No, the Electoral College will not give the presidency to Hillary Clinton

There is a nascent but rapidly growing effort from supporters of Hillary Clinton to persuade presidential electors who would otherwise support Donald Trump to cast votes for Mrs. Clinton instead when the Electoral College meets December 19. Absent an extraordinary change of circumstances, it simply won't happen. Mr. Trump will win a majority of electoral votes on December 19 and become the 45th president of the United States.

It's worth noting that a lot of options to affect the presidential outcome have long since past--usually, waiting until after the election is not a good idea to affect an election.

I wrote back in March that state legislatures could choose their own electors instead of leaving the matter to a popular vote; but after a popular vote was held November 8, that strategy is not an option.

I also wrote in August that parties could select electors inclined to support their preferred candidate. The electors, however, have already been selected.

Instead, the only strategy for Mrs. Clinton's supporters is to turn to the Electoral College itself and persuade electors to be "faithless"--that is, persuade them to vote not for Mr. Trump, to whom they pledged (formally or informally) their support, but Mrs. Clinton.

First, it's worth noting that these are loyal Republicans who were selected as Trump electors. Many of them are loyal Trump supporters. The list of viable options, then, is limited to those who oppose Mr. Trump--and not just oppose him, but affirmatively prefer Mrs. Clinton (more on that point below). And this after Mr. Trump has won the election (at least, by all popular reports). It might be that Mr. Trump is not overly popular with many in the Republican establishment. But convincing them now to vote for someone else seems impossible.

Furthermore, these are electors in states that cast a plurality of their votes for Mr. Trump. Going to them and telling them to ignore the wishes of the voters in their own state for the wishes of the country as a whole--which, really, is overwhelmingly the wishes of California and New York--is even more unlikely.

Second, the electors would need to flip to Mrs. Clinton, and not simply refuse to vote for Mr. Trump. In order for a candidate to win, he must secure 270 electoral votes. If he fails to do so, the race is thrown to the House of Representatives, where each state receives one vote, and a majority of the states (26) is required to secure the presidency. Even if enough Trump electors threw all their votes to, say, Mitt Romney, no one would have a majority, the election would go to the House, and the Republican-controlled House where Republicans control a majority of state delegations would, in all likelihood, simply vote for Mr. Trump--absent yet another colossal effort to convince them to change their minds and somehow vote for Mrs. Clinton.

Third, the margin of victory is onerous for Mrs. Clinton's supporters. It appears Mr. Trump has won at least 290 electoral votes, meaning 21 electors would need to switch to Mrs. Clinton to deny him a majority, 22 electors to give her a majority, and 23 or 24 electors to account for Mrs. Clinton's own possible "faithless" electors. If he holds onto Michigan, she'll have secured 306 electoral votes, meaning the numbers increase to 37, 38, and 39 or 40.

These are Herculean numbers under almost any scenario. Consider that in the last 100 years, just nine (depending on your math) electors have been "faithless" and voted for someone other than the person pledged to support. Granted, no such concerted effort has been made to change electors' minds. Robert M. Alexander has surveyed presidential electors and discovered that serious lobbying efforts have occurred before, and that about 10% of electors in previous elections have considered voting for someone else--but did not do so.

Fourth, a few states purport to bind their electors to the individuals they are pledged to support. I've argued such laws may well be unconstitutional and should be repealed. But as they are on the books, it would either limit the pool of possible electors who could change their minds or stir litigation, possibly in multiple states, that would inspire even greater complexity, particularly if Congress is faced with multiple slates of electors.

In short, there is no realistic chance that the Electoral College will change the result of this election. This is different than saying it is not legally possible; as I've noted and defended repeatedly, electors are permitted to vote for whomever they desire--it is that there is essentially no likelihood enough of the would do so in such a way to change the outcome of the election. Circumstances change, of course, and something might still inspire a significant number of electors to change their minds and vote for someone else. But the odds are low. And we have fairly settled expectations that our electors will not be "faithless," something unlikely to change in the weeks ahead.

Could California vote for #Calexit? Probably not

Recently, "#Calexit" has been trending in California, a type of secessionist movement similar to Britain's exit ("Brexit") from the European Union. By popular vote, Britain approved the move, which has no legal effect according to the High Court but which continues to affect the political sphere.

Could Californians undertake a similar move and vote to "exit" the United States? The short answer is, probably not.

It's worth emphasizing I only examine whether California could vote to leave the United States--but there is some question on the merits I'll mention below. I defer to international law experts about the legality of such a move, but there is some history suggesting it could not, at least on its own, do so.

First, the #Calexit movement is not terribly sophisticated. It's worth noting this effort started months ago and has since been adopted as the new vessel for secessionists. It is not clear whether the proponents intend a ballot initiative, referendum, or an advisory question. (Following some of their comments on social media, proponents use terms like these interchangeably, if not randomly.) The form matters, which I'll broadly outline below.

A ballot initiative would not be permitted. Ballot initiatives in California include proposing new statutes or constitutional amendments. It is not clear that either could properly authorize secession from the United States. A constitutional convention might, I suppose; but that does not occur via initiative.

A referendum also would not be permitted, because it is, well, impossible. In California, a referendum is a decision by the people to ratify or reject a law enacted by the state legislature. Because there is no secessionist law that the state legislature has enacted, there is nothing for a referendum to do.

Instead, an advisory question would be the means to recommend #Calexit, and it would be that--a recommendation by the people, something like a public opinion poll but carries greater weight having come from the ballot box. Even that is limited.

For starters, a citizen-led advisory question is not permitted in California. In American Federation of Labor v. Eu (1984), the California Supreme Court held that the people had the initiative and referendum powers, but those powers extended only to those matters that enacted laws. Advisory questions were not authorized. It explained:

We acknowledge the arguments of the proponents that there may be value to permitting the people by direct vote not only to adopt statutes, but also to adopt resolutions, declare policy, and make known their views upon matters of statewide, national, or even international concern. Such initiatives, while not having the force of law, could nevertheless guide the lawmakers in future decisions. Indeed it may well be that the declaration of broad statements of policy is a more suitable use for the initiative than the enactment of detailed and technical statutes. Under the terms of the California Constitution, however, the initiative does not serve those hortatory objectives; it functions instead as a reserved legislative power, a method of enacting statutory law. The present initiative does not conform to that model.

But a precedent has now been set in California on a different type of advisory question. The California legislature passed what would ultimately become Proposition 59 on the 2016 general election ballot. Some litigation kept a similar proposal off the 2014 ballot, but after full briefing the California Supreme Court considered whether the legislature could refer an advisory question to the people via initiative--here, a call to California's elected officials to lead an effort to amend the United States Constitution to permit greater regulation of campaign finance.

In Howard Jarvis Taxpayers Ass'n v. Padilla, the California Supreme Court permitted such an advisory question to appear on the ballot. The Court accepted the argument that the legislature had "the inherent power to conduct an investigation in order to select the wisest policy course." It could then refer such questions to the people as a part of its investigatory power. But the Court was careful to limit this power: among other things, "the investigative power permits inquiry only into those subjects 'in reference to which [the Legislature] has power to act.'"

An advisory question, then, could not ask for California to secede if the legislature lacked the power to secede. Instead, it could only ask, along the lines of Proposition 59, to urge elected officials to pursue (amicable?) secession with the federal government. That is, unless (and this is on the merits, as mentioned above) the state legislature does have some right to do so, but that is a much more complicated question--even though, I think, the answer is probably no.

That said, the (dare I call them unsophisticated) claims from the current #Calexit movement suggest they will be gathering signatures for this ballot measure, which suggests they do not intend to have the legislature refer the advisory question to the people. (It's also deeply unlikely that the state legislature, if asked, would do so.) Proponents apparently intend to simply gather signatures. And whether they do so as a ballot initiative (which the people lack to enact as a matter of law) or an advisory question (which the people lack the authority to do under the initiative power), the effort would likely fail, and the people could not vote for #Calexit.

UPDATE: The "Yes! California" movement helpfully directed me to their proposal they filed last year. It is an initiative that requires a regular referendum to call for secession, and in the event of a referendum that approves secession, triggers obligations from the California government to pursue good-faith secession negotiations with the federal government. I am fairly confident that laws that purport to bind future legislatures (if not all government officials) to act in a particular way run afoul of basic principles of legislative autonomy. (See generally People's Advocate v. Superior Court (Cal. App. 1986).) Finally, such a transformative change in California is likely a "revision" to the state Constitution, not simply an "amendment," and as such would need to come from the legislature and not an initiative petition.

New on SSRN: "Hillary Clinton, Michelle Obama, and the Unwritten Twenty-Second Amendment"

I have just posted on SSRN a new draft: Hillary Clinton, Michelle Obama, and the Unwritten Twenty-Second Amendment. Here is the abstract:

In 1994, the popular children's cartoon show "Animaniacs" aired a song about the presidents of the United States, culminating in the lyrics, "Now in Washington, DC/ There's Democrats and the G.O.P./ But the one in charge is plain to see/ It's Clinton, first name Hillary." Its humor illustrated what Americans come to expect--first spouses effectively serve in the role of President of the United States, if only informally. When Americans voted in 2016, they recognized that she was ineligible to be elected as President of the United States--she could not serve a third term because of the Twenty-Second Amendment.

This Article proceeds in three parts. First, the Article examines the text of the Twenty-Second Amendment, which provides that "[n]o person shall be elected to the office of President more than twice." Through a Blackstonian understanding of the common law tradition of coverture, the Article argues that the word "person" includes both married spouses, as the public understood the amendment when it was ratified in 1951--even as coverture was being abolished in most jurisdictions.

Second, even in light of some ambiguity of the meaning of the word "person," the "unwritten" Constitution informs us that presidential spouses are ineligible to serve as President. Tracing George Washington's example of serving just two terms in the White House to the enactment of Twenty-Second Amendment, the tradition of no spouse running for the office remains an indelible practice that informs our understanding of the Constitution.

Third, the people's uniform rejection of presidential spouses running for the office of President--in the 2008 presidential primaries, and the 2016 general election--suggests that spouses are not eligible for the office. The people, after all, may independently judge the qualifications of candidates for the office of President, and their interpretation, as construed through their behavior, informs this view of the Amendment. It concludes by teasing out the implications for a potential presidential run for office for Michelle Obama and how litigation seeking to exclude her from running might fare.

Comments (and offers from law reviews) welcome!

Hillary Clinton's popular vote margin is meaningless in every way (except pithy tweets)

Hillary Clinton is on pace to secure about a 1 or 2 percentage point margin over Donald Trump in the popular vote totals in the 2016 presidential elections. As of this moment, Mrs. Clinton has about 1.6 million more votes than Mr. Trump in that tally. (UPDATE: this post was last updated Dec. 30.)

Of course, this margin is meaningless. Except, I suppose, in pithy tweets designed to prove a point that is... well, meaningless.

First, campaigns would behave differently if they won elections based on the popular vote rather than the Electoral College. Jonathan Adler ably makes this point. Campaigns are designed to eek out, at any margin, electoral votes, not popular votes. And if the popular vote mattered, then campaigns would be designed differently. The most common analogy is to look at the 1960 World Series. The Yankees outscored the Pirates 55 runs to 27 runs. But the Pirates won the Series, 4 games to 3. That's because it doesn't matter if the Yankees won a game 16-3 or 12-0; the only thing that matters is winning 4 games. The rules define the contest. (UPDATE: Indeed, it appears the Clinton campaign chose to spend money in places like Chicago and New Orleans to increase the popular vote margin--at the expense of "swing" states in the Electoral College.)

Second, voters would behave differently, too. Would New Mexicans have cast over 73,000 ballots for former Republican Governor-turned-Libertarnian nominee Gary Johnson? Would Utahns have cast over 175,000 ballots for Evan McMullin? Would the Great Plains and upper Rockies have voted in such high numbers for the Libertarian nominee (over 5% of the vote in Montana, Wyoming, North Dakota, and South Dakota)? You see, if their votes "mattered" in a national popular vote total, they may well have voted differently. Instead, because their results were restricted to their home states--often fairly reliably Republican or Democratic--voters may have behaved differently.

Third, our laws would have to be different to have a true popular vote tally. Consider, for instance, that Mr. McMullin was only on the ballot in a handful of states, including Utah; or that Green Party candidate Jill Stein was not on the ballot in all fifty states. Or, consider that some states have strict forms of voter identification, and others have none at all; some allow incarcerated felons to vote, and other prohibit them from ever voting if they have been convicted of a felony. We run fifty-one elections in the presidential election; dumping them into a single basket of the "national popular vote" simply doesn't tell us anything meaningful. (For more on that, consider my article in the Arizona State Law Journal on the topic.)

Fourth, while Mrs. Clinton may have the most popular votes, she will be far from a majority of the popular vote. She is likely to secure something around 48% of the popular vote total--meaning 52% of Americans voted for someone else. We tend to prefer majority winners, even though each state in the Electoral College can be carried by a plurality, and many other elections also occur by plurality winners. Nevertheless, note how the Electoral College requires an outright majority to win. And fairly narrow margins can quickly turn into apparent Electoral College landslides--consider 2012, in which Barack Obama defeated Mitt Romney by a popular vote margin of 51.1% to 47.2%, but won the Electoral College soundly, 332 to 206. Until a system with a runoff is in place, we might prefer a system that offers a fairly clear majority winner, whatever the rules may be.

Fifth, this result is exactly what the Electoral College was designed to do! One reason for the Electoral College was to protect the smaller states by guaranteeing them a meaningful say in the outcome of the presidential election, as each state receives three electoral votes, and the smallest states pack a greater punch in the Electoral College than their populations would otherwise suggest. But the smallest states are quite diverse in their partisan allegiances in recent years, and the Electoral College is doing something else.

But as another way of protecting smaller states, the Electoral College ensures that a candidate must have broad geographic support. That is, she cannot "run up the score" in a small number of jurisdictions. Indeed, at the Founding, some worried that New York or Pennsylvania would simply dominate the elections. That's the flip side of guaranteeing some say to smaller states--it's to ensure a broader base of support across the country. Trump looks to carry the plurality in 30 states. That's very broad support in a country of 51 jurisdictions! Granted, some of the support was somewhat narrow, of course--it's the reason he'll lose the popular vote total.

Indeed, a couple of charts displaying the sheer disparity of performance in two states--California and New York--effectively overwhelm the entire rest of the country.

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Yes, California and New York two of the largest states. But their margin for Mrs. Clinton will likely exceed 4 million votes; the rest of the country combined will offer something like 3.8 million votes in favor of Mr. Trump. It is a deep geographic imbalance, reflecting a strong intensity of preference in two states for one candidate.

Undoubtedly, there is an appeal to the cry, "The person who gets the most votes wins." But given many complications in our federalism-driven election regime, the answers are far more complicated. In particular, there remain good (at least, good to me) normative reasons for the Electoral College--a requirement of broad geographic support for the presidency rather than pockets of intense support in a couple of places being one of them. For more, read some of my articles on the subject.... (For more on this election and the Electoral College, see John McGinnis's perspective here.)

(I should note that I do not believe we'll see a major push to abolish the Electoral College. The National Popular Vote effort has moved forward in a handful of jurisdictions, mostly Democratic-controlled, and it's pretty much run out of new places to go.)

(UPDATE: Some have critiqued this final claim, arguing that it devalues the votes in some states. It's not quite that--instead, it's that the Electoral College is actually designed to ensure broad geographic support rather than intense preferences in a few select states. I concede that "designed" may be a strong term, for some claim that it was not the outright intent of the presidential election system, but simply an indirect byproduct, but it has some support in founding documents.)

(UPDATE: these charts were updated with results as of Dec. 30.)

How recounts in presidential elections work under Pennsylvania, New Hampshire law

Tonight, or this morning, a number of elections are particularly close. From my own guess, I think the margins in Pennsylvania (20 electoral votes) and New Hampshire (4 electoral votes) look to be the closest. In the event that these elections prove to be decisive in a presidential candidate's quest to secure 270 electoral votes, recounts are likely. (Of course, if a candidate concedes, or if the margins become unrealistically large, or if there are still more tipping point states, or there are others, this prediction is sure to be wrong!)

Many recount procedures begin administratively through the Secretary of State or an election board. It's worth noting with any contested election that usual basis for filing a claim is in state court. For all the attention given to federal causes of action, the ordinary act of recounting is typically reserved to state courts. In Florida in 2000, the federal issues were raised as a counter to the procedures implemented by state courts; they were not originally federal causes of action. It's likely, then, that we would expect basic recount procedures to arise in state court; federal claims could arise in that context. It's less likely that claims would originally be filed in federal court, but there are plausible scenarios where it might happen (and where federal courts would not abstain from exercising jurisdiction, another issue!), but I'll focus on the state-based claims at the moment.

It's also worth noting that after Bush v. Gore, the key deadline this year is December 13. That's the date set by federal law for presuming the regularity of the election results in Congress. Most opinions in Bush v. Gore recognized that this deadline was an important date for a state to meet (although some disputed how important or what procedures should take place in the late days before that deadline). Any litigation, then, would occur with an eye toward that date.

Below are the general timing and triggers for basic recounts, but there are obviously many more conditions and opportunities that can arise beyond these. But as we hardly know if there will be challenges, much less here, I'll stick with a couple of bare outlines of order and timing.

Pennsylvania

An automatic recount is triggered under Pennsylvania law if the margin of victory is one-half a percentage point or less. (25 Pa. Stat. § 3154(g)(1)(ii)) (There is no recount if the losing candidate requests no recount.) The Secretary issues an order by 5 pm ET November 17. (25 Pa. Stat. § 3254(g)(2)) The recount and recanvass must be finished by noon ET November 29. (25 Pa. Stat. § 3254(g)(5)) (Some more background is here.)

New Hampshire

There are no "automatic" recounts in New Hampshire, but parties can petition for a recount if the margin is less than 20%. (N.H. Rev. Stat. § 660:1) (Some more background is here.) A candidate must file a petition by November 11. The process to recount must begin by November 16. (N.H. Rev. Stat. § 660:4)

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.

Total LSAT test-takers remain steady for 2016-2017 and fourth consecutive admissions cycle

Last year, I noted that we have seen fairly steady numbers of LSAT test-takers, at least at the top line level. That looks to hold true this cycle. In soon-to-be-disclosed statistics, October (well, September/October) 2016 test-takers were up 1.0% over last October 2015, as 33,563 took the test last month. First-time test-takers were down slightly, down 0.4%.

Below is a visualization of cumulative test-takers who took the July and October administrations of the LSAT. These have consistently been about 55% of the total LSAT test-takers in an admissions cycle (the remaining 45% taking the test in December or February.)

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For the fourth straight year, cumulative LSATs have hovered between 53,000 and 57,000. (This includes American and Canadian test-takers, first-timers and repeaters.) It's hard to resist the temptation to call this level the "new normal."

Fictional Attorney of the Month: Jackie Chiles

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Among the more well-known recurring characters in the 1990s television sitcom Seinfeild was Jackie Chiles, an intense attorney who strongly resembled a parody of Johnny Cochran.

His counsel often involves him crying out that something is "outrageous," "egregious," "preposterous," or other colorful adjectives. His lawsuits range from the referential (a lawsuit on Kramer's behalf against a coffee company for coffee so hot it burns Kramer's legs when he spills it) to the absurd (a lawsuit on Kramer's behalf against tobacco companies for second-hand smoke coloring his complexion), with memorable quips ("Your face is my case."). He's even the attorney who represents the Seinfeld cast in the season finale when they violate a Good Samaritan law.

It's the best of mid-90s comedy in deadpan legal delivery, and good enough for this month's Fictional Attorney of the Month.

Why is the ABA still accrediting law schools?

Bear with some meandering musings below....

To grossly oversimplify the history of the American Bar Association accrediting law schools, it looks something like this.

About a hundred years ago, just about anyone could take a bar exam, as long as you studied with a lawyer or "read law" for a time. Some attended law school, but it was not required. By the 1930s, states began making it more difficult to pass the bar exam--presumably in part to reduce competition for existing lawyers and make the profession more difficult for individuals to enter. (Presumably, of course, with another, at least salutary, benefit of increasing the "quality" of those practicing law.)

The ABA today describes its accreditation standards as "minimal educational requirements to qualify a person for eligibility to sit for the bar examination." As state bars became more exclusionary, these bars began to adopt minimal standards--driven, perhaps, by the ABA itself, which has become the sole accrediting body in most jurisdictions. The bar required attendance at an accredited law school; the accreditation process was designed to ensure that legal education met standards that the ABA believed to offer a "sound program" of legal education.

All this is actually quite descriptive and lacks any normative explanation. Why should there be certain standards for legal education that must be met before someone takes the bar exam?

What is the difference between legal education and the bar exam?

It might be that we have legal education because we believe that attorneys should be, somehow, perhaps, well-rounded and well-educated individuals, apart from their ability to pass the bar exam. That would seem to be the driving concern--we think (perhaps you don't, but work with the assumption) lawyers shouldn't just be able to pass the bar and practice law; they should have some kind of training and background before they practice law and something that qualifies them apart from the bar exam's test of "minimum competence."

The ABA has a near obsessive focus on the picayune details of how a law school functions, including the types of books the law library maintains. Many of the ABA standards are fairly generic, requiring things like "suitable" classrooms, "sufficient" space for staff, and "sound" admissions policies. Ensuing interpretations often add specific guidance to these generic standards, which drive a great deal of law school decision-making. But these are all designed to elevate the educational experience, quite apart from the ability to pass the bar exam.

Many of these standards, of course, suffer from serious deficiencies. For matters like the books in a library, they are antiquated notions about access to print materials from an era where books were scarce. Today, not only are books plentiful, the resources attorneys principally use are electronic. Some standards are the result of bargains with entrenched interests within the ABA rather than with empirical or quantifiable pedagogical benefit.

But that can be set aside for the moment--the ABA may have a goal of providing some kind of a quality education for all prospective attorneys before they take the bar, but it may simply do so albeit ham-handedly.

But there is a different, perhaps reverse, form of the question: if legal education provides students with three years of sound education and a degree at the end, why is the bar exam even needed? Isn't graduating from a law school after three years of thickly-regulated education sufficient to make one eligible to practice law? Indeed, it's a reason why the state of Wisconsin offers "diploma privilege" to graduates of its two law schools.

The opening question, then, is really to determine the purpose of the bar exam and the purpose of accreditation of law schools.

To recap, the bar exam has perhaps less-than-noble purposes (such as limiting the pool of attorneys), and some perhaps good purposes (such as establishing minimum competence to practice law, however imperfect the bar exam may establish that).

Legal education, in contrast, is, I think, designed to offer something beyond simply establishing "minimum competence." It, perhaps, and perhaps ideally, offers students an opportunity to learn about the law in a more systematic way than reading law might have permitted. That, of course, comes at a high cost for prospective attorneys who must invest (typically) three years of education and a substantial sum of money to achieve the diploma required to take the bar.

Therefore, I think it would be fair to say that legal education is providing something distinct from the bar exam. (Whether the accreditation process is a proper assessment, and whether accreditation should be required, are separate concerns.)

If legal education is providing something distinct from the bar exam, then why are new accreditation standard focusing on the bar exam?

So, why is the ABA still accrediting law schools given its new obsession with the ability of graduates to pass the bar exam?

Most of the rest of the ABA's accreditation practices focus upon the terms of education. It is, in theory, providing something apart from the bar exam. Now comes the new ABA standard, on track for approval, which provides, quite flatly, "At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation." An earlier malleable standard has become a clean rule. It also threatens a number of schools currently in non-compliance with this standard, likely to get worse as bar rates continue to decline.

What value is the ABA adding if its newest, most stringent control is simply redundant of, well, the bar exam itself? Why have accreditation at all?

It seems a bit self-referential to say that a law school cannot send its graduates to take the bar exam until enough of its graduates pass the bar exam--particularly as the entire point of legal education, as I've suggested, is to provide something apart from "minimum competence."

After all, it would be pretty simple stuff for state bars to simply disclose the pass rates of all institutions whose graduates take the bar exam. Then consumers could know if their school met the standards that they expected or desired when attending law school.

But perhaps it is because of the consumer protection-focused nature of recent years that has driven this result. Legal education is not really seen as offering something "apart from" anymore. It is instead deemed more a necessary and costly hurdle before taking the bar exam. And if law school graduates are going through this costly and time-consuming process, but unable to pass the bar exam, then law schools’ function is greatly diminished.

There are two principal, and opposing, kinds of responses one could make to my query.

First, I suppose one could make the claim that if a law school is not providing "minimum competence" to its graduates, then it is hardly providing the kinds of aspirational traits legal education purports to provide and should not be accredited. That's, I think, somewhat misguided. The bar exam is not really very well designed to test "minimum competence." Indeed, it's not really very well designed to test the abilities of lawyers. Timed, closed-book essays that principally rely on regurgitating black letter law (indeed, often greatly simplified, even fictitious versions of law), alongside a series of multiple choice questions, in selected areas of practice designed for general practitioners who arose from a common-law, 70s-era form of the law, are not really something that should be taught in law school--at least, not emphasized.

In reality, the problem is not that law schools are failing to train their graduates with the "minimum competence" needed to practice law. Or, even the ability to pass the bar. It is that many are accepting, and then graduating, students who are unable to acquire the skills needed to pass the bar--because they are incapable of doing so, or because they are unable to transfer the three years of legal education into the licensing regime of bar test-taking, or because they have been prioritizing other things, or whatever it may be.

This is, I think, a subtle point. It is tied, I think, closer to admissions and graduation practices, and to post-graduation study habits, more than legal education. That is, of course, because legal education is supposed to be providing something other than bar prep, and has been doing so for decades. So, the decline in bar pass rates is not really a problem with "education" in the sense of the time in the classroom for three years. It is about other things.

Second, one could say that the ABA needs to have some standards for accrediting law schools, and this is as good a standard as any to help control the admissions and graduation problems that may be contributing to bar pass rate declines. But this, again, gets back to my opening question--why have accreditation at all?

If law schools aren't in the business of bar exam training (and I don't think they should be), we should still expect that law schools are graduating students who are able to use their professional degrees in the practice of law. If schools are failing in that endeavor, stripping accreditation is certainly a way of penalizing them.

But it all seems quite circuitous, given that we could just permit students to take the bar regardless of their legal education history--as long as they establish that they have the "minimum competence" to take a licensing exam, they could practice law. And if some want to attend law school to secure a credential for future employers that says, "I've attended this law school and have some additional training that establishes something beyond minimum competence," they could do that, too.

And this points back to the purposes of requiring attendance at an accredited law school in the first place. You see, my problem isn't necessarily that the ABA wants to ensure that law schools are graduating students who are able to pass the bar exam and become licensed practicing attorneys. It is, instead, that if the bar exam is our principal concern, and the principal concern is wholly independent of legal education, and now legal education is accrediting bodies based on performance on this principal concern... doesn't that instead suggest that the accreditation process of legal education is, perhaps, its own problem now?

Concluding thoughts

If you've survived through this meandering, it's worth considering what legal education should be. Perhaps it should still try to provide something different from the "minimum competence" required to pass the bar exam.

But as some law schools have departed from practices that may best benefit their graduates--particularly in high tuition costs; entrenched and inflexible standards; and declining control in the quality of admissions, retention, and graduation practices--it may be the case that we have forgotten what law school ought to be. Its purposes have been lost as we consider it as a kind of necessary rite of passage before one takes the bar exam. In this instrumental vein, distrustful of the operation of law schools, the accreditation process should look mostly at the outputs of graduates.

I don't think that's a welcome development, either on the accreditation end or on the telos of legal education. But it's perhaps the necessary evil that has come upon us, until either schools change their practices or the market improves dramatically. Even then, it will be hard to separate legal education from the bar exam, and that loss speaks more about why the ABA is still accrediting schools in the first place--or why state bars require legal education before taking the bar exam.