Elbridge Gerry and Ruth Bader Ginsburg on our federal system

This is the first of two posts about my forthcoming article, Legislative Delegations and the Elections Clause, Florida State University Law Review (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, "No, the only way you could make law that counts for this purpose is by the legislature thereof." We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, "That’s lawmaking." What we had in mind is who makes the law for the state.

Ruth Bader Ginsburg, conversation at Duke University School of Law, 2015

The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots.

Elbridge Gerry, comments at the federal constitutional convention, 1787

It is hard to overstate how inaccurate Justice Ginsburg's comments are. Men like Mr. Gerry aggressively fought any element of the Constitution that might veer too close to direct democracy. It's the reason so many elements of the Founder's Constitution, from the state legislature's power to elect Senators to the entire Electoral College (direct election, Mr. Gerry remarked, would have been "radically vicious"), often removed elections from the direct control of the people.

Constitutional amendments and state practice have made federal elections more directly democratic, from the direct election of Senators to the common practice of popular election of presidential electors pledged to support a particular candidate. But the Constitution continues to allocate responsible to actors other than "the people."

Justice Ginsburg, of course, was discussing Arizona State Legislature v. Arizona Independent Redistricting Commission, and the Court's opinion (PDF) handed down this summer. The Arizona state legislature challenged the existence of an independent redistricting commission, which had been created by ballot initiative and empowered to draw congressional districts, a task formerly reserved to the state legislature.

The Elections Clause (or the "Times, Places and Manner" Clause) provides, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ." The Arizona state legislature, understandably, thought that "legislature" meant "legislature," not "lawmaking apparatus."

Justice Ginsburg's off-the-cuff remarks were not the heart of the Court's judicial opinion, but some of the comments in the opinion draw quite close:

While attention focused on potential abuses by state-level politicians, and the consequent need for congressional oversight, the legislative processes by which the States could exercise their initiating role in regulating congres­sional elections occasioned no debate. That is hardly surprising. Recall that when the Constitution was com­posed in Philadelphia and later ratified, the people’s legis­lative prerogatives—the initiative and the referendum—were not yet in our democracy’s arsenal.

Apart from a rather dubious argument from silence, direct democracy did exist at the founding, even if the initiative and the referendum did not. Mr. Gerry's remarks certainly highlight that. And the people proposing or ratifying constitutions at conventions were an important and powerful device known at the time of the founding.

And within a generation of the founding, Justice Joseph Story challenged the notion that the people could alter federal election regulations. During Massachuetts's constitutional convention of 1820, Justice Story spoke out, as a citizen, to challenge the notion that the people could amend election provisions in the state constitution. That task, he emphasized, was reserved to the state legislature.

Justice Story's view did not prevail, for the people of Massachusetts did include provisions in their constitution about elections. But Congress has repeatedly been confronted with the question about whether an election was valid because it occurred pursuant to a regulation promulgated by some body other than the legislature of the state. It has a fairly extensive set of cases where it examines the word "legislature," discussions almost (but not wholly) absent from the Court's opinion.

Tomorrow, I'll summarize a few of the highlights from historical discussions, with a brief mention of direct democracy, and a more extensive analysis of delegating the legislature's power to another entity.

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)      

Why Kentucky may bar Rand Paul from running for president and the Senate simultaneously

This is the fourth in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

Senator Rand Paul may want to run for President of the United States in 2016. But he is also very likely interested in running for the United States Senate in 2016, too--just in case the president thing doesn't work out for him. But his home state of Kentucky has a law that prohibits him from running for both offices at the same time--a law of some difficulty for the potential Paul campaign. Is it constitutional?

Drawing upon my earlier analyses, the answer is yes--because it is a condition on running for president, and not a condition on running for Senate.

Kentucky cannot add to the qualifications to candidates for office in the Senate. That much is obvious from the Supreme Court's decision in U.S. Term Limits v. Thornton. It could not condition running for Senate on refusing to run for president.

One might argue that this is merely a ballot access rule. After all, Mr. Paul could not run for the Senate unless he filed paperwork, or obtained a certain number of signatures to get on the ballot or won a qualifying primary election, or something like that. The line occasionally blurs. "Sore loser" laws--laws that prohibit candidates who lose a primary election from running for federal office in the general election--have been held as permissible regulations, not additional qualifications. "Resign to run" statutes--laws that require a state official to resign office before running for federal office--have been upheld as restrictions on conditions on state offices, not as additional qualifications for federal office. Perhaps it's the case that the state has a more permissive regulatory interest in making sure someone is not running for two offices when he can only fill one. But that's a nuanced claim, and one that, I think, would take time before I felt comfortable settling on one side.

But the other side is different--a condition on running for President might be that one cannot also be on the ballot for the Senate.

Under the Constitution, the state legislature may direct the "manner" of selecting presidential electors. It may select electors itself, or it may permit the people to vote. But, perhaps, it may cabin the discretion of the people in how they vote--perhaps by excluding certain candidates it does not wish the people to vote for. Akhil Amar, for instance, in his book America's Unwritten Constitution, posits that prior to the Nineteenth Amendment, which guaranteed women the right to vote, states could have excluded women from running for the office of president--but that the "unwritten" Nineteenth Amendment now would prohibit.

It might be, then, that U.S. Term Limits does not extend to presidential candidates. Indeed, the state is only selecting the manner of appointing presidential electors; how those presidential electors act is another level of review. It might simply prohibit a candidate's name from being listed on the ballot, but, in the case of presidential elections, the final decision is left with the presidential electors. And Kentucky has no law (that I found) that would require electors to vote for the named candidates. In a sense, then, the candidates names on the ballot are mere proxies for a slate of presidential electors and, perhaps, the state legislatures possess the latitude to decide how to condition the appearance of candidates of the ballot.

The best possible defenses of the law, then, are that it is a reasonable ballot access provision, not a "qualification"; and, further, even in the event it is something closer to a "qualification," it is within the discretion of the legislature to decide the manner of the selection of presidential electors, and that may include cabining the discretion of the voters with a requirement that a candidate for President cannot be listed for another office.

But, it's a heavily gray area without obvious answers. We'll see if the Kentucky legislature arises at a novel solution to avoid a judicial intervention into this political thicket.

Wigmore critiques judges for failing to read legal scholarship

Following up on a couple of recent critiques of the legal academy, here's what John Henry Wigmore had to say about legal scholarship in his treatise on evidence, written in 1915, in which he laments the shortcomings of judicial opinions (available via Google Books):

1. A first shortcoming to be noted is the lack of acquaintance with legal science. By “legal science” is meant all that is above, between, and behind the particular rules and precedents,—the system of legal knowledge,— that which distinguishes the architect from the carpenter. In an administrator of the law, one's equipment as a scientist may be in general denoted by one's attainments in (a) legal history, (b) legal philosophy and jurisprudence, (c) sound discrimination of the best sources of knowledge.

(a) Acquaintance with legal history is almost totally lacking. There are now ample modern sources for a knowledge of the history of the great principles of our law. They are unknown to our judges. The citations of Pollock and Maitland’s History since its appearance in 1895 could be numbered on the fingers of both hands. There exist now plenteous other standard authorities. But whenever there is an expounding of history, Blackstone suffices. For the judiciary's purposes, the world stopped still with him.

(b) The philosophy and jurisprudence of the law are unknown. Austin, Salmond, Holland, Amos, Sidgwick, Spencer, Terry, Gray, might as well not have written. To be sure, Anglo-American legal science itself has, until very recently, covered formally but a part of the field, chiefly the so-called analytical jurisprudence; but even this has suffered “the long divorce of steel” from the law, so far as judicial opinions reveal.

(c) There is no discrimination in the use of the expository authorities. Such a discrimination is the mark of a sound legal education and a correct scholarly standard. But, in the judicial opinions, the superficial products of hasty hack-writers, callow compilers, and anonymous editors, are given equal consideration with the weightiest names of true science. Obviously, any printed pages bound in law-buckram and well advertised or gratuitously presented constitute authority fit to guide the Courts.

Note, however, that it must be bound: for if it is in periodical form, it is ignored. For ten and twenty years past there have been at the service of the profession some half a dozen legal periodicals, publishing the weightiest critiques of current legal problems. There is nothing in judicial opinion to show that these articles have ever been read; apparently their great labor and acute skill have been wasted on the judges.[n.1] The article by Louis Brandeis and S. D. Warren on “The Right of Privacy” (published in the Harvard Law Review some twenty-five years ago) is the most notable of the rare exceptions discoverable.

[n.1]: And when occasionally they are read, and used, they are studiously not cited. A notable example of this was recently related to the writer, by one who had it directly from a chief justice.

New Harvard Law Review pieces on campaign finance and McCutcheon

The Harvard Law Review has recently published two pieces examining the effect of McCutcheon v. FEC (PDF).

The Practical Consequences of McCutcheon, by Robert K. Kelner, chair of the Eleciton and Political Law practice at Covington & Burling, concludes that little will change as a result of McCutcheon due to pragmatic difficulties organizing super joint fundraising committees and the few individuals who were previously limited by the biennial contribution limits.

And After McCutcheon, by Jonathan S. Berkon & Marc E. Elias, both at Perkins Coie, concludes that political parties will have slightly more power and control after McCutcheon, as party committees will be able to pursue additional contributions from key donors (an argument echoing a point raised by Rick Pildes immediately after the case).

I commend both pieces to you--brief, thoughtful pieces from practitioners with important points.

The sixteen law reviews you should follow on Twitter

Last year at PrawfsBlawg, I blogged about a Twitter census of law reviews. I've maintained a Twitter list of law reviews. But I thought I'd do a little analysis of these law reviews.

Twitter remains one of the easiest places for me to find and aggregate journal content. I use Feedly extensively for blogs and other RSS-friendly places, but I've found that many law reviews lack an RSS, or the process of inputting them all one at a time to be laborious. Concurring Opinions continues to host law review tables of contents (which I find one of the most valuable contributions to legal blogging), but, as boards turn over year after year, few still use the service. Sadly, it's almost as if law reviews don't want people easily finding and reading what they publish.

I looked at the flagship law reviews at the 108 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.

As it is, there are only 64 of these journals that even have a Twitter account. And that includes accounts that have as few as zero tweets.

So I then created a benchmark: the law reviews worth following are those with at least 100 tweets, at least 100 followers, and at least one tweet in the last 30 days. I thought that would be a pretty minimal standard for level of engagement and recency of engagement. This 100/100/30 standard reduces the list to 16 accounts worth following:

Yale Law Journal

Harvard Law Review

Columbia Law Review

Chicago Law Review

NYU Law Review

California Law Review

Michigan Law Review

Penn Law Review

Texas Law Review

Iowa Law Review

Ohio State Law Journal

Fordham Law Review

Washington Law Review

American Law Review

Pepperdine Law Review

UALR Law Review

A majority are "top 15" law reviews, which shows that the higher-quality schools tend to have a more active and engaged social media presence. Indeed, the Penn Law Review has been praised for its social media presence.Alas, law review editorial boards turn over annually, and so many of these accounts have fallen into disuse, including one I've praised before.

Below is the complete list, with 100/100/30 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 @YaleLJournal 525 3400 May 6, 2014
4.8 @HarvLRev 476 11.9K April 18, 2014
4.7 @StanLRev 246 2673 January 15, 2014
4.6 @ColumLRev 140 967 May 12, 2014
4.6 @UChiLRev 204 1759 May 15, 2014
4.4 @nyulawreview 946 2789 May 4, 2014
4.4 @CalifLRev 237 1129 May 12, 2014
4.4 @michlawreview 125 837 May 19, 2014
4.3 @PennLawReview 225 830 May 8, 2014
4.3 @VirginiaLawRev 12 137 April 9, 2014
4.2 @DukeLawJournal 9 554 April 7, 2014
4.1 @NULRev 56 145 May 16, 2014
4.1 @Cornell_Law_Rev 1 496 July 21, 2010
4.1 @GeorgetownLJ 14 313 October 29, 2013
4.0 @TexasLRev 239 962 May 16, 2014
3.9 @UCLALawReview 99 1217 April 30, 2014
3.8 Vanderbilt  
3.6 Washington (St. Louis)  
3.5 @MinnesotaLawRev 21 58 May 11, 2014
3.5 @SCalLRev 5 48 May 9, 2013
3.5 North Carolina  
3.4 Emory  
3.4 George Washington  
3.4 @NotreDameLawRev 10 80 April 16, 2014
3.4 @UCDavisLawRev 32 137 October 5, 2012
3.3 @BULawReview 493 599 February 28, 2014
3.3 Wisconsin  
3.2 William & Mary  
3.2 @IowaLawReview 186 658 May 17, 2014
3.2 Indiana (Bloomington)  
3.2 @OhioStateLJ 154 552 May 12, 2014
3.2 @BCLawReview 258 711 April 1, 2014
3.2 @fordhamlrev 232 929 May 13, 2014
3.2 Washington & Lee  
3.1 @AlaLawReview 2 150 January 11, 2013
3.1 @WashLawReview 106 508 May 16, 2014
3.1 @GaLRev 3 60 February 13, 2014
3.1 @WFULawReview 238 228 April 11, 2014
3.1 @arizlrev 31 167 April 2, 2013
3.1 @UIllLRev 78 451 May 16, 2014
3.1 @UFLawReview 125 306 October 28, 2013
3.1 @HastingsLJ 43 139 April 22, 2014
3.0 Arizona State  
3.0 Colorado  
3.0 @TulaneLawReview 39 362 May 2, 2014
2.9 BYU  
2.9 Florida State  
2.9 Maryland  
2.8 Utah  
2.8 @ConnLRev 28 434 March 18, 2014
2.8 @CardozoLRev 50 603 April 29, 2014
2.8 @AmULRev 115 392 April 29, 2014
2.7 George Mason  
2.7 @TempleLawReview 27 81 December 17, 2012
2.7 @UMLawReview 13 345 February 14, 2014
2.7 San Diego  
2.7 @OregonLawReview 5 172 March 12, 2012
2.6 SMU  
2.6 @PeppLawReview 579 452 May 14, 2014
2.6 Houston  
2.6 @CaseWResLRev 799 539 March 26, 2014
2.6 @denverlawreview 19 196 May 17, 2014
2.6 @ukanlrev 96 405 May 2, 2014
2.6 Tennessee  
2.6 @PittLawReview 0 2 n/a
2.6 Loyola (Los Angeles)  
2.5 Richmond  
2.5 Nebraska  
2.5 @KYLawJournal 17 111 March 20, 2012
2.5 Oklahoma  
2.5 Georgia State  
2.5 Missouri (Columbia)  
2.5 @LUCLawJournal 167 86 April 22, 2014
2.5 Chicago-Kent  
2.5 Brooklyn  
2.4 Baylor  
2.4 @pennstatim 27 125 September 18, 2013
2.4 Lewis & Clark  
2.4 New Mexico  
2.4 Cincinnati  
2.4 @RutgersLJ 12 412 May 2, 2014
2.4 @RutgersLRev 49 427 May 15, 2014
2.4 Indiana (Indianapolis)  
2.4 Marquette  
2.4 Hawaii  
2.4 Santa Clara  
2.3 @arklawrev 156 1680 February 17, 2014
2.3 @SHULawReview 22 113 January 28, 2014
2.3 @NevLawJournal 18 27 April 8, 2014
2.3 @MichStLRev 202 373 April 11, 2014
2.3 Seattle  
2.3 @nuljournal 28 200 May 5, 2014
2.3 @SCLawReview 305 536 April 11, 2014
2.3 @VillanovaLawRev 1 33 April 14, 2014
2.3 SUNY (Buffalo)  
2.3 Catholic  
2.3 @SyracuseLRev 20 75 May 7, 2014
2.3 DePaul  
2.2 @lalawreview 40 308 April 30, 2014
2.2 Louisville  
2.2 Mississippi  
2.2 @UMKCLawReview 0 3 n/a
2.2 @GonzagaLawRev 75 78 May 16, 2014
2.2 St. John's  
2.2 @UALRLawReview 210 338 April 23, 2014
2.2 @MaineLawReview 65 247 May 19, 2014
2.2 Hofstra  
2.2 @HULawJournal 331 295 April 9, 2014

What Chief Judge Kozinski got (mostly) right in a presidential qualification case

This is the third in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

After identifying the problem of evaluating federal qualifications and examining Congress's role in the process, what's left for states to do? Enter the case of Peta Lindsay.

In 2012, she was 27 years old. She sought the nomination from the Peace and Freedom Party to run for president. California discovered that she was not eligible and excluded her from the ballot. The Ninth Circuit, in an opinion by Chief Judge Kozinski, found today that she could be excluded from the ballot. (The PDF of the opinion is here.)

The opinion is mostly right in this regard: assuming the power for a state to exclude a candidate from the ballot exists, what standard applies to reviewing that power? The First Amendment doesn't really guarantee you a slot on the ballot if you're not eligible; the Equal Protection Clause can't really help if there's a meaningful basis to distinguish between eligible and ineligible candidates, which the Constitution clearly anticipates; and the Twentieth Amendment does not demand that the Constitution vests exclusive authority to resolve presidential disputes (alluded to earlier here).

But, that all makes two important assumptions: the state does have the power to exclude a candidate from the ballot, and it has done so in this case.

As to the first, the question is more direct. The state legislature may "direct" the "manner" of appointment of electors. It may certainly decide to restrict the appointment of electors to only "eligible" candidates, and it may channel that decision-making process accordingly. The power given to Congress is not absolute (which, the Ninth Circuit emphasized, is emphatically the case with the Twentieth Amendment claim). In fact, as the selection of presidential electors is reserved to state legislatures, there is an even greater case that the power remains in the states.

As to the second, the question is more complicated. What state statute authorizes the Secretary of State to make inquiries into the eligibility of candidates? The closest statute the California Secretary of State cited was California Government Code § 12172.5, which provides,

(a) . . . The Secretary of State shall see that elections are efficiently conducted and that state election laws are enforced. The Secretary of State may require elections officers to make reports concerning elections in their jurisdictions.


(d) The Secretary of State may adopt regulations to assure the uniform application and administration of state election laws.

That's hardly the stuff of a directive from the state legislature to the elections officer to evaluate a candidate's qualifications.

That's not to say that it's unprecedented: in Cleaver v. Jordan, a 1968 dispute (discussed in a 2010 dispute, Keyes v. Bowen), California courts allowed the Secretary of State to exclude a thirty-three-year-old presidential candidate from the ballot.

But it is to say that courts--particularly federal courts--should be careful in treading upon the state legislature's directives to its executive officers as to how to conduct presidential elections. There was some discussion about the interpretation of the state statute at oral argument, but that all disappeared in the Ninth Circuit's opinion.

The only suggestion otherwise took place on reference to California Election Code § 6720, which says that a candidate "shall" be placed when she is one advocated for office under the Peace and Freedom Party. The court flatly rejects any exercise of supplemental jurisdiction over this issue, noting, "it has no bearing on this lawsuit, which is based entirely on federal law."

And perhaps that is the right outcome, to a point. States are left with administering the presidential ballot; it is left to state courts to wrestle with the interpretations of state laws. But even then, a court must still assume that the state is vested with the power to exclude; it is no answer to point to another provision that might compel a place on the ballot and kick that issue back to a state.

It is on this, then, that the Ninth Circuit got the Peta Lindsay dispute (mostly) right. But this assumption of the power of states to evaluate the qualifications presidential candidates remains, again, unaddressed, and merely assumed, in a judicial opinion--and it's an assumption my latest Article seeks to highlight.

Scholarship highlight: Ganesh Sitaraman, Contracting Around Citizens United

The Columbia Law Review just published this Essay by Ganesh Sitaraman, Assistant Professor of Law, Vanderbilt Law School, available as a PDF. Here is the abstract:

The Supreme Court's decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third party spending, including constitutional amendments, public financing programs, and expanded disclosure rules. To date, however, they have not considered the possibility that third party spending can be restrained by self-enforcing private contract between the opposing campaigns. This Essay argues that private ordering, rather than public action, is an additional approach for limiting third party campaign spending. It explains the design of a contract between opposing campaigns that is self-enforcing and restricts third party spending; identifies the conditions under which such a contract is likely to be offered and accepted; shows how political dynamics push third parties and campaigns to adhere to the contract's spending restrictions; and discusses possible loopholes and challenges. While private ordering through a self-enforcing contract might seem like wishful thinking, precisely this kind of contract, "The People's Pledge," succeeded in keeping out third party spending on television, radio, and internet advertising in the most expensive Senate race in history, the 2012 Brown-Warren race in Massachusetts. Since then, this kind of contract has been adopted in two other federal congressional races and debated and offered in a wide range of other races. In the context of political gridlock in Congress, the emergence of a private ordering option to achieve campaign finance reform goals is significant. This Essay analyzes the conditions under which private ordering, rather than public law reform, can limit third party spending in elections. It draws on examples, particularly that of the original "People's Pledge," to illustrate the general parameters of these contracts, and it considers the implications of these contracts for election law and policy.