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

I recently read a piece purporting to address a 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), 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.)

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.

The percentage of law school enrollees receiving scholarships continues to climb

Last week, I blogged about the fact that most law schools have become "more affordable" in the last three years, at least as measured by indebtedness at graduation. There are many possible explanations for the reduction in debt, and they may well be measured in non-"affordability" terms, such as increasing numbers of independently wealthy students self-funding their education. But I suggested changes to law school scholarships may be driving some of the affordability, and there's strong evidence that's the case.

While law schools have been raising their tuition, often quicker than inflation (with some notable exceptions I mentioned in last week's piece), they may well be increasing scholarship awards at an even faster pace. Some of the macro-level details of the scholarship award picture remain murky, but from law school disclosures offered by the American Bar Association, we can get some idea about the overall scholarship or grant picture.

Law schools are required to disclose the total scholarship picture of its students annually. That means changes to scholarship awards in the incoming first-year class are just one part of the total law school portrait. But there's a strong suggestion in these figures that each incoming class is receiving significantly more than the previous class.

The figures below include all schools from reporting years 2012 to 2016, which reference academic years 2011 to 2015. Schools that lacked data for a period in here (including schools that merged or divided) were excluded.

Despite the significant decline in enrollment in law schools in the last several years, the raw number of students receiving grants has actually increased. Total law school enrollment declined from 141,217 among these schools to 109,412, largely the result of much smaller incoming classes succeeding much larger graduating classes. Despite this, the total students receiving grants actually increased, from 70,403 to 73,323. And the total coming in with no grants plummeted, from 70,815 to 36,089 in this five-year stretch.

Those raw numbers translate into notable percentages. The number of law school enrollees receiving an academic scholarship has increased fairly significantly in just a few years, from just under 50% to about two-thirds of all law students.

(I had thought one possible reason would be a decline in conditional scholarships, or grants that are contingent on a law student performing at a certain academic level in the first year in order to secure the award in the second and third years. This has declined slightly but not meaningfully in the last few years, hardly worth mentioning.)

The awards appear to be increasing, too. The percentage of law school enrollees receiving at least half tuition have increased from 16% of enrollees to over 27% of enrollees. (Recall that this probably understates what's happening in each new incoming class, as these scholarship figures are the total picture as opposed to just the incoming class statistics. It might be the case that schools have been increasing tuition and subsequently increasing scholarship amounts as well, but that's something best left for more extensive analysis later.)

Indeed, while students receiving less than half tuition scholarships continue to be the bulk of scholarship recipients, students with half to full tuition scholarships remain the fastest-growing group. (Even full tuition and more than full tuition awards increased over this time: more than 2% of law students are now enrolled on more than full tuition scholarships.)

While there are undoubtedly many factors contributing to the decline in law school debt (and law school affordability), the increase in scholarships appears to be a major source of this change.

A map of the United States according to Supreme Court case citations

Some time ago, I thought about making a map of the United States based on the most significant Supreme Court cases from each state. Specifically, I'd rename the states after the party opponent in which the state was the principal opponent in the case caption.

"Significant" turned out to be a challenge, so I opted for "most cited" according to Westlaw. That led to the results below.

It's worth noting that some of my searches were inconsistent with Westlaw's limited capabilities, and I may well be wrong on some--please correct me if so! I simply sought the most cited cases from each state.

It turns out that there are many cases I imagined were far more significant, but that didn't meet the "most cited" in a state. Those included Alabama (J.E.B., NAACP, & Miller), Arkansas (Epperson), California (Miller), Connecticut (Palko), Florida (Riley), Louisiana (Hans), Michigan (Long), Missouri (Holland), New Jersey (T.L.O.), New York (United States), Ohio (Mapp), Oregon, (Muller & Mitchell), Pennsylvania (Prigg), South Carolina (Katzenbach), South Dakota (Dole), Texas (Johnson), and Virginia (Loving, Black, & Cohen). So while a more intriguing map might have been a kind of public vote about the most significant Supreme Court case to arise out of each state, I opted for the easy way out.

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.

Most law schools have become more affordable in the last three years

It seems like a crazy headline, but it turns out that the decline in supply of prospective law students has yielded the expected decline in cost at most law schools over the last three years.

A few years ago, I noted that 30 law schools had become more affordable over a three-year period. I thought I'd see what might have changed since then.

And before sharing the numbers, It's worth cautioning that these numbers have extremely limited value. The U.S. News & World Report ("USNWR") debt rankings include a number of very obvious faults, including a number of schools reporting more than 100% of graduates who obtained debt:

The embarrassing data collection of USNWR calls into question not just these figures but the totality of the rankings. But let's stick with what we've got for the moment.

I removed all schools that failed to disclose debt figures in either the 2015 rankings or the 2018 rankings. I removed the schools that had reported more than 100% of graduates who took on debt. I also removed the three schools in Puerto Rico. That brought the data set down to 163 schools.

Many schools are unable to read the USNWR forms correctly and only report some of the debt one year and the cumulative debt another year; I don't attempt to determine which schools made that error, but the schools with triple-digit percentage increases in debt loads over three years would probably fall into that category.

I calculated 3.0% inflation between 2013 (the class whose debt load is included in the 2015 rankings) and 2016 (the class whose debt load is included in the 2018 rankings) and adjusted the 2013 figures accordingly. The debt figures listed on the site are an average for those who incurred debt; to arrive at a more accurate picture of the debt load of the class as a whole, I then factored in the percentage of students who graduated without any debt to reach an overall average.

Among the 163 schools, 115 saw a decline in overall debt loads; just 48 saw an inflation-adjusted increase.

Many possible reasons for the changes are possible. As I explained in 2013, students may graduate without debt for many reasons: "That could be because they are independently wealthy or come from a wealthy family willing to finance the education; they could have substantial scholarship assistance; they could earn income during school or during the summers; they could live in a low cost-of-living area, or live frugally; or some combination of these and other factors. It's worth noting that several thousand students graduate each year without any debt."

Scholarship awards may be outpacing tuition hikes. Students are no longer purchasing health care due to the ability to remain on their parents' health insurance under federal law, a significant cost for students a few years ago. Schools have increasingly eased, or abolished, stipulations on scholarships, which means students graduate with less debt. Some schools have slashed tuition prices. We might simply be experiencing the decline of economically poorer law students, resulting in more students who need smaller student loans--or none at all. Students may be taking advantage of accelerated programs that allow them to graduate faster with less debt. Finally, as JD class sizes shrink, it's increasingly apparent that students who would have paid the "sticker" price as increasingly pursuing options at institutions that offer them tuition discounts. (I'll have something more about financial aid figures in the near future.)

Additionally, as I've noted before, the "percentage may be somewhat deceptive, because at a very low-cost school, a modest increase in debt load may appear, on a percentage basis, much higher than comparable increase at a high-cost school.  A $10,000 increase in debt at a school that previously had just $20,000 in debt looks like 50%; at a school with $100,000 in debt, just 10%. But I thought percentage would still be the most useful."

And of course, these debt figures are only an average; they do not include undergraduate debt, credit card debt, or interest accrued on law school loans while in school. And, as I've written, "The averages are not precise, either, for individuals. The average may be artificially high if a few students took out extremely high debt loads that distorted the average, or artificially low if a few students took out nominal debt loads that distorted the average."

It's worth noting that some of these changes are hardly random. Major announcements from institutions like Iowa, Arizona, and Chicago back in 2013 signaled major changes in tuition or scholarship structures.

Finally--and while it should go without saying, I fear I need to say it anyway--this is hardly a statement about whether any particular law school is a "good" value or whether the debt loads are appropriate. It's simply a relative comparison of debt loads over three years.

Inflation-Adjusted Average Law School Debt Incurred by All Law Students Between 2013 & 2016
School 2013 2016 Dollar diff Pct diff
University of Iowa $87,669 $51,890 -$35,780 -40.8%
University of Chicago $134,795 $83,609 -$51,186 -38.0%
Washington University in St. Louis $84,863 $54,352 -$30,511 -36.0%
University of New Hampshire School of Law $115,056 $74,969 -$40,087 -34.8%
Seton Hall University $109,285 $71,692 -$37,592 -34.4%
North Carolina Central University $81,333 $55,012 -$26,321 -32.4%
University of Arizona (Rogers) $76,545 $52,534 -$24,010 -31.4%
University of Kentucky $59,654 $41,857 -$17,797 -29.8%
George Mason University $104,601 $74,427 -$30,175 -28.8%
University of San Diego $115,809 $85,818 -$29,991 -25.9%
University of St. Thomas $99,886 $74,177 -$25,709 -25.7%
University of Massachusetts--Dartmouth $110,454 $82,275 -$28,179 -25.5%
The Catholic University of America $128,016 $96,071 -$31,945 -25.0%
Northeastern University $115,860 $87,079 -$28,781 -24.8%
Liberty University $74,403 $56,029 -$18,373 -24.7%
University of Idaho $78,515 $59,140 -$19,375 -24.7%
Villanova University $93,686 $70,818 -$22,867 -24.4%
Wake Forest University $104,101 $79,389 -$24,712 -23.7%
Indiana University--Bloomington (Maurer) $96,491 $73,744 -$22,747 -23.6%
University of Nebraska--Lincoln $59,015 $45,301 -$13,714 -23.2%
Ohio State University (Moritz) $87,593 $67,697 -$19,895 -22.7%
Florida Coastal School of Law $141,667 $111,048 -$30,619 -21.6%
Boston University $88,279 $69,681 -$18,598 -21.1%
University of Nevada--Las Vegas $90,288 $71,342 -$18,946 -21.0%
University of North Dakota $57,763 $45,785 -$11,978 -20.7%
University of Southern California (Gould) $121,836 $97,114 -$24,722 -20.3%
University of Toledo $90,339 $72,023 -$18,316 -20.3%
University of Minnesota--Twin Cities $91,079 $73,256 -$17,824 -19.6%
University of California--Irvine $96,855 $78,284 -$18,571 -19.2%
Syracuse University $116,006 $93,843 -$22,163 -19.1%
Georgia State University $60,752 $49,160 -$11,592 -19.1%
Samford University (Cumberland) $125,495 $101,585 -$23,910 -19.1%
Northwestern University $124,857 $101,200 -$23,658 -18.9%
Case Western Reserve University $90,292 $73,417 -$16,875 -18.7%
Charleston School of Law $134,372 $109,876 -$24,496 -18.2%
University of Detroit Mercy $103,572 $85,370 -$18,202 -17.6%
University of Wisconsin--Madison $67,065 $55,337 -$11,729 -17.5%
Washington and Lee University $102,537 $85,021 -$17,516 -17.1%
Temple University (Beasley) $78,069 $64,988 -$13,082 -16.8%
Brigham Young University (Clark) $48,309 $40,246 -$8,063 -16.7%
American University (Washington) $143,815 $119,881 -$23,933 -16.6%
University of Connecticut $59,395 $49,618 -$9,777 -16.5%
Fordham University $106,142 $88,759 -$17,383 -16.4%
University of Colorado--Boulder $91,541 $76,597 -$14,944 -16.3%
Stetson University $122,032 $102,875 -$19,157 -15.7%
Emory University $104,926 $88,590 -$16,336 -15.6%
University of Miami $120,596 $102,344 -$18,252 -15.1%
Wayne State University $71,209 $60,524 -$10,686 -15.0%
Drexel University (Kline) $95,292 $81,319 -$13,974 -14.7%
Gonzaga University $101,819 $87,166 -$14,654 -14.4%
University of Missouri $74,941 $64,384 -$10,557 -14.1%
University of Florida (Levin) $67,802 $58,732 -$9,071 -13.4%
University of Maine $80,478 $69,864 -$10,614 -13.2%
University of Houston $72,802 $63,210 -$9,592 -13.2%
Oklahoma City University $95,186 $82,802 -$12,384 -13.0%
Yeshiva University (Cardozo) $87,532 $76,248 -$11,284 -12.9%
Creighton University $120,432 $104,923 -$15,509 -12.9%
University of California--Berkeley $119,993 $104,570 -$15,424 -12.9%
New York University $121,522 $106,810 -$14,713 -12.1%
University of California--Los Angeles $99,152 $87,221 -$11,931 -12.0%
University of Richmond $99,634 $87,658 -$11,976 -12.0%
Albany Law School $94,539 $83,760 -$10,779 -11.4%
University of Dayton $104,519 $92,813 -$11,706 -11.2%
Washburn University $70,625 $62,777 -$7,849 -11.1%
University of Pittsburgh $94,198 $83,786 -$10,412 -11.1%
Boston College $84,593 $75,300 -$9,293 -11.0%
Loyola Marymount University $120,118 $106,990 -$13,128 -10.9%
Illinois Institute of Technology (Chicago-Kent) $93,842 $83,658 -$10,184 -10.9%
Western State College of Law at Argosy University $106,909 $95,768 -$11,141 -10.4%
California Western School of Law $145,771 $131,115 -$14,656 -10.1%
New York Law School $142,206 $128,024 -$14,182 -10.0%
Yale University $92,597 $83,410 -$9,186 -9.9%
George Washington University $96,784 $87,667 -$9,117 -9.4%
University of Baltimore $97,943 $88,914 -$9,029 -9.2%
University of California--Davis $80,310 $72,969 -$7,341 -9.1%
DePaul University $115,365 $104,923 -$10,441 -9.1%
University of Mississippi $55,440 $50,512 -$4,928 -8.9%
St. Louis University $106,066 $96,677 -$9,388 -8.9%
CUNY $66,173 $60,402 -$5,770 -8.7%
University of North Carolina--Chapel Hill $77,793 $71,316 -$6,476 -8.3%
Roger Williams University $118,650 $109,387 -$9,263 -7.8%
Brooklyn Law School $85,974 $79,447 -$6,528 -7.6%
Chapman University (Fowler) $117,418 $108,764 -$8,654 -7.4%
Columbia University $109,443 $101,447 -$7,996 -7.3%
Florida International University $88,654 $82,185 -$6,469 -7.3%
University of Virginia $112,565 $104,392 -$8,173 -7.3%
St. John's University $96,421 $89,625 -$6,796 -7.0%
Regent University $113,814 $105,870 -$7,944 -7.0%
Florida State University $73,251 $68,255 -$4,996 -6.8%
Ohio Northern University (Pettit) $99,625 $93,010 -$6,615 -6.6%
Ave Maria School of Law $114,724 $107,426 -$7,298 -6.4%
Arizona State University (O'Connor) $83,282 $78,224 -$5,058 -6.1%
Michigan State University $75,946 $71,335 -$4,610 -6.1%
University of Memphis (Humphreys) $61,945 $58,518 -$3,428 -5.5%
University of the Pacific (McGeorge) $134,118 $126,767 -$7,351 -5.5%
Louisiana State University--Baton Rouge (Hebert) $67,490 $63,872 -$3,619 -5.4%
Tulane University $104,968 $99,548 -$5,420 -5.2%
University of Montana $70,292 $66,762 -$3,530 -5.0%
University of Illinois--Urbana-Champaign $75,125 $71,530 -$3,594 -4.8%
Quinnipiac University $90,272 $86,699 -$3,573 -4.0%
Thomas Jefferson School of Law $171,394 $165,039 -$6,356 -3.7%
University of Missouri--Kansas City $88,788 $85,705 -$3,082 -3.5%
University of Akron $73,126 $70,601 -$2,525 -3.5%
Vanderbilt University $84,664 $81,922 -$2,742 -3.2%
Texas A&M University $96,410 $93,556 -$2,854 -3.0%
Suffolk University $103,229 $100,223 -$3,006 -2.9%
Mississippi College $99,442 $97,285 -$2,157 -2.2%
Seattle University $119,276 $116,749 -$2,527 -2.1%
Pepperdine University $120,639 $118,630 -$2,009 -1.7%
University of Georgia $65,799 $65,178 -$621 -0.9%
Mercer University (George) $115,767 $114,800 -$967 -0.8%
Golden Gate University $142,731 $141,583 -$1,149 -0.8%
Hofstra University (Deane) $110,562 $109,929 -$633 -0.6%
Lewis & Clark College (Northwestern) $108,995 $108,596 -$399 -0.4%
University of Utah (Quinney) $76,501 $76,404 -$97 -0.1%
University of Maryland (Carey) $83,258 $83,439 $182 0.2%
University of San Francisco $134,845 $136,532 $1,687 1.3%
Drake University $97,706 $99,304 $1,598 1.6%
Georgetown University $120,788 $123,165 $2,376 2.0%
Southern Methodist University (Dedman) $83,491 $85,193 $1,702 2.0%
University of Texas--Austin $67,567 $69,040 $1,473 2.2%
University of South Carolina $70,531 $72,251 $1,721 2.4%
University of Alabama $50,428 $51,765 $1,337 2.7%
University of South Dakota $52,915 $54,473 $1,558 2.9%
University of Kansas $65,458 $67,625 $2,167 3.3%
University of Oklahoma $60,954 $63,012 $2,058 3.4%
University of Louisville (Brandeis) $76,274 $79,341 $3,067 4.0%
West Virginia University $61,954 $64,551 $2,597 4.2%
Northern Illinois University $70,109 $73,074 $2,965 4.2%
University of Washington $82,201 $86,673 $4,472 5.4%
University of California (Hastings) $107,817 $113,918 $6,101 5.7%
University of Cincinnati $60,144 $63,782 $3,638 6.0%
Southern University Law Center $79,135 $84,049 $4,914 6.2%
St. Mary's University $102,398 $108,783 $6,385 6.2%
Valparaiso University $120,524 $129,422 $8,898 7.4%
Duquesne University $85,985 $92,676 $6,692 7.8%
University of Arkansas--Fayetteville $50,464 $54,728 $4,264 8.4%
Whittier College $146,796 $159,920 $13,124 8.9%
Willamette University (Collins) $113,222 $123,472 $10,250 9.1%
Texas Tech University $61,998 $67,766 $5,768 9.3%
Indiana University--Indianapolis (McKinney) $87,785 $96,023 $8,238 9.4%
Stanford University $93,803 $103,031 $9,228 9.8%
University of Michigan--Ann Arbor $95,992 $106,163 $10,171 10.6%
University of Pennsylvania $100,435 $111,165 $10,730 10.7%
Nova Southeastern University (Broad) $115,989 $128,617 $12,628 10.9%
Marquette University $110,158 $122,443 $12,285 11.2%
University of Denver (Sturm) $109,551 $121,955 $12,403 11.3%
University of Notre Dame $82,649 $93,122 $10,473 12.7%
University of Wyoming $63,254 $72,723 $9,470 15.0%
University of Tennessee--Knoxville $55,743 $64,661 $8,918 16.0%
Harvard University $100,937 $117,568 $16,632 16.5%
Pace University $84,579 $100,326 $15,747 18.6%
University of Arkansas--Little Rock (Bowen) $42,867 $52,131 $9,265 21.6%
SUNY Buffalo Law School $60,841 $74,481 $13,640 22.4%
University of Tulsa $72,600 $89,046 $16,447 22.7%
University of New Mexico $53,638 $66,617 $12,979 24.2%
Southern Illinois University--Carbondale $57,523 $73,403 $15,879 27.6%
Duke University $77,184 $98,715 $21,531 27.9%
Elon University $99,653 $134,811 $35,157 35.3%
Baylor University $77,304 $106,693 $29,389 38.0%
The John Marshall Law School $91,830 $132,586 $40,755 44.4%
University of the District of Columbia (Clarke) $33,454 $90,116 $56,662 169.4%
Barry University $43,354 $141,667 $98,312 226.8%

Would doubling the size of the House 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 about257,847 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 1929. The Reapportionment Act of 1929 capped the size of the House at 435 members--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.

Do law professors generally think most other law schools are pretty awful?

The U.S. News & World Report ("USNWR") law school rankings include a number of illuminating bits of information and some weaknesses, as I displayed yesterday. But a cursory look at Paul Caron's display of the peer reputation scores displays, perhaps, a startling truth: law professors generally think most other law schools are pretty awful. (I qualify that with "other" because I think most law professors generally think their own schools are probably pretty good.)

Law professors at each school--about 800 in total--are given the peer reputation survey. This is a paper ballot mailed to a number of faculty. Those surveyed include the dean, the academic dean, the faculty appointments chair, and the most recently tenured faculty member. The response rate tends to be fairly high, and understandably so--this survey accounts for 25% of the total USNWR ranking.

The survey asks faculty to rate schools on a scale of 5 (outstanding) to 1 (marginal). At times, other clarifications for these numbers are offered, a 3 being "good," or a 2 being "adequate." (And "adequate" is widely regarded as a fairly poor and back-handed remark.)

One might expect to see a fairly ordinary distribution between 5 and 1, perhaps a bell curve with a bulk of schools in the range of 3 in the middle. But it turns out law professors think little of other schools.

Just 47 schools exceed the middling score of 3.0. Nearly 80 schools score a 2.0 or below. The median score is a dismal 2.3. And over the years, law professors' peer scores have slightly declined on the whole--meaning they think schools are getting worse.

The visualization of the distribution rather vividly displays this point.

Now, perhaps my asking-a-question-as-a-headline is all clickbait [ed.: on my ad-free blog!], and I'm burying the lede--that is, the alternative factors contributing to these results. (But, it remains quite possible that law professors actually do believe that most schools are quite poor.)

First, the USNWR survey itself may be flawed. It may be gamed (see below), but also because the survey asks fairly generic overall question about the school's quality and offers fairly generic categories for ranking. It's hard to know whether professors are judging schools based on scholarly output, graduate outcomes, or, perhaps, simply echoing last year's USNWR rankings.

Second, law professors may be gaming the rankings. They very well know that giving a 5 to a school increases that school's score--and increases that school's chance that it surpass one's home institution in the rankings. That creates a pressure for ratings deflation. Further, a large number of 4s can be offset by a much smaller number of 1s.

Third, law professors may be expressing their ignorance of schools. If they're not aware of a school's quality, or if they are only marginally aware, they may simply default to a "1" and drive down a school's ranking. Even though the survey expressly permits professors to refuse to rank a school if they lack sufficient information, the temptation to rate a school (particularly for gaming purposes) may simply be too great.

Furthermore, these concerns may be overblown anyway! Even if the peer ratings are artificially low, they still highly correlate with ranked choice preferences of law school surveys conducted by Brian Leiter.

It's probably best, then, to conclude that the peer reputation scores are to be taken, to borrow a phrase, seriously but not literally. They're best understood as relative preferences of schools, not absolute ratings of school quality.

Taken that way, it demonstrates that the opinion of most law professors is that most law schools are clumped together. 27 schools have a score between 3.1 and 3.5, followed by an obvious gap of just 5 schools with a score between 2.8 and 3.0. 59 schools have a peer reputation score between 2.2 and 2.7; in an overlapping set, 63 schools have a peer reputation score between 1.9 and 2.4.

Perhaps there's a better way for USNWR to conduct the survey, or to report the results, to alleviate some of the problems. (Not that it would change its methodology if such an alternative were available--e.g., a digital ballot with ranked-choice voting.) But without that, it's worth thinking about how to best construe these survey results. And it's probably best not to think of the survey in absolute terms, but in relative terms--a few elite schools, a handful of good schools, and significant clumps of other schools.