California postpones an election to help one of its own

A sure sign of political manipulation of an election is delaying it. Troubled states like the Democratic Republic of the Congo, Somalia, and Haiti have recently come under United Nations scrutiny for delaying their elections.

And then there’s California, where Democrats are attempting to postpone a recall effort to hold onto a supermajority in the legislature.

In April 2017, the California legislature approved a major new gasoline tax and annual vehicle fee signed into law by Governor Jerry Brown. The tax is projected to raise $5.2 billion per year for transportation-related projects. (For perspective on the size of the tax hike, consider that the entire state of West Virginia’s total tax revenue from all sources was $5.1 billion in 2016.)

Tax hikes require a two-thirds vote of each legislative chamber, and Democrats hold precisely a supermajority in both. The tax passed with the bare minimum support in each chamber, with one Democrat opposed and one Republican vote in favor (in exchange for a half a billion dollar earmarked for special projects).

Republicans targeted Democratic Senator Josh Newman of Fullerton for a recall, which, if successful, could end Democratic supermajority control. Mr. Newman won his seat in 2016 by a slim 50.4%-49.6% margin.

Democrats complained that the recall campaign has been deceptive, as petition circulators broadcast that signing the petition would help “stop the car tax.” Rather than fight the recall in the political arena, however, they’ve tried to postpone the election.

The legislature swiftly enacted a law to include a number of dilatory tactics. First, the bill would permit those who signed a petition to withdraw their names up to 30 days after the petitions have been submitted. Many jurisdictions permit withdrawal of signatures while the petition is circulating. But to permit signers to withdraw after the petition has been submitted invites untold mischief. Recall opponents could initiate a counter-campaign to secure enough withdrawals and thwart the recall from ever happening.

Worse, the legislature enacted this law retroactively. While recall petitioners were in the midst of circulating their petition, the California legislature changed the rules on them. Petition circulators surely would have collected more signatures if such a law were on the books when they began.

The 30-day window also postpones the date of the recall, which is fixed by the California Constitution. Recalls must occur within 60 to 80 days, unless the petition is certified within 180 days of the next regularly scheduled general election. Governor Jerry Brown assuredly would call for the election at the next general election if the deadline could be pushed back long enough. So the California legislature began adding dilatory time periods to push back the recall as long as possible.

Counties must verify the validity of the signatures from the petitions, usually by a statistical sample of three percent of the signatures. They check to make sure that the signatures are authentic and come from registered voters. The new law abolishes sampling as a permissible technique and requires examination and verification of each and every signature, a costly and time-consuming endeavor. This is a thirty-fold increase in the time and cost of checking signatures. (The legislature didn’t even bother to find that recall signature fraud was a problem or that recall petitions needed special treatment from other election-related petitions. It simply made the process more cumbersome to slow it down.)

The legislature then added a 30-day window after the signature withdrawal window closes for the Department of Finance to estimate the cost of the recall. After that, the legislature tacked on another 30-day window for the Joint Legislative Budget Committee to weigh in on the cost estimate. Only then may the Secretary of State certify the sufficiency of the recall signatures.

The bill is even more absurd with its final act. After a lawsuit challenging the law, a court stayed application of the law, finding that it likely violated the “single subject rule.” California requires that laws embrace one topic, and here the legislature logrolled this election law into a budget bill. Fearing that they’d lose in court, the legislature moved with remarkable speed—in a single day, August 24, a newly-amended clean election bill made its way through both chambers and received the governor’s signature. There is a chance that a state court still finds the law unconstitutional, given, for instance, its retroactive effect, and its tenuous reasons for delaying the election.

The law will affect recalls in more than just Mr. Newman’s race. Efforts to recall Judge Aaron Persky, criticized for his lenient sentence handed down to Brock Turner, convinced of sexual assault at Stanford University, will face similar delays.

Even in 2003, when California’s voters recalled Governor Gray Davis just 9 months into his term, the legislature didn’t attempt to thwart the voters.

The successive and repeated delays all but guarantee that Mr. Newman's recall, like virtually all recall elections, will be pushes to next June’s primary election. True, Mr. Newman must still, at some point, face recall. But the California Constitution’s 60-to-80 day guarantee for recalls has become a nullity.

"The Kobach fallout on election security"

I have a guest post at Rick Hasen's Election Law Blog. It begins:

The Presidential Advisory Commission on Election Integrity offered its first public request this week, as Vice Chair and Kansas Secretary of State Kris Kobach requested voter information from every state. That single request has likely done long-lasting damage to the political ability of the federal government to regulate elections. In particular, any chance that meaningful election security issues would be addressed at the federal level before 2020 worsened dramatically this week.

The request is sloppy, as Charles Stewart carefully noted, and, at least in some cases, forbidden under state law. The letter was sent to the wrong administrators in some states, it requests data like “publicly-available . . . last four digits of social security number if available” (which should never be permissible), and it fails to follow the proper protocol in each state to request such data.

Response from state officials has been swift and generally opposed. It has been bipartisan, ranging from politically-charged outrage, to drier statements about what state disclosure law permits and (more often) forbids.

But the opposition reflects a major undercurrent from the states to the federal government: we run elections, not you.

Puerto Rican statehood and the effect on Congress and the Electoral College

After the low-turnout, high-pro-statehood referendum in Puerto Rico last weekend, despite the low likelihood of it becoming a state, it's worth considering the impact that statehood might have in representation and elections.

Puerto Rico would receive two Senators, increasing the size of the Senate to 102.

Census estimates project that Puerto Rico would send five members to the House. Since 1929, the House has not expanded in size, so it would mean that Puerto Rico's delegation would come at the expense of other states' delegations. In 1959, however, with the admission of Hawaii and Alaska, Congress temporarily increased in size from 435 members to 437, then dropped back down to 435 after the 1960 Census and reapportionment. Congress might do something similar with Puerto Rico upon statehood. (For some thoughts about doubling the size of the House, see my post on the Electoral College.)

Based on projections for 2020, Puerto Rico's five seats would likely come at the expense of one seat each from California, Montana, New York, Pennsylvania, and Texas. (It's worth noting these are based on the 2020 projections; Montana is likely to receive a second representative after the 2020 reapportionment.)

This would also mean that in presidential elections, Puerto Rico would have 7 electoral votes, and these five states would each lose an electoral vote. The electoral vote total would be 540, and it would take 271 votes to win.

In today's New York Times: "Don't Use the Ballot to Get Trump's Tax Returns"

In today's New York Times, I have an opinion piece entitled, "Don't Use the Ballot to Get Trump's Tax Returns." It begins:

Opponents of Donald Trump were outraged when, flouting recent tradition, he refused to disclose his tax returns during the 2016 presidential campaign. They remain outraged that he continues to decline to do so as president.

Now that political outrage is being channeled into legislation. Lawmakers in at least two dozen states have introduced bills that would compel presidential candidates to disclose their tax returns or be left off the ballot in 2020. The New Jersey Legislature recently passed such a bill, which sits on Gov. Chris Christie’s desk.

Mr. Christie should veto the bill, and other states should abandon their efforts. Making the disclosure of tax returns mandatory is bad policy and, in this form, probably unconstitutional.

Other recent pieces on this subject include those by Vik Amar and Rick Hasen. I approach this a bit differently--proponents, including Laurence Tribe, have styled this as a "ballot access" case, rather than additional qualifications (which, I think, are even more likely to be found unconstitutional), and I've addressed it from that perspective.

No, Congress can't pass a law permitting a special election for president

UPDATE: Please read the update at the end of this piece! Several thoughtful responses have been sent to me, and I am reconsidering whether I have this right at all! Such is the half-baked musing of a blog... I deeply appreciate feedback.

I recently read a piece on the crisis of presidential succession. The logic of the piece went something like this: suppose Russia interfered so greatly in our presidential electoral process that Donald Trump, Mike Pence, Paul Ryan, Orrin Hatch, Rex Tillerson, and everyone else in the ordinary line of succession had their legitimacy cast into doubt, a "stolen" election? Congress ought to pass a law to address this point--in particular, if Congress removes the President and Vice President (N.B.: this is, of course, the same irretrievably-corrupted Congress in which Mr. Hatch is the President Pro Tempore and Mr. Ryan is the Speaker), it should be authorized to call (N.B.: again, Congress is controlled by the same corrupt Russian stooges) for a special presidential election.

Because others appear to be taking this argument seriously, it's worth noting that it should not. Congress lacks the power to call for a special election for president.

The purported ground for the exercise of this power arises from Article II, Section 1, Clause 6--at least, the portions not altered by the Twenty-Fifth Amendment. The relevant provision reads: ". . . and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

The power of Congress is one to enact a law to "provide" for the case of the loss of both the President and the Vice President. But that "Law" may "provide" one thing: "declaring what Officer shall then act as President." That is the extent of Congress's power in this area, at least under this Clause.

The remainder of the Clause does not empower Congress to act further. "[S]uch officer shall act accordingly," the Clause explains, "until the Disability be removed, or a President shall be elected." Both are in the passive voice, and, I think, deliberately so. The last provision, "a President shall be elected," then would refer to the ordinary powers of Congress to "determine the Time of chusing the Electors, and the Day on which they shall give their votes." But as the term of office is for "four Years," Congress's power is, I think, limited to this--the "term" of the President ends after four years (now on January 20th, see Amendment XX, Section 1), and the Officer "act[s]" as president "until" the next election.

The attempt to read into these provisions a power of Congress to call a special election is still more deeply flawed. The Constitution speaks of the power to fill vacancies with the special term "writ of election." There is no such power of Congress to issue writs of election for vacancies in the office of President and Vice President.

Consider the language of the Constitution for the House. Article I, Section 2, Clause 1 provides, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . ." And in Clause 4, "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." (Emphasis added.) The ordinary process differs from the power during a vacancy, which is to issue writs of election.

When legislatures elected Senators, there was a similar provision, albeit not for writs of election. Article I, Section 3, Clause 1 provides, "The Senate of the United States shall be composed of two Senators from each state, chosen by the Legislature thereof . . . ." And in the next clause, ". . . if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." There is specific new power to fill vacancies if they arise.

The Seventeenth Amendment works the same way as the House's language. "The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years . . . " In the second clause, "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies . . . " (Emphasis added.) Again, a specific enumeration of power in the event vacancies arise.

Congress has no such power to issue writs of election when vacancies arise in the office of President and Vice President. Indeed, Congress's power is carefully (and understandably) limited to choosing successors who can "act" as president until the next election. It has no power to otherwise fill vacancies.

Indeed, Congress's power to regulate presidential elections is even more limited than its power to regulate congressional elections. The Times, Places and Manner Clause permits Congress to "make or alter such Regulations" relating to the "Times, Places and Manner of holding Elections for Senators and Representatives." But its power to regulate the selection of presidential electors is to "determine the Time of chusing the Electors, and the Day on which they shall give their Votes." Even if one believes that the power to issue writs of election for vacancies is a "manner" of regulation an election ([Robert G. Natelson offers evidence of this][1]), Congress lacks such power in presidential elections. Indeed, such a lack of power in presidential elections is one of the great reasons Congress enacted the Twenty-Fourth Amendment to abolish poll taxes in federal elections--many in Congress who thought Congress could do so for congressional elections under the Times, Places and Manner Clause believed they lacked the power to do so in presidential primaries and the selection of electors. (This is part of ongoing research I hope to share soon.)

[1]: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1751720

So Congress can't just pass a law permitting it to call for a special election to redo the presidential election if it so desires. The power to issue a writ of election to fill the vacancies in the office of President and Vice President if they arose would need to occur by constitutional amendment.

(UPDATE: I've learned that there is much more history here than my analysis offered! Congress in 1792 enacted a law that would permit it to call for a special election in the event of a vacancy. There is apparently a rich body of debates surrounding this--suggesting I should do more research before blogging! Nevertheless, I feel fairly confident my "writ of election" point is a significant textual one, even if Congress has previously disputed it. More to come one day!)

No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.

A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.

. . .

I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

Would doubling the size of the House have affected the Electoral College outcome in 2016?

A common mantra after the presidential election sounded something like this: "California is so much larger than Wyoming, but a vote cast in California has only a third of the value of a vote cast in Wyoming in the presidential election." Or something like that. This, in turn, is often a proxy for criticizing the Electoral College.

The Electoral College allocates electors based on the total number of members of the House and Senate each State has--and, as each State is guaranteed at least one House representative, no matter how small, and exactly two Senators, no matter the size, each state will receive at least three electoral votes. With a House of 435 members, a Senate of 100 members, and 3 votes for the District of Columbia, we get 538 electoral votes, 270 needed to win.

In the 2016 presidential election, that looked something like this: Californians cast over 14 million votes for president. Given California's 55 electoral votes, that works out to about 257,847 votes cast per electoral vote. In Wyoming, there were 255,849 total votes cast for president. That works out to about 85,283 votes cast per electoral vote. And that's just about a 3:1 ratio. (Granted, the House is apportioned based on total population, not ballots cast, but let's stick with this metric for now. And, of course, this is a rather crude approximation of how to "weigh" votes, considering that these are winner-take-all states rather than votes-per-elector, but it has an understandable simplicity and rhetorical appeal.)

(Here, too, it may be worth noting that this fairly grossly overstates a single voter's power. Put in reverse, a California voter is providing 0.0000039 of the total value of a single electoral vote; a Wyoming voter is providing 0.0000117.)

In some ways, the real problem people have with this disparity is the United States Senate itself. But much of the reason that this disparity exists is because the size of the House of Representatives has not increased since 1911. The Reapportionment Act of 1929 capped the size of the House at 435 members, fixing it as it was in 1911--and, as a result, capped the size of the Electoral College. It meant that disparities in the Electoral College would increase as populations shifted.

Roughly doubling the size of the House to 871 members would give better representation based on total population. And it would do so without any need for a constitutional amendment--a simple statute from Congress could help equalize this spread. But would it have changed anything in the 2016 presidential outcome? Not really-it would smooth out some of the disparities but have no meaningful effect on the outcome (except to actually widen the margin of Donald Trump's victory).

Using the Equal Proportions Method, we can fairly quickly calculate how these 871 seats would be allocated based on the 2010 census. The smallest state in this scenario receives two House members. We'd then add in 100 electors for the Senate, another 4 electors for the District of Columbia, and come to a nice round 975 electoral votes: 488 votes to win. And like the five fictional Electoral College outcomes I provided recently, we can recalculate the 2016 election after our newly-constructed House.

By giving California a whopping 104 members in the House--and 106 electoral votes--we'd see the 2016 totals drop to 133,788 votes cast per electoral vote. In Wyoming, which would get a second member in the House and 4 electoral votes, it would have 63,962 votes cast per electoral vote. The California:Wyoming ratio would drop from 3:1 to 2:1. That would certainly improve the disparity, but hardly cure it.

And despite improving the disparity, we see little change in the overall outcome. (I assumed a winner-take-all in each state, despite Maine's and Nebraska's systems.) It yielded 547 electoral votes for Mr. Trump to 428 for Hillary Clinton--a comfortable margin of victory, and by raw pledged electors much larger than his actual 2016 victory. So while it might help reduce some of the rhetoric regarding disparities in vote power across states--and improve some of the actual voting power--it wouldn't offer any dramatic change to our system.

I have the complete breakdown of electoral votes below. If you'd like to reverse-engineer the House figures, simply subtract two from each state.

---

Size of House of Representatives Doubled, Winner-Take-All
	Clinton	Trump
Alabama		16
Alaska		4
Arizona		18
Arkansas		10
California	106
Colorado	15
Connecticut	13
Delaware	4
District of Columbia	4
Florida		51
Georgia		27
Hawaii	6
Idaho		6
Illinois	40
Indiana		21
Iowa		11
Kansas		10
Kentucky		14
Louisiana		16
Maine	6
Maryland	18
Massachusetts	22
Michigan		33
Minnesota	17
Mississippi		11
Missouri		19
Montana		5
Nebraska		7
Nevada	8
New Hampshire	6
New Jersey	28
New Mexico	8
New York	61
North Carolina		30
North Dakota		4
Ohio		37
Oklahoma		13
Oregon	13
Pennsylvania		40
Rhode Island	5
South Carolina		14
South Dakota		4
Tennessee		20
Texas		66
Utah		9
Vermont	4
Virginia	24
Washington	20
West Virginia		8
Wisconsin		19
Wyoming		4
Totals	428	547

The coming battle over election system security in the United States

What's the best way to protect election systems in the United States? Is it a good thing that we have a decentralized federalist system, where the states vary, and even the counties within states vary, to some degree, preventing easy singular takeover or attack of our election systems? Or should we strive for greater oversight and best practices through more uniform standards that can be implemented across the country at the federal level?

The battle is fascinating because it eschews typical partisan lines and instead reflects deep concerns from two different groups--state secretaries of state who run elections, worried about needless cost, unnecessary regulations, and changing standards outside of their control; and federal security officials, who view different, sometimes international, threats as an essential reason for greater federal control of our elections infrastructure.

On January 6, 2017, a lame-duck Secretary of the Department of Homeland Security, Jeh Johnson, declared that election systems in the United States would be "critical infrastructure." DHS emphasized that this is not a "federal takeover, regulation, oversight or intrusion" for elections. Instead, it is designed to provide state and local officials with better assistance from DHS.

The next day, a member of the Election Assistance Commission, Christy McCormick, quickly fired back with a sharp critique of the designation, identifying problems with the scope of the designation. Compliance is purportedly "voluntary," but it appears that DHS may withhold certain information that would otherwise be available if states fail to comply. The scope of the order is unknown--indeed, it appeared to Ms. McCormick that the new things provided from the order were already available to state and local officials who requested it of DHS. And she suggested that political partisanship was involved.

This might have all the trappings of a Democrats-want-more-federal-oversight-Republicans-don't type of battle.

But soon, state secretaries of state, regardless of their partisan affiliation, began to express concern. Consider Alex Padilla of California: it "raises important questions.," and the limits are "unclear," particularly given a new incoming administration.

Soon, the National Association of Secretaries of State ("NASS") would adopt a resolution formally opposing the designation, noting problems arising from the designation, such as oversight of items that are not subject to cybersecurity threats; political opposition to the designation in Congress; and unanswered questions.

When NASS pressed DHS regarding the designation, the new administration expressed that it would continue to support the designation. Members of the Georgia legislature have already introduced a resolution calling for redesignation.

It remains to be seen what this designation actually does. As the DHS letter notes, much information was shared between DHS and the states. The designation allows from more "detail" and "tailoring," DHS explains--what value that is, I think, remains to be seen.

But NASS is concerned, understandably, that these "voluntary" commitments may no longer look so voluntary. And is that a good thing? It's easy to consider the benefits to greater federal oversight, and its significant costs. And we're observing the key stakeholders on each side of this debate preparing for a longer battle over the future of election system security.

So, in a only-somewhat-false dichotomy, what's better? A future of state-controlled, decentralized systems difficult for any single cyber threat, but potentially at greater risk in individual jurisdictions that fail to maintain sufficient standards? Or a future of federal oversight of election systems designed to provide the best practices and standards with superior procedures and oversight, but with likely higher costs, uniform standards offering less local control and flexibility, potentially increased politicization of federal standards, and greater nationwide vulnerability? I certainly can't answer it (although I think Zip disks aren't a part of future election systems security), and it'll take time to see how this relationship between DHS and NASS plays out. Let's hope the battle between them yields the best possible result for keeping our election systems safe.