November 30, 2020

'Trump Con Law' episode 47: 'Lame Duck'

[Cross-posted from “What Trump Can Teach Us About Con Law”]

By Elizabeth Joh

As of late November, most states had certified the presidential election for Joe Biden and his running mate, Kamala Harris. But Donald Trump continues to deny the results of the election and insist (without a shred evidence) that he lost because of voter fraud.

Episode 47 of “What Trump Can Teach Us About Con Law,” “Lame Duck,” explores what the Constitution has to say about the transfer of power. What if Donald Trump fails to concede? What does the constitution say about the period of time after an incumbent loses but remains in power?

Listen to the episode

August 29, 2020

Episode 44: 'The Hatch Act and the Election'

Episode 44: “The Hatch Act and the Election”

[Cross-posted from Trumpconlaw.com]

By Elizabeth Joh

Episode 44 of the “What Trump Can Teach Us About Con Law” podcast explores the legality of President Trump using the White House as a backdrop for the Republican National Convention under the Hatch Act, explains the Electoral College, and tackles the president’s recent comments casting doubt on mail-in voting. Listen to the episode

June 10, 2019

Supreme Court rulings come at a cost in public confidence

[Cross-posted from The Hill]

 

Costs cumulate. Not only insofar as their separate consequences add up, but also in the sense that often the cumulative effect of independent actions is greater than their sum total might suggest.

This is true of regulation; indeed, the classic conservative critique of big government holds that while each one of several regulations may seem justified when examined under a cost-benefit analysis in isolation, government often substantially underestimates the total burden the regulatory state imposes on individuals and businesses. The concern here is not simply that individual compliance costs add up — although they surely do. It is that, cumulatively, too much regulation is stifling and drains energy and initiative from the private sector.

But what is true for legislative regulation is also true for constitutional adjudication. This is a basic issue the Supreme Court needs to consider as it decides important cases this term that seek federal judicial intervention to police the excessively partisan gerrymandering of congressional district lines by elected officials. In short, the Justices need to focus not only on these cases in isolation, but on the cumulative consequences of the court’s decisions in recent years on public confidence in American democracy.

In 2010 in Citizens United v. Federal Election Commission, the court ruled that government was powerless to prohibit corporations and unions from making independent expenditures to endorse or oppose candidates running for electoral office. According to the court, these expenditures, however massive they might be, and however substantial the access and influence such donors received in return, would not “cause the electorate to lose confidence in our democracy.” That prediction seems dubious in hindsight. It seems clear that these now-permissible expenditures, combined with other factors, have convinced many voters that the electoral game is rigged in favor of wealthy and powerful interests in our society.

But Citizens United is just one debit in the public-confidence-in-the-electoral-process side of the ledger. In 2013, in Shelby County v. Holder, the court essentially eliminated the pre-clearance element of the Voting Rights Act of 1965, a provision that required certain states and local governments, because of their history of race discrimination, to seek clearance from the federal government before they made changes to their electoral practices. Because of that ruling, numerous laws and executive decisions that would have been blocked by the pre-clearance requirement have been implemented and have made voting more difficult. Again, the impact of the decision is to further erode public trust in the political system.  

The court’s willingness to uphold Voter ID laws in recent years is yet another withdrawal from the public confidence bank. 

The merits of each of these decisions can be debated in isolation. But the aggregate, compounding impact of these cases, and the private and public conduct they permit, is to cumulatively increase the influence of the wealthy and powerful in the electoral process and to facilitate actions by current government officials to manipulate electoral rules and practices in ways that entrench their party’s status, and correspondingly, to undermine the confidence of the American people in the political system.

Foundational principles are at stake here. The legitimacy of government depends on the consent of the governed. For many Americans, purported consent based on what appears to be an unfair, undemocratic electoral process conveys no such legitimacy.

It is not difficult to appreciate the court’s reluctance to wade into the districting thicket, and to try to develop judicially manageable ground rules for reviewing the drawing of district lines. But if the court doesn’t try — if it continues to refuse to adjudicate challenges to gerrymandered districts — and allows grossly politically manipulated district lines to stand, no matter how egregiously unfair and undemocratic they may be, it risks reaching the tipping point where no national governmental institution, including the court itself, will be able to command the respect of the polity.

Chief Justice Roberts once famously analogized the role of the court to that of a baseball umpire calling balls and strikes. In all sports, referees and umpires — in addition to policing garden-variety violations of the rules — must be willing to call out conduct that compromises the essential nature and spirit of the game. Permitting egregious gerrymandering in a democracy is like allowing the home team to throw bean balls at opposing players. If umpires allow home teams to engage in foul play without sanction, we should not be surprised when neither the umpire’s credibility nor the outcome of games commands respect.

October 10, 2017

Of Steak Rubs and Symmetry: A Response to Justice Gorsuch

By Chris Elmendorf and Eric McGhee

[Cross-posted from Election Law Blog.]

During oral argument in Gill v. Whitford, the partisan gerrymandering case, Justice Gorsuch complained that the plaintiffs' proposed test for unconstitutional gerrymanders was too much like a steak rub: "I like some turmeric, I like a few other little ingredients, but I'm not going to tell you how much of each." The implication is that adjudicating partisan gerrymandering cases would be like judging a Top Chef contest, with jurists relying on their personal preferences to deem the map at issue yummy or unpalatable.

One of us is the creator of the "efficiency gap," a measure of partisan gerrymandering that has played an important role in this case. Together we filed an amicus brief that outlined the properties and uses of both the efficiency gap and a variety of other partisan gerrymandering metrics. As such, we have an interest in making sure that the social science of this case is understood and used properly. Although Gorsuch might make an excellent steak rub, we don't think his metaphor caries well to the evidence or proposed standards in this case.

The metaphor is apt for totality-of-circumstances balancing tests, such as the constitutional test for procedural due process, and, arguably, the test for racial vote dilution under the Voting Rights Act. But the tests on offer for partisan gerrymandering claims-including the plaintiffs' test, and the test suggested in an influential amicus brief by biostatistician Eric Lander-do not invite or require balancing.

There is, first, an objective, well-defined question to be answered: Is the legislative map substantially asymmetric with respect to the conversion of votes into seats-meaning that each party is likely to receive quite different seat shares for a given share of the vote? To ask whether a map is asymmetric in a partisan gerrymandering case is akin to asking, in a toxic torts case, whether a chemical released in an industrial accident causes cancer. A judge in the torts case might consider epidemiological evidence, lab experiments on mice, and biomechanical studies of cell division. But the question to be answered is not whether these three types of evidence, considered together, show the plaintiffs to be morally deserving of compensation (a steak-rub question). Rather, the question is objective: does the chemical cause cancer?

Similarly, the three measures of partisan symmetry introduced by the plaintiffs in Gill-the Efficiency Gap, Gelman-King bias, and the mean-median difference-each serve to answer the objective question of whether a map of legislative districts yields an asymmetric votes-to-seats curve. The measures are extremely highly correlated in competitive states like Wisconsin. They diverge somewhat in politically lopsided states, but the reason for the divergence is well understood and points to a clear choice among the metrics.

If a legislative map were shown to have substantial asymmetry, then under the plaintiffs' proposed test, the court would ask whether that degree of asymmetry can be explained by neutral factors, such as the geographic distribution of each party's supporters. No balancing is involved: the court would not weigh the size of the asymmetry against the likelihood that it arose by chance, or against the weightiness of the state's official (legitimate) redistricting criteria. Indeed, to minimize judicial discretion at this stage, judges could use redistricting simulations to determine whether the map at issue is an outlier relative to the range of algorithmically generated maps.

Courts applying this approach would eventually have to settle on quantitative thresholds for "substantial" asymmetry, and for "outlier" status relative to simulated maps, but this is no different than what the courts did in malapportionment cases after Reynolds v. Sims. Also, while the plaintiffs in Gill formulated the substantial-asymmetry question as a two-part inquiry into magnitude and durability, these steps could easily be collapsed into one if courts focused on the expected rather than the observed level of asymmetry, where expected asymmetry is an average taken over the range of historically plausible partisan swings.

Ironically, the only serious subjectivity in the plaintiffs' proposed test lies in the intent prong-whether the map was adopted to benefit the favored political party. This inquiry may turn on a judge's priors in cases where the legislators worked hard to conceal their motives. The irony is that no one disputes that the intent prong is manageable. Intent tests are ubiquitous in constitutional law. But to the extent that the Supreme Court worries about judges simply voting for their party in gerrymandering cases (or being perceived to do so), the Supreme Court could implement the intent prong via conclusive presumptions based on the composition of the legislature (partisan intent presumed if the advantaged party held a majority of the seats when the map was enacted), or based on the results of computer simulations (partisan intent presumed if the map is an outlier relative to the distribution of simulated maps).

Again, our purpose here is not to argue for any particular outcome for the Wisconsin plan. The Supreme Court must decide whether this gerrymander is too extreme. But the Justices need not worry that the available metrics are too variegated for manageable adjudication. Steak rubs are great at the grill, and perhaps in some cases they should season the law too. But partisan symmetry is not a steak rub concept, and Gill is not a steak rub case.

May 26, 2017

The Shifting Ground of Redistricting Law

(Cross-posted from Balkinization)

Chris Elmendorf

The tectonic plates of redistricting law are starting to slide—and quickly. Earlier this year, a three-judge district court struck down Wisconsin’s state legislative map as an unconstitutional partisan gerrymander, the first such holding by any federal court in more than a generation. Federal courts in Maryland and North Carolina have also issued supportive rulings in current partisan gerrymandering cases, allowing the plaintiffs' claims to proceed to trial.  

Meanwhile, yesterday’s Supreme Court decision in Cooper v. Harris, the North Carolina racial gerrymandering case, augurs a major recontouring of the redistricting landscape as the Equal Protection plate comes crashing into the Voting Rights Act (VRA) plate. Section 2 of the VRA has long been understood to require the drawing of electoral districts in which racial minorities can elect their “candidates of choice” in locales where white and minority voters have very different political preferences. Yet since the 1990s, the equal protection clause has required strict scrutiny of any district in whose design race was the “predominant factor.” The Constitution disfavors the intentional sorting of voters among districts on the basis of their race. Until recently, however, it was widely thought that the “predominant factor” test for racial sorting / equal protection claims would be met only as to districts in which both (1) minority citizens comprise a majority of the voting-age population, and (2) the district’s boundaries are wildly incongruent with “traditional districting principles,” such as compactness and respect for local government boundaries.

But in Bethune Hill v. Virginia, decided two months ago, the Supreme Court clarified that the “predominant factor” test is satisfied whenever race was the overriding reason for moving a group of voters into or out of a district, irrespective of the district’s apparent conformity to traditional criteria. Then, in the unanimous portion of Cooper v. Harris, the Court applied strict scrutiny to a district because the state had “purposefully established a racial target” for its composition, and selectively moved heavily black precincts into the district to achieve that target. In the Republican redistricting plan at issue in Cooper, the target was 50% black. In a Democratic gerrymander of North Carolina, the target would probably be smaller, perhaps 40% black, to more efficiently distribute reliable black Democratic voters while continuing to enable the election of some black candidates. But the actual threshold (50% vs. 40%) seems legally irrelevant.

How then is a state to comply with Section 2 of the Voting Rights Act, which, as noted above, has long required states to create districts with enough minority voters (a "racial target") to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court will simply undertake to free redistricters from the latter obligation, holding Section 2 unconstitutional or narrowing it beyond recognition on the basis of an asserted conflict with the anti-sorting equal protection principle. 

Another possibility is that federal courts will require redistricters to follow a path established by Alaska's Supreme Court as a matter of state constitutional law. In Alaska, the state must first redistrict blind to race, then evaluate the resulting map for compliance with Section 2, and then make whatever minimal (?) changes are necessary prevent a Section 2 violation. Cooper v. Harris hints at this approach. Striking down District 1, the Court explained: "North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether a new, enlarged District 1 [enlarged to comply with one person, one vote], created without a focus on race but however else the State would choose, could lead to § 2 liability.”

Insofar as today’s decision in Cooper advances the Alaska framework, the million dollar question will be how a state redistricting authority must assess its initial race-blind map for compliance with Section 2. Here the law could evolve in any number of directions, but given the Supreme Court’s aversion to racial targets, the Court may well allow states to count for Section 2 compliance purposes any district in which minority voters are likely to wield some influence (say, any district with a Democratic majority, or any district in which Democrats would lose their working majority if no minority voters went to the polls). This would represent a dramatic change in the law of Section 2, since until now nearly all courts have focused on the question of whether districts enable the election of authentic candidates of choice of the minority community, rather than minimally acceptable (and usually white) Democrats.

Of course, all of this is somewhat speculative. Writing at SCOTUSblog, Kristen Clarke and Ezra Rosenberg argue that Cooper and Bethune Hill, read together, require plaintiffs bringing a racial sorting / equal protection claim to show (as the trigger for strict scrutiny) quite a bit more than the existence of a firm racial-composition target plus the movement of voters to achieve the target. I’m not convinced, but for now, there’s enough looseness in the doctrine for lower courts to go either way on this question. 

What is clear is that the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice. As Justice Kennedy for the Court remarked in Bethune Hill, “Traditional redistricting principles . . . are numerous and malleable . . . . By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”

Going forward, any redistricters who undertake to draw districts with a racial-composition target (majority-minority or otherwise) would do well to announce that the target is merely one objective to be considered and balanced alongside many others, rather than a categorical command. The crossing of fingers is also recommended.
November 29, 2016

New Op-Eds by King Hall Faculty

In recent weeks, King Hall faculty have written several opinion pieces for the press.

Kevin R. Johnson in The Sacramento Bee: Trump's Immigration Promises Fraught with Obstacles

The Obama administration used detention aggressively in 2014, when the nation experienced the migration of thousands of women and children fleeing violence in Central America. That detention has resulted in litigation. In addition, the Supreme Court will soon hear a constitutional challenge to detention without possibility for release and any review by a court. Increased use of detention by a Trump administration is likely to result in many lawsuits. Expect those lawsuits to last for years.

Brian Soucek in The Los Angeles Times: Stop Proposition 8, and Marriage Inequality in California, from Making a Comeback

A federal district court judge found Proposition 8 unconstitutional in 2010, but legal appeals kept it alive until 2013, when a U.S. Supreme Court ruling finally allowed same-sex weddings to resume in California. Laws that are found unconstitutional don't get erased; they just lose their legal force. So the text of the ban lies in wait, ready to spring back into action if given the chance. The election of Donald Trump might provide that chance.

Irene Oritseweyinmi Joe in The Los Angeles Times: Like Many Immigrants, I Owe a Debt to the Republican Party - of the 1980s

Imagine their surprise, however, when I let them know that, although I disagreed with some of Reagan's policies, there was one for which I would always be grateful. My family had been undocumented immigrants, and it was the Reagan amnesty program that allowed us to exit the shadows.

Jasmine E. Harris in the Tribune News Wire (providing content for news media around the world): The Right to Vote for People with Mental Disabilities

Beyond physical obstructions to poll sites, voters with mental disabilities -- including learning disabilities, autism, Down syndrome as well as dementia and Alzheimer's -- face an even greater challenge in casting their ballots: deeply entrenched stereotypes that shape election law and policy. The majority of states deny these citizens, either by law or common practice, the right to vote.

Elizabeth Joh in Slate: Five Lessons from the Rise of Bodycams

More than two years after Ferguson became a hashtag, spawned a movement, and drew national attention to problems about police accountability, the most tangible reform has been the spread of police body cameras. Their use seemed like a clear solution to problems of trust and oversight, but the reality hasn't been that simple. Body cameras have introduced new problems of their own. How can we do better when the next new police technology arrives? Here are five things to keep in mind.

Elizabeth Joh in NYTimes.com's Room for Debate: Should the President Be Able to Block You on Twitter?

Like granting the White House press pool access, the president’s social media obligations may ultimately be decided as a matter of custom. In a democratic society that values transparency and accountability, keeping the social media account of a president open to all ought to be part of these customs.

December 23, 2015

Dodge and Elmendorf Publish in Columbia Law Review

The December issue of the Columbia Law Review is out, and two of its scholarly articles come from King Hall faculty: William S. Dodge and Christopher S. Elmendorf.

Professor Dodge's article is International Comity in American Law. Abstract: "International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity-from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government's privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This Article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge the myths that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch."

Professor Elmendorf's article (with Douglas M. Spencer) is Administering Section 2 of the Voting Rights Act After Shelby County. Abstract: "Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section 5. The proposed reformation of section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in section 2 cases; and second, that the courts have authority to regularize section 2 adjudication by creating rebuttable presumptions. Most section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference and would make coalitional claims brought jointly by two or more minority groups much easier to litigate."

Congratulations on these prestigious placements, Professors Dodge and Elmendorf!

May 26, 2015

The Significance of the Supreme Court’s Williams-Yulee Decision Upholding Florida’s Regulation of Judicial Elections

Cross-posted from Justia's Verdict.

A few weeks ago the Supreme Court handed down an important yet under-noticed case, Williams-Yulee v. Florida Bar, in which a 5-4 majority upheld a Florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions, even though the state permits such candidates to raise money through surrogates (campaign committees) and also allows candidates to find out who contributed to their campaigns. In the space below, I identify four key takeaways from this "sleeper" ruling by the Court, a ruling that affords important insights about constitutional doctrine and also about the membership of the Roberts Court.

1. The Speech Clause Juggernaut May Be Losing Steam

The (unsuccessful) challenge to the Florida law was brought under the First Amendment; the defendant in Williams-Yulee argued that Florida's ban on personal solicitation was a regulation that singled out certain speech-a personal request for money-because of its content, in violation of free speech principles. The Court acknowledged that the Florida law was a content-based regulation of political speech (and, as explained in more detail below, thus purported to apply "strict scrutiny" to the matter), but nonetheless upheld the law because of the important countervailing interest in preserving public confidence in the integrity of the judiciary.

In holding that public perceptions of integrity should carry the day, the Williams-Yulee ruling stands in contrast to the great majority of free speech cases decided by the Court over the last generation. Since the early 1990s, the overwhelming majority of plausible free speech claims (and the defendant's claim in Williams-Yulee was certainly plausible) that have reached the Court have prevailed, and expressive autonomy has regularly trumped competing constitutional and societal values. Over the last quarter-century, the Court has invoked the Speech Clause to invalidate federal, state, or local laws and regulations in well over fifty cases, averaging close to three cases each year, a substantial number given the Court's small yearly docket of between seventy and eighty cases for most of that period.

But a quantitative inquiry tells only part of the story. It is particularly noteworthy that First Amendment claims grounded in expressive autonomy rights have not just been winning, but have been winning against-and requiring significant sacrifices of-other values that traditionally have enjoyed high esteem in our legal, social, and constitutional traditions, including the efficient functioning of labor unions, the protection of military honor and military families, antidiscrimination laws and norms, election and campaign finance regulation intended to make elections more free and fair, parental control over the upbringing of their children, and consumer protections, among others.

Whether Williams-Yulee represents simply one exception to this great tide of free speech victories, or instead should be viewed as part of the beginning of a more balanced approach to free speech cases remains to be seen. There are at least two (and maybe more) other interesting and difficult free speech decisions yet to be decided this Term. The first is a case that considers the extent to which the First Amendment protects against prosecution individuals who utter words that cause objectively reasonable people to feel fear (Elonis v. U.S.), and the second is a case about how readily a State can discriminate among messages on personalized automobile license plates (Walker v. Texas Division, Sons of Confederate Veterans). It is possible that the free speech claimants in both of those cases (who assert plausible, if to my mind flawed, free speech arguments) will also lose. If that happens, commentators will begin to wonder whether the free speech juggernaut is indeed beginning to slow.

2. "Strict Scrutiny" Is in the Eye of the Applier

As I noted above, the Court in Williams-Yulee applied strict scrutiny-which requires the government to prove that the law in question is narrowly tailored to serve a compelling interest-to the Florida election regulation. But, as Justice Scalia remarked in dissent, "[although the Court] purports to reach [its] destination by applying strict scrutiny, . . . it would be more accurate to say that it does so by applying the appearance of strict scrutiny." In particular, the Court seemed quite tolerant of underinclusiveness in Florida's scheme, whereas significant underinclusiveness usually prevents a statutory scheme from being considered "narrowly tailored" in the way that strict scrutiny dictates.

For example, the defendant pointed out that Florida permits candidates to write personal thank-you notes to donors (guaranteeing that the candidates will know who the donors are) and also allows campaign committees to act explicitly on behalf of candidates in directly soliciting donations. If personal solicitations by candidates undermine "public confidence in judicial integrity," why do not these other practices create the same harm? The Court acknowledged that Florida does allow activities that might create some suspicion over whether judges are beholden to or favor donors, but concluded that "narrowly tailored" does not mean "perfectly tailored," and that the "First Amendment does not put a State to [an] all-or-nothing choice." For the Williams-Yulee majority, it was sufficient that Florida has targeted the "conduct most likely to undermine public confidence[,]" and that personal solicitations are "categorically different" from solicitations by campaign committees. The Court did not go to great lengths to explain this "categorical" difference, other than to say that while committee and personal solicitations may be "similar . . . in substance, a State may conclude that they present markedly different appearances to the public."

Importantly, though, the Court did not cite to, or seem to insist upon, any proof by the State that these two types of solicitations were viewed differently by the public. Indeed, when the Court said that a State "may conclude," it was using language most often associated with deferential review-where benefits-of-the-doubt about the real-world state of affairs are given to the government-not the language of truly strict scrutiny, in which the government must establish not just that its views are plausible, but that its views are grounded in actual fact.

3. Stare Decisis Is Often Not Very Powerful at the Court

The seemingly generous implementation of strict scrutiny brings up another important facet of Williams-Yulee-its tension with the most relevant Supreme Court case in the realm of judicial election regulation. There is, as one of the Williams-Yulee opinions put it, "only [one] prior case concerning speech restrictions on a candidate for judicial office"-the 2002 case of Republican Party of Minnesota v. White. And in that case the Court (in striking down Minnesota's judicial election regulation) applied a stricter version of strict scrutiny.

In White five Justices used the First Amendment to strike down a Minnesota law that prohibited candidates for judicial office from speaking out on controversial issues of the day. The law at issue prohibited a candidate for elected judicial office from "announc[ing] his or her views on disputed legal or political issues." The prohibition went beyond candidate "promises" and forbade, for example, a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road.

Minnesota argued that it needed to regulate candidate speech to ensure that the public believes that judges are sufficiently open-minded about important matters that might come before them, an interest very similar to Florida's goal of "preserving public confidence in judicial integrity." But Justice Scalia's opinion for the majority in White rejected this justification for Minnesota's law because the scheme was woefully underinclusive, insofar as judicial candidates were not prohibited from voicing their views prior to the time they became declared candidates. The Court rejected the argument, made by dissenting Justices, that "statements made in an election campaign pose a special threat to open-mindedness because the candidate, when elected judge, will have a particular reluctance to contradict them." The Court said that the idea that judges feel particularly constrained by statements they make qua candidates is "not self-evidently true[,]" and thus cannot carry the day given the "burden [on the government] imposed by our strict scrutiny test to establish th[e] proposition that campaign statements are uniquely destructive of open-mindedness [or the appearance of open-mindedness]."

The tension between White and Williams-Yulee is clear. In the former, the State lost because it did not prove that campaign statements were "uniquely" destructive of the appearance of open-mindedness, but in the latter the State prevailed because it was allowed to "conclude" (without any proof) that personal solicitations "present markedly different" appearances to the public as compared to committee solicitations. Why Minnesota had to prove "unique" destruction of confidence whereas Florida could simply reasonably surmise "markedly different" problems of public perception is left unexplained.

Let me be clear here that I think the overall approach of Williams-Yulee is largely correct and that the analysis of the White majority was largely misguided. As I have written in law review articles and elsewhere, while the First Amendment protects one's right to speak about the bench, there is no right to to sit on it, and the Tenth Amendment gives states broad powers to regulate the process by which people become judges. The key point is not merely that judges are not supposed to be politicians; it is that throughout American history, we have often selected judges (but not legislators or chief executive officers) without the use of contested elections. And in these non-election processes, what would-be judges have said and done is held against them by government decisionmakers. Just as the president and the Senate certainly, and permissibly, may refuse to make someone a federal judge because of what that person has said, even though such refusals are undeniably "content-based" and indeed "viewpoint-based," and thus might, in other contexts, run afoul of basic First Amendment principles, a state should be generally available to deny judicial office to candidates who speak in ways that contradict certain judicial decorum norms set by the state. (There is the separate question, implicated in both White and Williams-Yulee, of whether the sanction for violating campaign rules can extend beyond mere disqualification for judicial office, which is a topic I save for another day.)

But my point here is not that Williams-Yulee's result is wrong-only that its application of strict scrutiny is not very authentic and that its leniency contradicts the approach in White.

4. Chief Justice Roberts Is no Clone of Chief Justice Rehnquist

How do we explain the tension between White and Williams-Yulee? The answer seems to rest largely on changes to the Court's personnel. White was a 5-4 case, with the majority consisting of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. The dissenters were Justices Stevens, Souter, Ginsburg, and Breyer.

In Williams-Yulee, the remaining White dissenters (Ginsburg and Breyer) are (predictably) in the majority, and the remaining members of the White majority (Justices Scalia, Kennedy, and Thomas) are (predictably) in the dissent. Between White and Williams-Yulee, Justice Alito replaced Justice O'Connor, and voted the same way as we would have expected her to vote, and Justices Kagan and Sotomayor replaced Justices Stevens and Souter, and voted the same way as we would have expected them to vote. So far, so good-an even swap.

But Chief Justice Roberts, who replaced Chief Justice Rehnquist, did not follow in the footsteps of his predecessor here. So what was a 5-4 majority in favor of the First Amendment claimant in White became in Williams-Yulee a 5-4 majority in favor of the State. Chief Justice Roberts apparently has a different view of judicial elections (and the extent to which First Amendment protections for election-related speech apply to them) than his mentor and former boss. Whether there is a broader divergence between Chief Justice Roberts and his predecessor in First Amendment cases is a question that might be worthy of more attention now that the Roberts Court is finishing its first decade.

May 1, 2015

New Research from the Faculty at UC Davis School of Law

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" Free Download
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" Free Download
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court's evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

"Bait, Mask, and Ruse: Technology and Police Deception" Free Download
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" Free Download
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" Free Download
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" Free Download
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" Free Download
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" Free Download
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" Free Download
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

 

March 13, 2015

Reflections on the Oral Argument in the Arizona Independent Redistricting Commission Case

Cross-posted from Justia's Verdict.

The U.S. Supreme Court last week heard oral arguments in an important case involving federalism and election regulation, Arizona Legislature v. Arizona Independent Redistricting Commission. As I have explained in a two-part series of columns (beginning with this one), Arizona is one of only two states (California being the other) where voters—responding to state legislatures’ tendency to engage in problematic gerrymandering—passed an initiative giving the job of drawing congressional districts to an independent redistricting commission (IRC) instead of the regular state legislature. The elected Arizona legislature brought a lawsuit and appealed the lower court ruling to the Court, arguing that the so-called Elections Clause, Article I, section 4 of the federal Constitution, which gives power to undertake districting in the first instance to the “legislature” of each state, prevents the people of a state from divesting the elected state legislature of district-drawing power.

One Generally (and Recurringly) Surprising Aspect: Federalism Inversion

Many aspects of the oral argument weren’t shocking. I continue to believe, for reasons I explained in the earlier column, that the challenge to the IRC is flawed, but many analysts anticipated that the more conservative Justices would be sympathetic to the arguments made by the elected legislature, which is being represented by former Bush Administration Solicitor General Paul Clement, and these Justices did seem to be. On the other hand, some liberal Justices generally seemed more receptive to the arguments in favor of the IRC, made by its lawyer, former Clinton Administration Solicitor General Seth Waxman. Though expected by Court watchers, this coalitional breakdown is itself surprising in at least one historical respect: the liberal Justices seem more inclined to favor “states’ rights” by giving states latitude to experiment with different modes of district drawing, while the conservative Justices seem disinclined to permit states free reign. In the 1980s and 1990s, conservative Justices were the ones who generally thought the federal Constitution allowed for broad state experimentation, and the liberals thought that states did not have as much running room. But beginning with Bush v. Gore, it is now hard to know how the conservative/liberal framework (which is, of course, overly simple but nonetheless somewhat useful) maps onto federalism matters. We see the same potential complexity in the pending Obamacare case, King v. Burwell, where liberal rather than conservative Justices will likely construe the Affordable Care Act (Obamacare) in a particular way so as to avoid imposing costs on states that might not have been fully aware of the potential consequences of their decisions not to set up their own healthcare exchanges.

A Surprising Inattention to Standing

In a few other respects, though, the oral argument in the Arizona case was surprising by any standard. For one thing, the Court included in the grant of review a question of whether the elected legislature had standing to sue (and the matter was briefed), yet the Justices asked no questions of Mr. Clement about whether his client did enjoy standing. There were some standing questions asked of the lawyer representing the United States (which supported the IRC as an amicus in the case) when he said he thought the elected legislature lacked standing, but one would think that if there is a question raised in a case about the plaintiff’s standing, the Justices would ask the lawyer representing the plaintiff to explain why the Court can hear the case. The burden to establish standing is on the party seeking to invoke federal judicial power, and yet the Justices gave Mr. Clement a pass on this in oral argument, even though the standing question is far from easy. (For an explanation of why the standing question is a complex one, readers may want to consult an earlier Verdict column focusing on that question).

And when they did engage in the standing analysis at all, the Justices seemed not to know what they themselves had said in past standing cases, including a particularly relevant one. Justice Kennedy, in questioning the lawyer for the federal government, intimated that the Court’s cases do not say that just because another plaintiff might be a better candidate to bring a lawsuit, the Court should deny standing to the party actually in front of it. And the federal government’s lawyer acknowledged that the Court often says close to the opposite—that the “even if [the Court’s rejection of standing in a given case] would mean no one would have standing to sue, that’s not a reason to find standing.” But what both of them seemed to forget is that in the standing case most germane to the Arizona legislature’s dispute, Raines v. Byrd—where the Court denied standing to members of Congress in a case challenging the Line Item Veto Act—the majority did suggest that whether another party might be a better candidate for standing was a factor that might cut against standing for the members of Congress. As Chief Justice Rehnquist’s opinion put it: “We also note that our conclusion . . . [that Congresspersons lack standing does not] foreclose[] the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would be different if . . . [this] circumstance[] were different we need not now decide.” The clear implication of that last sentence is that the existence of a “better” candidate for standing may very well affect whether the Court is willing to stretch standing doctrine for the sake of the plaintiff actually before the Court.

A Surprisingly (and Problematically) Narrow View of Past Cases and U.S. History

This isn’t the only passage from previous cases that the Justices seemed to have forgotten they said. Justices Kennedy and Scalia repeatedly pressed Mr. Waxman for any instances elsewhere in the Constitution in which the Court had indicated that the word “legislature” was not necessarily a limited reference to the elected representative legislature, but could include the people themselves—the lawmaking authority. While Mr. Waxman had no clear answer, one thing he could have said is that Justice Scalia himself has intimated that “legislature” might in some constitutional contexts be read to include the people. In Salazar v. Colorado, in 2003, a case involving whether Colorado could involve state courts in discharging the power that Article II of the Constitution gives to “the legislature” of each state to prescribe the manner in which presidential electors shall be selected, Justice Scalia (along with Justice Thomas) joined an opinion, dissenting from a denial of certiorari, which said: “Conspicuously absent from the Colorado lawmaking regime, under the Supreme Court of Colorado’s construction of the Colorado Constitution to include state-court orders as part of the lawmaking, is participation in the process by a body representing the people, or the people themselves in a referendum” (emphasis added).

The Justices seemed somewhat forgetful not just of past statements in cases, but also of American history, in particular, the path by which U.S. senators came to be directly elected by the people. The text of the original Constitution (prior to the Seventeenth Amendment in 1913) provided that senators should be picked by the “legislature” of each state. Justice Kennedy, trying to draw a sharp distinction between the “legislature” and the people of the state based on this textual feature of the 1787 document, observed at argument that “until 1913, for close to a hundred years, many States wanted to have direct election of the senators . . . and not one State, not one State, displaced the legislature. It took the Seventeenth Amendment to do that. . . It seems to me that [for this reason] history works against the IRC.”

With all due respect, Justice Kennedy’s historical account here is extremely and problematically simplistic, in that many states did effectively, to use his term, “displace[] the legislature” in picking U.S. senators. Beginning in the mid-1800s, state-level political parties and organizations sought ways to involve the people more directly in selecting senators, and were devising increasingly effective ways to limit state legislators’ discretion in their choice of federal senators. What evolved into the most sophisticated approach, the so-called “Oregon Plan” (or Scheme), began simply as an opportunity for state legislative candidates to formally pledge to follow the will of the voters, as expressed through an advisory popular election, when it came time to pick the next federal senator. The pledges were considered merely moral at first. But as other states began to follow Oregon’s lead, more creative and more coercive devices were employed. Nebraska, for example, pioneered a “scarlet letter” approach, in which elected legislators who broke the pledge they took as state legislative candidates were burdened with a ballot notation to that effect in the event they sought state legislative reelection. Other states followed suit, crafting variations on the Oregon and Nebraska devices to suit their local needs. Oregon voters ultimately adopted a state constitutional amendment that, as a matter of state law, legally bound state legislators to select the U.S. Senate candidates who were most popular among state voters. By 1912, when the U.S. Senate approved the Seventeenth Amendment, nearly sixty percent of the senators were already selected by some means of direct election (and thus had nothing to fear from it). For this reason, it seems likely that even without ratification of the Seventeenth Amendment, direct election would in fact be with us today in most, if not all, states. In reality then, the Seventeenth Amendment was a formalizing final step in an evolutionary process.

Of course, the Oregon state constitutional provision binding state legislators, the Nebraska scarlet letter devices, and the somewhat similar measures from other states were never litigated in the U.S. Supreme Court or in lower courts. Yet that fact may itself be telling. Does Justice Kennedy think that these devices were in fact unconstitutional because they improperly deprived the elected legislatures of power Article I gave to them? If so, would Justice Kennedy be prepared to call into question the legitimacy of the senators elected from all the states that employed such devices for over a decade? And the actions taken by these Senates? And if not, doesn’t this historical episode support the Arizona electorate and its desire to experiment via the IRC?

In deciding what the word “legislature” in the Constitution means, in Article I and elsewhere—and whether that term can be read to include the people themselves—the Court should, at a minimum, be more careful and sophisticated in taking account of what the Court or various of its Justices have said, and what the full historical record of American democracy reveals.