*] Which would have been beyond ironic, given the political focus of recent attempts to limit the franchise.
This gets at another fundamental aspect of republican government that was ignored/misunderstood in the discussion: Being represented and being a full member of the polity does not mean you get all, some, or even any policies that you favor enacted by the candidate you favor. It means you get the opportunity to elect and try to influence people in office to your preferences. If your preferred candidates (and thus your preferred policies) lose, it does not mean you somehow are denied the rights of a full member of the society. It means you have a new opportunity at the next election to try to pick your preferred candidates who will enact your preferred policies. And in the meantime, public policy might go in a direction you do not like. But that is what we consent to.
"McConnell, denounce Trump's 'rigged election' comments"
I have written this Op-Ed for CNN, which debunks Donald Trump's "election rigging" comments and calls on Senator Mitch McConnell to denounce this dangerous and unfounded rhetoric. Here is the intro:
Mitch McConnell must end this nonsense.
The fact is that voter fraud occurs at such a minuscule level that it hardly ever affects a race. Moreover, it does not happen in the way that Trump and other Republicans seem to think: through in-person impersonation or individuals voting multiple times. The only proven fraud that exists, infrequent as it is, entails absentee balloting or paying off poll workers, typically to sway a local election. Voter ID laws, which Trump and others champion as a cure for our elections, would do nothing to solve that kind of fraud.
Read the full column here.
Sunday, October 16, 2016
Substantive Due Process Within Sunday Night's Florida Election Law Decision
Tonight a Florida district court issued an opinion enjoining a state law that does not allow voters to "cure" a signature mismatch in a vote-by-mail ballot. If a Florida voter mails in their ballot without a signature, the state notifies the voter and allows that person to submit an affidavit with a signature. But if the county election workers determine that the signature that is on the envelope does not match the signature on file from when the voter registered, then the vote is deemed "illegal" and is not counted. Tonight the court ruled that refusing to allow a voter to cure this signature mismatch violates the Equal Protection Clause of the U.S. Constitution.
Most people (at least on Twitter) are focusing on the last line of the opinion, which is a doozy: "Justice Stewart once quipped, in reference to pornography, 'I know it when I see it . . .' Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). Likewise, this Court knows disenfranchisement when it sees it and it is obscene."
But another line caught my eye, this one in a footnote:
Friday, October 14, 2016
Former guest Prawfs Shima Baughman and her co-authors have a piece on TNR (originally published in The Conversation) calling for making police reports race-blind as a way to reduce implicit bias in prosecutors. Interesting read.
More locking her up
To the extent there was any sense that Trump's explicit theme of prosecution/jailing Clinton was a one-off for the debate (or a quip, as campaign official Kellyanne Conway tried to argue on Monday), the last week has proven otherwise. Trump has referenced this in multiple rallies the past several days, including the specific detail about asking for a special prosecutor.
Charles Krauthammer (with whom I likely have not agreed about anything) argues that such rhetoric is dangerous and inconsistent with a mature, functioning democracy. A relevant excerpt:
Such incendiary talk is an affront to elementary democratic decency and a breach of the boundaries of American political discourse. In democracies, the electoral process is a subtle and elaborate substitute for combat, the age-old way of settling struggles for power. But that sublimation only works if there is mutual agreement to accept both the legitimacy of the result (which Trump keeps undermining with charges that the very process is “rigged”) and the boundaries of the contest.
The prize for the winner is temporary accession to limited political power, not the satisfaction of vendettas. Vladimir Putin, Hugo Chávez and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t.
One doesn’t even talk like this. It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.
Thursday, October 13, 2016
NYT to Trump: Go ahead and sue (Updated)
When I went to law school, one of my dream jobs was to be general counsel to The New York Times. So I have great respect for this letter responding to Trump's lawyer's retraction demand. The final paragraph is the meat, subtly arguing both the accuracy of the statements, their public import (and thus reminding that Trump is a public figure), and the absence of malice. The second paragraph is a bit more gratuitous, in essentially suggesting that Trump has made himself such a sleaze with his own public statements and actions that he is libel-proof. All-in-all, nice work (and the kind of ballsy, "let-me-tell-you-how-things-are, son" stand that I do not believe I have it in me to take with another lawyer--a conversation I was having with several people during break-fast yesterday).
It is interesting that one of the (many) political norms Trump has obliterated this election is that high-level government officials do not bring defamation actions, not only because Sullivan sets such a high hurdle, but also because it looks weak politically. But because Trump has made both the press and the First Amendment some of his punching bags, that weakness is gone.
The full letter:
Update: From the National Constitution Center Blog comes this essay on Barry Goldwater's successful suit against Ralph Ginzburg over something he published during the 1964 election about Goldwater's fitness. Goldwater managed to show actual malice and win a $ 1 million+, upheld on appeal. A few points: 1) It is telling that Goldwater waited until after the election, when he was (temporarily) out of office; 2) This was in the early days of the Sullivan regime and I wonder whether it would come out the same way today; and 3) Everyone hated Ralph Ginzburg, so he lost cases other people would win.
The Hurricane Canon for Election Law
I have written this post for the American Constitution Society blog, republished with permission:
When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.
That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.
Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)
The federal court’s ruling in Florida, then, follows similar decisions to favor voters who face an unexpected disaster that makes it harder for them to participate in the election. Call it the “Hurricane Canon”: election officials and courts should favor voter access when disaster strikes. Voting, as the most fundamental right to our democracy, must be as open as possible to all.
Moving forward, election officials should do what they can to mitigate these kinds of disruptions to the voting process. Online voter registration, for example, is an easy fix. Florida’s online voter registration system will begin in 2017. Those states without online voter registration – about 12 states according to the National Conference of State Legislators– must act now to expand voter registration rules. (Of course, online voter registration in Florida may not have avoided a lawsuit, but it would have made the voter registration problem from the hurricane a lot less severe.) Even better would be to adopt automatic voter registration, as California, Connecticut, Oregon, Vermont, and West Virginia have done, putting the onus on the state to register voters unless the voter affirmatively opts-out. (Both the Illinois and New Jersey legislatures passed automatic voter registration for those states, but the Governors vetoed the bills.)
Further, states and the federal government desperately need to allocate more money to election administration. Many voter hassles are avoidable if we simply harness existing technology to improve the voting process. For example, online voter registration, coupled with Facebook’s persistent reminders, vastly improved voter registration numbers for groups that typically have low turnout, such as young voters. Technology can also help make voting itself easier. For instance, in Doña Ana County, New Mexico, voters can use any of the vote centers in the county (such as near work), as opposed to having to go to their home precinct, greatly improving the convenience factor to vote. This change was possible only because Doña Ana County has electronic voting machines that facilitate vote centers. This is not to say that we should eliminate a paper trail to assist in ballot counting disputes and ward off fraud. We can couple voting technology, like online voter registration and enhanced voting machines, with the best practices for election administration. But states need the resources to do it.
Finally, courts should continue to serve as the prime protectors of voting rights, especially when voters face last-minute, unexpected obstacles. Although, as Professor Ned Foley points out, hurricanes themselves are not unconstitutional, the denial of the right to vote because of a hurricane is – even if the state is formally treating everyone the same. This is because the substantive constitutional protection of the right to vote should require a baseline level of access for everyone, separate from typical equal protection principles. In this way, we can think of the right to vote as really emanating from substantive due process, particularly in the wake of what amounts to a denial of this fundamental right through no fault of the voter. The U.S. Constitution does not explicitly confer the right to vote and U.S. Supreme Court jurisprudence looks at voting through the lens of the Equal Protection Clause. But it may make more sense to consider the right to vote as part of the core aspects of substantive due process. A “Hurricane Canon” for the constitutional right to vote puts us closer to an ideal of robust protection for the right to vote within the U.S. Constitution, at least for emergency situations.
Wednesday, October 12, 2016
Your Honor, and May It Please Mitch McConnell
The race is tight for control of the Senate. According to the statisticians at 538, six states are experiencing (to use the technical term) “super close” elections, and those same races very well may determine which party exercises the exceedingly important powers wielded by this body of government. If the vote totals on Election Day are tight enough to invite disputes over the true winner of a Senate race, the question becomes: who should adjudicate those contests? If you thought to yourself “Mitch McConnell, Bernie Sanders, Elizabeth Warren, Ted Cruz, and their colleagues in the Senate; they should do it,” then you are in good company: the Founders agree with you.
As Article I, Section 5 of the United States Constitution reads, “[e]ach House shall be the judge of the elections, returns and qualifications of its own members.” What this means is that the Senators are charged with judging election contests over disputed Senate seats, while the Representatives are charged with judging election contests over disputed House seats. And judge they do: in this context, each House examines witnesses, manages discovery, and inspects ballots, among other tasks, all pursuant to a set of procedures (informal in the case of the Senate, and set by statute for the House). At the conclusion of the proceedings, each House publishes, through a committee, something that looks much like a judicial opinion. This report recommends a particular resolution of the claims, and if the full House agrees with that recommendation, it passes a resolution so ordering. As I explain in Judging Congressional Elections, the Houses of Congress already have resolved hundreds of contested elections in this fashion.
The arrangement may seem strange, but it has a long historical pedigree, and nearly every state has adopted a similar approach (that is, nearly every state also has vested power to judge state legislative elections in the legislative body itself). Still, a host of difficult questions remains. Among them is whether—and how—courts may also adjudicate these same disputes. Let’s take Pennsylvania, where the race between challenger Katie McGinty and incumbent Pat Toomey appears exceedingly close. Can the Supreme Court of Pennsylvania weigh in if either candidate disputes the results on Election Day? Or what about in Nevada, where the candidates are locked in a tight race over Harry Reid’s seat—can the state courts offer guidance if November 8 produces no clear winner? The answers largely depend on constitutional questions surrounding Article I, Section 5, and the resolution of those questions is, to put it lightly, unsettled.
As I explain in my article, which is forthcoming in the Georgia Law Review, a combination of factors has produced an interpretative vacuum in response to the Article I, Section 5 mandate. Although we have authorities that normally are able to clarify questions of federal law—including federal court decisions and congressional legislation—such authorities are almost entirely absent in this area. The result is a chaotic set of ad hoc, state-based interpretations of the mandate that vary drastically by jurisdiction. As an example, take the hypotheticals above. The Pennsylvania courts likely could adjudicate a dispute between McGinty and Toomey. In Nevada, however, the state courts almost certainly could not adjudicate a dispute between Joe Heck and Catherine Cortez Masto. The legal reasoning behind each conclusion is complicated (and addressed at length in my article), but the upshot is simple. Due to deep uncertainty surrounding the law of Article I, Section 5, states like Nevada and Pennsylvania have reached different conclusions about its meaning, and those competing interpretations are what govern in the respective jurisdictions.
This uncertainty matters for many reasons. At the outset, even the appearance of manipulation of the rules can undermine an election’s legitimacy, and nothing triggers the appearance (and perhaps, at times, the reality) of manipulation quite like legal uncertainty. The uncertainty also matters because it has resulted in suboptimal forms of procedure governing contested elections. This is particularly problematic in states that have concluded that Article I, Section 5 flatly prohibits judicial proceedings of any sort. In these jurisdictions, it’s the Senate (or House), or bust.
This area of the law is one of the most complicated I’ve encountered, and there remains a lot to unpack. Ultimately, however, I think Congress owes it to the electorate to take the first step toward reform by clarifying its own position on the principal set of questions: that is, whether, and in what circumstances, courts may hear these disputes. Each House has the power to make these procedural decisions precisely because it is the “judge” of its own elections—or, at least, that’s my conclusion regarding how best to understand the Article I, Section 5 mandate. In any event, hopefully more eyes will turn toward this underanalyzed provision of the Constitution. It’s interesting; it’s important; and, like so much in election law, it’s best analyzed and addressed before a close election turns each point of uncertainty into a partisan battle.
Here is a compromise position on early voting that might bridge the gap between Michael and Lisa's well-written posts: Election Week. I wrote this piece for Reuters in 2012, but it is just as relevant today. A uniform, nationally-mandated Election Week would help everyone. It would reduce litigation regarding the manipulation of early voting rules. It would focus the country's attention on a particular, clearly-defined period. It would provide enough time for everyone to participate. Although it might cost states a little extra money to run more precincts throughout the week, the expenditure would be well worth it to remove this aspect of the "voting wars" while still providing enough opportunities to vote.
Here is an excerpt from the column:
On Election Week, polls would be open for seven days, all day for all voters. Beyond taking away one avenue for court involvement in vote-casting disputes, this could offer other significant advantages.
First, it would lead to greater access for more voters, making it easier for Americans to find a time to vote while reducing long lines throughout the week. It is absurd that some citizens have to wait hours in line to vote.
A full week would also avoid problems for religious voters, who might not want to vote on a particular day, while still allowing churches to have “souls to the polls” programs on a Sunday after church.
Second, it would reduce the number of absentee ballots, since more voters will likely be able to find a time to go to the polls.
Third, it could reduce the number of provisional ballots cast – a key area of potential post-election litigation. If voters show up at their precinct without a voter ID, for example, they could return by day seven with the correct documentation.
Fourth, Election Week would lighten the extreme burden on election administrators to run their precincts, tally the results, and announce a winner on a single night.
Fifth, Election Week would ease the hardship on voters dealing with an emergency or disaster, such as New Yorkers or New Jersey voters displaced by Hurricane Sandy.
Read the whole thing here.
Tuesday, October 11, 2016
In Defense of Early Voting
Coming from a state like Washington, where almost all voting is done by absentee ballot (and everyone has the option of voting in person, if desired, starting in late October), I may be favorably predisposed toward early voting. But I confess that I don’t entirely understand the concerns over the practice—and given the critical function that early voting serves, I think it warrants a robust defense.
The objections to early voting often center on the possibility that events happening in a narrow window (post-vote, pre-Election Day) will cause early voters to regret their decisions. There are two reasons why I have trouble understanding these objections. First, November 8 is the date we have set for the end of voting because a date needs to be set—not because events freeze in time at that point. Imagine terrible news emerging about a winning candidate on the day after Election Day. That news very well might cause voters to change their minds about the candidate they had selected and wish they had voted otherwise. But no one would suggest that we therefore re-open voting. Why is this concern over buyer’s remorse so much greater if the news emerges prior to Election Day? To me, it’s the same problem, with just a slightly increased chance that it will affect any given voter.
That said, the calculus is, indeed, different if the nominee withdraws (through death or otherwise) prior to Election Day. In that case, early voters could effectively be disenfranchised in a way that does not have a precise post-Election Day analogue. But this gets to the second point. Most of the concerns over early voting seem to stem from a desire to protect early voters. But no one is required to vote early. It is simply an option given to those who are (in my mind) fortunate enough to have the option. While some have questioned whether voters are able to understand the risks when they make the decision to vote before Election Day, this strikes me as a debater’s point: while surely this sometimes is true (that is, surely it is true that people sometimes vote early without considering the possibility that they would want to change their minds before Election Day), it’s hard for me to imagine that an information deficit of this sort really has much an effect on how or when people vote.
There are other criticisms of early voting—for example, the idea that it may make it harder for down-ballot candidates to challenge incumbents—that are not focused on the rights of individual voters, but rather on how the design of the election tends to affect outcomes. There are still other criticisms focused on abstract notions about, for example, how a “single Election Day creates a focal point that gives solemnity and relevance to the state of popular opinion at a particular moment in time.” But for most critics of early voting, these more abstract arguments do not appear to be central to their concerns. (And if they are, then the debate needs to shift, given that it is by no means settled that the nature of democracy should be defined in a given way or that certain electoral outcomes are better or worse than others.) Rather, most of the discussion about early voting is, as noted, about protecting the voters.
And this, for me, is precisely why early voting needs to be defended. Early voting is what protects voters. It allows voters—particularly those without the privilege of adequate flexibility in their schedules—greater access to the ballot. It also helps those voting on Election Day by shortening the length of polling place lines and reducing the burden on officials administering the elections. It assists all voters by facilitating the earlier identification and correction of errors. (These advantages, among others, are discussed in this report by the Brennan Center.) There’s a reason why so many jurisdictions, voters, and election experts are strongly in favor of the practice.
As for me, I mentioned I’m from Washington State, where virtually no one walks into a polling place on Election Day. Most of us receive our absentee ballot early, fill it out, then drop it in the mail when we have the chance. Most of the votes I’ve cast in my life have been through this same system. That being the case, it really does strike me as strange, and quite problematic, to require voters—who may have any number of commitments and complications that happen to fall on Election Day—to physically appear at a certain time, at a certain place, in order to access the ballot. And despite ample precedent across the country for long polling place lines, I continue to be shocked, and appalled, that Election Day voters are at times required to wait in line for hours in order to exercise their right to vote. Early voting directly responds to these problems, and, in so doing, it does a great deal to protect voters. Even as extraordinary events unfold in an extraordinary election, we should not lose sight of this basic fact.
Most Important Election Law Question of the Decade: Local Rules on Voting Rights
Ned asks a really interesting and significant question: what will be the most important election law issue of the decade?
Regarding election law doctrine, I think that the potential of the Supreme Court adopting a standard for partisan gerrymandering is the most significant, as it will open the courthouse doors to a whole new round of litigation every redistricting cycle. Two cases are winding their way through the lower courts -- one from Wisconsin and the other from Maryland -- that could provide substantive scope to a new Court majority that wants to cabin the worst abuses in partisan gerrymandering.
But if "important" means "will most effect voters in how they participate within the political process," then perhaps we need to look more granularly to what is happening on the ground in states and even cities with respect to election law.
Indeed, this November voters around the country will decide whether to adopt various election-related reforms. In Maine, the voters will decide whether to adopt ranked choice voting, in which voters list the candidates in order of preference. Supporters say that this election system will produce a result that better reflects the sense of the electorate and will help third parties. Missouri voters will decide whether to amend their state constitution to allow voter ID laws in light of a 2006 Missouri Supreme Court case that invalidated the prior voter ID provision based on the state constitution. Wisconsin is trying to implement a voter ID law this year amidst various problems. Many states have adopted online voter registration, with others sure to follow.
At the local level, Seattle is now using "democracy vouchers," a unique form of public financing in which voters are provided four vouchers worth $25 each to donate to any candidate for office in the city. San Francisco voters may expand the voter rolls to allow sixteen-year-olds to vote in city elections and to allow noncitizens to vote in school board elections. Howard County, Maryland will vote on a public financing system for its own elections.
(If you know of other referenda on election laws on the ballot this year, can you let me know?)
We do not have one election system but thousands of election systems that all operate on the same day. How voters interact with their own local system has the biggest effects on their own political participation. These various election law changes, to me, represent the most important (and under-discussed) issues in the world of election law.
Early Voting and Voting Updates
I concur with many of Steve Huefner's sentiments concerning the pros and cons of early voting. Early voting offers a way of increasing voter turnout by making voting more convenient. It also may facilitate efficient election administration by reducing the number of voters on Election Day itself. On the other hand, lengthy early voting periods can place those who choose to vote at the very beginning of the period at something of a disadvantage. Subsequent events may cause such voters to change their minds and wish to cast their votes for someone else, instead. Most dramatically, the withdrawal or death of a candidate can effectively nullify the votes of those who cast their ballots early.
A period of one week to ten days seems like an early voting period of reasonable length that balances these competing concerns. For states that adopt longer periods, one possibility to consider is the notion of "vote updating." Vote updating is easiest to understand and implement in the related area of absentee ballots. If a person casts an absentee ballot a few weeks before Election Day, and something happens that causes them to shift their support to a different candidate, it should be possible to allow them to cast a replacement ballot, which would be counted instead of their earlier one. Absentee ballots are typically enclosed within outer envelopes containing a voter's identifying information and are not opened for counting until Election Day itself or a few days before (depending on the jurisdiction). Thus, if election records show that a voter submitted two absentee ballots, election officials would be able to identify the original ballot that should not be counted and set it aside. Only the later-received ballot would count.This proposal raises several questions. First, should voters be permitted to cast an unlimited number of replacement ballots (since only the last one would be counted), or should it be limited to just one or two per election? Second, would the logistical burdens for election officials make this proposal impracticable? It's unclear that many people would take advantage of it, and it seem like a reform that could fairly easily be worked into the current procedures governing absentee ballot verification and counting. Third, it's not clear whether this would enhance opportunities for fraud. It may provide a way for unscrupulous activists, parties, or candidates to replace legitimate absentee votes with fraudulent ones.
Applying such a system to actual early voting in most jurisdictions would require more substantial reform. In most places, an early vote is treated just like a vote on Election Day: once the punch card is submitted, the lever is pulled, or the ballot is approved on the electronic voting machine, there is no longer a way of tracing any particular early vote back to a specific voter. Thus, early votes tend to be different from absentee votes, since an absentee ballot remains in the outer envelope containing the voter's information until nearly the end of the process.
In order to allow people to change their early votes, a jurisdiction would have to give early voters the option of casting their early vote on a provisional ballot. A provisional ballot is usually used when some potential concern exists over a voter's registration, identity, or eligibility to vote. As with absentee ballots, provisional ballots usually are submitted on paper and enclosed in an outer envelope bearing the voter's identifying information. Thus, if an early voter chooses to cast a provisional ballot, he would retain the option of returning later to cast another, replacement vote (either on another provisional ballot or a voting machine). Voting officials would then know to discard the original provisional ballot. If a voter does not submit any replacement votes, then the original provisional ballot is counted without any further action on the voter's part. The ballot can either be counted on Election Day itself (since there is no need to wait for the voter to correct any deficiencies), or later on, at the same time as the other provisional ballots.
The system may unnecessarily introduce additional opportunities for error or fraud to enter into the process; it would certainly add an additional layer of complexity to a process that already poses challenges for election officials. On the other hand, this proposal is one way of mitigating the effects of lengthy early voting and absentee voting periods. Even if early voting is limited to a period of 7-10 days before Election Day, the period for returning absentee ballots (particularly for military and overseas voters) is invariably longer. In an era of cell phone videos and hacks, the possibility for last-minute gamechanging developments in campaigns seems quite real.
Monday, October 10, 2016
Florida Democrats win TRO extending voter registration
A federal judge in the Northern District of Florida has issued a TRO requiring Florida to extend the deadline for voter registration in the wake of Hurricane Matthew and the evacuation of thousands of would-be registrants. The court found that the refusal to extend the deadline violated the right to vote, applying strict scrutiny because the non-extension worked a complete denial of the right to vote. The TRO extends the deadline to Wednesday, when there will be a hearing on the motion for preliminary injunction. The court also quickly disposed of some preliminary standing issues. Best of all, the opinion uses the word "poppycock."
I would be curious to hear from a panel of election-law experts whether the constitutional analysis here is correct.
"You'd be in jail"
So how much will Trump's promise/threat to prosecute and jail Clinton be the takeaway from the debate? And will the popular public reaction be the cheering we heard from the audience? Or will it be horror that a major-party candidate announced it as a plan for his presidency, to the opponent's face and to the world? Not to mention announcing its outcome. This is not supposed to happen in a mature political system. But will enough people recognize the seriousness of that line?
The easy distinction is that the prosecution would not be for the "crime" of opposing Trump for office, but for her crimes while serving as Secretary of State. But that does not work. First, no one ever is prosecuted just for running for office, but for some other, hyped-up charge. Second, in the U.S., no matter the wrongdoing, no one has ever sought to punish the ancien regime, if for no other reason than appearances. It is why the Obama administration did not pursue investigations of those who enacted a system of what might have amounted to torture. It is impossible to separate law from politics in this situation (if it ever is), so we avoid a situation that would blur the line too much.
Not this time and not this candidate--Trump has a tweet quoting the exchange and highlighting the "you'd be in jail" line.
Sunday, October 09, 2016
Trump Sunlight Campaign
Now on GoFundMe (gotta love the picture of Justice Brandeis), to raise money to cover the legal fees and judgment for anyone leaking Apprentice footage showing Trump making further sexist, racist, etc. statements. Producers and staffers on the show signed non-disclosure agreements, apparently with a liquidated damages clause of $ 5 million for breach (any guesses on whether that might be deemed unconscionable?). Apprentice Exec Produce Mark Burnett, who is a Trump supporter, has vowed to sue anyone who leaks footage.
During the Kim Davis insanity in Kentucky, people attempted a similar campaign to pay Davis's contempt fines; the site shut it down, given the obvious moral hazard concerns. It will be interesting to see what GoFundMe does with this one, as raising money to pay someone's legal judgment would seem to raise the same moral-hazard concerns. (The likelihood political-viewpoint bias here is high). It might be different if the campaign was only to pay attorney's fees and costs or to provide a bounty for the leaker. But that would not make a difference as an incentive--the disincentive is not the cost of the lawsuit, it is the judgment at the end.
Anyway, the site had raised a little under $ 2000 in two hours. So I do not expect this to be a big money-maker or game-changer.
Extending Florida’s Voter Registration Deadline After Hurricane Matthew
The internet has been focused on the fallout from the Donald Trump tape, but I want to remind everyone that Governor Scott of Florida still has not extended the voter registration deadline, which is Tuesday. Nearly 500,000 Florida residents do not have power because of Hurricane Matthew, and I am sure that, for those who remain unregistered, there are more pressing things that they have to deal with at the moment. One issue that has come up, however, is whether the Governor has the power to extend the voter registration deadline. I believe that he does.
Under Section 101.733 of the Florida Statutes, “the Governor may, upon issuance of an executive order declaring a state of emergency or impending emergency, suspend or delay any election.” Michael Morley has argued, in a recent op-ed, that this language gives the Governor the power to move the election, but not to move the voter registration deadline. I think that this is an unduly narrow reading of the statute, and that the Governor’s authority to “suspend or delay any election” cannot be interpreted in a vacuum.
The statute gives the Governor the authority to move or delay the election “[b]ecause of the existing and continuing possibility of an emergency or common disaster occurring before or during a regularly scheduled or special election, and in order to ensure maximum citizen participation in the electoral process.” This language arguably allows the Governor to take actions beyond delaying or canceling the election in order to further the statute’s underlying goal, which is “ensuring maximum citizen participation.” The statute also speaks in terms of disasters occurring before the election, suggesting that the Governor's authority extends beyond Election Day, and could include broad power to change/alter electoral rules in order to accommodate a natural disaster.
A court would likely view the Governor's power to move the election under the statute as broad enough to include the power to move the registration deadline because voter registration is integral to the election. In my view, this is very similar to the White Primary Cases, a series of cases in which the Supreme Court held that Texas’ all-white primary violated the Fourteenth Amendment, but it was able to reach that conclusion only by viewing the primary as an integral part of the general election since, at the time, primaries were viewed as private affairs. In the Court’s view, voters were essentially disenfranchised if they could not participate in the primary, even if they could still vote in the general election because the primary determined which candidate would go on to win the election. One could argue that voter registration and voting on Election Day are connected in much the same way; if voters are unable to register, then they cannot vote on Election Day.
It is pretty clear why Governor Scott, a Republican governor in a swing state and chair of a SuperPac supporting Donald Trump, would resist extending the voter registration deadline. But partisanship aside, I think that it is important to highlight that the authority is there if he wants to use it. He is just refusing to make the accommodation for those individuals who want to register but were affected by the hurricane and likely won’t make the deadline.
Saturday, October 08, 2016
It's Too Late for Write-In Votes
Many Republicans have rescinded their endorsement of Donald Trump and said that they will write in a candidate they deem appropriate for the presidency (with most people focusing on Mike Pence, who incidentally did not receive a single vote from anyone besides delegates at the RNC).
But here's the problem: these votes will not count. Among all of the other legal problems for the Republican Party with Donald Trump at the top of the ticket, another one is that it is too late in most states for a candidate to register as a write-in candidate, and the state will not count any votes for a person not registered as a write-in candidate.
Rob Portman of Ohio, for example, said that he will be voting for Mike Pence for President. But Ohio law says, "Write-in votes shall not be counted for any candidate who has not filed a declaration of intent to be a write-in candidate pursuant to this section." Further, Ohio law forbids a person from declaring as a write-in candidate if that person is the nominee for any other office -- thereby precluding Pence from becoming a write-in candidate. It is also too late under Ohio law for anyone to declare as a write-in candidate; that needed to happen seventy-seven days before the election (Aug. 23).
John McCain similarly said that he "will write in the name of some good conservative Republican who is qualified to be President.” But Arizona law requires a person to declare as a write-in candidate by Sept. 29.
Here is a handy map of the write-in requirements in all 50 states. Notably, only 7 states have no advance filing requirements for write-in candidates. Nine states forbid write-in candidates for president, and the other 34 have a filing deadline that has likely passed.
In sum, these Republican politicians are attempting to distance themselves from Trump and pretend that they will vote for someone else. But that's not legally possible.
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.
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.
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.
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.
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).
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.