Partisan gerrymandering: a problem with an assumed solution

This is the second in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here.

I'll stipulate it. Partisan gerrymandering is a problem. And it has long been a problem. From the early days of the Republic to the present, it has vexed the political process.

But if that is a problem, the question is, what should the solution look like? Or, more specifically, who should fashion the solution?

Even if partisan gerrymandering is a problem, a solution that turns on the federal judiciary assumes that it is best suited, or suited equally with the political branches, to address the problem. There has been no meaningful argument that the federal courts are to be a last resort (a weaker version of the justiciability claim) or that they lack the institutional competence to handle these matters (the basic argument concerning the "political question doctrine").

Indeed, even in Baker v. Carr, the Court went out of its way to point out the (practical) political futility of trying to change redistricting by the political process, emphasizing that the people of Tennessee lacked the initiative power to amend the state Constitution to address concerns about malapportionment in the state legislature. (Of course, I should note, the people of Wisconsin also lack that power!)

It will inevitably stifle any innovation at the state level. Florida, California, and Arizona are just a few of the states that have initiated efforts to change how redistricting occurs in each state. (Arizona's even survived a legal challenge, albeit, I think, dubiously.) Florida added a constitutional amendment with fairly specific provisions that invited state judicial involvement; California created a citizens redistricting commission to draw the lines; Arizona developed a bipartisan redistricting commission. Whether these are the right solutions (as each is different) is probably a question of perspective.

But, I think, political, state-based efforts like these will be overwhelmed by litigation in the federal courts in the event the Supreme Court articulates a constitutional standard and finds that Wisconsin's redistricting runs afoul of it. True, some states (or, probably more specifically, their voters!) might want to go above and beyond this standard. But I do think that political innovation will dry up fairly quickly.

State law in Wisconsin already provides some modest protection against gerrymandering. The Wisconsin Constitution requires that state legislative districts be "contiguous territory and be in as compact form as practicable," and that "no assembly district shall be divided in the formation of a senate district." These help prevent--but by no means end!--some manipulation in redistricting.

And the governor--from a statewide elected office--is still involved in redistricting. To the extent the legislature has entrenched itself, a statewide, non-districted office remains a part of the process.

All this is to say that a three-judge federal court stepping into a traditional political area, and longstanding state practice, is the assumed solution in this case, and it is not immediately obvious that ought to be so. When courts articulate a standard, or apply their own judgment to a case, it simply looks different than political or state law-based redistricting. It is by no means obvious to me that the flaws of a few federal judges (and the litigation that surrounds such cases) are going to be somehow better for our democracy than the messy, sticky politics we've slogged through for a couple of centuries.

Some, of course, have pointed to the fact that only in cases of extreme partisan gerrymandering should courts intervene, or that this era is unique in partisan gerrymandering (to be fair, a claim made in the 1980s and 2000s in the last go-arounds, too). But to invite federal courts to weigh in on the state legislative redistricting process is, I think, significant to a degree not sufficiently recognized (in my own view!) in the discussions surrounding partisan gerrymandering so far. That is, even if gerrymandering is a problem, assuming that the federal courts are the best (and, indeed, they will become the prime place if the appellees succeed in Gill v. Whitford), or the necessary, place for such a solution is, I think, a logical step that requires something more.

Partisan gerrymandering: a scatterplot clause in the Constitution

This is the first in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week.

The Supreme Court is set to hear Gill v. Whitford, an appeal from a three-judge panel finding that Wisconsin's state legislative redistricting was an unconstitutional partisan gerrymander. A read of the amicus briefs in support of the appellees, however, suggests that the resolution of this case doesn't have much to do with the Constitution.

Among the 32 amicus briefs filed in support of appellees, just 12 even bother to cite the United States Constitution (from my review of the tables of authorities). Among those, just eight cite the most relevant texts: the Fourteenth Amendment (the basis for the finding that partisan gerrymandering claims are justiciable under the Constitution in Davis v. Bandemer) or the First Amendment (Justice Kennedy's suggested alternative constitutional provision for assessing partisan gerrymandering claims in Vieth v. Jubelirer). Indeed, even the brief of Constitutional Law Professors fails to cite the Constitution. And the appellees themselves do not cite to the Constitution, either. [UPDATE: A commenter below notes that the briefs do refer to these constitutional provisions in other places. The Constitution is not cited or included in the Table of Authorities, but it is referred to.]

Briefs understandably do different things. But most appear to drift away from any attempt to figure out what the Equal Protection Clause means: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."

The briefs, and the public commentary surrounding them, have focused on something else: political evidence and political science data surrounding Wisconsin in particular and redistricting generally. Maps showing old and new district lines and political boundaries, shaded maps with voter preferences, bar charts, and scatterplots overwhelm the discussion.

It's true that the bulk of the case is about what evidence courts can, or should, use when evaluating a partisan gerrymander. But that gets a bit ahead of the first question, in my view: what does the Constitution demand in redistricting? That is, what does it mean to "deny" a person (perhaps, in particular, a voter) the "equal protection of the laws"? It appears to me, at least, that this question of law has been relegated to an assumption or afterthought as the data and tools and evidence dominate the debate. Others, I'm sure, may disagree, pointing to the language from cases like Bandemer or Vieth in establishing the relevant legal standard. But, I think, given the uncertainty for three decades in these partisan gerrymandering cases, I think spending time working with the text of the Constitution remains a question of prime importance.

Why are bar exam scores improving?

The news that the mean scaled MBE score has risen for the second year in a row and is now the highest since 2013 is good news for law schools and law students. I've been tweeting the results of the comparative overall pass rates in some jurisdictions as they roll in. It shows that, as expected with an increase in the MBE, passing rates are up in most jurisdictions. That's helped by jurisdictions that have lowered the cut score: Oregon, for instance, reduced its passing score from 142 to 137, and its passing rate rose from 58% in July 2016 to 79% in July 2017. (The low point of MBE scores came in July 2015).

But, why? In 2014, I noted that it looked like bar pass rates would have a bleak (at least short-term) future. In 2016, scores slightly improved; and here in 2017, they've improved quite a bit (though well behind where they were in 2013 and the preceding decade of relatively high scores).

Schools that saw their declines in bar pass rates in September to November of 2014 would not have been able to take action on the admissions front until they admitted students who began in August 2015. (Indeed, some might have hoped it was a one-time blip and might not have reacted even then.) But we could look at a couple of things to see if their practices changed.

First, it turns out that the bottom end of the incoming classes in August 2014 had worse predictors than August 2012--but the July 2017 test-takers scored much better than the July 2015 test-takers. A whopping 146 law schools saw a decline in their 25th percentile LSAT incoming classes (i.e., the cohort most likely to fail the bar--relative, of course, to each school's LSAT profile and each jurisdiction's cut score) in that two-year period. 29 held steady in their 25th percentile, and just 14 saw an improvement.

If anything, then, we should expect bar pass scores to be much more this past July! But we also have another factor: academic dismissals. Note that the incoming class from August 2014 may have had worse credentials, but they would have completed their first year in May 2015, shortly after some schools would have been aware of the significant drop in the bar pass rates.

Professor Jerry Organ tracked attrition and noted an uptick in academic dismissals among that August 2014 incoming class by 2015--and before they took the July 2017 bar. Overall first-year attrition was up slightly, from 6.25% for the Class of 2015 to 7.04% for the Class of 2017. But attrition rose the most at schools with the lowest LSAT profiles. Among schools with a median LSAT profile below 150, attrition rose from 12.1% to 17.1% in that two-year stretch, while declining slightly at all other institutions.

Surely that can offset some of the worsening LSAT profiles. But it can hardly explain all of it. I wonder if institutions have found better strategies of intervening with at-risk students, or providing more robust bar exam support for at-risk students. Perhaps in the last couple of years, students have been sufficiently scared of failing the bar to study harder or earlier (we know that over time, a bar exam test-taker's score will improve). These are matters that institutions may have the data to examine (or may be in the process of collecting). Regardless, it remains good, albeit still slightly mysterious news--and those in legal education hope that it is the beginning of a continued trend of good news.

Where are they now? Supreme Court clerks, OT 2007

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003, October Term 2004, October Term 2005, and October Term 2006, here's what the clerks from October Term 2007 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links often aren't the best source material).

Chief Justice John G. Roberts

Jason T. Burnette (Georgia 2006 / R. L. Anderson), partner at Jones Day

Joshua Hawley (Yale 2006 / McConnell), attorney general of Missouri

Anton Metlitsky (Harvard 2005 / Garland), partner at O'Melveny

Erin Morrow Hawley (Yale 2005 / Wilkinson), professor at Missouri

 

Justice John Paul Stevens

Todd Gluth (Berkeley 2005 / W. Fletcher), partner at Cooley

Sara Eisenberg (Cardozo 2005 / Lifland (D.N.J.) / Barry), deputy city attorney of San Francisco

Kate Shaw (Northwestern 2006 / Posner), professor at Cardozo

Abby Wright (Penn 2006 / Boudin), attorney, DOJ

 

Justice Antonin Scalia

Aditya Bamzai (Chicago 2004 / Sutton), professor at Virginia

John Bash (Harvard 2006 / Kavanaugh), associate counsel, White House (and nominee, U.S. Attorney, W.D. Tex.)

Bryan M. Killian (Harvard 2005 / Niemeyer), partner at Morgan Lewis

Rachel P. Kovner (Stanford 2006 / Wilkinson), assistant to the Solicitor General

 

Justice Anthony Kennedy

Michael Chu (Harvard 2006 / D. Ginsburg), partner at Kirkland & Ellis

Stephen J. Cowen (Chicago 2006 / D. Ginsburg), of counsel at Jones Day

Annie Kastanek (Northwestern 2005 / Ripple), AUSA, N.D. Ill.

C.J. Mahoney (Yale 2006 / Kozinski), partner at Williams & Connolly (and nominee, Deputy Trade Representative)

 

Justice David H. Souter

Bert Huang (Harvard 2003 / Boudin), professor at Columbia

Leslie C. Kendrick (Virginia 2006 / Wilkinson), professor at Virginia

Michael J. Mongan (Stanford 2006 / Garland), deputy solicitor general of California

Micah W.J. Smith (Harvard 2006 / Calabresi), AUSA, S.D.N.Y.

 

Justice Clarence Thomas

Eric McArthur (Chicago 2005 / Luttig), DAAG, DOJ

Carrie Severino (Harvard 2004 / Sentelle), chief counsel and policy director, Judicial Crisis Network

Heath Tarbert (Penn 2001 / D. Ginsburg), nominee, Assistant Secretary of the Treasury for International Markets and Development

Leila Mongan (NYU 2005 / Sentelle / Lamberth), most recently counsel at Hogan Lovells

 

Justice Ruth Bader Ginsburg

Ruthanne M. Deutsch (Georgetown 2004 / Dyk), partner at Deutsch Hunt

Brian H. Fletcher (Harvard 2006 / Garland), assistant to the Solicitor General

Thomas G. Saunders (Yale 2004 / Leval), partner at WilmerHale

Zachary D. Tripp (Columbia 2005 / Kearse), assistant to the Solicitor General

 

Justice Stephen Breyer

Michael Bosworth (Yales 2003 / Katzmann / Kakoff), counsel at MacAndrews & Forbes

Karen Dunn (Yale 2006 / Garland), partner at Boies Schiller

Eric J. Feigin (Stanford 2005 / Wilkinson), assistant to the Solicitor General

Philippa M. Scarlett (Columbia 2003 / A. Williams), formerly DAAG in DOJ

 

Justice Samuel Alito

James Hunter (Yale 2003 / Alito), partner at Hunter & Kmiec

Geoffrey J. Michael (Yale 2000 / Alito), partner at Arnold & Porter

David H. Moore (BYU 1996 / Alito), general counsel, USAID

Jessica E. Phillips (Northwestern 2006 / Flaum), counsel at Boies Schiller

 

Justice Sandra Day O'Connor

Heidi Bond (Michigan 2006 / Kozinski, shared with Kennedy), author

 

A few thoughts:

Law professors continue to flow from a few justices. Only five law professors among the bunch, and they're spread out a bit more than previous years.

Plenty of government service. There were 15 involvement in government, and not all federal--service in Missouri, California, and San Francisco peppered the resumes of this class.

A small drop in law firms. There were 14 in law firms, down from 19 last year--and those were all partners. This year's includes several counsel & of counsel positions.

All in all, the sample size is consistently too small to draw much comparison from class to class or across classes. But it's worth looking back over the years to see if 10-year retrospectives have changed terribly much!

Update: I mixed up an OT 2008 Ginsburg clerk with an OT 2007 clerk; that has been corrected!

Aaron Hernandez's family may not be able to sue NFL over concussion-related issues

Aaron Hernandez was a former tight end for the New England Patriots. He was accused of murder, convicted, and committed suicide while in prison. It was just disclosed that he, a 27-year-old man, suffered from severe chronic traumatic encephalopathy, associated with concussions among football players. His family has filed a lawsuit against the National Football League.

But, they probably can't do that. (Well, I suppose they can file a lawsuit, but they probably can't win it.)

The NFL negotiated into a class action settlement a few years ago, and refined it, to settle all concussion-related and head injury-related lawsuits among its players. The payout would total about $1 billion, all told, with the bulk of it cash to former players.

It extends to all player who were retired as of July 7, 2014--Mr. Hernandez last played in 2012, so he'd fit this definition.

Players (and their families) had an opportunity to opt out of the settlement, but, as far as I can tell, Mr. Hernandez never did.

The biggest value to the NFL includes the preclusive effect of the settlement--that is, as a condition of handing out cash to former players and their families, the plaintiffs must agree not to sue the NFL for any related lawsuits. Section 18 of the settlement agreement includes broad provisions, typical of a class action settlement, precluding litigation over any concussion-related or head injury-related lawsuit.

In short, Mr. Hernandez's family probably can't successfully sue because their claims are all wrapped up in the concussion class action settlement. Because they didn't opt out, they're bound by it. So go class action litigation and settlements.

There are some challenges pending to the adequacy of the class action settlement, but those challenges have been losers so far, and I find it difficult to believe they'll succeed. There is a chance, too, that Mr. Hernandez's family might find a creative way to attack the judgment. But I think those are probably unlikely to succeed. Class action settlements have significant preclusive consequences, and the Hernandez lawsuit is simply a high-profile demonstration of what those consequences look like.

UPDATE: I've read reports that some believe Mr. Hernandez is not covered because he was not "retired." That is, he was young and, if he had been found not guilty, could have returned to seek a contract. The definition of "retired" almost assuredly covers him in at least two respects (and I've excerpted the relevant portion below). First, the New England Patriots cut him in 2013, and he was no longer seeking active employment. Second, he may have been deemed to have "informally" retired once he was cut from the team and facing criminal charges. I find it hard to believe that does not fit the definition. Indeed, some additional reporting suggests that just such a finding of CTE would make it easier for his family to collect from the class action settlement.

hernandez.png

Incumbent protection likely biggest effect of California moving presidential primary to March

California's SB 568, which has been sent to Governor Jerry Brown for his signature, would move the presidential primaries from June to the first Tuesday after the first Monday of March.

There’s an old saying applied to many business decisions reflecting the tradeoffs that must be made: “Fast, good, or cheap—pick two.” For presidential primaries in California, the saying might be modified: “Competitive, influential, or cheap—pick two.” The California legislature is trying to plan a presidential primary that is both cheap and influential, but doing so would make most elections in California less competitive. At its outer bounds, that may be unconstitutional, but the answer on this question is far from clear.

California had for some time held its presidential primaries in March. In 2008, it pushed that primary back to February and was part of a glut of states that held primaries on a “Super Tuesday.” But California voters didn’t exercise outsized influence because so many other states were holding primaries the same day. And a primary that early was costly—it cost about $100 million to hold that primary, and voters would still have to go to the polls twice more, once for congressional and state primaries in the summer and once for the general election in November.

Rather than burdening voters with three trips to the polls in one year, California consolidated the presidential primary with its June state primaries. That saved money in the state budget, too. But it came at a political cost—one of influence. By June, there is little influence left for California voters in a presidential primary. In 2016, for instance, Donald Trump and Hillary Clinton had all but secured their parties’ nominations.

Of course, by the first week in March, many candidates have already dropped out of the race after Iowa, New Hampshire, South Carolina, and Nevada have voted. But, the opportunity to influence the selection of the presidential candidate is certainly at least somewhat greater in March than June.

Then came a couple of complications. A March presidential primary would return to a third election in that year. A concern is voter fatigue, but the greater concern for California is another nine-figure election. So the legislature chose to push all primaries back to March in presidential years. That yielded some uncertainty in non-presidential years and might confuse voters or cause irregularities by having primaries back in June for those off-cycle years, so the legislature then chose to put all primaries in March.

Just a handful of states in 2016 had congressional primaries in March: as far as I could discern, Alabama, Arkansas, Illinois, Mississippi, Ohio, and Texas were the only states that hold congressional primaries that early. Many jurisdictions hold primaries much closer to the general election, often in September.

There are good reasons for later primaries. They give potential candidates a longer opportunity to consider challenging an incumbent or entering the race for an open seat. They also allow voters to consider more political information about a candidate, particularly an incumbent, before voting.

A March primary in California, however, means that challengers must file by the December before, and enter the race (and begin collecting signatures) well before that. For a two-year House race, that's a very long lead time. Granted, in many contemporary cases, candidates for office frequently announce their candidates well before this time period. But that is out of choice, not necessity.

It also has the effect of insulating incumbents. Incumbents will have much more limited political accountability if candidates must file so early. If an incumbent sees no serious competitors, that incumbent may feel sufficiently insulated and politically unaccountable to act without regard to voters' preferences. The earlier the field is set, the more confident the incumbent can be, either at the filing deadline in December or after the primary in March.

It can have very practical effects. Assuming the law took effect for 2018, for instance, a sitting member of the House could shoot someone at the Rose Bowl on New Year's Day in 2018, but might not face any new competitors in the March primary or the November election. Competitors could only enter the race for 2020. It's a practical effect that redounds to the benefit of incumbents.

A further complicating factor is California’s “top two” primary. The top two voter-getters in the March primary will face off in the November general election. That might be two candidates from the same party, or a fairly marginal candidate in a race without much likelihood that the incumbent would lose, further ossifying the effects of an early primary and insulating the incumbent.

Here's where the constitutional element comes into play. In Anderson v. Celebrezze in 1983, the Supreme Court concluded that a March filing deadline for a November presidential election was too severe a burden, too stringent a ballot access requirement, to withstand constitutional scrutiny. The case included some qualifications about one state impacting a presidential election, which may, in turn, limit its value in applying the precedent in quite the same way with congressional or state offices.

But, importantly, California's top-two system limits opportunities in ways these other states with early filing deadlines don't have. Because other states may permit independent candidates to secure ballot access much closer in time to the election (because they aren't participating in a primary), there are more opportunities than in California, which will require filing in December the year before an election.

The Ninth Circuit in Washington State Republican Party v. Washington State Grange in 2012 approved of the burdens on minor-party candidates in Washington's top-two system, but emphasized that the "primary is in August, not March." And that was a concern raised by the Libertarian Party, not an independent candidate (i.e., one who was not seeking a nomination from a party).

We shall see if anyone raises a sufficient constitutional challenge to this early primary. But it's worth emphasizing that the constitutional issues, while present, are only one concern. The more significant, practical concern remains, in my view, the increased insulation of incumbents who seek reelection.

How a change in the bar exam cut score could alter California legal education

Virtually all the deans of law schools in California, of ABA-accredited and California-accredited schools, have come out in favor, at multiple stages, of lowering the cut score for the California bar exam. The score, 144, is the second-highest in the country and has long been this high. Given the size of California and the number of test-takers each year, even modest changes could result in hundreds of new first-time passers each test administration.

The State Bar, in a narrowly-divided 6-5 vote, recommended three options to the California Supreme Court: keep the score; lower it to 141.1; or lower it to 139. As I watched the hearing, the dissenters seemed more in favor of keeping it at 144. At least some of the supporters seem inclined to support the 139 score, or something even lower, but recognized the limitations of securing a majority vote on an issue. Essentially, however, the State Bar adopted the staff recommendation and offered these options to the California Supreme Court.

The Court could adopt none of these options, but I imagine it would be inclined to adopt a recommended standard, and probably the lowest standard at that, 139. (The link above includes the call from the Supreme Court to evaluate the appropriateness of the cut score, a hint, but hardly definitive, that it believes something ought to be done.)

What surprised me, however, is that there would be such unanimity among law deans, because the impact on legal education could be quite significant--and not benefit all institutions equally. Put another way, I understand the obvious short-term benefit for all institutions--some number of law school graduates who previously might have failed the exam would pass, redounding to the benefit of the institution and those graduating classes.

But that, in part, assumes that present circumstances remain the same. Invariably, they will not. Let me set up a few things that are likely to occur, and then game out some of the possible impacts these changes might have on legal education--all on the assumption that the cut score drops from 144 to 139.

First, the number of passers will increase fairly significantly. About 3480 people passed the bar when 8150 took it in July 2016 bar exam. That included about 3000 first-time passers among 5400 first-time test-takers. Bar test-takers are also up significantly this test (in part likely because of the reduction from three days to two). We should expect that number in this cohort to rise to about 4100 passing--and probably more this administration, given that there were more test-takers. We may expect more out-of-state attorneys, or people who'd failed and given up, to start attempting the test again. Statistics also indicate that the greatest increase in new attorneys will tend to be racial minorities, who have historically passed the bar exam at lower rates.

The change will also disproportionately benefit California-accredited schools: while ABA-accredited schools on the whole would see a 17% increase in pass rates, California-accredited schools would see about a 70% increase in pass rates. (Granted, far fewer graduates from these schools take the bar--only about 100 passed the July 2016 bar exam.)

Additionally, we know that this year's test-takers scored better nationwide. If that trend translates to California, too, we would expect a few hundred more on top of that figure. And we may also expect an increase of test-takers to linger for a long period of time if more people are attracted to California because of it has a modestly easier test to pass.

This obviously, in the very short term, primarily benefits those students who scored between a 139 and a 144, but would have failed the bar exam, and schools with those student populations. In the slightly longer term, it will benefit students who scored less than a 139 and on repeat have a much higher chance of securing a 139 than a 144.

About 700 to 800 (or potentially even more, depending on the volume of test-takers) extra attorneys into the system per July, and some smaller number of extra attorneys per February, should slowly exert changes to attorney prices in California, as Professor Michael Simkovic has reasoned. More lawyers means more competition, which means that prices should drop, particularly among attorneys catering to more price-sensitive clients (no one thinks Vault 100 law firms will start slashing California salaries!). It's worth noting, too, that this change may be more gradual at first--there has been a drop in test-takers overall, so the increase in pass rates may not be as dramatic unless (or until) test-taking volume rebounds to previous highs. (For instance, in the July 2013 exam, nearly 5000 passed the exam among 8900 test-takers.)

Professor Robert Anderson and I also indicated that we would expect more attorneys who would face discipline. Currently, we estimate those who score a 144 on the bar exam ultimately face a career likelihood of facing discipline at around 9%. (This compares to the overall likelihood of about 5% at 35 years since admission to the bar.) Those with a 139, we project, would likely face a career likelihood of facing discipline at around 12%. The entering cohort would have a somewhat higher likelihood of facing career discipline at some point a 35-year career.

Finally, some law schools will disproportionately benefit, typically those schools at the lower end of the performance—but not whose student bodies perform at the very bottom among law schools. If the cut score is lowered from 144 to 139, schools who had a significant “middle” of the curve, with the bulk of their graduates scoring in a range around 135 to 145, should see the bulk of improvement.

The chart below illustrates a very rough projection of the improvement in performance of each school from the July 2016 bar exam if the score had been lowered to 139. This is very rough because many factors, particularly the distribution of the students at each school, and should be taken only as rough estimates—any figure could easily be a few percentage points higher or lower; and complicating the estimate is that the July 2017 results would, of course, look different. I’m simply trying to fit the projection to last year for some reference.

As you can see, in that middle band of 12 schools, those between Cal Western and Whittier, we would expect to see gains ranging from 14 to 21 points. The 11 schools at the top of the chart would generally see more modest gains of around 8 to 12 points. The 10 schools at the bottom of the chart would also see more modest improvement, typically 6 to 11 points. (The asterisks on the chart are notations for California schools that are not accredited by the American Bar Association.) There are over 50 law schools in California, but not all had sufficient test-takers to be reported in the California data.

What might these factors do to legal education in California? Potentially, quite a bit. I sketch out some possible outcomes—with an emphasis on their potentiality. A change from 144 to 139 is somewhat modest but, in a state as large as California with as many law schools and lawyers, could have significant effects. Here are a few possible things that could occur:

* * *

At least some law schools will admit larger classes. To the extent law schools were reluctant to admit larger classes because of concerns about bar passage rates, those schools will be more inclined to admit larger student bodies. Of course, there are still other reasons that schools may not increase their class sizes, or at least not substantially—they are concerned about their LSAT and UGPA medians for USNWR rankings purposes, they may be worried about finding meaningful legal employment for a larger number of graduates, and so on. But, at least one barrier in the admissions calculus has been partially removed.

Higher-ranked law schools may begin admitting more students that recently historically matriculated to lower-ranked law schools. That is, a new kind of competition may begin. In light of the thought mentioned above, it may not simply be that schools admit larger classes; they may be grabbing applicants who would have attended lower-ranked schools.  This would exert downward pressure on lower-ranked schools in the event that competition for their prospective students increased.

Higher-ranked law schools may see improved racial diversity profiles among incoming classes, potentially at the expense of lower-ranked schools. This is good news for highly-ranked schools and students from racially diverse backgrounds. The lower score will tend to benefit racial minorities, as the data has shown that minorities fail the bar at higher rates. So highly-ranked schools can admit more diverse student bodies with greater confidence of their success. Of course, this will exert downward pressure on lower-ranked schools, who may see their diversity applicant pools dwindle or face pools of applicants with worse predictors than in past years.

Law schools will experience more price sensitivity from prospective law students. That is, the value of the law degree should decline in California, as the volume of attorneys increases and the price for lawyers drops. That should, in turn, make law students more skeptical of the existing value proposition of a law degree. Law schools that have relied on high tuition prices have benefited from the high bar exam cut score, because opportunities for attorneys have been relatively scarce; the drop in cut score will dilute the value of the degree and perhaps require some cost-cutting at law schools. This is not to say that an artificial constriction on the supply of lawyers is a good thing because it props up costs (in my personal view, I think it's quite a bad thing); but, it is to say that lowering the score will have the effect of making cost-sensitivity an increasing possibility.

California-accredited law schools will have opportunities to thrive. Look again at the chart above. San Joaquin (which had 45 first-time test-takers in July 2017) would have a projected bar pass rate of 50%. Lincoln Sacramento (which had 42 first-time test-takers) would have a projected bar pass rate of 47%. These exceed some ABA-accredited schools and start to look quite attractive to prospective law students. That’s particularly true given the tuition at these institutions. The figure below displays the full-time academic year tuition in 2016 for each of these institutions. (For institutions on the credit-hour payment model, I used 28 academic units; for Lincoln Sacramento, a four-year program, I took the total price and divided by three.) I put the schools in rank order of their (projected) bar exam performance. (As a caveat, the actual price at many institutions is much lower because many students receive scholarships that discount tuition; but, for present comparative purposes, I'm using sticker price.)

(It's worth noting in the chart above that an institution like La Verne, which charges much lower tuition than peer institutions, may see a similar benefit.) For those who oppose the regulatory burden of ABA-accreditation and wish that non-accredited institutions have an opportunity to thrive, California (with more than 30 non-ABA-accredited schools) may offer a more meaningful experiment in that effort if the cut score is lowered.

Negative impact in USNWR for elite schools, and positive impact in USNWR for more marginal schools. This category may not be immediately obvious to observers considering bar exam pass rates. That is, some might ask, wouldn't higher bar exam passing rates improve a school's USNWR profile? Not necessarily--particularly not if the overall passing rate increases.

USNWR measures bar pass rate not in absolute terms but in relative terms--the margin between a school's first-time passing rate in a jurisdiction and that jurisdiction's overall pass rates. If School A has a passing rate of 90% and School B 75%, showing some gap that's only part of the story: School A had a 90% rate in a jurisdiction with an overall rate of 60%, which means it actually did quite well; but School B had a 75% rate in a jurisdiction with an overall rate of 80%, which means it actually did poorly. USNWR measures that relative performance. UPDATE: I edited this for some clarity in the hypothetical.

So if School A sees its passing rate increase to 93%, but the jurisdiction's overall passing rate increases to 85%, that's bad for School A in USNWR terms--its ability to outshine others in the jurisdiction has dwindled. In a state as large as California and with such a relatively low first-time overall passing rate, this gives elite schools an opportunity to shine.

Stanford, for instance, boasted a 91% first-time bar passage rate in a jurisdiction with a 56.3% first-time pass rate, a 1.62 ratio. If the bar pass cut score is dropped to 139, the bar projects a first-time pass rate of 64.5%. Even if its pass rate increases to a projected 96%, its ratio drops to 1.49, a 0.12-point drop. The same holds true for institutions like USC (-0.08), UCLA (-0.03), and Berkeley (-0.06). These are just one factor in the USNWR ratings, and these figures are ultimately normalized and compared with other institutions nationally, but it will marginally hurt each of these schools as an institution in the rankings--even though it might benefit a small cohort of graduates each year taking the bar exam.

In contrast, schools that have had below-average bar exam performance would see a significant increase—some of them in my projections moving up 0.2 points in their ratios or even more. If the school is in the unranked tier, it might help get the school into the rankings; if they are ranked lower, it might help them move up the rankings, an added benefit to their graduates passing the bar at higher rates.

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I’ll emphasize what I’ve mentioned repeatedly before but is too often lost when blog posts like this are shared. I have no particularly strong views about what the bar exam cut score ought to be—where it is, a little lower, much lower, or anything else. There are costs and benefits that go along with that, and they are judgments I confess I find myself unable to adequately assess.

But, these are my preliminarily thoughts on things that might happen if the cut score were dropped to 139. Granted, they are contingent on many other things, and it is quite possible that many of them do not happen. But they are a somewhat-evidence-based look at the future. And they show that the change in cut score may disproportionately affect some institutions in ways beyond the short-term bar exam results of cohorts of graduating law students. Time will tell how wrong I am!

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.