Federal judge finds tax return disclosure requirement for ballot access cases violates Elections Clause, First Amendment, and Equal Protection Clause

A federal court in California issued its order (PDF) after enjoining California’s tax disclosure requirement for presidential candidates. Earlier, I noted the court suggested that California’s statute was preempted by the Ethics in Government Act. The court did make that finding. But the court also found it unconstitutional on three other bases.

First, the statute runs afoul of the Elections Clause, meaning California lacked the power to add this rule as a condition of ballot access. (This is the argument I make in Weaponizing the Ballot.) It relies on Term Limits v. Thornton and Cook v. Gralike, in addition to a Ninth Circuit opinion Schaefer v. Townsend that struck down a voter registration requirement as a condition of ballot access.

Second, the court concluded it burdened the associational interests of candidates, voters, and political parties under the First Amendment. The court concluded the burden was “severe” because it was a “functional bar” on candidates who refused to disclose tax returns, a “severe” burden that the state failed to justify.

Third, the court held that it violated the Equal Protection Clause by “distinguishing among constitutionally eligible candidates,”—that’s because general-election independent candidates would not need to disclose their tax returns, but primary candidates would.

In short, the court found four separate reasons why the law failed. We’ll see what happens as this case proceeds to the Ninth Circuit—given that time is precious as the ballot petition period begins in a matter of weeks, and given that the California Supreme Court is considering an independent challenge, we’ll see what choices the parties and the courts make moving forward.

Federal judge blocks enforcement of tax return disclosure requirement in presidential primaries

Earlier this year, California enacted SB 27, which requires presidential candidates to disclose 5 years’ tax returns as a condition of appearing on the state’s presidential preference primary ballot. For reasons I outline in Weaponizing the Ballot, I think such a law exceeds the state’s authority to regulate the “manner” of holding elections.

There are many alternative reasons, of course, why such a law might fail. A federal judge enjoined the law today and announced his decision from the bench in a set of five consolidated challenges to the law. The reasons will come by October 1. But it’s worth noting a take from early news reports:

Morrison spent much of the court proceeding on the question of whether a longstanding federal financial disclosure law preempts any additional rules that a state could impose.

The federal law, known as the Ethics In Government Act, or EIGA, was originally passed in 1978 and applies to a range of top federal officials. Trump has filed the annual report, most recently in May, which provides an overview of his finances.

“Do we even need to get here if EIGA preempts [the new California law]?,” England asked attorneys for the state. “Is that it?”

That is, rather than address the tough constitutional questions, the judge may well avoid them (at least, as best he can!) and conclude that California’s law is preempted by federal statute.

To summarize from my piece Weaponizing the Ballot, here’s what federal law currently requires (footnote omitted):

Prominently, Congress passed the Ethics in Government Act of 1978, which requires disclosures of financial information of certain government officials to the public. Within thirty days of assuming office, the President and Vice-President must file financial disclosures about their sources of income, payments to charitable organizations, property they hold, debts they owe, and more. The President and Vice-President continue to file these reports annually, including identifying gifts, reimbursements, sale of property and stocks, the cash value of any blind trust, and other disclosures for spouses and dependent children. In 2012, Congress added to some of these disclosures and required that these disclosures must be made available on the Internet. While disclosures are published for the President and Vice-President, reports for most other government official require a specific request. Certain information might be kept confidential for lower level officials or if the information might compromise the national interest of the United States.

Presidential and congressional candidates also must file similar statements within thirty days of declaring as a candidate. Federal law also requires disclosure of certain activities of campaigns, including disclosure of contributions to the campaign and expenditures from the campaign.

You can view current disclosures of the president and vice president here.

UPDATE: I’m told the express preemption language from the original EIGA has been repealed in 1989, so I’ve removed that block quotation.

UPDATE: Current law provides, “The provisions of this title requiring the reporting of information shall supersede any general requirement under any other provision of law or regulation with respect to the reporting of information required for purposes of preventing conflicts of interest or apparent conflicts of interest,” but this provision does not expressly mention state law.

It’ll be worth seeing all the reasons the court articulates for enjoining the law, and, of course, what happens on appeal. But it’s also worth noting that while it avoids the constitutional questions, it also avoids answering questions in the event states require other disclosures—say, medical records or school transcripts—as a condition of ballot access.

New draft posted on SSRN: "Weaponizing the Ballot"

I’ve just posted a draft of an article, Weaponizing the Ballot, on SSRN here. From the abstract:

States are considering legislation that would exclude presidential candidates from appearing on the ballot if they fail to disclose their tax returns. These proposals exceed the state’s power under the Elections Clause and the Presidential Electors Clause. States have no power to add qualifications to presidential or congressional candidates. But states do have constitutional authority to regulate the manner of holding elections and to direct the manner of appointing presidential electors. Manner regulations that relate to the ballot are those that affect the integrity and reliability of the electoral process itself or that require a preliminary showing of substantial support. In other words, they are procedural rules to help voters choose their preferred candidate. Tax disclosure requirements are not procedural election rules, which means they fall outside the scope of the state’s constitutional authority to administer federal elections and are unconstitutional.

And from the introduction:

This Article makes three principal contributions to help understand the scope of state authority to regulate access to the ballot in federal elections. First, while states may not add qualifications to candidates seeking federal office, this Article finds that “manner” regulations may at times legitimately affect the ability of candidates to win office. Second, this Article defines the constitutional scope of “manner” rules as election process rules, and it synthesizes alternative judicial formulations of state power over the “manner” of holding elections as variations of this definition. Third, this Articles applies this definition to proposals that compel disclosure of information as a condition of ballot access—applied here to tax returns, but applicable to other disclosures like medical records or school transcripts—and finds that they exceed the state’s power to regulate the manner of holding elections.

I’m pleased to share this major work, which builds off ideas I floated in a New York Times op-ed many months ago, and which builds off my scholarship thinking about state control over ballot rules generally and review of qualifications of candidates for federal office.

Analysis: 10th Circuit finds Colorado wrongly removed faithless presidential elector in 2016

In the latest of a string of faithless elector litigation arising from the 2016 presidential election, the 10th Circuit issued a decision finding that Colorado wrongly removed an elector pledged to support Clinton after he attempted to cast a vote for John Kasich. (Disclosure: I filed an amicus brief in support of neither party but calling for affirming the district court result below; the bulk of the brief focused on whether ballots must be secret, an issue the court did not reach.)

The question is a hard one, I admit, but the majority opinion suffers from a number of weaknesses. I’m not entirely certain of whether the case still presents a case or controversy, as the dissenting opinion points out; indeed, remarkably, the majority never cites the Eighth Circuit opinion on a removed faithless elector from Minnesota, which concluded the claim was moot. My guess is that if the case is taken en banc or to the Supreme Court, it could well be tossed on procedural grounds.

The opinion also does what many analyzing the Electoral College do: confuse ought and is. Federalist 68, for instance, describes how Alexander Hamilton envisions the Electoral College will function; but that says very little about what the state may do to regulate its function. Indeed, we see very quickly that Hamilton’s “ought” never comes to fruition, and the Electoral College never functioned as designed. Additionally, I’m not convinced that the role of electors before the Twelfth Amendment is necessarily the same as after—particularly given that states had begun to regulate the behavior of electors, such as authorizing their replacement in their absence or in the neglect of duty.

But, as I note, these are hard questions, and it is quite common to see ought/is confusion pertaining to the power of the state over presidential electors. I want to focus on two particular weaknesses of the opinion. First, the role of Congress; and second, the role of elector “choice.”

Late in the opinion (pp. 100-101), the Court notes that Congress has historically counted the votes of faithless electors, citing a string of instances, an “uninterrupted history of Congress counting every anomalous vote cast bay an elector.” That’s both irrelevant and false.

It’s irrelevant, because, until 2016, never had an elector cast a vote in a state that had a law with a mechanism that authorized that elector’s replacement. Undoubtedly, Congress believed that electors could be faithless—they repeatedly counted votes of faithless electors. But could a state cabin the faithless elector—that is, replace a faithless elector? That question was never raised in a count before 2016, so Congress’s past act says little about state power.

And it’s false, because, in 2016, Congress did count the electoral votes for both a replacement elector in Colorado and a replacement elector in Minnesota—meaning, Congress twice ratified the state’s power to replace a faithless elector.

Granted, no one objected to either vote cast, so it’s hard to say that Congress has expressly ratified it. But there were a dozen attempted protests lodged during the 2016 counting of electoral votes, ranging from concerns about voter suppression to Russian interference, and Vice President Joe Biden, presiding over the joint session to count electoral votes, found each objection out of order (because while members of the House continued to object, no Senator joined any objection, which the Electoral Count Act of 1887 requires before Congress will entertain an object). I argued in the Wall Street Journal in 2017 that this is Congress’s prerogative.

So, Congress counted Colorado’s replacement elector. A federal court has now held that Colorado lacked the power to replace that elector. Was Congress wrong? Should it have ignored that replacement elector’s vote and docked an electoral vote from Hillary Clinton? Were the other eight electors wrong to sign a list saying that the state cast nine votes for Hilary Clinton? The court would never say so, given that it claimed it was only handling a claim for nominal damages. But the suggestion that a court might tell Congress it wrongly counted an electoral vote is, in my view, significant.

Second, the court phrases its holding in various ways, but the crux is something like this: “we conclude the states may not interfere with a presidential elector who exercises discretion in casting votes for the President and Vice President of the United States.” Elsewhere: “they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.” Still elsewhere: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”

As the facts lay out, “Despite taking the oath, Mr. Baca crossed out ‘Hillary Clinton’ from his presidential ballot and wrote in ‘John Kasich.’” The form of the ballot is replicated here.

The power of the elector to choose leaves some unanswered questions. First and foremost is Colorado’s ballot. In any other election in the United States, this ballot would be thrown out. Why? The ballot has one option, one name, and does not authorize write-ins—this is essentially a spoiled ballot. So did the state print the ballot wrong? Does the state lack the power to print the ballot in presidential elections? Must the state count the write-ins of electors?

What if the elector’s choice is to not vote? Could the elector be replaced then? Or, to cast a blank vote? Could the elector be replaced then?

What about if the electors vote for an ineligible candidate, as the court acknowledges is a limitation on electors in n.27 of the opinion? Does the state have the remedy to replace them—even though there’s no “express” authority in the Constitution that would give the state that power?

Colorado requires presidential candidates to file ahead of the election as a condition of ballot access for their slate of electors. John Kasich never did. Could the state restrict the electors’ decision to only to choose among those candidates who filed before the election?

John Kasich also expressly disclaimed that he was a candidate. Could the state restrict the electors’ discretion to only candidates who want to serve in the office—that is, to prevent the state’s electoral vote from being thrown away?

(Professor Michael Morley identifies still other good questions about the scope of the opinion—in particular, could the Secretary of State simply ignore the vote rather than replace him? Or file a competing slate of electors with Congress to let Congress sort it out?)

Each of these are challenging questions, in my view. But the court’s opinion would seem to elide over all of them. That’s because it quickly moves past the state’s power to “direct” the “manner” of “appoint[ing]” electors and concludes that the state lacks any power once the elector starts to act. I’m not entirely persuaded—that is, I think the state probably has some power to replace electors (including those who don’t show up, or those who fail to act), and perhaps even replace electors who cast illegal votes (e.g., for a non-citizen). And the Uniform Law Commission has recognized some of the subtleties in its Faithful Presidential Electors Act. Electors can, after all, resign from office. The Act suggests that when the elector casts a vote for someone other than the candidate he has pledged to support, he has resigned from office and created a vacancy.

Nevertheless, the breadth of this opinion—a suggestion that there’s a virtually unfettered choice, or at least that the state can’t fetter the choice—is what’s the most remarkable part of it. The contours of that choice are not defined, and the power of the state to act with electors who do a variety of things listed above may well be foreclosed by the court’s underdeveloped opinion.

But I want to close with one thought about the opinion’s impact. For decades, electors and states have had an uneasy kind of truce. Electors typically aren’t faithless, and states have wielded the threat of replacement even if they haven’t actually replaced them. This opinion, however, collapses that truce. Electors are now instructed that they can vote for whomever they want, and replacement is not an option. While that might have been true decades ago, too, before any replacement laws were on the books, one wonders whether electors will be more inclined to stray in 2020—particularly given fawning attention from disgruntled voters. True, these handful of electors didn’t change the outcome of the election, and in a closer election it’s less and less likely that electors are faithless, as their votes are more significant and their ability to protest carries greater weight. But I wonder about what this might yield in closer elections. Political parties have significant power to choose presidential electors—they may be scrutinizing their choices much more carefully in 2020.

Maine, ranked choice voting, and the National Popular Vote Compact

Maine recently enacted ranked choice voting (“RCV”) for most of its elections. Very briefly, it allows voters to rank the preference of candidates instead of just picking one.

The original Maine bill excluded presidential elections from RCV. But the legislature recently approved expanding that to presidential elections (only later to be hung up and carried over to a later legislative session).

The new 21-A Maine Rev. Stat. Ann. § 805, sub-§2, if approved in the future, would be amended to read: “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State according to the ranked-choice method of counting votes described in section 723-A. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district according to the ranked-choice method of counting votes described in section 723-A.”

Here’s how RCV looks in 723-A:

Except as provided in subsections 3 and 4, the following procedures are used to determine the winner in an election determined by ranked-choice voting. Tabulation must proceed in rounds. In each round, the number of votes for each continuing candidate must be counted. Each continuing ballot counts as one vote for its highest-ranked continuing candidate for that round. Exhausted ballots are not counted for any continuing candidate. The round then ends with one of the following 2 potential outcomes.

A. If there are 2 or fewer continuing candidates, the candidate with the most votes is declared the winner of the election.

B. If there are more than 2 continuing candidates, the last-place candidate is defeated and a new round begins.

Whew. What that means is, candidates are ranked. The top-ranked candidates on each ballot are tallied. The candidate with the fewest top-ranked votes is eliminated. The ballots are retallied, this time as if that eliminate candidate weren’t there, and voters who’d cast their first-place votes for that eliminated candidate now have their second choice counted as the first choice. This proceeds in rounds until there are 2 candidates, and the candidate with the higher vote is the winner.

All well and good for the State of Maine, which may “appoint” presidential electors in the “manner” that the legislature may “direct,” and RCV certainly falls within that.

But how might this interact with a national tally of the popular vote for presidential elections—and, specifically, the National Popular Vote Compact (“NPV”)?

While Maine is not (yet?) a member to the NPV, many states are [###

Here’s the relevant text of typical common language from the NPV:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each state of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.

The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.

(One important caveat from reading this text: in the event a state chooses not to hold a popular election for president—say, as Colorado did in 1876, when the legislature simply chose presidential electors—those states would not be included in a national popular vote total.)

So, what happens in Maine if RCV takes place? How would Maine’s vote be totaled in the national popular vote?

If there are, say, five candidates on the ballot, the popular vote total couldn’t really be the votes for those five candidates. RCV suggests paring them down until you get to two, then you name the winner. And voters cast votes understanding that their choices will be eliminated if they fail to advance in the next round. An advantage of RCV for independent or minor party candidates is that voters can vote for them without “wasting” a vote.

So RCV would then narrow down the votes of Mainers to two candidates. Those two candidates would then appear to be the only “votes” for a “presidential slate” in the State of Maine—that is, the tally after the final round of RCV. It would empower Maine voters over national voters—after all, the people of Maine would typically have all of their votes allocated to a Republican candidate or a Democratic candidate, as opposed to voters in other states that may scatter some number of voters among independent or minor party candidates.

But it could produce an alternative wrinkle. In 1992, Ross Perot received slightly more votes than George H.W. Bush to place second in the statewide vote. It’s not clear how RCV would have played out. But suppose that in the penultimate round of RCV Mr. Bush was eliminated, and the final round of RCV voting included just Bill Clinton and Mr. Perot. In the national popular vote total, the Republican candidate would receive zero votes from Maine—a small state, sure, but a significant cost to a major party candidate.

In short, I think inserting RCV in Maine is fine for Maine if it’s what Maine wants to do. But it’s precisely a reason why we cannot think of a “national popular vote” total by adding up the aggregate votes cast in 51 jurisdiction. This “invisible federalism” typicall operates in a way we don’t notice—we might simply look at each state’s votes and assume we can add them together for a single popular vote total. But the decisions of individual states, like a potential RCV in Maine, could have unforeseen consequences that undermine how we think about a national popular vote total. It’s a reason why Electoral College reform to make the presidential election truly national must occur at the federal level and not at the state level.

Washington State Supreme Court upholds fines for 2016 faithless electors

In the latest of a string of litigation surrounding faithless electors, the Washington State Supreme Court has issued its decision in In re Guerra, here. Four electors cast votes for candidates other than Hillary Clinton and Tim Kaine; all four were fined $1000 each pursuant to state law. Three appealed the decision. In an 8-1 decision, the Court upheld the fines.

The Court opens by acknowledging that presidential electors perform a “federal function.” The electors argued that if they are performing a federal function, there is ample case law that suggests that Congress cannot interfere with that activity. But the Court noted that states may still holds power over them under Article II of the Constitution. And while states might not be able to interfere with certain federal functions, the Court understood the precedent of cases like Ray v. Blair and McPherson v. Blacker that the state’s power included “broad authority.” Language from Supreme Court precedent suggested that the role of the elector is to “transmit the vote of the State for president,” (In re Green) “suggesting that the Electoral College vote belongs to the State, not the individual elector.” (p. 17)

Unfortunately, the Court’s interpretation of precedent does not rely as heavily on the text of the Constitution, which states that the electors “shall make distinct lists . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States.” (Amend. XII.) It’s certainly plausible to argue that the state has the power over the electors, but it is a harder textual claim to say that the votes “belong[] to the state,” whatever Supreme Court precedent may say.

But, the Court also finds that the Twelfth Amendment ensures that electors meet at a time and place, cast votes for two qualified candidates, and that the Amendment “does not limit a state’s authority in adding requirements to presidential electors.” (p. 18) The Court goes on to find that cases like U.S. Term Limits v. Thornton and Powell v. McCormack, which concluded that qualifications could not be added to congressional candidates, do not extend to presidential electors. (There is ample historical support for this practice, as qualifications have regularly been added to electors, including district residency restrictions, which were raised at length in U.S. Term Limits.)

As a textual matter, the court in n.8 rejects the notion that the word “ballot” implies “personal, secret ballot.” It points out that historically, the fact that “faithless electors” can be identified suggests the practice of casting ballots has not always been in secret. I think that’s an accurate understanding of the word “ballot,” a project I’m working on.

The Court rejects a First Amendment claim once it finds that there is no personal right of the elector.

A brief dissent argues that the “power to appoint” is not the “power to control.,” and it cites Justice Jackson’s concerns in his dissent in Ray v. Blair.

In short, it’s a fairly unsurprising outcome, but it leaves some deep uncertainty, I think, about how the United States Supreme Court’s precedents in this area harmonize with the text of the Constitution. For instance, some precedent—and this court’s opinion—conflate “state” with “legislature,” where the “legislature” is the entity empowered to “direct” the “manner” of “appoint[ing]” electors.

If the case is appealed to the United States Supreme Court, it also presents an interesting wrinkle—the electors here are not forbidden from casting “faithless votes,” but are only fined if they do so. That’s a less onerous (but still significant) consequence than replacing faithless electors, like what occurred in Colorado.

The Electoral College prevents electing a vice presidential candidate separate from a presidential candidate

Recently, news about a startup campaign to elect the vice president separately from electing the president has popped up. As the vice.run movement describes itself, its goal is to “reinstate the vice presidency as a democratically elected position. Vice.run’s goal is to create a vice presidential ballot line in the 2020 election in all 50 states.”

It sounds like a fascinating idea. But under any scrutiny, it just won’t work. That’s because the Electoral College doesn’t function this way.

To begin, it’s entirely correct to say that states don’t have to list a particular president-vice president combination unless they seek ballot access for that combination, and it’s possible to think about alternative arrangements to how we typically look at elections. A couple of historic examples come to mind. In 1836, the Virginia Democratic Party despised Martin Van Buren’s running mate Richard Mentor Johnson. While most states’ electors ultimately voted for Van Buren and Johnson, Virginia’s electors voted for Van Buren and William Smith. That prevented Johnson from receiving a majority of electoral votes, so the election was sent to the Senate, which elected Johnson over runner-up Whig Francis Granger.

In the same election, Whigs chose not to field a single candidate, but fielded multiple candidates that they hoped each would receive sufficient support over the Democratic candidate, prevent the Democratic candidate from securing a majority of electors, and send the race to the House of Representatives to choose among the top three vote-getters, potentially yielding a Whig candidate.

All this is to say we’ve seen some interesting and creative attempts to use the Electoral College framework to achieve particular ends. But what about a separate vice presidential candidate?

The logic (although there isn’t much law) spelled out on the vice.run site goes as follows: a vice presidential candidate could be a separate line on the ballot. The people could then choose to vote for a particular presidential candidate and an entirely different vice presidential candidate. Particularly attractive independent vice presidential candidates may force presidential candidates to choose them as their running mates.

All interesting ideas. But utterly unworkable due to the Electoral College.

Each state receives presidential electors equal to the number of senators and representatives they receive—say, Vermont receives three. On Election Day, the first Tuesday after the first Monday in November, when voters cast a vote for Clinton-Kaine or Trump-Pence, they are actually casting a vote for three electors pledged to support Clinton-Kaine or Trump-Pence. (“Pledged” I use very loosely—some states have formal pledges, some are legally binding, others are mere informalities or general expectations.)

Then, on the first Monday after the second Wednesday in December, Vermont’s three presidential electors meet in the state, along with electors from the other states in their respective states. The electors cast two votes: one for president, and on a distinct ballot, one for vice president. (The headline of my post is a bit misleading—in fact, presidential electors are required to vote for a separate president and vice president. This post is about the people voting via ballot separately.)

Suppose now there is an election with a separate line item for president and vice president. How would we choose the electors? We simply couldn’t. We can’t pick three electors for president and another three electors for vice president; that would require a state to choose six electors, which it couldn’t do. So we’d need the same electors for president and vice president—which means we couldn’t have separate lines unless the electors were the same, or aligned with one another, which would seem to defeat the purpose of having separate lines.

Instead, the only feasible opportunity to have presidential and vice presidential candidates elected separately would look as follows: the state legislature chooses three electors; it designates that those electors must be bound to vote in accordance with the popular vote of a presidential candidate and a vice presidential candidate; then, those electors would have to vote for whichever presidential and vice presidential candidate were selected.

It’s not clear that this is permissible. Federal law requires that the electors be appointed on the first Tuesday after the first Monday in November. It’s not a straw poll to bind existing electors. So it’s unclear to me that a state could appoint its electors before the election. Additionally, if Election Day is about the appointment of electors, then there has to be a fixed number equal to the state’s total, which means you need a president-vice president slate of electors, not independent lines.

There are other confusing ways to think through this problem, like assuming there’s just one slate of electors representing all the names on the ballot, but I’m not sure these are feasible, either. And I’m also assuming the state can compel the electors to vote for the candidate they’re pledged to support—something I think is right, but certainly not uncontested. (Of course, faithless electors are a common problem in any Electoral College reform scenario, so I don’t dwell on that.) It also increases the likelihood that voters in a state choose a president and a vice president from their own state, if there are pluralities or tradeoffs in voting, which is impermissible under the Constitution—electors must vote for at least one candidate who is not an inhabitant of their state, and a president-vice president slate usually avoids this.

Unless I’m missing something—correct me if I am!—this scheme simply can’t work absent the legislature wholesale taking over the choosing of electors and having a straw poll of the people sometime before Election Day. The Electoral College anticipates one set of electors chosen on Election Day. That set of electors can exist however one sees fit, of course. But if voters have to make a choice of a president and a vice president on separate lines, there’s no feasible way to pick one common slate of electors like the Constitution demands.

"Nonjudicial Solutions to Partisan Gerrymandering"

I have posted this draft of an Essay forthcoming in the Howard Law Journal, “Nonjudicial Solutions to Partisan Gerrymandering.” Here is the abstract:

This Essay offers some hesitation over judicial solutions to the partisan gerrymandering, hesitation consistent Justice Frankfurter’s dissenting opinion in Baker v. Carr. It argues that partisan gerrymandering reform is best suited for the political process and not the judiciary. First, it traces the longstanding roots of the problem and the longstanding trouble the federal judiciary has had engaging in the process, which cautions against judicial intervention. Second, it highlights the weaknesses in the constitutional legal theories that purport to offer readily-available judicially manageable standards to handle partisan gerrymandering claims. Third, it identifies nonjudicial solutions at the state legislative level, solutions that offer more promise than any judicial solution and that offer the flexibility to change through subsequent legislation if these solutions prove worse than the original problem. Fourth, it notes weaknesses in judicial engagement in partisan gerrymandering, from opaque judicial decisionmaking to collusive consent decrees, that independently counsel against judicial involvement.

This Essay is a contribution to the Wiley A. Branton/Howard Law Journal Symposium, "We The People? Internal and External Challenges to the American Electoral Process." is