Thinking about higher education, legal education, and Covid-19

As the novel coronavirus (or the illness it causes, “Covid-19”) makes its way across the globe, we’ve seen significant containment and mitigation measures, largely due to the high degree of uncertainty over the virus—its morbidity and mortality rate, its relative risk, and so on. It’s certainly larger than other recent outbreaks like SARS 2002 or MERS 2012. And it appears to be somewhat more dangerous than the typical seasonal flu, although the degree of danger and the effect on certain subpopulations remains deeply uncertain.

I’m no epidemiologist, so I’ll leave it at that. I did want to focus, however, on the containment and mitigation measures as they affect higher education more generally and legal education more specifically.

Universities are, of course, shutting down international study abroad programs in places with travel advisories, returning students home, and having those students self-quarantine for fourteen days. Universities are also regularly sharing the same kinds of information: the risk to the university population remains low; faculty and student travel, particularly internationally, should be flexible and responsive to ongoing changes in circumstances; preparations for distance-learning or remote learning are underway in the event of shutdowns.

These are preparations for the start of worst case scenarios, so it may never come to this at most places. At the same time, what can higher education do? Some have thoughts elsewhere, and, to be sure, many with many good ideas should be heeded. There are things the university health services should be doing, but I set those aside for the health professionals and university administrators to consider. On the pedagogical side, however, here are a few thoughts, inspired by Prof. Karen Grepin’s Twitter thread.

Anticipate the local disruption of canceled study abroad programs. If your university or your law school sends, say, 10% of its study body abroad each year, and those study abroad programs are canceled, it will be highly disruptive to the education community—the equivalent of admitting a much larger class than usual. Classrooms will be tighter, more classes or sections might need to be offered— that is, faculty might need to teach more and grade more. Student housing will also grow tighter for the term or the year. On the flip side, students from abroad may not be able to participate in programs here or may need to defer enrollment in degree programs. That loss of revenue should be anticipated now.

Begin recording or live-streaming lectures now. I have mixed feelings on recorded lectures. But schools should start doing this now, not when the university decides to shut down for a period of time. Only a few students are absent each class at the moment, so this allows faculty to start to learn how to use technology and make errors in a much smaller audience. It then becomes routine in the event the entire class must hear some lectures remotely. It also gives faculty some time to think about how pedagogy may differ online. (This is particularly true, I think, as I consider the Socratic method or the seminar discussion remotely.) If you are concerned about recorded lectures, live-streaming from Zoom or another remote presentation software in lieu of recording it may be preferable.

Accommodate sick leave for students and staff. Faculty have the greatest flexibility concerning sick leave, apart from days they teach. But ensuring that staff have paid sick leave, and are encouraged to take it, is essential to the health of the community. But related to the point above and concerning pedagogy, live-streaming lectures gives sick students—or self-quarantined students—the opportunity to stay home and not feel like they’re missing anything.

Increase exam flexibility. Whether that means take-home exams, self-scheduled exams, and flexible deadlines for exams, reducing student anxiety about remaining away from campus can be significantly helpful. It also means thinking about preparing exams that could accommodate such methods of test-taking.

I don’t have great answers. I only offer a few thoughts and hope universities and law schools are anticipating these big-picture changes that could happen in a very short time period and that could have lingering effects through the 2020-2021 academic year.

Select articles worth reading from 2019

Each year, I often find myself sharing articles on Facebook or Twitter or via email. They come and go. Sometimes they were worth sharing. Sometimes not so much. And then they pass into oblivion—at least, for me.

This year, I started tracking articles I came across that interested me and held them in reserve. I would reread them weeks later to see if they were still interesting. Sometimes they were.

These are hardly representative articles from 2019. They are often centered around academia, wildfires, law, or particular political events. Some are more for their visual essays and conveyance of content. I don’t necessarily agree with all the commentaries or embrace all the analyses. But I found them valuable. And here they are. (I may add more before December 31.)

Helen Andrews, Shame Storm, First Things, January 2019

Burton G. Malkiel, The Secrets of Jack Bogle’s Investment Success, Wall Street Journal, Jan. 18, 2019

Charles C.W. Cook, Bad, Press, National Review, Feb. 11, 2019

Sam Walker, The Truth About Failing Spectacularly, Wall Street Journal, Feb. 16, 2019

Peggy Noonan, Welcome to New York, Amazon—Now Go Home, Wall Street Journal, Feb. 23, 2019

Casey Newton, The Trauma Floor: The Secret Lives of Facebook Moderators in America, The Verge, Feb. 25, 2019

Gordon Fraser, The Twitterization of the Academic Mind, The Chronicle of Higher Education, Mar. 22, 2019

Adam Harris, The Death of an Adjunct, The Atlantic, Apr. 8, 2019

Christina Thompson, The Ritual of Renewal, The American Scholar, Apr. 10, 2019

Shadi Hamid, The Fundamental Legitimacy of Donald Trump, The Atlantic, Apr. 11, 2019

James R. Hagerty, An Obituary Writer Writes One for Himself, Wall Street Journal, Apr. 19, 2019

Ruth Simon, ‘I Don’t Want to See Him Fail’: A Firm Takes a Chance on Ex-Inmates, Wall Street Journal, May 15, 2019

Michael M. Phillips, ‘It’s a Lifelong Burden’: The Mixed Blessing of the Medal of Honor, Wall Street Journal, May 25, 2019

Doug Brock Clark, John Chau, American Missionary and the Uncontacted Tribe, GQ, Aug. 22, 2019

Jason Nark, The Last of the Dunk Tank Clowns, New York Times, Sept. 7, 2019

Cody Stavenhagen, Suits, dinners and the secret world of paying it forward in the big leagues, The Athletic, Sept. 9, 2019

Anthony Abraham Jack, I Was a Low-Income College Student. Classes Weren’t the Hard Part, New York Times, Sept. 10, 2019

Garrett M. Graff, On September 11, Luck Meant Everything, The Atlantic, Sept. 10, 2019

Dorena Williamson, Botham Jean’s Brother’s Offer of Forgiveness Went Viral. His Mother’s Calls for Justice Should Too, Christianity Today, Oct. 4, 2019

Megan H. Pesch, Driving in the Minivan—Life as a Pediatrician and Parent of a Child with Disabilities, JAMA, Oct. 1, 2019

Joseph Cerna, Want to Fireproof Your Home? It Takes a Village, Los Angeles Times, Oct. 3, 2019

Erin Ailworth, A Year After Fire Destroyed Paradise, a Gutsy Group Fights to Rebuild, Wall Street Journal, Oct. 21, 2019

Noah Buhayar & Christopher Cannon, How California Became America’s Housing Nightmare, Bloomberg, Nov. 6, 2019

Dan Levin, The Class of 2000 ‘Could Have Been Anything.’ Until Opioids Hit, New York Times, Dec. 3, 2019

Sorting out the Alabama Senate election possibilities: what happens to the votes of a withdrawn candidate?

I blogged earlier about some of the possibilities in the Alabama Senate election. One question that arose was, what would happen to the votes of a candidate who withdrew but whose name could not be replaced on the ballot? (Let me explain at the outset I view the likelihood of Roy Moore voluntarily withdrawing, or the Alabama Republican Party invoking its power to remove him, as quite unlikely at this point, but the possibility remains.)

I explained that I thought that the votes for that candidate would not count and the second-place finisher would win. But a commenter pointed me to a recent statement from Secretary of State John Merrill:

What happens if Moore is withdrawn as the nominee but still receives the most votes?

Merrill said the election would be null and void. The second-place finisher would not win.

It would then fall to the governor to call another special election.

. . .

But there might be some question about that scenario. John Bennett, spokesman for Merrill, said one interpretation of the law is that if Moore is no longer a valid candidate but receives the most votes, Jones would be declared the winner.

Bennett said the official position of the secretary of state's office is that the election would be null and void, as Merrill said.

Let me start with the text of Alabama Code 17-6-21(c), emphasis added: "The notification deadline for persons who do not wish to accept nomination in a primary election is 76 days before the date of the election. A person who does not wish to accept nomination in a second primary election shall submit the notification set forth in subsection (a) before the printing of absentee ballots. The notification deadline for persons who do not wish to accept nomination in a general election is 76 days before the date of the election. In the event that a candidate submits a notification of withdrawal after the applicable deadline, the name of the candidate shall remain on the ballot and the appropriate canvassing board may not certify any votes for the candidate." (Similar language is in (b) when a party withdraws a nominee.)

The text of that statute, in my view, anticipates that the votes for the withdrawn candidate simply do not count. That would mean that the second-best finisher wins the election.

To explain some of the distinction, this is a centuries-old dispute about what to do with the votes in such a case: the "American rule," or the "English rule."

Many jurisdictions, including Alabama for a time, would count the votes for a deceased, ineligible, or otherwise withdrawn candidate. In the event that candidate won, the election would be null and void, the office declared vacant, and a new election held. Consider State v. Stacy (Ala. 1955): "In the case before us, where it affirmatively appears that the appellant received only forty-nine of the total number of votes, but the deceased candidate received the other 1,590 ballots cast for this office, we think the better rule is that the election for this office be held null and void because of the disqualification (by death) of the winning candidate." The Court there explained that voters might well not "waste" their votes by voting for a dead candidate; they may well know that the election would be found null and void, and they might prefer a subsequent special election. Another good reasons for this approach, too--consider that in Stacy, the runner-up received just 49 votes among over 2000 ballots cast! While we may accept plurality winners, a winner with such a tiny percentage of the votes may strike the public as something less than legitimate. Accord Banks v. Zippert (Ala. 1985); Ala. A.G. Op. 2001-041.

That was, for instance, the case of Mel Carnahan in Missouri in 2000, who died the week before the election and received the most votes. That led to the office being declared vacant, the governor appointing a Senator, and a special election was later held.

If that's historically true in many places in the United States, and in Alabama, what's the alternative? The "English rule" permits disregarding the votes cast for a deceased, ineligible, or otherwise withdrawn candidate. The second-best vote total actually wins, because those ineligible votes are thrown out.

It appears that Alabama has adopted the "English rule" in the context of late withdrawing candidates. That is, when a candidate withdraws within the 76-day window, votes for that candidate are simply not totaled. It is as if voters have cast blank votes (or "undervotes") for the office.

The Alabama legislature in 2014, with unanimous support, passed HB 62, which added this language to 21(c):

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Note that the textual addition of the phrase at the end. It gives a new legal effect to late withdrawal--that is, the canvassing board "may not certify any votes for the candidate." That means, that candidate cannot receive the most votes. And that means, the "American rule" is not at play.

In the event Mr. Moore withdraws, then, any votes for him are not certified. The vote totals from the canvassing board would reflect vote totals for Doug Jones and for any write-in ballots cast. Whichever candidate among those names receives the most votes would win.

Note, too, this only extends to late-withdrawn candidates. In the event a candidate, say, died before Election Day, the "American rule" would still apply--the office would be declared vacant and a new special election would need to be called.

I have tried in vain to find any meaningful legislative history behind the addition of 21(c), but I think this is the best interpretation--and one that Mr. Merrill's spokesman admits is a possible interpretation.

California postpones an election to help one of its own

A sure sign of political manipulation of an election is delaying it. Troubled states like the Democratic Republic of the Congo, Somalia, and Haiti have recently come under United Nations scrutiny for delaying their elections.

And then there’s California, where Democrats are attempting to postpone a recall effort to hold onto a supermajority in the legislature.

In April 2017, the California legislature approved a major new gasoline tax and annual vehicle fee signed into law by Governor Jerry Brown. The tax is projected to raise $5.2 billion per year for transportation-related projects. (For perspective on the size of the tax hike, consider that the entire state of West Virginia’s total tax revenue from all sources was $5.1 billion in 2016.)

Tax hikes require a two-thirds vote of each legislative chamber, and Democrats hold precisely a supermajority in both. The tax passed with the bare minimum support in each chamber, with one Democrat opposed and one Republican vote in favor (in exchange for a half a billion dollar earmarked for special projects).

Republicans targeted Democratic Senator Josh Newman of Fullerton for a recall, which, if successful, could end Democratic supermajority control. Mr. Newman won his seat in 2016 by a slim 50.4%-49.6% margin.

Democrats complained that the recall campaign has been deceptive, as petition circulators broadcast that signing the petition would help “stop the car tax.” Rather than fight the recall in the political arena, however, they’ve tried to postpone the election.

The legislature swiftly enacted a law to include a number of dilatory tactics. First, the bill would permit those who signed a petition to withdraw their names up to 30 days after the petitions have been submitted. Many jurisdictions permit withdrawal of signatures while the petition is circulating. But to permit signers to withdraw after the petition has been submitted invites untold mischief. Recall opponents could initiate a counter-campaign to secure enough withdrawals and thwart the recall from ever happening.

Worse, the legislature enacted this law retroactively. While recall petitioners were in the midst of circulating their petition, the California legislature changed the rules on them. Petition circulators surely would have collected more signatures if such a law were on the books when they began.

The 30-day window also postpones the date of the recall, which is fixed by the California Constitution. Recalls must occur within 60 to 80 days, unless the petition is certified within 180 days of the next regularly scheduled general election. Governor Jerry Brown assuredly would call for the election at the next general election if the deadline could be pushed back long enough. So the California legislature began adding dilatory time periods to push back the recall as long as possible.

Counties must verify the validity of the signatures from the petitions, usually by a statistical sample of three percent of the signatures. They check to make sure that the signatures are authentic and come from registered voters. The new law abolishes sampling as a permissible technique and requires examination and verification of each and every signature, a costly and time-consuming endeavor. This is a thirty-fold increase in the time and cost of checking signatures. (The legislature didn’t even bother to find that recall signature fraud was a problem or that recall petitions needed special treatment from other election-related petitions. It simply made the process more cumbersome to slow it down.)

The legislature then added a 30-day window after the signature withdrawal window closes for the Department of Finance to estimate the cost of the recall. After that, the legislature tacked on another 30-day window for the Joint Legislative Budget Committee to weigh in on the cost estimate. Only then may the Secretary of State certify the sufficiency of the recall signatures.

The bill is even more absurd with its final act. After a lawsuit challenging the law, a court stayed application of the law, finding that it likely violated the “single subject rule.” California requires that laws embrace one topic, and here the legislature logrolled this election law into a budget bill. Fearing that they’d lose in court, the legislature moved with remarkable speed—in a single day, August 24, a newly-amended clean election bill made its way through both chambers and received the governor’s signature. There is a chance that a state court still finds the law unconstitutional, given, for instance, its retroactive effect, and its tenuous reasons for delaying the election.

The law will affect recalls in more than just Mr. Newman’s race. Efforts to recall Judge Aaron Persky, criticized for his lenient sentence handed down to Brock Turner, convinced of sexual assault at Stanford University, will face similar delays.

Even in 2003, when California’s voters recalled Governor Gray Davis just 9 months into his term, the legislature didn’t attempt to thwart the voters.

The successive and repeated delays all but guarantee that Mr. Newman's recall, like virtually all recall elections, will be pushes to next June’s primary election. True, Mr. Newman must still, at some point, face recall. But the California Constitution’s 60-to-80 day guarantee for recalls has become a nullity.

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

UPDATE: Please read the update at the end of this piece! Several thoughtful responses have been sent to me, and I am reconsidering whether I have this right at all! Such is the half-baked musing of a blog... I deeply appreciate feedback.

I recently read a piece on the crisis of presidential succession. The logic of the piece went something like this: suppose Russia interfered so greatly in our presidential electoral process that Donald Trump, Mike Pence, Paul Ryan, Orrin Hatch, Rex Tillerson, and everyone else in the ordinary line of succession had their legitimacy cast into doubt, a "stolen" election? Congress ought to pass a law to address this point--in particular, if Congress removes the President and Vice President (N.B.: this is, of course, the same irretrievably-corrupted Congress in which Mr. Hatch is the President Pro Tempore and Mr. Ryan is the Speaker), it should be authorized to call (N.B.: again, Congress is controlled by the same corrupt Russian stooges) for a special presidential election.

Because others appear to be taking this argument seriously, it's worth noting that it should not. Congress lacks the power to call for a special election for president.

The purported ground for the exercise of this power arises from Article II, Section 1, Clause 6--at least, the portions not altered by the Twenty-Fifth Amendment. The relevant provision reads: ". . . and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

The power of Congress is one to enact a law to "provide" for the case of the loss of both the President and the Vice President. But that "Law" may "provide" one thing: "declaring what Officer shall then act as President." That is the extent of Congress's power in this area, at least under this Clause.

The remainder of the Clause does not empower Congress to act further. "[S]uch officer shall act accordingly," the Clause explains, "until the Disability be removed, or a President shall be elected." Both are in the passive voice, and, I think, deliberately so. The last provision, "a President shall be elected," then would refer to the ordinary powers of Congress to "determine the Time of chusing the Electors, and the Day on which they shall give their votes." But as the term of office is for "four Years," Congress's power is, I think, limited to this--the "term" of the President ends after four years (now on January 20th, see Amendment XX, Section 1), and the Officer "act[s]" as president "until" the next election.

The attempt to read into these provisions a power of Congress to call a special election is still more deeply flawed. The Constitution speaks of the power to fill vacancies with the special term "writ of election." There is no such power of Congress to issue writs of election for vacancies in the office of President and Vice President.

Consider the language of the Constitution for the House. Article I, Section 2, Clause 1 provides, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . ." And in Clause 4, "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." (Emphasis added.) The ordinary process differs from the power during a vacancy, which is to issue writs of election.

When legislatures elected Senators, there was a similar provision, albeit not for writs of election. Article I, Section 3, Clause 1 provides, "The Senate of the United States shall be composed of two Senators from each state, chosen by the Legislature thereof . . . ." And in the next clause, ". . . if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." There is specific new power to fill vacancies if they arise.

The Seventeenth Amendment works the same way as the House's language. "The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years . . . " In the second clause, "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies . . . " (Emphasis added.) Again, a specific enumeration of power in the event vacancies arise.

Congress has no such power to issue writs of election when vacancies arise in the office of President and Vice President. Indeed, Congress's power is carefully (and understandably) limited to choosing successors who can "act" as president until the next election. It has no power to otherwise fill vacancies.

Indeed, Congress's power to regulate presidential elections is even more limited than its power to regulate congressional elections. The Times, Places and Manner Clause permits Congress to "make or alter such Regulations" relating to the "Times, Places and Manner of holding Elections for Senators and Representatives." But its power to regulate the selection of presidential electors is to "determine the Time of chusing the Electors, and the Day on which they shall give their Votes." Even if one believes that the power to issue writs of election for vacancies is a "manner" of regulation an election ([Robert G. Natelson offers evidence of this][1]), Congress lacks such power in presidential elections. Indeed, such a lack of power in presidential elections is one of the great reasons Congress enacted the Twenty-Fourth Amendment to abolish poll taxes in federal elections--many in Congress who thought Congress could do so for congressional elections under the Times, Places and Manner Clause believed they lacked the power to do so in presidential primaries and the selection of electors. (This is part of ongoing research I hope to share soon.)

[1]: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1751720

So Congress can't just pass a law permitting it to call for a special election to redo the presidential election if it so desires. The power to issue a writ of election to fill the vacancies in the office of President and Vice President if they arose would need to occur by constitutional amendment.

(UPDATE: I've learned that there is much more history here than my analysis offered! Congress in 1792 enacted a law that would permit it to call for a special election in the event of a vacancy. There is apparently a rich body of debates surrounding this--suggesting I should do more research before blogging! Nevertheless, I feel fairly confident my "writ of election" point is a significant textual one, even if Congress has previously disputed it. More to come one day!)

The coming battle over election system security in the United States

What's the best way to protect election systems in the United States? Is it a good thing that we have a decentralized federalist system, where the states vary, and even the counties within states vary, to some degree, preventing easy singular takeover or attack of our election systems? Or should we strive for greater oversight and best practices through more uniform standards that can be implemented across the country at the federal level?

The battle is fascinating because it eschews typical partisan lines and instead reflects deep concerns from two different groups--state secretaries of state who run elections, worried about needless cost, unnecessary regulations, and changing standards outside of their control; and federal security officials, who view different, sometimes international, threats as an essential reason for greater federal control of our elections infrastructure.

On January 6, 2017, a lame-duck Secretary of the Department of Homeland Security, Jeh Johnson, declared that election systems in the United States would be "critical infrastructure." DHS emphasized that this is not a "federal takeover, regulation, oversight or intrusion" for elections. Instead, it is designed to provide state and local officials with better assistance from DHS.

The next day, a member of the Election Assistance Commission, Christy McCormick, quickly fired back with a sharp critique of the designation, identifying problems with the scope of the designation. Compliance is purportedly "voluntary," but it appears that DHS may withhold certain information that would otherwise be available if states fail to comply. The scope of the order is unknown--indeed, it appeared to Ms. McCormick that the new things provided from the order were already available to state and local officials who requested it of DHS. And she suggested that political partisanship was involved.

This might have all the trappings of a Democrats-want-more-federal-oversight-Republicans-don't type of battle.

But soon, state secretaries of state, regardless of their partisan affiliation, began to express concern. Consider Alex Padilla of California: it "raises important questions.," and the limits are "unclear," particularly given a new incoming administration.

Soon, the National Association of Secretaries of State ("NASS") would adopt a resolution formally opposing the designation, noting problems arising from the designation, such as oversight of items that are not subject to cybersecurity threats; political opposition to the designation in Congress; and unanswered questions.

When NASS pressed DHS regarding the designation, the new administration expressed that it would continue to support the designation. Members of the Georgia legislature have already introduced a resolution calling for redesignation.

It remains to be seen what this designation actually does. As the DHS letter notes, much information was shared between DHS and the states. The designation allows from more "detail" and "tailoring," DHS explains--what value that is, I think, remains to be seen.

But NASS is concerned, understandably, that these "voluntary" commitments may no longer look so voluntary. And is that a good thing? It's easy to consider the benefits to greater federal oversight, and its significant costs. And we're observing the key stakeholders on each side of this debate preparing for a longer battle over the future of election system security.

So, in a only-somewhat-false dichotomy, what's better? A future of state-controlled, decentralized systems difficult for any single cyber threat, but potentially at greater risk in individual jurisdictions that fail to maintain sufficient standards? Or a future of federal oversight of election systems designed to provide the best practices and standards with superior procedures and oversight, but with likely higher costs, uniform standards offering less local control and flexibility, potentially increased politicization of federal standards, and greater nationwide vulnerability? I certainly can't answer it (although I think Zip disks aren't a part of future election systems security), and it'll take time to see how this relationship between DHS and NASS plays out. Let's hope the battle between them yields the best possible result for keeping our election systems safe.

Politifact fact-check: the Ninth Circuit is, in fact, the most reversed federal court of appeals

Recently, cable news personality Sean Hannity commented that the Ninth Circuit is the "most overturned court in the country." Politifact rated that claim as "false." But Politifact's analysis is seriously flawed and suffers from selective analysis of the evidence, and misrepresentation of the evidence in other respects.

I recently had the opportunity to appear on NPR's AirTalk to support a proposal from Arizona Senator Jeff Flake's office to split up the United States court of Appeals for the Ninth Circuit. The "Judicial Administration and Improvement Act of 2017" would keep California, Oregon, Hawaii, and some U.S. territories in the Ninth Circuit. It would create a new Twelfth Circuit out of Arizona, Nevada, Montana, Idaho, Washington, and Alaska.

One reason for splitting the circuit is systemic dysfunction in the Ninth Circuit. It has 29 active judges, (but four vacancies at the moment) nearly the size of the 30-member Arizona Senate (to speak on terms for those from the Grand Canyon State). That's nearly twice as large as the 17-member Fifth Circuit. It's little wonder that decisions take longer (often much longer) to issue from the Ninth than anywhere else. Splitting the circuit would help create a new "Mountain Circuit" that would function fairly effectively, and the new Ninth Circuit would remain the largest circuit in the country.

More judges might help the Ninth speed along cases, but it would not help its high reversal rate. That's because the court lacks the ability to self-correct with true en banc procedures; the entire 29-member court can't really assemble, and it's left instead to a lottery of some subset of these judges to correct errors from three-judge panels. And in a lottery of three judges among 29, some combinations are sure to be greater outliers than others. Splitting the circuit would allow it to have true en banc procedures and minimize reversal rates.

The Ninth Circuit's legacy is cemented by instances like October Term 1996, when it went 1-for-28, the stuff of legend. The Ninth Circuit is reversed more often perhaps because its size accounts for poorer outcomes.

So, to Mr. Hannity's claim that the Ninth Circuit is the "most reversed." While there are arguments raised in the Politifact piece that "most reversed" may have limited normative significance, that's a separate argument. (But, Politifact can't help itself to weigh in on the normative claim, concluding, "More broadly, experts say this statistic is a poor way of comparing courts.") Instead, as a matter of pure math, is the Ninth Circuit the "most reversed"?

Politifact says no. The answer is resoundingly yes.

Politifact chooses a cohort of data from 2010 to 2015 to conclude that the Ninth Circuit is the third-most reversed, behind the Sixth and Eleventh Circuits. But why pick this window of time?

I used the same analysis with slightly different data--Politifact uses the SCOTUSBlog Stat Pack, which is slightly simpler and less comprehensive in time than the Harvard Law Review statistics, which I opted to use (and may result in some slight variations of the numbers). Because of changes to the Harvard Law Review statistics system, I also didn't have ready access to Eleventh Circuit data between OT1994 and OT1996.

The chart below displays the cumulative reversal rate, which includes opinions from the Supreme Court that reverse a court, vacate an opinion from a court, or reverse in part or vacate in part. It is the cumulative reversal rate based on the term listed: so, for instance, OT2014 data is the cumulative reversal rate for OT2014 & OT2015; OT2013 is the cumulative reversal rate for OT2013, OT2014, and OT2015. I ran the figures for the Sixth, Ninth, and Eleventh Circuits.

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It would be hard for Politifact to manufacture a window that more perfectly enables it to refuse Mr. Hannity's claim. If you begin to include any earlier terms, the Eleventh Circuit quickly falls behind the Ninth in reversal rates; by including a 12-year window back to OT2004, the Ninth Circuit is the most reversed, and holds that trend back through cumulative data to at least OT1994.

Now, there are, of course, many ways to slice such data. Is the Ninth Circuit relatively better than it has been? (Answer: yes, but not by much--its cumulative reversal rate since OT2012 was around 80%, not much better than the rate of around 82% since OT1994). Is the Ninth Circuit not as bad as other circuits in recent years? (Answer: yes, but only with a fairly limited window of time.)

But for Politifact to so brazenly rate Mr. Hannity's claim as "false" displays its choice to evaluate his claim through a single and precise window--perhaps to achieve a result that the fact-checker desired to reach.

Below are charts for the 9th Circuit and 6th Circuit reversal rates dating back to OT1994.

9th Circuit	rev/vacate	total	rev rate
OT1994	14	17	82%
OT1995	11	13	85%
OT1996	27	28	96%
OT1997	14	17	82%
OT1998	14	18	78%
OT1999	9	10	90%
OT2000	13	17	76%
OT2001	14	18	78%
OT2002	18	23	78%
OT2003	19	25	76%
OT2004	16	19	84%
OT2005	15	18	83%
OT2006	19	21	90%
OT2007	8	10	80%
OT2008	15	16	94%
OT2009	11	15	73%
OT2010	19	24	79%
OT2011	18	24	75%
OT2012	12	14	86%
OT2013	10	11	91%
OT2014	10	15	67%
OT2015	8	10	80%
Total	314	383	82%

6th Circuit	rev/vacate	total	rev rate
OT1994	4	7	57%
OT1995	2	4	50%
OT1996	2	3	67%
OT1997	3	3	100%
OT1998	2	4	50%
OT1999	3	4	75%
OT2000	5	7	71%
OT2001	9	10	90%
OT2002	5	7	71%
OT2003	6	8	75%
OT2004	7	11	64%
OT2005	6	8	75%
OT2006	4	7	57%
OT2007	2	3	67%
OT2008	5	5	100%
OT2009	7	7	100%
OT2010	5	6	83%
OT2011	5	5	100%
OT2012	2	2	100%
OT2013	9	11	82%
OT2014	4	5	80%
OT2015	3	4	75%
Total	100	131	76%

Additionally,  and inexplicably, the Politifact analysis includes this absurd claim:

We also found that the 9th Circuit never had the highest reversal rate in any individual term between 2004-15. (That’s the farthest back we could go.)

Just as it would be wrong to look at the total number of reversals--the Ninth Circuit is the largest circuit, and we would expect it to have the most raw reversals (and the most raw affirmed opinions) over a period of years, such as 314 reversals in a little over 20 years, which dwarfs all others--it would be just foolish to look at a single year's data for which circuit had the highest reversal rate. While it sounds impressive that the Ninth Circuit was "never" the "highest" in a single year for 12 years, Politifact's own reporting in this same piece explains why a single year's data is a silly metric:

In 2014, for instance, the 2nd Circuit had a reversal rate of 100 percent, which sounds pretty bad until you find out that the Supreme Court only heard one case from the 2nd Circuit that entire season.

There are plenty of years where a single circuit's record is 0-1, or 0-2, giving it a 100% reversal rate; meanwhile, the Ninth Circuit, with an appeals load of at least 10, and often more than 15 cases, it almost assuredly guaranteed at least one decision affirming what the court did.

Politifact's fact-check, then, is false.

It's worth emphasizing that what bearing this particular claim has on the merits of a decision to split the Ninth Circuit into smaller courts is a different matter. There are many good reasons for dividing the Ninth Circuit up, which I discussed in my AirTalk interview, and which Mr. Flake's offices will surely raise to his constituents.

On the precise point raised by Mr. Hannity, however, he is, at least in some measure, quite right--the Ninth Circuit is, in recent history, the most reversed federal court of appeals.

Please notify me of any errors in the data!

Virgin Islands Supreme Court ignores federal court on election dispute

I blogged earlier about the extraordinary dispute in the United States Virgin Islands, in which the Virgin Islands Supreme Court ordered a sitting senator off the ballot because it concluded she had committed a crime involving moral turpitude that rendered her disqualified for office. In response, the governor pardoned her, and an ensuing case in federal court resulted in an order to get her back on the ballot.

I thought that would end the matter.

It didn't.

The case has become even more surreal.

In a recent decision (PDF or decisions page), the Virgin Islands Supreme Court has decided to ignore the federal court order, concluding the federal court lacked jurisdiction to hear the case; and, further, has ordered Senator Alicia "Chucky" Hansen's name off the ballot, even though ballots have been printed, absentee ballots have been sent out, and early voting is underway.

The opinion is meandering, to say the least. It includes citations to the Rooker-Feldman doctrine, the Supremacy Clause's purported distinction between Article III and Article IV courts, exercises of supplemental jurisdiction, and in personam and in rem proceedings.

There's too much to unpack here, but I'll note three brief points.

First, it notes that Senator Hansen has the ability to petition as a write-in candidate. In U.S. Term Limits v. Thornton, the Supreme Court concluded that a bar on a candidate's name appearing on the ballot was overly burdensome when the only alternative was a write-in candidacy. That, the Court found, was effectively a bar and could not cure the congressional term limits rule that left a candidate's name on the ballot. Here, too, I think the court misses the mark by arguing that a write-in candidacy is a viable alternative.

Second, it rejects not just Purcell v. Gonzalez, but also the four Supreme Court decisions handed down in the last few weeks involving litigation in North Carolina, Ohio, Texas, and Wisconsin. In each, the Court restored the "status quo" prior to an upcoming election--in three cases, allowing a contested law to remain in effect, and in one case, continuing an injunction against a law that had been challenged. Here, the court attempts to distinguish theses on a lack of a record suggesting that there's a problem in altering the ballots--this, despite the fact that early voting is actually underway in the Virgin Islands.

Third, this is the first opportunity for a case to be appealed directly to the United States Supreme Court since a recently jurisdictional law took effect; previously, cases would be appealed from the Virgin Islands Supreme Court to the Third Circuit.

We'll see if anything comes from this case. But it might serve as a fifth instance of the Supreme Court stepping in this election season and addressing the preservation of the status quo.

Highlights from Pepperdine Law this week

I don't usually highlight what takes place at Pepperdine University School of Law, but my colleagues have had a string of impressive articles in national newspapers this week on interesting subject, and I thought I would highlight them.

Michael Helfand wrote a piece in the Los Angeles Times entitled "Is a prisoner's beard dangerous?" It evaluates the upcoming Supreme Court case interpreting the Religious Land Use and Institutionalize Persons Act. It opens:

On Tuesday, the Supreme Court will hear oral arguments in Holt vs. Hobbs, another big-ticket case that tests the limits of religious liberty when it comes into conflict with government regulation. The petitioner — Gregory Holt — is a prison inmate, housed by the Arkansas Department of Correction. But Holt is also known by another name, Abdul Maalik Muhammad, and he is by all accounts a sincere adherent of Islam. As part of that faith commitment, he wants to grow his beard 1/2-inch long in accordance with Islamic practice.

It seems like a relatively reasonable request. But Arkansas prison officials have refused to grant it, arguing that a 1/2-inch beard would prevent them from maintaining the safety and security of the prison. The Department of Correction contends that Holt might be able to hide, for example, a SIM card or a razor in such a beard; the former could be used to order contraband and the latter to commit further violent crimes.

Rick Cupp participated in the New York Times Room for Debate on the site's opinion pages and wrote a piece called, "Animal Cruelty Laws Don’t Depend on Animal Rights."

Vigorous prosecution of animal cruelty is appropriate, but not based on animal rights. All members of nonhuman animal species are incapable of significant moral responsibilities, and thus affording them "rights" just doesn't fit. Rather than focusing on rights for cats and dogs, we should focus on human moral responsibility.

Finally, Ed Larson has a new book forthcoming, The Return of George Washington: 1783-1789. It was reviewed in this weekend's Wall Street Journal. The reviews explains:

If never considered exactly wilderness years, the span between the end of the war and Washington’s presidency is often seen as a hiatus in which the Virginia planter put his estate in order and then shed legitimacy on the Constitutional Convention in Philadelphia solely by his taciturn presence. But Mr. Larson, a history professor at Pepperdine University, engagingly argues that the stretch between 1783 and 1789 was as important to Washington—and to America—as all that preceded and followed it.

I deeply appreciate my conversations with my colleagues on these and many other legal subjects, and I'm so thrilled to see their successful research highlights across the country this week.