Fictional Attorney of the Month: The King of Hearts

Alice's Adventures in Wonderland tells of a rather silly kingdom. And Alice observes the trial of the Knave of Hearts.

She easily identifies the King of Hearts as the judge "because of his great wig." She watches jurors writing their names in the event they forget them before the end of the trial.

As the trial begins, the judge/king accuses the Knave of Hearts of stealing the queen's tarts. But the King of Hearts has little sense in running a trial.

"Consider your verdict," the King said to the jury.

"Not yet, not yet!" the Rabbit hastily interrupted. "There's a great deal to come before that!"

"Call the first witness," said the King; and the White Rabbit blew three blasts on the trumpet, and called out, "First witness!"

At one point, the King of Hearts warns the Hatter to give his evidence or face execution on the spot, or that the Hatter must remember evidence or be executed. Certainly an intemperate judge. And then, as judge, he cross-examines a witness on the contents of the tarts, only to complain to the Queen, "Really, my dear, you must cross-examine the next witness. It quite makes my forehead ache!" And when Alice takes the stand (by now, a giantess), the king cites "Rule Forty-two. All persons more than a mile high to leave the court," which he claims is the oldest rule in the book, until Alice remarks that it ought to be numbered one if that were the case.

An executive acting as judge? This month's Fictional Attorney of the Month.

Quick thoughts on Arizona State Legislature v. Arizona Independent Redistricting Commission

Sixteen months ago, I highlighted a largely-unnoticed case in which Arizona's state legislature challenged a delegation of power over its power to draw congressional districts from itself to an independent redistricting commission, a delegation that occurred via ballot initiative. I noted the three-judge panel district court's decision, was the first to mention Paul Clement's involvement in the case, and had a few thoughts from oral argument. Now have a decision (PDF).

The opinion written by Justice Ginsburg, in a 5-4 vote, affirmed the three-judge panel and permits the independent redistricting commission. (This vote total is deceptive: two justices would have dismissed the case for lack of jurisdiction, effectively allowing the law to remain on the books; so, in theory, 7 justices agreed with the result in some remote way, but only 5 agreed on the merits of the constitutional claim.)

First, the case permits the legislature to have standing, distinguishing it from Raines v. Byrd, in which individual members attempted to assert standing. This, I think, portends poorly for the legislators suing in Hickenlooper v. Kerr, the Guarantee Clause case I've written about before.

Second, the opinion spends a substantial amount of time emphasizing that federal statute permits the exercise of power here. But that only addresses half the question: the other half the constitutional question, because if Congress lacked the power to authorize such an exercise of power, then the statute would fall, too.

Third, on the Elections Clause issue, the bulk of the analysis turns on a generous definition of the word "legislature," including the power to delegate authority:

To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.
As well in Arizona, the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do.

Fourth, Chief Justice Roberts pens the principle dissent relying on several core arguments: that the word "Legislature" relating to the election of Senators is instructive; the definition of the legislature; etc.

But, he also writes about the power of delegation, with some doubt:

The majority concedes that the unelected Commission is  not “the Legislature” of Arizona. The Court contends instead that the people of Arizona as a whole constitute “the Legislature” for purposes of the Elections Clause, andthat they may delegate the congressional districting authority conferred by that Clause to the Commission. Ante, at 25. The majority provides no support for the delegation part of its theory, and I am not sure whether the majority’s analysis is correct on that issue. But even giving the Court the benefit of the doubt in that regard, the Commission is still unconstitutional.

Fifth, the sides dispute the functionalist definition of "legislature." From Justice Ginsburg:

THE CHIEF JUSTICE, in dissent, features, indeed trumpets repeatedly, the pre-Seventeenth Amendment regime in which Senators were “chosen [in each State] by the Legislature thereof.” Art. I, §3; see post, at 1, 8–9, 19. If we are right, he asks, why did popular election proponents resort to the amending process instead of simply interpreting “the Legislature” to mean “the people”? Post, at 1. Smiley, as just indicated, answers that question. Article I, §3, gave state legislatures “a function different from that of lawgiver,” 285 U. S., at 365; it made each of them “an electoral body” charged to perform that function to the exclusion of other participants, ibid. So too, of the ratifying function. As we explained in Hawke, “the power to legislate in the enactment of the laws of a State is derivedf rom the people of the State.” 253 U. S., at 230. Ratification, however, “has its source in the Federal Constitution” and is not “an act of legislation within the proper sense of the word.” Id., at 229–230.
Constantly resisted by THE CHIEF JUSTICE, but well understood in opinions that speak for the Court: “[T]he  meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932) (citing Smiley, 285
U. S. 355). Thus “the Legislature” comprises the referendum and the Governor’s veto in the context of regulating congressional elections.

Chief Justice Roberts also addresses the functionalism argument of "legislature":

As a matter of ordinary language and common sense, however, a difference in function does not imply a difference in meaning. A car, for example, generally serves a transportation function. But it can also fulfill a storage function. At a tailgate party or a drive-in movie, it may play an entertainment function. In the absence of vacancies at the roadside motel, it could provide a lodging function. To a neighbor with a dead battery, it offers an electricity generation function. And yet, a person describing a“car” engaged in any of these varied functions would undoubtedly be referring to the same thing.

Sixth, the Court struggles with congressional election precedent (more on this later--I have much to say!). It examine Baldwin v. Trowbridge, as Congress examined whether to seat someone elected pursuant to the state legislature's rules or the constitutional rules. From Justice Ginsburg:

The House Elections Committee, in a divided vote, ruled that, under the Elections Clause, the Michigan Legislature had the paramount power.
As the minority report in Baldwin pointed out, however,the Supreme Court of Michigan had reached the opposite conclusion, holding, as courts generally do, that state legislation in direct conflict with the State’s constitution is void. Baldwin, H. R. Misc. Doc. No. 152, at 50. The Baldwin majority’s ruling, furthermore, appears in tension with the Election Committee’s unanimous decision in Shiel just five years earlier. (The Committee, we repeat,“ha[d] no doubt that the constitution of the State ha[d]fixed, beyond the control of the legislature, the time for holding [a congressional] election.” Shiel, H. R. Misc. Doc. No. 57, at 351.) Finally, it was perhaps not entirely accidental that the candidate the Committee declared winner in Baldwin belonged to the same political party as all but one member of the House Committee majority responsible for the decision.

And from Chief Justice Roberts:

The House Elections Committee explained that the Elections Clause conferred power on “the Legislature” of  Michigan to prescribe election regulations. “But,” the Committee asked, “what is meant by ‘the legislature?’ Does it mean the legislative power of the State, whichwould include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country?” Id., at 47. The Committee decided, and the full House agreed,that “the Legislature” in the Elections Clause was the “legislature eo nomine”—the legislature by that name, a representative body.
The report cites a Michigan Supreme Court precedent that allegedly reached a contrary result, but that case turned entirely on state constitutional questions arising from a state election—not federal constitutional questions arising from a federal election. . . . In any event, to the degree that the two precedents are inconsistent, the later decision in Baldwin should govern
[n.3] The majority’s suggestion that Baldwin should be dismissed as an act of partisanship appears to have no basis, unless one is willing to regard as tainted every decision in favor of a candidate from the same party as a majority of the Elections Committee.

Seventh, Justice Scalia (joined by Justice Thomas) writes that this is not within the Article III power of the courts, particularly citing the shaky foundation of Coleman v. Miller as a basis for asserting authority over the case. And Justice Thomas (joined by Justice Scalia) noted that this case is not truly about deferring to state ballot initiatives, as the Court has felt comfortable striking down such regulations before.

Not many surprises in the opinions, I don't think. But, there is much to delve into in the months ahead.

Scalia, Roberts discuss the Elections Clause in dueling King v. Burwell opinions

King v. Burwell (PDF) is a statutory interpretation case about health care exchanges, but the Elections Clause makes an appearance.

From Justice Scalia's dissent:

To see the error in this reasoning, one need only consider a parallel provision from our Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Art. I, §4, cl. 1 (emphasis added). Just as the Affordable Care Act directs States to establish Exchanges while allowing the Secretary to establish “such Exchange” as a fallback, the Elections Clause directs state legislatures to prescribe election regulations while allowing Congress to make “such Regulations” as a fallback. Would anybody refer to an election regulation made by Congress as a “regulation prescribed by the state legislature”? Would anybody say that a federal election law and a state election law are in all respects equivalent? Of course not. The word “such” does not help the Court one whit.

And Chief Justice Roberts's response in footnote 2:

The dissent argues that the phrase “such Exchange” does not suggest that State and Federal Exchanges “are in all respects equivalent.” Post, at 8. In support, it quotes the Constitution’s Elections Clause, which makes the state legislature primarily responsible for prescribing election regulations, but allows Congress to “make or alter such Regulations.” Art. I, §4, cl. 1. No one would say that state and federal election regulations are in all respects equivalent, the dissent contends, so we should not say that State and Federal Exchanges are. But the Elections Clause does not precisely define what an election regulation must look like, so Congress can prescribe regulations that differ from what the State would prescribe. The Affordable Care Act does precisely define what an Exchange must look like, however, so a Federal Exchange cannot differ from a State Exchange.


Challenges implementing federal automatic voter registration

Last week, Hillary Clinton proposed automatic voter registration at a campaign event. I'd like to focus less on the wisdom of such a proposal and more about the challenges that would confront an actual piece of legislation. Fortunately, we have that bill, H.R. 2694, the Automatic Voter Registration Act. It was introduced yesterday, June 9, by David Cicilline of Rhode Island, and currently has 42 co-sponsors (all Democrats).

The bill would amend the National Voter Registration Act of 1993 for automatic voter registration of anyone who registers with a state's department of motor vehicles for a driver's license, unless that person opts out. The following information would be collected:

(a)(2)(A) The individual’s legal name.

(B) The individual’s age.

(C) The individual’s residence.

(D) The individual’s citizenship status.

(E) The individual’s electronic signature.

I pause to wonder what this means for the myriad other things that come along with voter registration. Some states ask for your party affiliation; would all automatically-registered voters simply not be affiliated with a party (and perhaps be ineligible to vote in a state primary unless they took the affirmative step to affiliate)? Many states forbid ex-felons from voting (which is probably less problematic for 16-year-olds applying for driver's licenses but could impact other applicants). Would automatic registration force states to ignore ex-felon status?

Indeed, the proposed law would actually abolish Section 5 of the current NVRA, which requires states to provide a form that would include "the minimum amount of information necessary to (i) prevent duplicate voter registrations; and (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process." (That form has led to some recent litigation of note.) So it appears that the "federal form" would no longer exist under such a proposal, and a smaller quantum of information would be provided for registration.

Of course, another sticky point is citizenship status. Some states have moved away from requiring proof of citizenship status to obtain a driver's license, and others have sought more aggressive citizenship investigation in their own states. The law would qualify the collection and use of this information:

(3) Restriction on use of information on citizenship status. A State may not use any identifying information regarding an individual’s citizenship status which is transmitted under this subsection for any purpose other than determining whether the individual is eligible to vote in elections for Federal office.

It would allow states to collect information on citizenship status, but then forbid them for using that information for any reason other than voter registration.

And the final twist is that this law, like others, would only apply to federal elections. Arizona disapproved of the federal form so strongly regarding its own proof of citizenship that it developed a federal-only ballot for those acting pursuant to the Election Assistance Commission's directive, and a ballot for its state and federal elections for those who could also comply with state law apart from the EAC. There's some risk that an undertheorized--or, perhaps, simply unpopular--"automatic" voter registration that affects only federal races would prompt states to create a dual track for ballots. (Whether that could be mitigated with conditional federal funding or other types of incentives is another matter.)

Again, the purposes of this discussion is not to address the underlying merits of automatic voter registration. Instead, it's simply to highlight some of the challenges that may exist in actually implementing it at a federal level--and, with an actual bill now before Congress (with, admittedly, little likelihood of enactment), it's a point for some actual discussion.

Notable pending election law bills in the 114th Congress

Here's the list of notable election law bills in the 114th Congress. ("Notable," in that I've decided they're notable?) It does not include any proposed constitutional amendments.

Two trends notable among these notables. First, none have made it out of committee. Second, I'd guess a majority are have serious constitutional doubts anyway, so maybe it's better that way?

H.R. 12: Voter Empowerment Act of 2015 (introduced March 19, 2015, by John Lewis; 178 co-sponsors). "To modernize voter registration, promote access to voting for individuals with disabilities, protect the ability of individuals to exercise the right to vote in elections for Federal office, and for other purposes."

H.R. 20: Government By the People Act of 2015 (introduced January 21, 2015, by John Sarbanes; 147 co-sponsors). "To reform the financing of Congressional elections by broadening participation by small dollar donors, and for other purposes."

H.R. 154: Close the Floodgates Act (introduced January 6, 2015, by Derek Kilmer; 87 co-sponsors). "To repeal the provisions of the Consolidated and Further Continuing Appropriations Act, 2015, which amended the Federal Election Campaign Act of 1971 to establish separate contribution limits for contributions made to national parties to support Presidential nominating conventions, national party headquarters buildings, and recounts."

H.R. 367: Campaign Sunlight Act of 2015 (introduced January 14, 2015, by Theodore Deutch; 7 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to require the Federal Election Commission to establish and operate a website through which members of the public may view the contents of certain political advertisements, to require the sponsors of such advertisements to furnish the contents of the advertisements to the Commission, and for other purposes."

H.R. 411: Streamlined and Improved Methods at Polling Locations and Early (SIMPLE) Voting Act of 2015 (introduced January 20, 2015, by Steve Cohen; 27 co-sponsors). "To amend the Help America Vote Act of 2002 to promote early voting in elections for Federal office and to prevent unreasonable waiting times for voters at polling places used in such elections, and for other purposes."

H.R. 412: To reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns (introduced January 20, 2015, by Tom Cole; 1 co-sponsor).

H.R. 425: Stop Super PAC-Candidate Coordination Act (introduced January 21, 2015, by David Price; 6 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to clarify the treatment of coordinated expenditures as contributions to candidates, and for other purposes."

H.R. 599: Stop Targeting of Political Beliefs by the IRS Act of 2015 (introduced January 28, 2015, by Paul Ryan; 13 co-sponsors). "To prohibit the Internal Revenue Service from modifying the standard for determining whether an organization is operated exclusively for the promotion of social welfare for purposes of section 501(c)(4) of the Internal Revenue Code of 1986."

H.R. 714: Leadership PAC Limitation Act (introduced February 4, 2015, by Michael Capuano; 2 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to prohibit the conversion of leadership PAC funds to personal use."

H.R. 871: Formerly Incarcerated Voter Registration Act of 2015 (introduced February 11, 2015, by Hakeem Jeffries; 1 co-sponsor). "To amend title 18, United States Code, to direct the Bureau of Prisons to provide certain voting information to Federal prisoners upon their release from prison."

H.R. 885: Voting Rights Amendment Act of 2015 (introduced February 11, 2015, by Jim Sensenbrenner; 64 co-sponsors). "To amend the Voting Rights Act of 1965 to revise the criteria for determining which States and political subdivisions are subject to section 4 of the Act, and for other purposes."

H.R. 951: State Sovereignty in Voting Act (introduced February 12, 2015, by Matt Salmon; 4 co-sponsors). "To amend the National Voter Registration Act of 1993 to permit a State to require an applicant for voter registration in the State who uses the Federal mail voter registration application form developed by the Election Assistance Commission under such Act to provide documentary evidence of citizenship as a condition of the State's acceptance of the form."

H.R. 1346: Redistricting Transparency Act of 2015 (introduced March 10, 2015, by Jim Cooper; 19 co-sponsors). "To require States to carry out Congressional redistricting in accordance with a process under which members of the public are informed of redistricting proposals and have the opportunity to participate in the development of such proposals prior to their adoption, and for other purposes."

H.R. 1347: John Tanner Fairness and Independence in Redistricting Act (introduced March 10, 2015, by Jim Cooper; 14 co-sponsors). "To prohibit States from carrying out more than one Congressional redistricting after a decennial census and apportionment, to require States to conduct such redistricting through independent commissions, and for other purposes."

H.R. 1518: Let It Go Act (introduced March 19, 2015, by Mark Takano; 1 co-sponsor). "To amend the Federal Election Campaign Act of 1971 to provide for a limitation on the time for the use of contributions or donations, and for other purposes."

H.R. 2143: EMPOWER Act (introduced April 30, 2015, by David Price; 1 co-sponsor). "To amend the Internal Revenue Code of 1986 to reform the system of public financing for Presidential elections, and for other purposes."

H.R. 2173: Redistricting Reform Act of 2015 (introduced April 30, 2015, by Zoe Lofgren; 35 co-sponsors). "To require States to conduct Congressional redistricting through independent commissions, and for other purposes."

H.R. 2392: Restoring Important Voter Eligibility Requirements to States Act of 2014 (introduced May 18, 2015, by John Culberson; 1 co-sponsor). "To amend the National Voter Registration Act of 1993 to require an applicant for voter registration for elections for Federal office to affirmatively state that the applicant meets the eligibility requirements for voting in such elections as a condition of completing the application, to require States to verify that an applicant for registering to vote in such elections meets the eligibility requirements for voting in such elections prior to registering the applicant to vote, and for other purposes."

H.R. 2501: Citizens’ Districts Preservation Act (introduced May 21, 2015, by Dana Rohrabacher; 15 co-sponsors). "To require certain States to retain the Congressional redistricting plans in effect as of the first day of the One Hundred Fourteenth Congress until such States carry out a redistricting plan in response to the apportionment of Representatives resulting from the regular decennial census conducted in 2020."

S. 212: LINE Act of 2015 (introduced January 21, 2015, by Barbara Boxer; 3 co-sponsors). "A bill to amend the Help America Vote Act of 2002 to ensure that voters in elections for Federal office do not wait in long lines in order to vote."

S. 229: Democracy Is Strengthened by Casting Light On Spending in Elections Act of 2015 (introduced January 21, 2015, by Sheldon Whitehouse; 42 co-sponsors). "A bill to amend the Federal Election Campaign Act of 1971 to provide for additional disclosure requirements for corporations, labor organizations, Super PACs and other entities, and for other purposes." (See also H.R. 430.)

S. 366: Senate Campaign Disclosure Parity Act (introduced February 4, 2015, by John Tester; 37 co-sponsors). "A bill to require Senate candidates to file designations, statements, and reports in electronic form."

S. 457: Civil Rights Voting Restoration Act of 2015 (introduced February 11, 2015, by Rand Paul; 1 co-sponsor). "A bill to secure the Federal voting rights of non-violent persons when released from incarceration." (See also H.R. 1556.)

S. 772: Democracy Restoration Act of 2015 (introduced March 18, 2015, by Ben Cardin; 10 co-sponsors). "A bill to secure the Federal voting rights of persons when released from incarceration." (See also H.R. 1459.)

S. 1088: Voter Registration Modernization Act (introduced April 27, 2015, by Kirsten Gillibrand; 5 co-sponsors). "A bill to amend the National Voter Registration Act of 1993 to provide for voter registration through the Internet, and for other purposes."

S. 1139: Same Day Registration Act (introduced April 30, 2015, by Amy Klobuchar; 1 co-sponsor). "A bill to amend the Help America Vote Act of 2002 to require States to provide for same day registration."

Could Evenwel v. Abbott end prison gerrymandering? And other potential implications

The Supreme Court agreed to hear Evenwel v. Abbott, a challenge to Texas's state legislative redistricting plan, which draws districts on the basis of total population and not on a voter-based metrics (such as citizen voting-age population). There are important, fundamental constitutional problems with this case, which I've raised briefly elsewhere. But I want to focus on the impact of the case if petitioners succeed--because, of course, sadly, few want to spend time on what the Constitution says, or how theories of representative government change, and most just want to figure out what's in it for which groups.

Ostensibly, the case, narrowly viewed, would shift power away from voters residing in districts with a large number of non-citizens and toward districts with a large number of citizens. That's, at least, the superficial reason for the challenge in Texas. Given that ostensible fact that disproportionately more Latino voters reside in districts with non-citizens, that would theoretically mean a dilution of their political power if other voters were added to their districts. And given that Latino voters tend to favor Democratic candidates, this would tend to advantage Republicans.

This is probably, at best, partially right, and, at worst, mostly wrong.

Recall that Latino voters often qualify for majority-minority districts under Section 2 of the Voting Rights Act. The baseline there is voters, not simply population. To the extent that Latino voters have secured districts under Section 2, they will not suddenly be disempowered if districts must be drawn to include solely voters; instead, it is likely that, at least in regard to Section 2 districts, the effects would be less pronounced than immediately reported, and perhaps even marginal. (This, of course, assumes that Latino voters are residing in Section 2-drawn districts, and that the Supreme Court continues to interpret Section 2 as it has.) It might be the case that Latino voters would lose a marginal district or so if they were unable to muster sufficient voters in newly-redrawn districts. But they could also add previously-marginalized Latino voters in non-majority-minority districts to shore up a district that might otherwise have been lost under a new rule. And that means the partisan impact might be less than otherwise projected, too. (I'm sure very careful political scientists will have more to say about the more nuanced impact of such policies in the months ahead.)

But there are other alterations that such a lawsuit might bring, all depending on the fashioning of the remedy. To name a few.

  • Districts with a felon prison population would lose political power. While a few states count prisoners as inhabitants of their last place of residence before prison, most include them as members of the population where they currently reside. That, obviously, can create districts, especially in the state's lower chamber of the legislature, with a significant number of ineligible voters. And these prisons tend to be in fairly rural areas (PDF)--or, areas that tend to have more Republican voters. A couple of million felons reside in these extremely concentrated areas--prisons, after all, are probably amount the most concentrated non-voting demographic you can find--and the practice of "prison gerrymandering" might be found unconstitutional.
  • Districts with a disenfranchised ex-felon population would lose political power. To the extent a decision gets so granular as to exclude even ex-felons in redistricting in states that disenfranchise them, we'd have to look at where the couple of million ex-felons reside. And if most ex-felons are in largely concentrated in urban areas, then we'd expect a loss of political power for those urban dwellers as voters are added to their districts--which might benefit Republicans more than Democrats.
  • Districts with a large number of children would lose political power. Children under the age of 18 are ineligible to vote in every state, with a couple of very marginal exceptions. But they are currently included in redistricting schemes. Localities that have more children would lose out; localities with aging populations would likely gain power. Whether this benefits any particular group is debatable. But to the extent there's a "fertility gap," in that Republicans tend to have more children than Democrats, it likely would also diminish Republican power. (Further complicating this analysis, of course, is that minorities tend to have children at higher rates than whites.) Taking California congressional districts as an example (assuming the case would be extended to congressional districts, but it's a useful data point because of the ease of obtaining Census data), the results are stark. There are just 91,000 under-18 residence in CD-12 (held by Nancy Pelosi, Democrat), but almost 227,000 children in CD-21 (David Valadao, Republican). Thousands of voters would be shifted out of districts like Pelosi's and into districts like Valadao's. (Further, it might also be the case that the shift from child-filled districts to elderly or childless districts would result in more substantive changes in political outcomes, including shifting of spending away from education toward end-of-life care or sustaining pensions.)
  • Robust expansion of the Census Bureau's duties. If such granular data is required before states can draw districts, the Census is going to have a much bigger job. As it is, there have been instances where conservatives have opposed the existing breadth of the Census survey.

These are, of course, projections and guesses and possible results. But they are much deeper than the original "Latino loss, Republican gain" picture originally suggested. (I've written about the "invisible federalism" that underlies the political structure of the Electoral College, for example, as a result of our system of apportionment of representatives, includes some meaningful choice in jurisdictions about voters and non-voters.)

These potential ramifications come with an extremely important caveat (which, of course, I save until the end). It's not entirely clear what a system of redistricting based on "voters" would necessarily look like. The appellants in Evenwel seem to offer at least three possibilities before the three-judge panel: citizen voting-age population, total voter registration, and "non-suspense" voter registration. If the Court did decide that voters was the proper metric, but allowed flexibility within that regime, then redistricting would change based on citizenship status and age, but not felon prison population; however, a more narrow holding, or a state choice to use something narrow, would impact prison gerrymandering.

But even under the most generous Supreme Court interpretation in favor of appellants, I find it hard to believe that states would be allowed to continue to include vast numbers of imprisoned ineligible voters contained in a very tiny geographic area. And (regardless of the merits of this or any other impact on redistricting) that, I think, would be a fairly significant impact of Evenwel--and certainly not the one that either appellants or most commentators have really identified.

The twenty-two law reviews you should follow on Twitter

While you could follow a pretty sizeable list of law reviews I've maintained on Twitter, there are a handful of law reviews that rise above the rest.

Last year, I listed the sixteen law reviews to follow on Twitter. I've modified the criteria slightly and updated it. I've mentioned that I find Twitter one of the best places to stumble upon scholarship and engage in a first layer of discussion about new ideas.

In my view, it's actually shocking how challenging it is to find recently journal content. Many journals don't maintain a Twitter feed, much less a decent web site--most lack an RSS, are updated infrequently at best, and often include stock art (because, apparently, law reviews are into stock art?). Given scarce resources that law schools have today, one might expect schools to find ways of maximizing the value from their investments in their journals.

(Also, some advice you're welcome to ignore if you're developing a Twitter handle. Avoid symbols like underscores in your name. Eschew the "U" for your university if possible. Abbreviate LRev and LJ if you can. You want as concise a title to ensure maximum ability for people to communicate a message in 140 characters when mentioning your username. And you want it to be clear who you are: too brief a nickname for your law school may not communicate much about your brand to the casual Twitter follower.)

Alas, I'll settle for the occasional tweet on the subject. I looked at the flagship law reviews at the 105 law schools with a U.S. News & World Report peer score of 2.2 or higher.  If I found their Twitter accounts, I included them. I then examined how many tweets they had, how many followers they had, and when their last tweet (not a retweet) took place. I then created a benchmark, a slightly stricter standard than last year (as another year has passed!): the law reviews "worth following" are those with at least 150 tweets, at least 150 followers, and at least one tweet (not a retweet or direct reply) in the last 30 days. I thought that would be a pretty minimal standard for level of engagement and recency of engagement. This 150/150/30 standard reduces the list to 22 accounts worth following:

Harvard Law Review

Stanford Law Review

Yale Law Journal

Columbia Law Review

Chicago Law Review

NYU Law Review

California Law Review

Michigan Law Review

Penn Law Review

Texas Law Review

UCLA Law Review

George Washington Law Review

Boston University Law Review

Iowa Law Review

Ohio State Law Journal

Florida Law Review

Illinois Law Review

Washington Law Review

Connecticut Law Review

Case Western Reserve Law Review

St. Louis University Law Journal

Syracuse Law Review

It's fairly notable, I think, that half of the schools on this list have a top-20 peer reputation score and that every single one of the top 9 schools in peer reputation make the list. Indeed, follower count is highly correlated with peer score (0.57)!

Below is the complete list of these journals, with 150/150/30 law reviews highlighted. If you see a journal not listed, tweet me about it @derektmuller.

Peer score Journal Tweets Followers Last tweet (not RT)
4.8 @HarvLRev 650 15.8K May 15, 2015
4.8 @StanLRev 414 4202 May 29, 2015
4.8 @YaleLJournal 657 6335 May 15, 2015
4.6 @ColumLRev 288 2901 May 12, 2015
4.6 @UChiLRev 265 3409 May 15, 2015
4.5 @nyulawreview 1281 4946 May 2, 2015
4.4 @CalifLRev 342 2164 May 21, 2015
4.4 @michlawreview 161 1465 May 31, 2015
4.4 @PennLawReview 331 1945 May 25, 2015
4.3 @VirginiaLawRev 16 328 May 18, 2015
4.2 @Cornell_Law_Rev 1 613 July 21, 2010
4.2 @DukeLawJournal 30 899 April 15, 2015
4.1 @GeorgetownLJ 71 744 May 13, 2015
4.1 @NULRev 136 615 May 30, 2015
4.0 @TexasLRev 410 1609 May 19, 2015
3.9 @UCLALawReview 150 1864 May 7, 2015
3.8 Vanderbilt  
3.5 @emorylawjournal 54 110 May 20, 2015
3.5 @SCalLRev 5 69 May 9, 2013
3.5 Washington (St. Louis)  
3.4 @GWLawReview 405 379 May 30, 2015
3.4 @MinnesotaLawRev 37 394 March 31, 2015
3.4 @NotreDameLawRev 20 303 May 12, 2015
3.4 North Carolina  
3.3 @BULawReview 527 1003 May 11, 2015
3.3 @UCDavisLawRev 92 334 May 29, 2015
3.3 Wisconsin  
3.2 @AlaLawReview 31 477 March 1, 2015
3.2 @BCLawReview 343 1165 April 27, 2015
3.2 @fordhamlrev 355 1638 March 6, 2015
3.2 @IowaLawReview 232 939 May 14, 2015
3.2 @OhioStateLJ 392 1130 May 25, 2015
3.2 Indiana (Bloomington)  
3.2 William & Mary  
3.1 @GaLRev 9 171 May 12, 2015
3.1 @HastingsLJ 117 358 May 3, 2015
3.1 @UFLawReview 203 558 May 22, 2015
3.1 @UIllLRev 204 879 May 5, 2015
3.1 @WashLawReview 127 1065 May 21, 2015
3.1 @WLU_LawReview 247 137 May 14, 2015
3.1 Colorado  
3.0 @arizlrev 31 197 April 2, 2013
3.0 @TulaneLawReview 40 546 March 6, 2015
3.0 @WFULawReview 764 542 April 24, 2015
3.0 Arizona State  
3.0 Irvine  
2.9 BYU  
2.9 Florida State  
2.9 Maryland  
2.8 @AmULRev 335 821 March 26, 2015
2.8 @ConnLRev 668 816 May 31, 2015
2.8 @UtahLawReview 0 3 n/a
2.7 @CardozoLRev 53 765 May 14, 2015
2.7 @denverlawreview 101 506 April 28, 2015
2.7 @geomasonlrev 82 143 May 17, 2015
2.7 @UMLawReview 97 671 April 28, 2015
2.6 @OregonLawReview 7 340 April 7, 2015
2.6 @PeppLawReview 595 671 April 17, 2015
2.6 @PittLawReview 0 10 n/a
2.6 @ukanlrev 98 467 September 25, 2014
2.6 Missouri (Columbia)  
2.6 San Diego  
2.6 SMU  
2.6 Temple  
2.6 Tennessee  
2.5 @Brook_L_Rev 0 26 n/a
2.5 @CaseWResLRev 813 731 May 27, 2015
2.5 @GSULawReview 0 14 n/a
2.5 @KYLawJournal 17 131 March 20, 2012
2.5 @LLSlawreview 0 1 n/a
2.5 Chicago-Kent  
2.5 Houston  
2.5 Richmond  
2.4 @LUCLawJournal 169 120 May 21, 2014
2.4 @NebLRev 161 119 May 31, 2015
2.4 @RutgersLJ 12 457 May 2, 2014
2.4 @RutgersLRev 63 580 April 3, 2015
2.4 Baylor  
2.4 Hawaii  
2.4 Indiana (Indianapolis)  
2.4 Lewis & Clark  
2.4 New Mexico  
2.4 Oklahoma  
2.4 Santa Clara  
2.3 @arklawrev 156 1726 February 17, 2014
2.3 @HULawJournal 430 567 January 9, 2015
2.3 @MichStLRev 318 584 April 23, 2015
2.3 @NevLawJournal 54 82 November 17, 2014
2.3 @nuljournal 40 286 May 25, 2015
2.3 @SCLawReview 317 738 February 20, 2015
2.3 @SHULawReview 22 163 January 28, 2014
2.3 @VillanovaLawRev 40 112 March 19, 2015
2.3 Cincinnati  
2.3 Marquette  
2.3 Mississippi  
2.2 @lalawreview 74 664 April 13, 2015
2.2 @MaineLawReview 92 463 May 26, 2015
2.2 @pennstatim 27 132 September 18, 2013
2.2 @SLULawJournal 560 455 May 14, 2015
2.2 @SULawRev 23 34 March 6, 2015
2.2 @SyracuseLRev 330 295 May 8, 2015
2.2 @UMKCLawReview 2 60 April 20, 2015
2.2 DePaul  
2.2 St. John's  
2.2 SUNY (Buffalo)      

Fictional Attorney of the Month: Vinny Gambini


My Cousin Vinny is one the most delightful trial films of all time. Much of that is attributable to the Oscar-winning performance of Marisa Tomei as Mona Lisa Vito, Vinny's longtime fiancée.

But Joe Pesci plays the titular role, a novice attorney freshly admitted to the New York bar after successfully passing the bar exam on the sixth attempt. Vinny Gambini's first trial? Defending his cousin and friend wrongly accused of murder in Alabama.

What Vinny lacks in legal acumen, he makes up for in two major areas. First, he has a tenacity and relentlessness, despite his struggles. Years ago, he'd fought a traffic ticket in Brooklyn, and won. The judge was so impressed he went to lunch with him and encouraged him to become a litigator. Vinny's response? "I didn't know what the hell he was talking about, I don't know what a litigator is. I never thought of becoming a lawyer. But this Judge Malloy, who's from Brooklyn, too? He did it, so all of a sudden, it seemed possible. So I went to law school." (Note: this is probably not a good basis for deciding to go to law school. But it's Hollywood.) And Malloy serves a valuable mentor to Vinny.

Second, Vinny has the ability to see through the facts of the case and draw out the problems. He presents a beautiful analogy in evidence: "Building a case is like building a house. Each piece of evidence is just another building block. He wants to make a brick bunker of a building. He wants to use serious, solid-looking bricks, like, like these, right? He's going to show you the bricks. He'll show you they got straight sides. He'll show you how they got the right shape. He'll show them to you in a very special way, so that they appear to have everything a brick should have. But there's one thing he's not gonna show you. When you look at the bricks from the right angle, they're as thin as this playing card. His whole case is an illusion, a magic trick."

The scene is filled with wonderful courtroom humor highlighting trial tactics and occasional actual rules of evidence. And Vinny is this month's Fictional Attorney of the Month.