Quick thoughts from today's oral argument in Evenwel v. Abbott

Following up on recent discussions (one, two, three) of Evenwel v. Abbott, I read today's oral argument transcript (PDF). Here are a few quick thoughts.

A back and forth occurred about whether women should have been included for purposes of redistricting between 1868 and 1920:

JUSTICE GINSBURG:  Is it your view that what the Fourteenth Amendment means is that in all the years between ­­-- what was it? ­­-- 1868 and 1920, it was wrong for the States to include, for these purposes, women? They were not eligible voters.

MR. CONSOVOY:  Any ­­-- there is no question that was a problem.  It was an ­­ it was an issue in the '60s with minorities as well who were ­­-- who were disenfranchised.  The ­­ the Court in Reynolds at the time was doing more than one thing at once.

JUSTICE GINSBURG:  But you're saying that that was wrong.  I mean, in your interpretation of the Fourteenth Amendment from 1869 till 1920, the State should not have been counting women for ­­-- for purposes of determining representation in the State legislature.

MR. CONSOVOY:  For purposes of the ­­ of the Equal Protection Clause, the one­-person, one­-vote rule protects voters.  If disenfranchisement of women or minorities is an issue, those cases could have been brought.  Eventually, that issue was resolved by this country, as was minority representation.

Justice Kagan raised some thoughts on the nature of the Fourteenth Amendment:

JUSTICE KAGAN:  Mr. Consovoy, could I go back to the question that Justice Breyer raised and can ­­ stripped, if he'll permit me, of the Guarantee Clause, because the Fourteenth Amendment is actually quite ­­ you know, the framers of the Fourteenth Amendment explicitly considered this issue, and, you know, made a decision.

So Senator Howard, who introduces the Amendment on behalf of the joint committee that drafts it, talks about these deliberations.  And he says the committee adopted numbers as the most just and satisfactory basis, and that's the principle upon which the Constitution itself was originally framed, referring back to the original drafting. And then he says numbers, not voters; numbers, not property; this is the theory of the Constitution.

Now, this is the theory of the Constitution as to one thing, which is not the thing that you are talking about. This is the theory of the Constitution as to House apportionment.

But, again, I'll go back to this question. This is just a clear, explicit choice that was made about what it meant to -- to have equal representation with respect to that area. And how you go from that being mandated to it being prohibited in the State context is something that I still can't quite work myself around.

MR. CONSOVOY: Justice Harland agreed with you. He did.

JUSTICE KAGAN: That's a good person to be on the side of.

Late in appellant's argument, Justice Breyer and Sotomayor also floated about whether to include or exclude children in the population for redistricting purposes, too.

Chief Justice Robert opened early with a remark about "one person, one vote": "Well, it is --0 it is called the one-person, one-vote. That seems to be designed to protect voters."

Justice Alito opened with a potential dichotomy that attracted much discussion.

JUSTICE ALITO:  There are at least two arguments that could support your position.  One is that it's one­-person, one­-vote, and what counts is giving each person an equal chance of affecting the outcome of the election.  But total population figures are a good enough proxy for eligible voters.  That's one possible argument.

And that's ­­-- that's what the census measures, and that's close enough.

 Another argument is that representational equality is the real basis, and therefore that's why you use population.

...

It seems to me that the two interests are not always consistent. They can be in great conflict.

You can have a situation if you -- if you want to equalize population, you may have a situation where you cause great inequality in the -- the chances of any -- of voters affecting the outcome of the election. On the other hand, if you choose eligible voters only, then you may have a situation where every person within two districts does not have an equal representation defined in some way in the legislature.

I don't think you can just say, well, it's -- you know, we serve both. What do you do when they come into conflict?

Justice Breyer worried about theirs of virtual representation:

[MR. KELLER:] The issue is does State -- does a State have to have the same amount of constituents per representative? And a State can do so. It's a legitimate--

JUSTICE BREYER: That sounds an awful lot what they had in 1750 or something, where the British Parliament said, well, don't worry, America, you're represented by the people in England because after all, they represent everybody in the British Empire.

Justice Sotomayor appeared interested in whether the census data used for the Voting Rights Act would be appropriate to use for an equal voting analysis. There was specific mention of the Persily brief and a disagreement with the United States on the view of Section 2 of the Voting Rights Act (tr. 37-39).

Justice Alito led a line of inquiry about who has standing--a question reserved by the Court in Baker v. Carr.

There is little that I can glean from the argument, except a lot of curiosity about the right standards and what they might look like. Perhaps of note? Justice Scalia did not ask a single question the entire argument.

This post has been updated.

Evenwel v. Abbott and the history of the redistricting cases

I have posted an early draft of a forthcoming article in the Harvard Journal of Law & Public Policy, Perpetuating "One Person, One Vote" Errors. It picks up on some of my previous critiques of Evenwel v. Abbott, the redistricting case the Supreme Court will hear next week.

I dug into some of the history of the early redistricting cases, especially Baker v. Carr, Reynolds v. Sims, and Burns v. Richardson. I did a fair amount of archival research at the Library of Congress on these cases. I was somewhat surprised to find that the justices' own clerks were advocating for narrower positions than those ultimately reached by the Court. Time and again, the Court eschewed narrower holdings in efforts to provide a very broad principle of "one person, one vote" that would ultimately compel "that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." Evenwel is a dispute about whether to require still more from state legislatures.

One of the best findings from the archival research includes an omitted footnote from an early draft Burns v. Richardson. In Burns, the Court permitted Hawaii to draw its legislative district on the basis of registered voters rather than total population. But a footnote, later omitted, explained the circumstances that would justify a basis for drawing state legislative districts:

Thus, one State may stress that the role of a representative is to serve the entire community from which he comes, whether or not all its members are or ever will be eligible to participate in the electoral process. It may assume that those who are ineligible to vote will find “representation” in the voting booth through those who are eligible, as children do through their parents, and will find other ways to participate in the political process or share the burdens of government. Another may consider that a representative is more likely to respond to the needs of those who are or may be eligible to vote for him than to the needs of ineligibles. Voters residing in areas of the State where there are unusual percentages of ineligibles might appear from this perspective to have enhanced voting power if a total population distribution were used. . . .

This footnote, which would largely settle much of the dispute in Evenwel, was omitted within two weeks of the final opinion. I have posted a scan of the document on Scribd here. While not the Court's holding, and hardly its dicta, it captured my interest.

Comments on the article are quite welcome!

Who in New Hampshire gets to decide if Ted Cruz is a "natural-born citizen"?

Recently, the New Hampshire Ballot Law Commission announced that it would hear disputes regarding Ted Cruz's natural-born citizenship.

It should not hear such disputes, because the New Hampshire state legislature has not authorized it to hear them.

Mr. Cruz was born in Canada to a Cuban father and an American mother. (There is another challenge to Mr. Cruz as well as Marco Rubio, Bobby Jindal, and Rick Santorum, all alleging citizenship-based complaints about their eligibility.) The challenges will be heard November 24.

These kinds of challenges are nothing new. Indeed, I highlighted them recently on this blog, citing my recent Indiana Law Journal article, Scrutinizing Federal Electoral Qualifications.

But let's set aside the merits for a moment (even though a very strong case is to be made that, on the merits, Mr. Cruz is a "natural-born citizen"). Instead, who in New Hampshire gets to decide this question? That's the basis of my Indiana Law Journal piece. And there are at least three groups of people who get to decide, at the primary level and beyond.

Voters. That's right! The people get to vote for their preferred candidates, and they are welcome to reject a candidate whom they believe is not eligible for federal office. (Undoubtedly, some voters refused to vote for Barack Obama because they believed he was not eligible for office--but, I assume they had other reasons for refusing to vote for him, too.)

Presidential electors. In presidential elections, the ballots cast are actually for slates of presidential electors. They are often pledged to support a particular candidate (and there is a complicating factor about whether a state can compel them to support that particular candidate--perhaps for another discussion). But they may abandon a candidate if they are convinced that candidate is ineligible. (Indeed, many electors abandoned their support of Horace Greeley for vice president in 1872 because he died before taking the electoral college met--and, arguably, a dead person is not eligible to obtain that office.)

Congress. At the end of the process, when the electors have cast their votes, it's possible (but disputed) that Congress can reject the votes of the electors if Congress independently concludes that a candidate is ineligible. (Indeed, this is precisely what the House did with votes cast for the late Horace Greeley.)

But what role do the states have? Or, specifically, what role does the state of New Hampshire have in establishing rules for ballot access that refer to qualifications?

My article argues that state legislatures do possess some power to control how the decisionmaking process occurs. The Constitution provides that electors are appointed "in such manner as the Legislature thereof may direct." There is good reason to think that the legislature--which could act as voter in this case--can condition the election of presidential electors upon its own preferences regarding federal qualifications and determinations of eligibility. (That's a lengthy, and somewhat controversial, component of the article.)

New Hampshire law does require candidates to sign a declaration under penalty of perjury that they are "qualified to be a candidate for president of the United states pursuant to . . . the United States Constitution, which states, 'No person except a natural born citizen . . . .'" (RSA 655:47(I).)

But who decides whether that person has committed perjury?

It isn't the Ballot Law Commission.

The jurisdiction of the Ballot Law Commission is described in RSA 665:6. In nomination paperwork cases, it extends to the nomination papers under RSA 655:37-44. But it has no jurisdiction over cases under RSA 655:47.

That's because the Secretary of State, not the Ballot Law Commission, holds the power under RSA 655:47. Consider RSA 655:47(III): "The decision of the secretary of state as to the regularity of declarations of candidacy filed under this section shall be final."

The state legislature, then, has decided that it wants an additional level of review of the qualifications of presidential candidates--beyond the voters, the electors, and Congress. And it wants that review performed by the Secretary of State. But the Ballot Law Commission is not that entity.

The conclusion of my paper emphasizes that courts, and state election bodies, must take great care in parsing their statutes to examine precisely who is supposed to decide what when it comes to evaluating the qualifications of presidential candidates. State legislatures are not obligated to provide an independent level of review of qualifications. But if they do choose to provide that review, how they do so should be carefully construed and respected.

NBC affiliates report Donald Trump appeared for on SNL 12 minutes, 5 seconds for equal time purposes

Last week, anticipating Donald Trump's appearance on Saturday Night Live, Babette Boliek and I wrote an opinion piece in the Wall Street Journal calling for an end to the equal time doctrine. Today, the NBC affiliates have begun filing their notices to comply with equal time. They are reporting that Trump appeared for 12 minutes, 5 seconds. Variety reflected that it appears Mr. Trump received so little airtime (relative to a typical host of the show) because of worries about the equal time doctrine and triggering free airtime for other candidates--precisely a worry Professor Boliek and I address in our piece.

The Donald On "SNL": Equal Time Isn't Needed

That's the title of my opinion piece, co-authored with my colleague Babette Boliek, in the Wall Street Journal. It includes the following call:

Holding a small number of broadcast stations and cable and satellite operators to a century-old standard makes little sense. Given the few situations that now trigger the equal-time doctrine, the explosion in available media outlets, and the government’s strained interpretations of the rule, it is hard to imagine how the doctrine yields more speech than it chills.

Can a state legislature delegate its power under the Elections Clause to another?

This is the second of two posts about my forthcoming article, Legislative Delegations and the Elections Clause, Florida State University Law Review (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

As I noted yesterday, a number of practices arose out of early election efforts that caused Congress to consider whether or not the election practice was dictated by the "legislature" of the state, such that Congress should recognize the election as valid. I'll briefly summarize a couple of these congressional debates, which are detailed extensively in the paper.

First, there are numerous instances in which direct democracy dictated election procedures in the first hundred years of the Republic. Constitutional conventions, or votes of the people ratifying statehood, would include provisions for elections. And elections that took place pursuant to those elections would usually be approved by Congress, despite the fact that they had not occurred pursuant to the law promulgated by the "legislature."

But in several other instances, Congress rejected election results on account of them occurring by some means not authorized by the legislature. When the legislature acted to supersede a constitutional provision, Congress would recognize the validity of the election pursuant to the legislature's rule. That is, while it would permit the people of a State to promulgate a rule, that rule was not insulated from subsequent legislative action; later actions of the legislature could promulgate a new rule. (Michael Morley has written much about this "intratextual independent legislature" doctrine.)

In all these cases, Congress is confronted squarely with this issue: did the election occur pursuant to a law from the "legislature" of the State, or not? If so, the election was valid; if not, it was invalid. And we have a rich body of these cases, which the Article chronicles, describing Congress's interpretation of the Elections Clause, and specifically the word "legislature."

Second, and perhaps more tellingly in a case like this, Congress has rejected the notion that the legislature could delegate its power (or have it delegated) to some other agency. In an 1865 dispute, the Senate rejected the election of a Senator elected pursuant to rules promulgated by the New Jersey legislature sitting in a joint meeting, probably (more on this below) among other reasons because the joint meeting was not the "legislature" as the Constitution defined it. And in the case of Sessinghaus v. Frost, the House rejected an election in Missouri because the city of St. Louis instituted a voter registration law--the law had not been enacted by the state Legislature. Indeed, a concurring report expressed concern that no state legislature "could delegate its authority to any other power, to any other body" under the Elections Clause.

Given that the independent redistricting commission in Arizona was a rather express delegation of power from the legislature to a commission, Sessinghaus suggests that the delegation would be unconstitutional. But why no mention of this, or any of the many other cases that Congress has decided in these areas? Congress, after all, sits as judge in election disputes. Perhaps it is because it has happily ceded this decisionmaking authority to the courts; perhaps it is because the final votes from members of Congress are not required to include a list of reasons, which makes the precedent of cases like that from 1865 dubious; perhaps it is because the Court distrusts the decisions of Congress, as it rather overtly suggested in the majority opinion. Regardless, the Court's decision in Arizona State Legislature v. Arizona Independent Redistricting Commission runs largely against the practice of Congress in the decades when it held the primary authority of reviewing elections--and, perhaps, suggests that there are more sources of authority for the interpretation of these cases than the Court may traditionally rely upon.

I found the research interesting, and the conclusions from it still developing. But they should provide for some illumination in future discussions about the validity and scope of legislative delegations under the Elections Clause in future cases--and, perhaps, some discussion about the role of congressional precedent in election disputes in such cases.

Elbridge Gerry and Ruth Bader Ginsburg on our federal system

This is the first of two posts about my forthcoming article, Legislative Delegations and the Elections Clause, Florida State University Law Review (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, "No, the only way you could make law that counts for this purpose is by the legislature thereof." We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, "That’s lawmaking." What we had in mind is who makes the law for the state.

Ruth Bader Ginsburg, conversation at Duke University School of Law, 2015

The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots.

Elbridge Gerry, comments at the federal constitutional convention, 1787

It is hard to overstate how inaccurate Justice Ginsburg's comments are. Men like Mr. Gerry aggressively fought any element of the Constitution that might veer too close to direct democracy. It's the reason so many elements of the Founder's Constitution, from the state legislature's power to elect Senators to the entire Electoral College (direct election, Mr. Gerry remarked, would have been "radically vicious"), often removed elections from the direct control of the people.

Constitutional amendments and state practice have made federal elections more directly democratic, from the direct election of Senators to the common practice of popular election of presidential electors pledged to support a particular candidate. But the Constitution continues to allocate responsible to actors other than "the people."

Justice Ginsburg, of course, was discussing Arizona State Legislature v. Arizona Independent Redistricting Commission, and the Court's opinion (PDF) handed down this summer. The Arizona state legislature challenged the existence of an independent redistricting commission, which had been created by ballot initiative and empowered to draw congressional districts, a task formerly reserved to the state legislature.

The Elections Clause (or the "Times, Places and Manner" Clause) provides, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ." The Arizona state legislature, understandably, thought that "legislature" meant "legislature," not "lawmaking apparatus."

Justice Ginsburg's off-the-cuff remarks were not the heart of the Court's judicial opinion, but some of the comments in the opinion draw quite close:

While attention focused on potential abuses by state-level politicians, and the consequent need for congressional oversight, the legislative processes by which the States could exercise their initiating role in regulating congres­sional elections occasioned no debate. That is hardly surprising. Recall that when the Constitution was com­posed in Philadelphia and later ratified, the people’s legis­lative prerogatives—the initiative and the referendum—were not yet in our democracy’s arsenal.

Apart from a rather dubious argument from silence, direct democracy did exist at the founding, even if the initiative and the referendum did not. Mr. Gerry's remarks certainly highlight that. And the people proposing or ratifying constitutions at conventions were an important and powerful device known at the time of the founding.

And within a generation of the founding, Justice Joseph Story challenged the notion that the people could alter federal election regulations. During Massachuetts's constitutional convention of 1820, Justice Story spoke out, as a citizen, to challenge the notion that the people could amend election provisions in the state constitution. That task, he emphasized, was reserved to the state legislature.

Justice Story's view did not prevail, for the people of Massachusetts did include provisions in their constitution about elections. But Congress has repeatedly been confronted with the question about whether an election was valid because it occurred pursuant to a regulation promulgated by some body other than the legislature of the state. It has a fairly extensive set of cases where it examines the word "legislature," discussions almost (but not wholly) absent from the Court's opinion.

Tomorrow, I'll summarize a few of the highlights from historical discussions, with a brief mention of direct democracy, and a more extensive analysis of delegating the legislature's power to another entity.

Puerto Rico and Electoral College reform

The New York Times recently reported on comments by Hillary Clinton in Puerto Rico about the territory's status in presidential elections:

But she also has an eye on the general election. Puerto Ricans are increasingly moving to Central Florida, where they are a key voting bloc in the swing state. In the past two elections, they have turned out in large numbers, helping hand President Obama his two victories in Florida.

And she hinted at as much as she closed her remarks in Puerto Rico.

“It always struck me as so indefensible that you can’t vote for president if you live here,” she said with a slight smile. “But if you move to Florida — which, of course, I’m just naming a state — you can vote for president.”

What may be "so indefensible" is, perhaps, simply a misunderstanding of what the Electoral College is, and has been for over 200 years. The President is elected by the electors of the several States--and, as Puerto Rico is not a State, just as the District of Columbia (prior to a special exception in the Twenty-Third Amendment), or just as many of the western continental territories prior to states, it is not entitled to vote for the President. The inability to vote, then, is wholly defensible if one understands the Electoral College as a decision of several States, and not simply of citizens (or nationals) of the United States.

That, of course, may raise an important issue of Electoral College reform, and whether such a system should exist. It's worth noting (for this is rather underdiscussed) that there's a very real difference between some of the more modest proposals (of dubious constitutionality, as I've written) to turn the present Electoral College into a functional national popular vote, and a proposal that might establish an actual national election for the President.

The National Popular Vote ("NPV") builds upon the existing system we have. It would continue to state-by-state elections, and compacting states would pledge to give their electoral votes to the winner of a plurality of the national popular vote, once we assembled all those state-by-state elections into a national tally. But it would not extend the right to vote for president to United States citizens or nationals living in other territories--the system builds on the existing electoral system. (It's also worth noting that some Americans living overseas are entitled to vote in federal elections through the Uniformed and Overseas Citizens Absentee Voting Act, but Brian Kalt has forthcoming article in the Brooklyn Law Review expressing serious doubts about its constitutionality and specifically citing disparate treatment with citizens living in other American territories as one concern.)

But if one were to conclude that the presidential election should look like a truly national election--a uniform set of standards governing all Americans who get to cast a ballot--one major question would be the qualifications of voters for that federal election. I've written about this in the Arizona State Law Journal, and the complications that would arise in taking our federalist system, of state-based rules for voter qualifications, and trying to cobble together a uniform national standard. But part of that debate might include a discussion as to the status of citizens or nationals living in the territories. Should they vote for the office of president in a national election? Such a reform effort would be much more significant in this, and other, voter qualifications areas than proposals like the NPV.

So while there are efforts to reform the Electoral College, then, it's worth mentioning that some rather significant issues in this area--such as the one Ms. Clinton referred to in Puerto Rico--would remain unresolved absent a larger conversation about what our presidential election system should look like.

Amicus briefs in support of appellants in Evenwel v. Abbott

Last week, amicus briefs in support of appellants in Evenwel v. Abbott were due. The following parties submitted briefs. I'll add the PDFs of each as I can find them (from counsel).

American Civil Rights Union

Eagle Forum Education & Legal Defense Fund, Inc.

Project 21

Tennessee State Legislators and The Judicial Education Project

Cato Institute and Reason Foundation

Mountain States Legal Foundation

Demographers Peter A. Morrison, et al.

Center for Constitutional Jurisprudence

Immigration Reform Law Institute

Judicial Watch, Inc., et al.

City of Yakima, Washington