"Awarding presidential delegates by congressional district is unfair"

I have a new op-ed in today's Sacramento Bee, "Awarding presidential delegates by congressional district is unfair." It opens:

This year’s presidential primaries have exposed problems in the nomination process, and they’re highlighted by California’s uneven method of awarding its delegates.

And it explains:

The 13th District in San Francisco has about 260,000 registered Democrats and gets eight delegates, or one delegate per 32,500 voters. But there are just 86,000 registered Democrats in the 42nd and 50th districts, and they each will award five delegates, or one delegate per 17,200 voters. It doesn’t take a math degree to recognize that Democrats in San Francisco will have less power than Democrats elsewhere in the state.

For Republicans, it’s far worse.

There are just 27,000 registered Republicans in the 13th District, or one delegate for every 9,000 voters. But the 48th District in Orange County has more than 155,000 registered Republicans and the same three delegates, or one delegate per 51,000 voters.

"The Case for More Money in Politics"

I have a new piece at the Library of Law & Liberty, which responds to the following prompt:

Should a democracy, in the name of combating political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society?

And I frame the issue as follows:

The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.”

Consider, though, that there isn’t a problem with “money in politics” unless there is something bad that “money in politics” does. Rather than assuming a premise of reform, we ought to step back and consider whether or not campaign finance needs reforming. As we evaluate competing justifications for reform, we should be mindful, as citizens of a nation built upon regular and meaningful elections, that these be regulated to do the least damage to our constitutionally guaranteed rights, that is, to the open exchange of political views. As we will see, this priority is largely lacking in today’s reforms, whether existing or proposed.

Has Congress been improperly counting prisoners in the Census since 1790?

Following up on yesterday's take on the Rhode Island "prison gerrymandering" case, a few more thoughts come to mind.

The district court linked apportionment to redistricting (as the Supreme Court in Evenwel did), identifying women, children, slaves, and other non-voters as appropriately included within the apportionment base. The court went on

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

The Census Bureau has, since 1790, counted prisoners as residents of the place where they are incarcerated. When Congress apportions members of Congress to the states, it includes those prison populations--even if a number of the prisoners come from out-of-state.

Does this mean Congress has been unconstitutionally apportioning members of Congress since 1790? That prisoners should have been counted as residents of their home states for the last 220 years, and Congress has simply got it wrong this whole time?

Surely, the swift rejoinder to this claim is that very few long-term prisoners were included in a Census, much less out-of-state prisoners, until recently. But this was the same claim raised by the plaintiffs in Evenwel--that the United States had a very small non-citizen population until recently, a claim that was soundly rejected.

Further, the analogy of apportionment to redistricting grows even worse when one considers redistricting itself--where should prisoners be included for redistricting purposes?

Suppose one makes the claim that prisoners should be located as residents of the address they resided at before being incarcerated. Does this somehow cure the concerns raised by the district court? Suppose you are an incarcerated prisoner in Cranston who was originally residing in Providence. Do you suddenly "have a stake in the Providence public school system"? Do you "receiv[e] constituent services"?

The dangerously overbroad language from the district court would effectively make prisoners invisible! If they are constitutionally forbidden from being considered members of the political community where they are incarcerated, surely considering them members of the political community where they last resided is even more attenuated. It risks making prisoners invisible, uncounted members of any political community.

Instead, the better claim--and it is not a terribly good constitutional claim at that--is that this artificial concentration of non-voters into a single location is suboptimal for other voters in adjacent districts, and an attempt should be made to more naturally redistribute those non-voters in some way.

But this is not a constitutional claim. It is simply a way--perhaps a better way--of drawing districts. But the Supreme Court's decision in the "one person, one vote" cases imposed a one-size-fits-all requirement to redistricting. And rhetoric in cases like this Rhode Island prison gerrymandering case further complicate any meaningful understanding of what that mantra means.

The revival of the Three-Fifths Clause in a Rhode Island prison gerrymandering case

A federal district court handed down a memorandum and order for summary judgment in Davidson v. City of Cranston, a case concerning "prison gerrymandering" in Rhode Island. The court concluded that the city improperly drew districts that included all of the incarcerated individuals in a prison into a single district, distorting representation and voting strength in other districts.

One might have concluded that the Supreme Court's recent decision in Evenwel v. Abbott mandated this case come out the other way. There, the Court permitted Texas to use total population in drawing its districts, even if it included non-citizens (i.e., non-voters) in its population base. Had the case come out the other way and some voter- or citizen-based measure been required for drawing districts, prison gerrymandering may well have ended.

As Adam Liptak and others noted, a win for Texas in Evenwel would deeply undermine constitutional arguments against prison gerrymandering. After all, prisoners are people ineligible, just like non-citizens or children. They're drawn into districts with the rest of the total population. Instead, one must come up with a political theory for excluding this set of non-voters from redistricting, but not other sets of non-voters.

In a recently-published article in the Harvard Journal of Law & Public Policy, Perpetuating "One Person, One Vote" Errors, I highlight the deep problems that arise when courts attempt to insert ever more-detailed theories of political representation into the constitutional doctrine of "one person, one vote." Mercifully, I remarked, the decision in Evenwel leaves some discretion to the states (and cities) in redistricting.

But the decision in Davidson takes away some of this discretion. And it does so using bizarre support from the Three-Fifths Clause. It even suggests prisoners are less worthy of representation than slaves.

To start, one has to make a pair of logical inferences to get from the Court's theoretical findings in Evenwel (and its predecessors) to this case. As I explained at the George Washington Law Review Docket, the Court linked the theory of apportionment of congressional representatives to the reason for drawing equal numbers of people in congressional districts, and then linked that finding to the reason for drawing equal numbers of people in other non-federal districts. It opens with this theory of apportionment--how many congressional representatives should each state get? As the Davidson court explained:

In its review of the drafting history of the Constitution and later the Fourteenth Amendment, the Supreme Court repeatedly stresses the prevailing view that women, children, slaves, tax-paying Indians, and non-land-holding men (in some areas) all deserved representation - though none of these groups could vote.

That syncs with the Court's holding in Evenwel:

In other words, the basis of representation in the House was to include all inhabitants - although slaves were counted as only three-fifths of a person - even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives. Endorsing apportionment based on total population, Alexander Hamilton declared: "There can be no truer principle than this - that every individual of the community at large has an equal right to the protection of the government."

One must appreciate a serious concern here--the Three-Fifths Clause. By including slaves (albeit fractionally) in the apportionment base, the South would receive dramatically more political power in the House than if slaves counted as zero-fifths.

But one should not seriously claim that the Three-Fifths Clause somehow means that slaves were virtually represented by their masters--that voters in the South somehow were protecting slaves through their votes! Instead, as I've pointed out in another piece, one justification commonly raised by the Founders for including slaves in the apportionment base was a notion that it was a proxy for wealth. Population (and slave total) meant roughly the wealth in an area; and more wealthy (or more "productive") areas should have more political power.

Such political theory likely would not garner much support today--indeed, it has been expressly rejected in the "one person, one vote" line of cases. (This is also a major reason Justice Alito wrote separately in Evenwel--he viewed the apportionment question as distinct from the question of drawing districts.) But the only way for "one person, one vote" to work is if one adopts a kind of theory of "virtual representation," where the elected representatives serve the entire population of the region, regardless of whether they are eligible to vote. (Indeed, the Court in Evenwel expressly made this point concerning children.)

The district court's next findings, then, are fairly breathtaking:

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

Really? First, descriptively, this is false at almost all levels. A quick look at Kramer v. Union Free School District No. 15 offers myriad ways (in the right-to-vote context) someone can "have a stake" in the public school system--merely being "interested in" the school board as a resident may be enough, or the note that "[a]ll members of the community have an interest in the quality and structure of public education," which may have "grave consequences to the entire population." Prisoners may write letters to representatives--even if they are not, they are able to do so. It may well be that these are still pretty weak reasons for including prisoners in a district; but that is a far cry from saying that they are constitutionally forbidden from being included in a district.

Second, it rather brazenly suggests that eighteen-century slaves were better represented, and better deserving of representation, than twenty first-century prisoners. How else is one supposed to construe the phrase that "the inmates . . . share none of the characteristics" of "slaves"? It turns the Three-Fifths Clause into a rather favorable view of representation. Justice Alito's concurring opinion in Evenwel is perhaps wise guidance on the Three-Fifths Clause. But its failure to carry a majority of the Court leads to curious decisions such as this.

It may well be the case that Rhode Island and other states should include incarcerated persons in the districts where they last resided. It makes sense to me, as a political matter. As an administrative matter, it also seems to be sensible to include the easy total of the prisoners in the prison where they reside. Indeed, that's how the Census counted them in 2010! It becomes a fairly significant task, then, to create a new population total for redistricting, one that the Census Bureau does not provide. (Indeed, this was a major claim raised in Evenwel.)

But for a federal court to make the claim that slaves were favorably represented in apportionment while prisoners ought never be included in redistricting is a deeply problematic claim. The "one person, one vote" line of cases cannot sustain such decisions of representation equality or political theory, which are best left to the political process.

New opinion piece at Reuters: schooling candidates on GOP primary rules

I have a new opinion piece at Reuters, "GOP Nomination Process 101: Candidate's Remedial Edition." It begins:

Donald Trump has complained that the Republican primary process is a “rigged, disgusting, dirty system” that deprives people of the chance to vote for their preferred presidential candidate. He accuses the Republican Party of stealing delegates from him.

If he thinks this system is complex, Trump should look to the GOP’s past primary elections. Now, those were complicated!

Reaction to Evenwel v. Abbott: when the Court may be doing what it says it is not

Over at the George Washington Law Review Docket, I have an analysis of the Supreme Court's opinion in Evenwel v. Abbott. A portion of the analysis:

It did not face the question of whether Texas was permitted to use some other population basis. Indeed, the Court expressly stated that “we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.” But there are some signs that the Court’s logic may extend to what it disclaimed doing.

...

Perhaps this parsing of the opinion reads too much—it might be that this case does not stand for so bold a proposition. While the Court does not address precedent like Burns, it does not distinguish it or minimize it, either. Lower court opinions that had previously deferred on the question of the appropriate apportionment base were also cited without disapproval. And if we take the Court at its word, it has genuinely reserved the matter of whether states may use a non-population basis for drawing districts for another day.

But it is worth noting that the simple and unanimous decision of the Court may lead to the adoption of a narrower theory of “one person, one vote,” one that leaves less discretion to the states. Whether states (or localities) may exclude incarcerated prisoners, non-citizens, or non-voters, among other theories, when drawing districts may be tested in the very near future—and the Court’s logic in Evenwel will surely be at the center of the disputes.

Pennsylvania Supreme Court quickly dispatches of challenge to Cruz's eligibility

Last week I blogged about the expedited briefing in the Pennsylvania challenge to Ted Cruz's eligibility to appear on the ballot--and the wrong-headed reasoning of the district court's decision. Today, more than a week after briefing was completed, the Pennsylvania Supreme Court issued a brief per curiam opinion affirming the district court's order without reasons given. It's impossible to know whether it agrees with the district court's reasoning or simply affirmed the order on other grounds. Regardless, this maneuver avoids setting any ill-advised precedent on the scope of Pennsylvania ballot access disputes, and it effectively insulates the case from a certiorari grant to the United States Supreme Court (which would likely refuse to hear the case on the pragmatic reason that it lacks certainty about why the Pennsylvania Supreme Court did what it did and finds no other reason compelling it to weigh in, apart from any prudential or discretionary concerns that may incline it to reject the case).

Pennsylvania Supreme Court expedites hearing on spurious Cruz eligibility claim

Recently, a state court in Pennsylvania found that Ted Cruz is a natural born citizen and entitled to ballot access. The Pennsylvania Supreme Court has expediting briefing in the case. The docket reflects that the appellant has a couple of amicus briefs on his side: one by Einer Elhauge at Harvard Law, another by Mary Brigid McManamon at Widener Law.

I use the adjective "spurious" in the title of this post not because I believe that it's obvious that Mr. Cruz is a natural born citizen; indeed, I've conceded that the question is closer than one may expect, and I have my own inclinations, but I've found Michael Ramsey's perspective to be the most persuasive in concluding that he is eligible.

Instead, it is because there is simply no requirement under Pennsylvania law that a citizen be "eligible" to obtain ballot access. Indeed, the very opposite is true.

I've written, extensively, about this very basic error in these qualifications disputes. There is no free-standing ability for courts to scrutinize qualifications of candidates for president. Instead, it is reserved to the states to administer ballot access. States can decide whether to list a candidate, or not list a candidate. One must refer to state law. To be sure, there is a concern that a state may list a candidate ineligible for office--but there is no federal right to keep an unqualified candidate off the ballot. Instead, such decisions reside in state law.

This is in part because there are many who may evaluate the qualifications of a candidate--voters, being one of them! But presidential electors can also decide whether a candidate is eligible or not, and decide not to vote for him. Indeed, many (but not all!) decided that Horace Greeley was no longer eligible after he died in 1872 after the election and cast votes for others.

The state court in Pennsylvania was in grave error when it concluded otherwise: "the Constitution does not vest the Electoral College with power to determine the eligibility of aPresidential candidate since it only charges the members of the Electoral College to select acandidate for President and then transmit their votes to the nation's 'seat of government.'" What does the power to "select" mean if it does not include the discretion to decide whether someone is fit for office--including, whether someone is eligible for office?

And the Court was wrong to conclude that Congress lacks this power, too: "no Constitutional provision places such power in Congress to determine Presidential eligibility. Moreover, other than setting forth the bare argument, the Candidate offers no further support for the contrary proposition."

Well, apart from my Indiana Law Journal article extensively discussing this precise point, one could easily cite the instance of Congress refusing to count electoral votes cast for Horace Greeley in 1873 because it believed he was not eligible to serve as president; or Congress's resolution in 2008 decreeing that John McCain was a natural born citizen, presumably because it believed it had the power to scrutinize qualifications in its power, likely under the subsequent language of the Counting Clause of the Twentieth Amendment, at the very least.

But this is essentially because the Pennsylvania state court confused the political question doctrine--that a question is exclusively reserved to another branch--with this issue. That is, it may not be a political question; but, it is certainly the case that many other political actors hold the power simultaneously. That, I think, is good reason to give pause.

It is further reason to give pause when one consider whether any cause of action exists. After all, what right is there to remove someone from the ballot? That is an operation of state law--of state ballot access law, in particular. And Pennyslvania's election code and election practice expressly display how spurious this claim against Mr. Cruz is.

Many states, understandably, do not want to engage in much scrutinize of the qualifications for these offices--let voters, electors, and Congress sort it out, rather than election officials and courts. And Pennsylvania law expressly disclaims any requirement that presidential candidates declare they are eligible.

Consider Section 2870 of the election code: candidates for office typically must file a nomination petition with an affidavit stating "that he is eligible for such office." But the end of the section provides something quite contrary for presidential candidates: "In the case of a candidate for nomination as President of the United States, it shall not be necessary for such candidate to file the affidavit required in this section to be filed by candidates, but the post-office address of such candidate shall be stated in such nomination petition." (Emphasis added.)

Pennsylvania leaves it other actors--not election officials, and, by proxy, not courts reviewing the decisions of election officials--to scrutinize qualifications.

Historical practice supports this view. In 1972, for instance, Linda Jenness and Andrew Pulley, both under 35 years of age, appeared on the Pennsylvania ballot under the Socialist Workers Party presidential ticket. Pennsylvania recorded thousands of votes cast for them. Even though both were ineligible.

These nuanced points are often lost in these eligibility cases. The salacious story of the merits--born in Canada!--or the more routine standing doctrine issues often garner the greatest attention. But this claim has no merit simply because Pennsylvania law allows anyone on the ballot, without any scrutiny of qualifications. The question of eligibility is reserved to others in Pennsylvania--not election officials, and certainly not courts.

New op-ed at Washington PostEverything: state legislatures can select presidential electors themselves to stop Trump

I have a new opinion piece at Washington PostEverything: "If no one else stops Trump, the Electoral College still can. It’s in the Constitution." It calls for states to consider selecting presidential electors for themselves this cycle, rather than leaving the selection of electors to a popular vote. It includes the following idea:

“State legislatures should consider whether to retake this authority in the 2016 election in an effort to stop Trump. Republicans control 31 state legislatures. Many could consider this proposal, but the Texas state legislature is a natural place to start. It could easily pass a law returning power to the legislature. After Election Day, the legislature could decide whether to vote for Trump or Mitt Romney, the prior Republican nominee; former Texas Gov. Rick Perry, who dropped out of the 2016 race early on; a popular GOP figure like Condoleezza Rice, whose name has recently been floated as an alternative; or their own junior Sen. Ted Cruz, presently trailing Trump in the Republican Party delegate count.”

Setting aside the extremely low likelihood of doing so or political outcry, I wanted to emphasize the possibility--one that had not yet been examined anywhere (as far as I saw). Indeed, it also has the virtue of being a measure that a state legislature could enact at any time before the election day--and perhaps even after.

There are three extra wonky things to consider that I couldn't fit into the piece and are better examined in detail here.

First, would the Voting Rights Act prevent states from passing such a law? It is hard to say that Section 2 would prevent states from passing such a law--that is, it's not immediately obvious that transferring the selection of electors from the people to the state legislature would necessarily "result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." There is likely much that could be written on the subject, but I simply flag the matter as a possible complicating factor.

Second, would a state legislature need to pass a law? Strictly speaking, the task is left to the "legislature" of the state to decide the "manner" of the selection of electors. The governor has no role in that selection process. So could a state pass a law (signed by the governor) that would bind future legislatures in how they select presidential electors? Or could the state legislature simply choose to ignore any gubernatorial veto and select the electors themselves? My inclination is that the legislature could do it without gubernatorial interference--despite recent Supreme Court suggestions that "legislature" might not always mean "legislature.

Third, would the state legislature have to do so before the election, or could it do so after the election and effectively nullify the results? That would be an even more radical version of my proposal. Recall that the Florida legislature was preparing to select its own electors in mid-December as Bush v. Gore was pending before the courts. But that was a case in which there was a dispute over which slate of electors should be certified, and the legislature needed to at to comply with the "safe harbor" provision of federal law concerning the selection of electors. It might be the case that a state legislature could simply select its own elect its own slate and send the competing slate to Congress for its own examination of who "won" the election. (EDIT: probably not, given that the time is fixed by federal law for selecting electors--it would have to occur in the legislature on Election Day.)

In any event, it's a controversial--but creative!--idea I've been kicking around and thought it would be interesting to float to a broader audience.