Category: Uncategorized

H.R. 1: First Item on the Agenda? Improving the 2020 Election.

As election returns rolled in last week, citizens in Democratic and Republican strongholds alike voted overwhelmingly to take power back into their own hands.  From voting-rights restoration for 1.4 million returning citizens in Florida and Automatic Voter Registration (AVR) in Nevada to redistricting reform in Michigan, Missouri, Colorado, and Utah, the night was full of impressive democracy-enhancing victories.

These gains were only possible thanks to incredible dedication and activism between the 2016 and 2018 elections.  And, as the dust settles on 2018, it’s time to turn to 2020.  For states with popular initiatives, that means expanding AVR, implementing early voting and no-excuse absentee voting, or following Maine’s lead and adopting ranked-choice voting.

Yet, improving our elections should not be the work of the voters alone.  As more and more elected officials owe their office to such reforms, they too can help unrig the systems that keep our politics unaccountable.  And, for candidates who can only win in wave years, the first order of business must be tearing down the barriers that make our elections unresponsive in all other years.  Newly elected leaders have an opportunity to make voting more accessible and representative before 2020 arrives—they must not pass it up.

State Action

For newly elected governors, state senators, and state representatives, this means making registration easier (through AVR, online registration, and/or same-day registration), making voting more convenient (through expanding early voting, absentee/mail-in voting, and/or creating state holidays for voting), making voting more representative (through ranked-choice voting, redistricting reform, and/or fair representation voting), and expanding the franchise.

These kinds of structural changes are less likely to roll back after the next election because they alter the power (and the pool) of the voters making the decisions, thereby changing the incentives of those running and those elected.  Putting these reforms at the top of the agenda—and insisting on them before moving forward—can also impact how newly elected officials of all stripes approach the rest of their legislative term.  If state officials know that their work will be judged by a broader and more representative electorate in two years’ time, they might be more responsive in the interim.

In states where these reforms are already in place due to citizen initiative, legislators should take steps to enhance and protect those reforms by reenactment and expansion.  This explicit legislative action may help defend them against challenge if the Supreme Court decides to revisit its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.  As Rick Hasen points out in a recent Harvard Law Review Blog post, Chief Justice Roberts “wrote a blistering dissent for the four conservative Justices arguing that only state legislatures can set the rules” for congressional elections under Article I of the U.S. Constitution.  With Kennedy replaced by Kavanaugh, it may be that the Court’s fickle feelings about stare decisis are now all that stand in the way of a massive rollback in recent initiative-driven gains.  By shoring up these reforms through legislative action, state representatives can help lock in these democratic advances, protect them against judicial challenge, and position themselves as defenders of the popular will ahead of their next election.

There may also be room for compromise on redistricting reform in a number of states with split governments.  Maryland and Massachusetts, for example, continue to have Democratic legislatures and Republican governors, whereas Virginia and Wisconsin have Republican legislatures and Democratic governors.[1]  With a new round of redistricting approaching (and roughly equal numbers of congressional representatives in each state), perhaps there’s more of an incentive now to “make a disarmament deal” than in prior years, with each state conditioning redistricting reform on a sister state enacting the same.

Each of these steps would improve the state of our democracy significantly and set the stage for elections in 2020 based on a much more representative electorate.

Federal Action

With a Democratic House and a Republican Senate, the odds of federal action may seem slim.  Nonetheless, Election Night revealed that democratic reforms remain popular across party lines.  Proposals for improving our elections should be at the front of the legislative calendar and should remain a top priority throughout the coming legislative session.  These include:

Automatic National Voter Registration: Those who are eligible to vote should be able to vote, and those who are ineligible to vote should be kept off the registration rolls—these basic principles have widespread public support. A national system that automatically registers voters for federal elections as soon as they become eligible and that assigns a national identification number to each voter would address both of these concerns.  The United States has terrible turnout numbers, but much of this may be attributable to the registration barrier: our turnout of registered voters appears to be among the best in the world.

Voting Rights Act Restoration: If it feels like voting has become far more difficult over the past few years, you’re not wrong. Before 2013, states and localities with a history of discriminatory voting practices could not alter their voting rules without getting prior permission (or “preclearance”) from a federal court or from the Department of Justice.  In 2013, the Supreme Court held that the list of jurisdictions subject to preclearance was outdated and struck this part of the Voting Rights Act (VRA) down.  Numerous new voting restrictions soon followed.  Congress used to reauthorize the VRA with broad bipartisan support, and it should do so again this session by enacting the Voting Rights Advancement Act (legislation that requires preclearance for any state with a record of voting-rights violations in the last 25 years).

End Gerrymandering with the Fair Representation Act: Independent redistricting commissions enjoy widespread support across the partisan divide and should be required for the creation of all congressional districts.  But Congress should not stop there—it should pass the Fair Representation Act (FRA).  The FRA uses ranked-choice voting and multi-member districts to ensure that every vote matters.  Independent commissions can help make lines fairer, but single-member districts mean even the “fairest” lines will still write off those voters in the minority of each district.  In our increasingly polarized politics, we could stand to have a House of Representatives with Massachusetts Republicans, Arkansas Democrats, and perhaps even some third-party Members of Congress—voices that our current system shuts out.

Election Administration: No one should have to wait hours to vote, face malfunctioning equipment, or fear that vote tallies have been manipulated. Back in 2014, a bipartisan commission proposed a number of reforms to improve polling place resource allocation, expand opportunities to vote before election day, and provide regular audits of voting equipment.  These suggestions are still relevant today.  Congress should provide funding to update and improve our electoral machinery and processes.

With forceful action at the start of the next session, Congress could put our democracy on a safer and more sustainable path, leveraging the progress of the last step forward in order to make the next step possible.  But these reforms must be first on the legislative agenda if they’re to make any difference in time for the 2020 elections.  Democrats and Republicans alike should take a lesson from the voters: some things are beyond the partisan divide.  Free and fair elections ought to be one of them.

 

[1] Maryland and Massachusetts may be less inclined to engage in this exchange given their Democratic supermajorities, but given the slightly higher number of Republican representatives at stake (and the recent federal court ruling against Maryland’s gerrymander) perhaps there is still incentive to make a trade.

The Ideological Balance of the Supreme Court Hangs On The Midterm Elections— But Not Because Of Kennedy

Now that Justice Kennedy has announced his retirement, everyone’s attention has turned to the question of who will fill his seat.  Given Kennedy’s status as the swing vote (despite being quite “un-swingy” as of late), Democrats are rightly concerned that a replacement in the mold of Justice Gorsuch could shift the ideological balance of the Court for a generation.  Democratic senators are already rallying to make the upcoming midterm elections about Kennedy’s replacement.  There’s just one problem: they don’t have the votes.

Democrats are in the minority and it’s sheer fantasy to think that even the most “persuadable” Republican senator would be willing to hold a seat open until after the midterm elections.  The best short-term hand Democrats can play is to pressure more moderate Republican senators into supporting the least-extreme potential nominees on Trump’s list.

The long-term makeup of the Court, however, still hangs in the balance this November.

That’s because whoever controls the Senate in the next two years may well determine who fills Justice Thomas’s seat.  Until today, some speculated that Thomas—not Kennedy—might be next to retire.  Most of the reasons for that speculation—especially the ability to step down during a Republican presidency—still hold.  And while a “blue wave” would come too late in the day to prevent moderate Kennedy from being replaced with a hardline conservative, it would not come too late to prevent hardline-conservative Thomas from being replaced with a moderate.  The Democrats face an uphill battle to retake the Senate, but if they succeed they could insist on amends (Merrick Garland, anyone?) or even hold the seat open in the hopes of a Democratic presidency in 2020.

The Supreme Court is in for a markedly conservative turn in the near future no matter what happens.  Whether that rightward swing holds for a generation, however, rests with the voters this November.

Raines Check: Legislator Standing and the Separation of Powers

Excited to have a post up today on Take Care Blog discussing Raines v. Byrd and the impact of separation-of-powers principles on legislator standing in the congressional emoluments lawsuit:

In Raines, a group of Senators and Representatives brought a lawsuit claiming that the Line Item Veto Act—which Congress had passed over their nay votes—was unconstitutional because it diluted their legislative power. . . . As the Raines Court observed, “the law of Art. III standing is built on a single basic idea—the idea of separation of powers.”  The decision revolved around this structural principle and was animated by a respect for judicial boundaries and the need to let the political process play out with each branch fulfilling its constitutionally assigned role.

In the congressional emoluments case, respect for structural concerns leads to the opposite result.  Failing to accord standing would undermine separation-of-powers principles; draw each branch beyond its proper constitutional sphere; and allow the Executive, the Legislative, and the Judicial branch to shirk their constitutionally assigned duties.

Head on over to Take Care Blog to read the full piece.

Basis, Intent, and the Blood Sport Republic: A Voting Rights Framework for a Constitutional Democracy

This weekend, William & Mary will host an impressive symposium with the daunting task of “lay[ing] a definitive academic foundation” for redistricting law ahead of the 2020 census. The topic could not be more pressing. The Supreme Court continues to consider Bethune-Hill[1] and McCrory, is holding Covington and Harris[2] in limbo pending those decisions, and will almost assuredly see the historic Whitford case land on its doorstep soon. In a weekend that is sure to reveal a number of disagreements on critical questions, perhaps all attendees can agree on one thing: “The most charitable thing to say about the current state of . . . gerrymandering law is that it is a big mess.

Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3]  [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

Redistricting
  Racial Dilution (Statutory) Racial Dilution Political Dilution Racial Sorting Political Sorting
Authority[4] VRA & 15th 14th 1st and/or 14th (Whitford) 14th 1st and/or 14th
Intent

(“Why this district?”)

No showing required

Device may violate VRA despite having political purpose

Device enacted or maintained “to minimize or cancel out the voting potential of racial or ethnic minorities” (Bolden) Device enacted or maintained to “to minimize or eliminate the political strength of any group or party” (Gaffney; Bandemer (citing Bolden)), or

“to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation” (Whitford)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification

Political objective does not change racial basis of sort. (Bethune)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification
Basis[5]

(“Why this person?”)

Evidence of racial basis may favor causation finding, if legally necessary[6] No showing required; but relevant to proving intent No showing required, but relevant to proving intent “State has [predominantly] used race as a basis for separating voters into districts.” Miller

(i.e., racial basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Miller, Bethune)

State has predominantly used political data as a basis for separating voters into districts (i.e., political basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Bethune)

Effect (Preconditions) Gingles Test (threshold showing that device can impair equal ability to elect)

No strict threshold for finding legally significant polarization (Gingles)

Gingles Test

See Martinez, 234 F. Supp. 2d 1275 (applying Gingles)

No strict threshold for finding legally significant polarization (Gingles)

“Modified Gingles” Test (threshold showing could be Whitford efficiency gap, Sam Wang’s approach, Bernie Grofman’s factors, etc.)

No strict threshold is necessary

N/A N/A
Effect (Liability) Totality of Circumstances Totality of Circumstances

Burden shifts if plaintiff makes prima facie case (Arlington Heights)

Totality of Circumstances

Efficiency gap is weighty evidence, but not dispositive (Whitford)

Burden shifts if plaintiff makes prima facie case (Whitford)[7]

No showing required

(Expressive and representational harms implied when predominant basis is race)

No showing required

(Expressive and representational harms implied when predominant basis is politics)

State Justifications (Permissible)[8]

See generally, Parsons.

Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC)
State Justifications (Impermissible)[9]

See generally, Parsons.

Racial, Partisan, or Incumbency Advantage (Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune) Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.

(more…)

2017 Score: Swamp 1, Drain 0

On the eve of the 115th Congress, House Republicans have voted to gut the Office of Congressional Ethics – an independent ethics watchdog created in the wake of the Jack Abramoff scandal.  The proposal creates, instead, a new “Office of Congressional Complaint Review” within the House Ethics Committee, giving lawmakers themselves more control over internal ethics inquiries.  Early reports suggest the new office won’t be able to release information to the public, have a communications spokesperson, consider anonymous tips against lawmakers, or even communicate with law enforcement unless the House Ethics Committee approves.

The proposed change will be included in a package of new House Rules governing the incoming Congress, which is scheduled for a vote by the full House tomorrow afternoon.

UPDATE: After a swift and overwhelming blowback from the public, the plan was scuttled.  Issue One’s press release provides the reformers’ mantra for all of the challenges on the horizon: Victory, then Vigilance.

On “Hamilton Electors” and the Lessig/Hasen Debate

Professors Lawrence Lessig and Rick Hasen–two titans of the political law world–recently got into a public debate over the legitimacy of presidential electors voting in a way different from how their votes were pledged.  Despite my decidedly non-titan status, this is a blog about government structure and process, so I suppose it’s worth weighing in: both seem wrong in my view.

The debate opened with Lessig writing this article in the Washington Post.  In it, Lessig first notes the historical role and purpose of the electors: to act with independence and exercise judgment in determining who should become president.  The electoral college is, in Lessig’s words, a “safety valve” or “circuit breaker” to ensure that the judgment of the people is “reasonable.”  But then Lessig goes one step further.  He claims that, based on the “fundamental principle of one person, one vote,” the electors should “respect the equal vote by the people” and “ratif[y]” the result of the popular vote outcome on Dec. 19 by voting for Clinton.

In a post on his Election Law Blog, Hasen pushed back on both points.  “First, the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state. If we had a system where we expected them to exercise independent judgment we would spend time vetting them.  Instead, they are generally loyal party members.  Second, relying on the national popular vote to overturn the results of the electoral college seems unfair even if, like me, you believe the electoral college is unfair. The election was run under the electoral college system. Would Clinton have won if both sides were going to run up the popular vote? Perhaps, but it is not a given. This seems to go against rule of law ideas that we all abide by the rules for an election set in advance. Turning the electors into mighty platonic guardians doesn’t seem to be the right way to go.”

The truth, in my view, is somewhere in between: the electors retain a critical function and have a duty to exercise independent and considered judgment, but this does not mean automatically choosing the national-popular-vote winner based on the principle of “one-person, one-vote.”

Professor Lessig gets the history and purpose of the electoral college right.  Regardless of whether we should reform our method of choosing president and adopt a national-popular-vote system, the current system places the actual election of president in the hands of the college.  Hasen argues that we shouldn’t “turn the electors into mighty platonic guardians,” but this misses the point: the electors are, in a limited sense, already platonic guardians.  (As Lessig notes in reply.)  As Hamilton wrote in Federalist No. 68,

“It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it.”

The Founders designed the electoral college system to serve a particular purpose and advance certain values.  They did not choose a method that automatically accorded a certain weight to the popular result in each state, just as they did not choose a method that automatically accorded the presidency to the winner of a national popular vote.  Thus, arguing that the electors should follow the popular result in their own states without any exercise of judgment (as Hasen does) is just as baseless as arguing that the electors should follow the popular result on a nationwide basis based on automatic application of one-person, one-vote principles (as Lessig does).  Both of these arguments defeat the very purpose of having an electoral college in the first place.

Hasen is right to point out that we cannot rely on the national-popular-vote total alone.  As he states, “The election was run under the electoral college system. Would Clinton have won if both sides were going to run up the popular vote? Perhaps, but it is not a given.” But, those who argue that “the rules are the rules,” that the electoral college was in place at the time of the presidential race, and that, therefore, the winner of the electoral college should win the presidency cannot suddenly turn around and argue that the electoral college isn’t allowed to function as it was designed to function.   

This, in effect, seems to be Hasen’s position.  He argues that “the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state” and that if “we expected them to exercise independent judgment we would spend time vetting them.”  The fact that we expect them to automatically adopt the popular result in each state does not mean that they historically have done this or now must do this.  If the popular vote in the state results in a qualified, reasonable candidate–as it historically has–then there would be no grounds for the electors to step in and do anything other than ratify that choice.  But make no mistake, they have retained the option not to ratify that choice since the electoral college was conceived.  And if their historical consistency in ratifying the popular choice has caused us to lapse in our duty to vet them, that would be our fault, not theirs.

After all, many states have passed “faithless elector” laws that provide for the punishment of electors who deviate from the statewide popular vote results.  Why pass these laws at all unless you recognize that the electors, in fact, retain the capacity to vote otherwise?

Hasen also points out that electors nowadays are “generally loyal party members.” But that makes the idea of someone “going rogue” even more important.  If a party loyalist finds his or her party’s own candidate so unqualified that he or she cannot in good conscience vote for the candidate, that should tell us something.  The electoral college need not be comprised of full-fledged “platonic guardians” who completely disregard the popular vote results to still serve its core function: conducting a separate, thorough, discerning evaluation of the candidate to determine whether they are a qualified and reasonable choice for the highest office in the country.

The Constitution was adopted with the electoral college as the method for choosing president.  Unless and until we reform our method of choosing president, that is the process we operate under.  And this approach was specifically devised to ensure the election of a qualified individual.  As Hamilton wrote, in attempting to convince the state conventions to ratify the Constitution and the electoral college process in the first place:

“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”

We have all cast our votes.  Now, we must let the electors cast theirs.  As Hasen said: “The election was run under the electoral college system.”  Those electors are charged with a most sober, solemn, and serious duty.  Is that to vote for Trump?  Clinton?  Or another option?  We’ll soon find out.