In which I confess I have little concern that an 8-member Supreme Court is asked to resolve a presidential election dispute

There have been many who've expressed great concern that an 8-member Supreme Court would be asked to resolve a dispute this presidential election, and that dividing 4-4 would be a nightmare. I confess, I have little concern for this scenario. Indeed, on Twitter, I went so far as to say "zero concern." I'd like to build on that here.

As a predicate, it's worth noting that I have a strong sense that courts should often refrain from entering the political thicket in election law matters. The contours of that can vary, of course. But I've written on disputes concerning Mary Landrieu's residency and Ted Cruz's eligibility; weighed in on Evan Bayh's residency and moves to pull Donald Trump's name from the ballot; and written academic commentary on judicial involvement in presidential and congressional elections, including the 2016 presidential election, and the redistricting process. Consistently, across these cases, regardless of partisan benefit, I've suggested judicial involvement is not preferred and the political process is better. I do not always think so, and the context of a case before the Court would affect my views, of course, but I have tended to prefer political solutions to judicial ones in election disputes, particularly in presidential elections, and even more particularly where there is some specific authority lodged in Congress to resolve such disputes (more on that soon).

First, the issue, I think, is more often a stalking horse for the pending nomination of Judge Merrick Garland to replace Justice Antonin Scalia. "#WeNeedNine" enthusiasts ardently claim the Senate should confirm the President's nominee. I make no claims regarding that process here--there are, of course, good reasons for the Senate to consider a president's nominee and ensure that the statutory number of seats on a court are filled. Instead, I simply examine the potential complications of an 8-member Supreme Court. (And while this line of argumentation is more a consequentialist claim, I find the stronger basis for argument to be more normative claims about the nomination process, advising and consenting, timing of judicial nominees in election years, and so on. More on the consequentialism claim--which I think is fairly low, anyway--in a bit. )

Second, even in the event of a 9-member Supreme Court, there are still risks of an 8-member Court tasked with hearing a dispute this presidential election--specifically, because Justice Ruth Bader Ginsburg made comments about Donald Trump and this presidential election that may invite a call for her to recuse in such a dispute. Indeed, an 8-member Court would make a recusal case easier, because it would then become a 7-member, and odd numbered, Court. But, again, given how little attention has been given to this component, it strikes me that concerns are, again, more as a stalking horse for another issue (i.e., the nomination of Judge Garland), rather than addressing concerns about what might happen in a disputed presidential election.

Third, Bush v. Gore was truly extraordinary, and unusual, for a presidential election. There's a kind of fascinated anticipation of an apocalyptic disaster that would lead to such a dispute recurring. But perhaps I'm simply more realistic about the odds of such a scenario recurring. I think the chances are exceedingly small--even if it's happened before, and even if this election is ostensibly close, and even if we have heard loud rhetorical cries of "rigged" elections that would inspire litigation.

In part, it's because there must be an election where sufficient electoral votes are in dispute because of a sufficiently close margin in those jurisdictions. When it's a single state, like Florida in 2000, that would be the tipping point of the election, and the margin of error is close enough to call for a recount, is the limited situation where such disputes are likely to arise. While New Mexico in 2000, in which Gore's margin of victory was 0.061%, was also quite close, flipping that state would be meaningless, and, therefore, why litigation was not a concern there. So part of the reason I have little--or zero--concern is because I do not believe the election will be particularly close in enough jurisdictions to matter. Of course, such predictions are sure to go wrong, but it's a reason my concern remains low.

Fourth, the legal claims would have to be of the type that would change the outcome of the election. Even a margin of 0.1% is a fairly fantastic deficit to overcome in even the most generous of recount regimes. It is almost impossible to win a recount in a close election simply because of the sheer volume of things that must cut the loser's way. Litigation may be likely, then, in a close election. But litigation that in any sense would likely succeed is even far less.

Fifth, even if there were a factual scenario along the lines of Bush v. Gore, of a tipping-point jurisdiction with a narrow margin of victory, lower courts, and parties, would know much more about what to anticipate ahead of that dispute. For instance, December 13 is the "safe harbor" date for states to submit their slates of electors with presumed regularity under the Electoral Count Act, a point that drew a great deal of attention in Bush v. Gore. Remedies would be geared with greater speed toward that date than in the past and alleviate the very late concerns.

Sixth, in the event the litigation began in state court, as it did in Bush v. Gore, and a state supreme court offered the final word on an issue in state, it's not immediately obvious that the Supreme Court would feel the need to weigh in. It's not clear that some of the more moderate members of the Court, or those with a longer view of the Court's institutional role, such as Chief Justice John Roberts, Justice Anthony Kennedy, or Justice Stephen Breyer, would advocate for hearing a petition from that state court. True, it happened in 2000. But it might be the case that they would simply leave the lower court judgment alone, regardless of the partisan impact, and, if other members of the Court acted in a more partisan fashion, then there would not be enough votes to grant certiorari.

Seventh, in the event a case came before the Court that failed to heed the lessons in previous litigation, it would assume that the Court would split in a 4-4 fashion along partisan lines (and assuming Justice Ginsburg does not recuse). While we deeply politicize all issues on the Court these days, especially when thinking about issues with overtly partisan outcomes, it's not obvious that the posture of the case would lend itself toward obvious partisan outcomes, and history shows that few cases are ever decided by an equally-divided court. So it is not obvious that even a consequentialist concern is sufficient to give rise of notable worry.

Eighth, even in the event the Court sends the case back by a 4-4 vote... what, exactly, is the harm? That a state supreme court or a federal appellate court has had the last word on a federal issue? They have had the last word on many such issues, even in many election cases. The fact that this is a presidential election somehow means that people expect, or long for, the Supreme Court to weigh in. But perhaps the narrative could differ, if only someone would advocate for a different narrative! That is--lower courts, and state courts, decide important issues all the time, and the Supreme Court does not frequently intervene in those disputes. That's okay, and, perhaps, good!

It is also complicated by the fact that, in all likelihood, the outcomes in 50 of the 51 jurisdictions sending electors to Congress, whereas this one last jurisdiction--and the tipping point jurisdiction--is in dispute. The fact that one state effectively decides the presidential election has great rhetorical impact. But it is, in reality, what has also independently happened in those many other less-controversial states that matters just as much. And it is really about this one state's resolution of its election--even if it has a national impact. Many election have a "national impact"--consider Al Franken's victory in Minnesota in 2008 after extensive litigation that ensured that Democrats would control 60 seats in the Senate, a filibuster-proof majority. That also had a "national impact," and the United States Supreme Court didn't weigh in. Yes, it's not the presidential election, but an element of analogy still stands.

Ninth, even if the lower court ruling stands, it is unlikely that a Supreme Court ruling from nine justices would actually affect the outcome. Recall, of course, that if the case is a close issue, there's, say, something in the neighborhood a 50% chance that the Court affirms the lower court. (And in the event it isn't a close issue, then it wouldn't even deadlock at 4-4, as raised in the seventh point above.)

Tenth, Congress is always in a position to ignore what the Court said anyway! Congress has power to count the electoral votes. It has provided for a mechanism to handle objections to the counting of electoral votes. Objections were raised in 2000 and 2004, and Congress sorted it out. Congress resolved disputed and competing slates of electors in 1960 most notably, but also at other times. And while some have suggested that the Electoral Count Act is unconstitutional, in the event it were ever challenged, everyone agrees that Congress has the power to count, and to develop the process for counting, electoral votes.

Reserving to Congress the power to resolve a disputed presidential election is emphatically the textual commitment of the Constitution. It lays out mechanisms for Congress to choose the president in the event no one secures a majority, most obviously. But in the event it is faced with competing slates of electors, or a question about the results, it is in a position to handle this process--perhaps it didn't handle it very well after 1876, and perhaps it wouldn't handle it after this year's election, but it is worth taking seriously Congress's role without devolving to the judiciary.

In sum, I recognize that there is, of course, the chance for a perfect storm--for a narrowly-contested election in a tipping-point jurisdiction (or jurisdictions) that leads to federally-disputed litigation demanding Supreme Court involvement, where the Court takes the case and is evenly divided by a 4-4 margin. But I have simply concluded that that chance is exceedingly small; and, in the event it occurs, is not terribly noteworthy given that lower courts are quite capable, the low likelihood a ninth justice would affect the outcome, and that Congress always retains the power to review the results regardless of judicial involvement.

I hardly consider myself a pollyanna--I anticipate litigation, of course, and heated rhetoric, and sore losers, and some series of apocalyptic claims of "rigged," "suppression," "fraud," "intimidation," and the like, whether right or wrong, over the next few days. But it's simply that, when I assess the contingencies I laid out above, I have little concern that an 8-member Supreme Court is asked to weigh in on a disputed presidential election.

In today's WSJ: "Libertarians and Greens Can Win--Even If They Lose"

In today's Wall Street Journal, I have an opinion piece entitled, "Libertarians and Greens Can Win--Even If They Lose." It begins:

Gary Johnson and Jill Stein have a difficult task—though this election year it might be easier than most. The trick for third parties in American politics is convincing voters that they aren’t “wasting” ballots by supporting the Libertarian or Green Party candidate, since neither will make it to the White House.

But the unpopularity of Donald Trump and Hillary Clinton has provided the Libertarians and Greens with a new argument: Political parties that meet defined benchmarks on Election Day are given certain advantages under state and federal law. If Mr. Johnson and Ms. Stein manage to secure 5% of the popular vote—plausible given current polling—their parties will reap significant benefits.

Commentary: "What Would Happen in the Electoral College if Trump Dropped Out?"

This week I have a piece up at National Review entitled, "What Would Happen in the Electoral College if Trump Dropped Out?" It begins:

There have been renewed calls for Donald Trump to end his candidacy for president. Perhaps the GOP would elevate Mike Pence to the top of the ticket, or select someone such as Mitt Romney. And it’s not too late — the Republican party can do so at this late date because the Electoral College, not the voters, ultimately selects the president.

Illinois presidential electors include many loyal to candidates other than Trump & Clinton

Parties have begun to nominate their slates of presidential electors for November's election. Illinois is one of the first to do so. What's perhaps most striking? Many electors showed loyalty to candidates other than Hillary Clinton and Donald Trump in the primaries.

I've suggested that a "Trojan Electoral College" might mean slates of presidential electors who are not truly supportive of the candidate being selected, given the record unpopularity of these two candidates (but with a particular emphasis on Mr. Trump).

Consider Illinois's Republican slate. Several GOP electors were delegates in the 2016 Illinois primary--but none were delegates for Mr. Trump. Karen Hayes (Cruz), Judy Diekelman (Kasich), Lee Trejo (Rubio), and Fred Floreth (Paul) all supported other candidates, and not a single Trump delegate made the Illinois GOP presidential elector slate.

Additionally, NPR reports that at least two electors were supporters of Bernie Sanders in the primary.

It might be, of course, that these electors would set aside their primary preferences and support the general election candidate, particularly once they've pledged to support that candidate. But it's not obvious that these slates of electors are filled with die-hard supporters. Instead, they are party faithful, who may long to exercise independent judgment this December.

A Trojan Electoral College

The Trojan horse is one of the world's greatest myths. The Greeks, thwarted after many years waging war against Troy, built a horse as a gift and pretended to sail away. But soldiers were hidden inside the horse. When Troy brought the horse into the city, the Greek soldiers slipped out in the middle of the night, opened the gates for the Greek army, and defeated the Trojans.

The horse was not a gift. It looked like a gift. But hidden within it was the undoing of the city of the Troy.

Given recent events surrounding Donald Trump, it might be time for some state Republican parties to consider the Electoral College as their Trojan horse.

(If I had time to polish or thought such wonkiness would be the stuff of an editorial, I might publish this otherwise. But consider how this might work.)

Recently, reports have surfaced wondering how the Republican National Committee might replace Mr. Trump if he declined the nomination (details of the RNC process here). But the prospects of Mr. Trump stepping down are, shall we say, slim.

There is also the safety valve of the Electoral College. I've suggested that state legislatures could simply appoint electors instead of holding a popular vote--that idea hasn't exactly caught on.

Still another option would be to have "faithless" Republican electors (i.e., ostensibly pledged to support Mr. Trump but actually vote in late December for some other candidate)--but this assumes a couple of things. First, it assumes the electors would be "faithless." A report on one likely Georgia elector already presages this idea, but it's far from guaranteed that many, if any, would be "faithless." Second, it assumes those electors are selected in that state! If the Georgia popular vote tilts toward Hillary Clinton, then Mrs. Clinton's slate of electors votes, and there is no opportunity for a "faithless" Georgia elector.

But how are these electors chosen, anyway? As the GOP frets that Mr. Trump has already been chosen by its convention, few recognize that almost every Republican presidential elector has not yet been formally selected.

Today, the selection of presidential electors is usually a pro forma process. Party loyalists are named and invariably cast votes (absent extremely unusual circumstances) for the party's nominee.

That selection almost always occurs at the discretion of the state party. Consider a few state laws on the subject. I mean, let's start with Georgia Official Code 21-2-130:

Candidates may qualify for an election by virtue of:

...

(4) In the case of an election for presidential electors, nomination as prescribed by rules of a political party;

That's right. The Georgia Republican Party, by its own rules, picks its presidential electors.

Or, how about Alabama Code 17-19-2:

(b) . . . Such certificates and petitions must be filed in the office of the Secretary of State no later than the 6th day of September next preceding the day fixed for the election.

(c) Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen.

Again, left to the party to name the electors, with an express date of September 6.

How about New Hampshire Revised Statutes 667-21?

Not earlier than the third Tuesday of September following any primary, and not later than the last Tuesday of October, upon the call of the chairman of the state committee of the party, the nominees of each party for the offices of governor, United States senator, United States representative, [etc.] . . . shall meet in state convention for the purpose of . . . nominating presidential electors.

Left to the party (consisting of nominees for offices in New Hampshire), between late September and late October, to gather together and name electors.

One more. North Carolina General Statutes 163-1(c):

Presidential electors shall not be nominated by primary election; instead, they shall be nominated in a State convention of each political party as defined [another section] unless otherwise provided by the plan of organization of the political party;

A default rule of a party state convention, but may be nominated however else the party chooses.

You can peruse a whole list of these options for more information. But the overwhelming discretion resides in state political parties, and the overwhelming discretion occurs in the next several weeks.

So, suppose you're running one of these parties. Your first concern is your state's slate of electors will not be chosen. What do you do?

You appoint a Trojan slate of electors, of course!

You could choose presidential electors who expressly intend to support another ticket. Say, "Flip the Ticket! Pence-Trump!" (Perhaps on the assumption someone like Trump would resign rather than serve as someone's second-in-command?) Or, see if a pair of party statesmen would support "Romney-McCain." Whatever it might be.

Then, parade out the electors on stage and explain, very clearly to voters in your state, "The ballot says 'Trump-Pence.' View those words as something like hieroglyphics.  They stand for something else--they stand for X-Y. When these men and women gather in late December to vote, they're voting for X-Y. So vote for them, using the code name 'Trump-Pence.'"

Is such a decision legal? Of course, with a few caveats.

First, it's important to explain historically that such Trojan electors do exist! Consider Roger Calero, a Nicaraguan who ran for President on the Socialist Workers Party ticket in 2004 and 2008. He's from Nicaragua--clearly ineligible. His name was still printed on the ballot in several states, however--after all, it's the electors' ultimate choice. And in state that didn't permit his name on the ballot? The party printed James Harris, its 2000 candidate, in the slot for President. But the party assured its voters, "Look, we just can't put this name on the ballot, but know that when you're voting for Harris, you're really voting for Calero, because that's who our electors will vote for in late December."

Second, imagine what would happen if, say, a candidate died the week before the election, after all the ballots are printed. The campaign would go around (a la Mel Carnahan 2000) and assure voters, "When you're voting for A-B, you're actually going to be voting for B-C, because our electors will all now vote for B for President instead of Vice President, and new candidate C for Vice President."

Admittedly, these are cases where the candidate is no longer eligible, or is in agreement with the Trojan electors. This would be a rather novel decision for the electors to stage a rebellion--brought on by party leaders.

But aren't electors required to vote for the candidate on the ticket? In most places, no. Most states do have a pledge electors are required to take, but it is wholly unenforceable. A few states have such rules that try to enforce the pledge, but they may well be an unconstitutional (for another time).

Would this help Mr. Trump's opponent Mrs. Clinton win? Not necessarily. A presidential candidate needs an outright majority of electors. So electors switching their votes from Trump-Pence to Pence-Trump would not help Mrs. Clinton. Indeed, if the concern in some states is that Mr.s Clinton's slate of electors might win, this might be seen as a better way of thwarting her ability to secure a majority!

But what if nobody secures 270 electoral votes? Then the race would be thrown to the House, and the top three vote-getters would be candidates to win.

Would state parties need to agree on the new X-Y ticket? To be most effective? Undoubtedly yes. They could scatter their electoral votes to miscellaneous candidates. But if the parties could (quickly!) agree on a new ticket, it would have much more resounding force with the voters in their state, who would not sense that they were alone. Further, it would increase the likelihood that, in the event no one secured 270 electoral votes, a single third candidate would be presented to the House.

Does this make the election "rigged"? Well, this is completely within the rules of the game. In fact, it's in a sense more consistent with the design of the Electoral College--a group of individuals, more dispassionate, exercising independent judgment in their selection of president. (Less "independent," I suppose, if they're all conspiring months in advance on a preferred candidate!)

But it does undermines the quasi-direct election of the president we've come to expect for decades. And it certainly undermines the political primary process that played out over the last year. Whether the American people are able to recognize such a moral distinction is, I think, beyond my ability to know.

Is the Green Party's vice presidential nominee Ajamu Baraka ineligible for office?

Perhaps you thought the constitutional eligibility concerns for 2016 had reached their end (and you'd no longer have any reason to read my article on the process behind challenges over such disputes), but perhaps they continue....

Jill Stein, the presumptive Green Party nominee, just named her vice presidential running mate--Ajamu Baraka, a Chicago native and human rights activist who now lives in Atlanta.

But quite recently, Mr. Baraka lived in Colombia. A 2015 blog entry on his site describes him as someone who lives in Cali, Colombia. And other media mentions around that time mention him as someone from Colombia.

The eligibility concern relates his residency at that time. (Recall that vice presidents must not be ineligible for the office of president.) Article II provides among other qualifications that a candidate must be "fourteen Years a resident within the United States."

There is some evidence, but certainly not unanimous, that these fourteen years must be accumulated consecutively prior to securing office. But there is some evidence that the requirement can be met cumulatively, over the total course of one's life prior to securing the office.

Additionally, there is the question of what "resident" means. Does living for a stretch of time in Colombia mean one is no longer a "resident" of the United States? It may well mean something like domicile, and a temporary, even extended, presence in another country would not thwart such residency. (James Ho succinctly summarizes some of these views here.)

In short, there is probably good evidence that Mr. Baraka was a resident fourteen years consecutively, and even if he wasn't, that the Constitution permits such residence to be acquired cumulatively. But in the event one concludes that the Constitution requires consecutive residency and that his time in Colombia broke up that residency, then Mr. Baraka would be ineligible.

That might lead to interesting disputes in the event someone sought to challenge Mr. Baraka to keep him--and half of the Green Party's ticket--off the ballot in states that permitted such challenges. Might--one never knows where such challenges to candidate eligibility may lead.

Some on FEC apparently sought to punish media entity for its 2016 GOP debate format

We'll have all the details tomorrow, but an early report from Fox News discloses that there was an FEC complaint filed against Fox last year for its debate criteria. Three FEC commissioners supposedly viewed it as an unlawful contribution to some of the Republican presidential candidates who benefited from the rule change; two commissioners supposedly went so far as to vote to penalize Fox. (UPDATE: apparently these facts are contested; we'll know more shortly.)

It seems absurd to justify--penalizing Fox for inviting more candidates (in the end, 17 candidates) to participate in a pair of debates? But, again, we lack the details. The terms are opaque, but we can pretty easily reconstruct the details.

The seventeen candidates invited to the August 6, 2015 presidential debates included just about everyone--including folks like George Pataki and Jim Gilmore. But the complaint had to have been filed by some other candidate who was left out--some mysterious eighteenth candidate.

It's likely Mark Everson. You may not have heard of him, as his campaign did not last long.

There were reports of him filing such a complaint last August. Here's the text of the complaint. The heart of the claim is this: Fox had "pre-established" and "objective" criteria for debate participation, consistent with FEC rules--after all, networks aren't permitted to invite just the candidates they like, or else it's essentially a campaign contribution to that candidate. (More on this in a moment.) Top 10 candidates in the five most recent polls get in. Other chances for others, it explains, with details later. That was provided on May 20.

Fox later realized that the field was much bigger and much more uncertain than others had anticipated. So they changed the rules: anyone achieving at least 1% in the five most recent national polls; top 10 participate in the "primetime" debate, and others in a debate earlier in the evening. That came June 11.

Then about 10 days before the debate, Fox dropped the 1% threshold and permitted anyone whose names were being "consistently" included in national polls to participate in the debates. That opened up the earlier debate from what might have been just three candidates to six (and later seven) participants, including adding Carly Fiorina, Jim Gilmore, Lindsay Graham, and George Pataki. Mark Everson was not on the list.

Mr. Everson has a point, to a degree. But it's hard to say that "pre-established" precludes networks from responding to changes at later points in time when conditions warrant--as, perhaps, conditions suggested that the May 20 and June 11 criteria were insufficient, and that a modification July 27 was appropriate. Granted, it takes some teeth out of "pre-established." But it was also intended to accommodate more, not fewer, candidates. And the "objective" criteria of those "consistently" included in national polls sounds not terribly objective, until one considers the previous "objective" criteria: candidates with at least 1% in the five most recent national polls... as recognized by Fox News. This is a standard term that gives media outlets flexibility to exclude fly-by-night pollsters touting themselves as "national" pollsters.

One can sympathize, I think, with Mr. Everson's concerns. But one can also understand, I think, why Fox kept modifying its standards in a fairly unusual time before the election. Was it designed to favor these four candidates over Mr. Everson? In a sense, of course it favored them--they got to appear in the debate, and Mr. Everson didn't! Was Fox giving a campaign contribution to these candidates over Mr. Everson?

This is a much stickier issue. Turning the issue around, would the American public have been better off with Mr. Everson, or without Mrs. Fiorina and Messrs. Gilmore, Graham, and Pataki, as the two choices before Fox, rather than the debate format FOX selected?

For the FEC to punish Fox for altering its debate criteria is serious stuff. It's akin to saying the network had the design of manipulating criteria to help a few favored candidates over others, so much so that it ought to be penalized.

But this is the kind of activity that, while on the (admittedly) fringes of "pre-established objective" criteria, threatens a dramatic chilling of debates in the future. How is a network supposed to respond to early-established debate criteria that appear obviously flawed shortly before the debate, having relied on premises that turned out to be false?

This might simply be one of the gray areas in an unusual year where a single candidate suffered from a maladjusted modification in a condensed period of time. But for the FEC to decide to punish that media entity is fairly strong stuff, in my view.

That said, much of this is speculation building upon some history. When the FEC file is disclosed Thursday, we'll see if this speculation has any basis in the facts of the case.

UPDATE: The FEC file, MUR 6952, has been released. The First General Counsel's report, finding that Fox News violated federal law, is here (PDF). Some of the process, however, is not exactly as described. Two of the commissioners agreed with this report; a third dissented not on the merits but as a matter of prosecutorial discretion (that is, the case simply should not proceed). Three other commissioners joined a statement (PDF) that the FEC even lacked the power to investigate Fox for its debate criteria because the First Amendment precluded such investigation; on this, there was divided 3-3 vote.

"Don’t force electors to vote for Trump or Hillary"

I have an op-ed in last week's Detroit News, "Don't force electors to vote for Trump or Hillary." It begins:

Imagine a place where it’s illegal to vote for anyone but a single presidential candidate this fall.

That place exists in Michigan.

Tenth Circuit reverses course, finds no standing for legislators in Guarantee Clause challenge

It's been quiet in the ongoing saga of Kerr v. Hickenlooper, a Guarantee Clause challenge to Colorado's requirement that legislative tax increases be approved by popular vote. The United States Supreme Court remanded the case in light of Arizona State Legislature v. Arizona Independent Redistricting Commission, which concluded that the state legislature of Arizona did have standing to bring a challenge to the authority of an independent redistricting commission. As I noted a year ago, "This, I think, portends poorly for the legislators" bringing the claim here, because they brought their claim as individual legislators, not as the institution of the state legislature.

Sure enough, on remand, the Tenth Circuit concluded the same on Friday. "We now conclude that these individual legislators lack standing because they assert only an institutional injury." The opinion tracks the argument in Arizona State Legislature--and, in my view, the argument that should have been successful even before that case.