Can a state legislature delegate its power under the Elections Clause to another?

This is the second 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.

As I noted yesterday, a number of practices arose out of early election efforts that caused Congress to consider whether or not the election practice was dictated by the "legislature" of the state, such that Congress should recognize the election as valid. I'll briefly summarize a couple of these congressional debates, which are detailed extensively in the paper.

First, there are numerous instances in which direct democracy dictated election procedures in the first hundred years of the Republic. Constitutional conventions, or votes of the people ratifying statehood, would include provisions for elections. And elections that took place pursuant to those elections would usually be approved by Congress, despite the fact that they had not occurred pursuant to the law promulgated by the "legislature."

But in several other instances, Congress rejected election results on account of them occurring by some means not authorized by the legislature. When the legislature acted to supersede a constitutional provision, Congress would recognize the validity of the election pursuant to the legislature's rule. That is, while it would permit the people of a State to promulgate a rule, that rule was not insulated from subsequent legislative action; later actions of the legislature could promulgate a new rule. (Michael Morley has written much about this "intratextual independent legislature" doctrine.)

In all these cases, Congress is confronted squarely with this issue: did the election occur pursuant to a law from the "legislature" of the State, or not? If so, the election was valid; if not, it was invalid. And we have a rich body of these cases, which the Article chronicles, describing Congress's interpretation of the Elections Clause, and specifically the word "legislature."

Second, and perhaps more tellingly in a case like this, Congress has rejected the notion that the legislature could delegate its power (or have it delegated) to some other agency. In an 1865 dispute, the Senate rejected the election of a Senator elected pursuant to rules promulgated by the New Jersey legislature sitting in a joint meeting, probably (more on this below) among other reasons because the joint meeting was not the "legislature" as the Constitution defined it. And in the case of Sessinghaus v. Frost, the House rejected an election in Missouri because the city of St. Louis instituted a voter registration law--the law had not been enacted by the state Legislature. Indeed, a concurring report expressed concern that no state legislature "could delegate its authority to any other power, to any other body" under the Elections Clause.

Given that the independent redistricting commission in Arizona was a rather express delegation of power from the legislature to a commission, Sessinghaus suggests that the delegation would be unconstitutional. But why no mention of this, or any of the many other cases that Congress has decided in these areas? Congress, after all, sits as judge in election disputes. Perhaps it is because it has happily ceded this decisionmaking authority to the courts; perhaps it is because the final votes from members of Congress are not required to include a list of reasons, which makes the precedent of cases like that from 1865 dubious; perhaps it is because the Court distrusts the decisions of Congress, as it rather overtly suggested in the majority opinion. Regardless, the Court's decision in Arizona State Legislature v. Arizona Independent Redistricting Commission runs largely against the practice of Congress in the decades when it held the primary authority of reviewing elections--and, perhaps, suggests that there are more sources of authority for the interpretation of these cases than the Court may traditionally rely upon.

I found the research interesting, and the conclusions from it still developing. But they should provide for some illumination in future discussions about the validity and scope of legislative delegations under the Elections Clause in future cases--and, perhaps, some discussion about the role of congressional precedent in election disputes in such cases.

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
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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.