Election Law news of note, week ending January 18, 2019

Here I compile news I find of note (even if others may not find them of note!) regarding Election Law topics each week.

Iowa’s governor has proposed ending permanent felon disenfranchisement in the state. Iowa is one of a handful of states that still does so in our patchwork quilt of state-based voter qualification rules. This comes on the heels of the successful repeal in Florida just last year. The opportunity to give convicted felons a second chance has seen growing bipartisan support on a variety of fronts, including the recent passage of the FIRST STEP Act in Congress. The details of such a proposal remain to be seen—and whether Iowans support it remains another matter to be seen.

Speaking of Iowa, “radical changes” are promised for the 2020 Iowa Democratic caucuses. The likely solutions, a “proxy” caucus and a “tele-caucus,” are sure to increase participation in the event. I’ve wondered how historic structures like “realignment,” a tool that benefited Barack Obama in 2008, might look in a new format, and whether results differ. Assuredly, a change in process will lead to increased uncertainty ahead of the caucuses—perhaps simply building excitement!

A federal court of appeals declined to extend the long-standing consent decree in litigation known as DNC v. RNC. The decree began in litigation that Democrats filed against Republicans in 1981, and it has been extended for years since to prevent Republicans from engaging in certain election-related tactics. But it’s worth remember that back in 2016, a similar effort was raised, and the Supreme Court, without noted dissent, declined to consider the issue. Perhaps that was in part because the litigation arose in literally the days before the election and there was little opportunity to develop the record. But Justice Ruth Bader Ginsburg wrote separately concerning her reason: Ohio law already prohibits voter intimidation. Perhaps, then, extending a 1981-era consent decree is unnecessary, as long as evidence exists that existing state laws are, well, not inadequate to the task. We shall see if future challenges arise concerning this consent decree.

By the way, it’s going to be a busy week for faithless elector litigation! Oral argument is scheduled for cases in Colorado and Washington this upcoming week.

Election Law news of note, week ending January 11, 2019

In an effort to use Twitter less, I’ll try to start compiling news items I find of note (even if others may not find them of note!) regarding Election Law topics each week.

A new bill introduced in New York would prohibit state parties from using “Independent” or “Independence” in their names. The Independence Party sometimes cross-endorses candidates or runs its own candidates for office. But some lawmakers believe this term deceives voters. This is not a unique problem. In California, the obscure American Independence Party has garnered a significant number of registered voters affiliated with the party, likely because of the name. I’ve written about the concept of “Ballot Speech,” or the right of candidates and political parties to express themselves by means of the ballot to voters. I think political parties—especially an established 25-year-old group like the Independence Party—should receive more protection than they currently receive for reasons I lay out in the article. Regardless, the bill struck me as one of note.

The West Virginia House of Delegates has asked the Supreme Court to consider a Guarantee Clause claim arising out of the state’s impeachment proceedings. The House impeached all members of the West Virginia Supreme Court and sent the claims over to the Senate for trial. But “the acting court halted the impeachment process in West Virginia by concluding  that legislators had overstepped their constitutional authority. Acting justices concluded lawmakers had based impeachment on areas the state  Constitution set aside as the responsibility of the judicial branch.” It’s an interesting internal power struggle, and hardly the first time the West Virginia Supreme Court has been the topic of Supreme Court election-related litigation. I think the Court is unlikely to grant the petition, and even less likely to find a Guarantee Clause violation, but the brief was of interest to me.

Democrats took over majority control of the House of Representatives and introduced H.R. 1, a symbolic and sweeping 571-page bill regarding elections in the United States. I won’t spend much time on each piece of the bill because it has effectively no chance to become law. But two provisions struck me as notable. First, the bill basically leaves untouched Shelby County and related portions of the Voting Rights Act. It seems strange to me that, given that Shelby County has been one of the greatest critiques of the Supreme Court by left-leaning politicians in recent years, the only thing the act does is provide, “Congress is committed to  reversing the devastating impact of this decision.” Perhaps an updated Voting Rights Act merits a separate bill. But I found it notable that in 571 pages, Shelby County was almost nowhere to be found. It seemed that not all Democratic constituencies had a hand in crafting the bill.

Second, the bill includes a “Democracy Restoration” provision (Section 1402) that provides that the right to vote in federal elections shall not be abridged or denied on the basis of a criminal conviction, unless those individuals are “serving a felony sentence in a correctional institution or facility at the time of the election.” Setting aside the policy of this provision, I’ve long wondered what constitutional hook would authorize Congress to do so (although there are some plausible if unlikely bases). There’s no express constitutional hook in this bill, but a subsequent provision (Section 1407) was of interest: it prohibits a State from using federal funds “to construct or otherwise improve a prison, jail, or other place of incarceration” unless that State “has in effect a program under which each individual incarcerated in that person’s jurisdiction . . . is notified, upon release from such incarceration, of that individual’s rights under section 1402.” It seems to me that the Spending Clause is a rather difficult hook to expand the franchise. That said, technically, Section 1407 only requires states to “notif[y]” them, not actually enfranchise, so perhaps it isn’t the hook from the Spending Clause—instead, perhaps it’s one of the reason I’ve mused about earlier.

Do specific substantive courses prepare students for those topics on the bar exam? Probably not

Earlier, I blogged about the disconcerting conclusion from recent bar performance and the results of a California State Bar study that law school “bar prep programs” appear to have no impact on students ability to pass the bar exam.

But what about specific substantive course areas? Does a student’s performance in, say, Torts translate into a stronger bar exam score?

The answer? Probably not.

First, let me aclear a little underbrush about what claim I’d like to examine. We all know that students take some subjects that appear on the bar, but most don’t take all of them. Virtually all law school graduates take a specific bar preparation course offered by a for-profit company to help train them for the bar exam.

But law schools might think that they could improve bar passage rates by focusing not simply on “bar prep,” but on the substantive courses that will be tested on the bar exam. If bar passage rates are dropping, then curricular reform that tries to require students to take more Evidence, Torts, or Property might be a perceived soslution.

So what exactly is the relationship between substantive course area performance and the bar exam? Not much.

Back in the 1970s, LSAC commissioned a study looking at law schools in several states and their performance on the bar exam. The then-new Multistate Bar Exam had five subjects. Researchers looked at how law students performed in each of those substantive subject areas in law school: Contracts, Criminal Law, Evidence, Property, Torts. (The results of the study are found at Alfred B. Carlson & Charles E. Werts, Relationships Among Law School Predictors, Law School Performance, and Bar Examination Results, Sep. 1976, LSAC-76-1.)

They then looked at whether The LSAC study examined first-year subject-area grades; first-, second-, third-year grades; and overall law school GPA, and their correlations with MBE subject areas. The higher the number, the closer the relationship.

Torts is an illustrative example. The relationship between the TORT/L (grades in Torts) and the performance of students on the MBE area of Torts is 0.19, a relatively weak correlation. But grades in Torts were more predictive of performance in Real Property, Evidence, Criminal Law, and Contracts—perhaps a counterintuitive finding. That is, your Torts grade told you more about your performance in the Property portion of the bar exam than the Torts section.

Again, these numbers are relatively weak, so one shouldn’t draw much from from that noise, like 0.19 to 0.26.

In contrast, LGPA/L (law school GPA) was more highly correlated than any particular bar exam subject area, and highly correlated (0.55) with the total MBE performance. Recall that overall law school GPA includes a number of courses—bar related and not—and that it’s more predictive than any particular substantive course area.

The LSAC study dug into further findings to conclude that the bar exam is testing “general legal knowledge,” and that performance in any particular subject area is not particularly indicative of strength of performance on that subject area on the bar exam.

The short of it is, this is good evidence that the important thing coming out of three years of law school is not the substantive transmission of knowledge, but the, for lack of a better phrase, ability to “think like a lawyer” (or simply engage in critical legal analysis). Bar prep courses the summer before the bar exam are likely the better place to cram the substantive knowledge for the bar; but the broad base of legal education is what’s being tested (perhaps imperfectly!) on the bar exam.

We also have the results of a recent study by the California State Bar. The study looked at student performance in particular course areas and the relationship with bar exam scores. After examining the results of thousands of students and bar results from 2013, 2016, and 2017, the findings are almost identical.

The correlations between any one subject that that subject on the bar exam are modest, and sometimes they’re (slightly) more highly correlated with different subject areas—the same findings as LSAC’s 1976 study. But none of them are nearly as strong as the overall law school GPA, which is between .6 and .7 over the overall MBE and written components as the study finds. (Unfortunately, this study didn’t break out the relationship between law school GPA and particular MBE topic areas.)

The study did, however, make an interesting finding and reached what I think is an incorrect possible conclusion.

The study discovered that cumulative GPA in California bar exam-related subject areas (listed above) was significantly more highly correlated with the cumulative GPA in non-California bar exam-related subject areas.

It went on to find no relationship (in some smaller sets of data) between bar passage rates and participation in clinical programs; externships; internships; bar preparation courses; and “Non-Bar Related Specialty Course Units” (e.g., Intellectual Property).

Here’s the finding I’d take issue with: “However, overall CBX [California bar exam] performance correlated more strongly statistically with aggregate performance in all of the bar-related courses than with aggregate performance in all non-bar-related courses, suggesting that there may be some type of cumulative effect operating.”

I’m not sure that’s the right assumption to reach. I think that the report understates the likelihood that grade inflation in seminar courses; higher inconsistency in grading in courses taught by adjuncts; or grades in courses that don’t measure the kinds of skills evaluated on the bar exam (e.g., oral advocacy in graded trial advocacy courses) all affect non-bar-related course GPA. That is, my suspicion is that if one were to measure the GPA in other substantively-similar non-bar-related courses (e.g., Federal Courts, Antitrust, Secured Transactions, Administrative Law, Merger & Acquisitions, Intellectual Property, etc.), one would likely find a similar relationship as performance in bar-related course GPA. That’s just a hunch. That’s what I’d love to see future reports examine.

That said, both in 1976 and in 2017, the evidence suggests that performance in a specific substantive course has little to say about how the student will do on the bar—at least, little unique to that course. Students who do well in law school as a whole do well on each particular subject of the bar exam.

When law schools consider how to best help prepare their students for the bar, then, simply channeling students into bar-related subjects is likely ineffective. (And that’s not to say that law schools shouldn’t offer these courses!) Alternative measures should be considered. And I look forward to more substantive course studies like the California study in the future.

Why are law school graduates still failing the bar exam at a high rate?

The first decline took place in the July 2014 bar exam, which some believed might be blamed on an ExamSoft software glitch. Then came continued declines in the July 2015 exam, which some blamed on the addition of Civil Procedure to the Multistate Bar Exam. The declines persisted and even worsened.

Five straight July bar exam cycles with persistent low pass rates across the country. But the bar exam has not become more difficult. Why?

One reason rates remain low is that predictors for incoming classes remain low. LSAT scores actually declined among the most at-risk students between the incoming classes admitted in the 2011-2012 cycle (graduating in 2015) and the 2014-2015 cycle (graduating in 2018). The 25th percentile median LSAT among full-time entrants dropped 2 LSAT points between those who graduated in the Class of 2015 and the Class of 2018. Indeed, 11 schools saw a drop of at least 5 LSAT points in their 25th percentile incoming classes—almost as many as those that saw any improvement whatsoever (just 12 schools, including Yale and Stanford).

Not all LSAT declines are created equal: a drop from 170 to 168 is much more marginal than a drop from 152 to 150; and a drop can have a bigger impact depending on the cut score of the bar exam in each jurisdiction. But it’s no surprise, then, to see the persistently low, and even declining, bar passage rates around the country with this quick aggregate analysis.

Nevertheless, since around September 2014, law schools have been acutely aware of the problem of declining bar passage rates. Perhaps it was too late to course-correct on admissions cycles through at least the Class of 2017.

But what about academic advising? What about providing bar preparation services for at-risk students? Given that law schools have been on notice for nearly five years, why haven’t bar passage rates improved?

I confess, I don’t know what’s happened. But I have a few ideas that I think are worth exploring.

First, it seems increasingly likely that academic dismissal rates, while rising slightly over several years, have not kept pace to account for the significant decline in quality of entering students. Of course, academic dismissals are only one part of the picture, and a controversial topic at that, particularly if tethered to projections about future likelihood to pass the bar exam on the first attempt. I won’t delve into those challenging discussions; I simply note them here.

Another is that law schools haven’t provided those academic advising or bar preparation services to students—but that seems unlikely.

Still another, and perhaps much more alarming, concern is that those bar services have been ineffective (or not as effective as one might hope). And this is a moment of reckoning for law schools.

Assuredly, when the first downturns of scores came, law schools felt they had to do something, anything, to right the ship. That meant taking steps that would calm the fears of law students and appease universities. Creating or expanding bar preparation courses, or hiring individuals dedicated with bar preparation, would be easy solutions—law students could participate in direct and tangible courses that were specifically designed to help them achieve bar exam success; law faculty could feel relieved that steps were being taken to help students; university administrators could feel confident that something was being done. Whether these bolstered existing courses or added to them, assuredly schools provided opportunities to their students.

But… to what end? Something was done at many institutions. Has it been effective?

Apparently not. The lagging (and falling) bar passage rates are a sign of that. Granted, perhaps the slide would be worse without such courses, but that seems like cold comfort to schools that have been trying to affirmatively improve rates.

We now have the first evidence to that effect. A report commissioned by the California State Bar recently studied several California law schools that disclosed student-specific data on a wide range of fronts—not just LSAT and UGPA in relation to their bar exam score, but law school GPA, courses taken, even participation in externships and clinic.

One variable to consider was involvement in a bar preparation course. Did participation in a bar preparation course help students pass the bar? I excerpt the unsettling finding here:

Five law schools provided data for this variable. Students averaged about 1.5 units (range 0 to 6). For all those students, there was a -.20 (p<.0001) correlation between the number of units taken and CBX TOTSCL [California Bar Exam Total Scale Scores]. The source of this negative relationship appears to be the fact that in five out of six [sic] of the schools, it was students with lower GPAs who took these classes. After controlling for GPA, the number of bar preparation course units a student takes had no relationship to their performance on the CBX. A follow up analysis, examining just the students in the lower half of GPA distribution, showed that there was no statistically significant difference in CBX TOTSCL for those who took a bar preparation course versus those who did not (p=.24). Analyses conducted within each of the five schools yielded similar findings.

This should be a red flag for law schools seeking to provide bar preparation services to their students. In this student, whatever law schools are doing to help their students pass the bar has no discernible impact on students’ actual bar exam scores.

Granted, these are just five California law schools and the California bar. And there has been other school-specific programs at some institutions that may provide a better model.

But it’s worth law schools considering whether students are on a path toward improving bar passage success or simply on a hamster wheel of doing more work without any discernible positive impact. More studies and evidence are of course in order. But the results from the last several years, confirmed by the study of five California law schools, suggests that revisiting the existing the model is of some urgency.

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The tiny impact (so far) of GRE law school admissions

The University of Arizona announced in early 2016 that it would consider GRE scores as a valid and reliable measure for prospective law students, accepting a test other than the LSAT. Dozens of schools have since followed suit. But the impact has been decidedly muted on the admissions front.

Just 168 law students entered without an LSAT score, those among around 38,000 at ABA-accredited law schools (excluding three law schools in Puerto Rico). That’s up from 81 last year. (Data before that is hard to compare, because some schools reported negative numbers of students entering without LSAT scores.) That’s a big relative increase but a small figure.

Arizona, the leader in this field, had 18 students enter in the Fall 2018 without LSAT scores. Georgetown and Harvard also each had 18.

But ABA data makes this figure hard to evaluate. It includes students who in previously years might also have been admitted without an LSAT score, like admitting a student from an undergraduate program or another graduate program, as long as the student scored in the 85th percentile of the ACT/SAT/GRE/GMAT, or was in the top 10% of the class, or had a 3.5 undergraduate GPA. Some schools assuredly took advantage of this admissions option in the past and continue to do so today. Harvard went from 2 non-LSAT admissions in 2017 to 18 in 2018, after it announced in March 2017 it would accept the GRE; Georgetown from 0 in 2017 to 18 in 2018 after an announcement in August 2017. That’s a suggestion that the GRE has had a more significant recent impact for them.

Without more granular data from the ABA, it’s hard to know how much the GRE trend is affecting law school admissions. At a high level so far, however, the impact is tiny. While many schools have now announced they’ll accept the GRE, that’s translated into extraordinarily few matriculants, less than one half of one percent, even assuming every single non-LSAT admission is a GRE admission (which, they aren’t). At Arizona, such admissions are a good chunk of the incoming class—10% to 15% of the incoming class. At Harvard and Georgetown, 2% to 3% of the class.

But as more schools announce, and more students perhaps opt into it, we’ll see if these trends change in the years to come. And the impact of graduates who use the GRE on the bar exam surely a future matter to consider.

Two cheers for Florida's Amendment 4

I spend very little time on this blog on matters of policy, or the wisdom of particular laws. I spend almost all of my time discussing what the law, including the Constitution, authorizes or forbids. Occasionally, I dip into practical concerns of changes to laws, but these are Burkean by nature and tend to be contextual, offering some view of the law working with other laws, or how the law fits into a longstanding regime.

Florida enacted Amendment 4, which the people of Florida undoubtedly have a right to enact. I thought I’d dip into policy for a moment: the good of the Amendment and, in my view, the bad. And I thought I’d use the overused expression, two cheers for the amendment.

Amendment 4 amended Article VI, Section 4 of the Florida Constitution as follows (underlined text added):

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.

I have a lot of complicated views of suffrage laws, who ought to be eligible to vote in our democracy. But post-conviction felon disenfranchisement laws are an easier case for me. I don’t understand them and generally oppose them.

The felon (and the criminal more generally) has broken the social compact (the best of a number of imperfect ways of putting it) and merits punishment. Imprisonment is the most common form of that punishment. I think we overuse imprisonment, particularly as we overvalue incapacitation as a reason for punishment. But the release from imprisonment should, I think, mark a return to society, and that includes attempts to reincorporate the ex-felon into the ordinary things of citizenship.

Collateral consequences, then, typically are not the stuff we view as what the felon merits as his just deserts. They are sanctions we attach to the ex-felon as prophylactic stuff of society—don’t work in this job, don’t live near this park, don’t seek a security clearance, don’t vote, because, well, you’re dangerous, or we simply don’t think you ought to really be a part of our society. In a way, the felon has broken the social compact and is permanently barred from certain aspects of society, even after serving time in prison.

It might be that we as a society think that the felon merits these penalties. But, I think, to the extent we desire to restore the felon into the community, I don’t know that long-standing penalties that extend well after imprisonment (again, to the extent we value imprisonment as the primary form of punishment) have much place in a criminal justice regime. I could probably spend much longer thinking and discussing such things, but this is my high-level approach right now.

But a few points about the specifics of this particular amendment.

First, I think those who have been convicted of an election-related felony should be permanently disenfranchised. This is assuredly a very narrow category, and perhaps too narrow for a carve-out in this constitutional amendment. But I do think that if you have tampered with an election—voter fraud, voter intimidation, voter bribery, etc.—you, perhaps, ought to be permanently excluded from participating in future elections. It is a natural consequence for your disruption of democracy that you are no longer allowed to play this part in it. (Of course, you may play many other parts—advocate, campaigner, endorser, opinion-writer, etc.) I think it’s an area where the punishment ought to haunt you the rest of your life, and the punishment feels particularly tethered to the crime committed. But, again, perhaps that’s too narrow and too picky.

Second, the law carves out two easy targets, murderers and sexual offenders. One sad element of these carve-outs is political. The hasty rejoinder from a proposed law that enfranchise ex-felons is, “So if you’re convicted of murder, that person can cancel out your vote?” Of course, murderers spend most, if not all, of their lives in prison (indeed, some in Florida are executed). And perhaps general extension of ex-felon enfranchisement is better than no extension at all.

But worse, I think, are how we treat sexual offenders. Rape and child molestation are two particularly heinous crimes. Others, like statutory offenses in “Romeo and Juliet” cases, far less heinous. But in all of them, we spend little time thinking about the punishment these felons merit, and far more time seeking to maximize punitive consequences as long and as far-reaching as possible.

Disenfranchising murderers or sexual offenders who have served their time of imprisonment does not seem terribly well-fitted to a theory of punishment, except that we strongly dislike their offenses and want to keep them at the periphery of society. Maybe something about their offenses merits it. When it comes to voting, however, I’m not so convinced.

I understand that the perfect cannot be the enemy of the good. But, in some ways, I wish we’d spend more time thinking critically about the nature and purposes of punishment of crimes more generally, and how disenfranchisement fits in that scheme. I think Florida’s new Amendment 4 mostly gets it right.

As a final note, the amendment is the latest of a number of remarkable decisions of the people of the several states to dilute their own voting power, from enfranchising the freedman to enfranchising women to enfranchising 18-year-olds. It’s a remarkable and rather selfless decision of the people, not foisted on the people through a judicial construction. Every decision to broaden the franchise dilutes the voters’ votes who’ve approved that broadening. It’s probably a topic worth exploring another day, but I close on that thought.

Law school JD enrollment inches upward as non-JD enrollment continues to soar

The 2018 law school enrollment figures have been released. They show a slightly improved picture in JD enrollment and continued soaring growth in non-JD enrollment. About 14% of law school enrollees, 1 in 7, are not enrolled in a JD program.

This is the fourth consecutive year of growth in the incoming 1L class, but a bit larger than the last few years’ growth: there were 38,390 new 1L enrollees, about 900 more students over the incoming class in 2017. It’s the largest 1L class since 2013’s 39,675. (The 2010 peak was 52,488 1Ls.) This is despite the fact that two schools—Valparaiso and Whittier—admitted zero first-year students.

Despite much heralded promises of a “Trump bump” in law school enrollment, my earlier posts on the subject proved true: a modest increase in 1L enrollment of 2.6%, as I projected in December 2017, despite 19% increases in LSAT test-takers (because many were repeaters, not all translate into applicants let alone enrollees, and quality of scores matters) and despite 8% applicant spikes. Part of it reflects some of the concerns I raised earlier, but it appears most schools were more cautious this cycle, choosing to improve class quality (likely a good move given persistently low bar exam scores).

Total JD law school enrollment also ticked up slightly to 111,561 (still well off the peak of 2010-2011 with 147,525).

Non-JD enrollment continues to climb. The ABA changed its definitions a couple of years ago, which resulted in a spike in reported non-JD enrollment, but the steady climb continues. 18,523 were enrolled in non-JD programs, a 1,400-student jump over last year.

Now over 14% of all students enrolled in law school are not a part of a JD program, about 1 in 7 students.

Growth in non-JD online enrollment as a part of overall non-JD enrollment continues, too, with much faster growth than when I first looked at trends two years ago.

This is overall modestly good news for law schools. I continue to wonder about the sustainability and value proposition of non-JD legal education, but perhaps my concerns are overblown.

That said, more information about the kinds of degrees and the outcomes of those who secure these degrees would be welcome information, if the kind that is unavailable at this time.

Finally, we see some continued growth in LSAT test-takers again this cycle. We may see 1L enrollment creep up again, perhaps surpassing 40,000 students next year. For law schools, a robust and valuable JD program is essential, and that would be a good step toward restoring some of the losses suffered after the recession. Below I highlight a handful of schools with the highest non-JD enrollment as a percentage of total law school enrollment.