What Chief Judge Kozinski got (mostly) right in a presidential qualification case

This is the third in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

After identifying the problem of evaluating federal qualifications and examining Congress's role in the process, what's left for states to do? Enter the case of Peta Lindsay.

In 2012, she was 27 years old. She sought the nomination from the Peace and Freedom Party to run for president. California discovered that she was not eligible and excluded her from the ballot. The Ninth Circuit, in an opinion by Chief Judge Kozinski, found today that she could be excluded from the ballot. (The PDF of the opinion is here.)

The opinion is mostly right in this regard: assuming the power for a state to exclude a candidate from the ballot exists, what standard applies to reviewing that power? The First Amendment doesn't really guarantee you a slot on the ballot if you're not eligible; the Equal Protection Clause can't really help if there's a meaningful basis to distinguish between eligible and ineligible candidates, which the Constitution clearly anticipates; and the Twentieth Amendment does not demand that the Constitution vests exclusive authority to resolve presidential disputes (alluded to earlier here).

But, that all makes two important assumptions: the state does have the power to exclude a candidate from the ballot, and it has done so in this case.

As to the first, the question is more direct. The state legislature may "direct" the "manner" of appointment of electors. It may certainly decide to restrict the appointment of electors to only "eligible" candidates, and it may channel that decision-making process accordingly. The power given to Congress is not absolute (which, the Ninth Circuit emphasized, is emphatically the case with the Twentieth Amendment claim). In fact, as the selection of presidential electors is reserved to state legislatures, there is an even greater case that the power remains in the states.

As to the second, the question is more complicated. What state statute authorizes the Secretary of State to make inquiries into the eligibility of candidates? The closest statute the California Secretary of State cited was California Government Code § 12172.5, which provides,

(a) . . . The Secretary of State shall see that elections are efficiently conducted and that state election laws are enforced. The Secretary of State may require elections officers to make reports concerning elections in their jurisdictions.

...

(d) The Secretary of State may adopt regulations to assure the uniform application and administration of state election laws.

That's hardly the stuff of a directive from the state legislature to the elections officer to evaluate a candidate's qualifications.

That's not to say that it's unprecedented: in Cleaver v. Jordan, a 1968 dispute (discussed in a 2010 dispute, Keyes v. Bowen), California courts allowed the Secretary of State to exclude a thirty-three-year-old presidential candidate from the ballot.

But it is to say that courts--particularly federal courts--should be careful in treading upon the state legislature's directives to its executive officers as to how to conduct presidential elections. There was some discussion about the interpretation of the state statute at oral argument, but that all disappeared in the Ninth Circuit's opinion.

The only suggestion otherwise took place on reference to California Election Code § 6720, which says that a candidate "shall" be placed when she is one advocated for office under the Peace and Freedom Party. The court flatly rejects any exercise of supplemental jurisdiction over this issue, noting, "it has no bearing on this lawsuit, which is based entirely on federal law."

And perhaps that is the right outcome, to a point. States are left with administering the presidential ballot; it is left to state courts to wrestle with the interpretations of state laws. But even then, a court must still assume that the state is vested with the power to exclude; it is no answer to point to another provision that might compel a place on the ballot and kick that issue back to a state.

It is on this, then, that the Ninth Circuit got the Peta Lindsay dispute (mostly) right. But this assumption of the power of states to evaluate the qualifications presidential candidates remains, again, unaddressed, and merely assumed, in a judicial opinion--and it's an assumption my latest Article seeks to highlight.

Scholarship highlight: Ganesh Sitaraman, Contracting Around Citizens United

The Columbia Law Review just published this Essay by Ganesh Sitaraman, Assistant Professor of Law, Vanderbilt Law School, available as a PDF. Here is the abstract:

The Supreme Court's decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third party spending, including constitutional amendments, public financing programs, and expanded disclosure rules. To date, however, they have not considered the possibility that third party spending can be restrained by self-enforcing private contract between the opposing campaigns. This Essay argues that private ordering, rather than public action, is an additional approach for limiting third party campaign spending. It explains the design of a contract between opposing campaigns that is self-enforcing and restricts third party spending; identifies the conditions under which such a contract is likely to be offered and accepted; shows how political dynamics push third parties and campaigns to adhere to the contract's spending restrictions; and discusses possible loopholes and challenges. While private ordering through a self-enforcing contract might seem like wishful thinking, precisely this kind of contract, "The People's Pledge," succeeded in keeping out third party spending on television, radio, and internet advertising in the most expensive Senate race in history, the 2012 Brown-Warren race in Massachusetts. Since then, this kind of contract has been adopted in two other federal congressional races and debated and offered in a wide range of other races. In the context of political gridlock in Congress, the emergence of a private ordering option to achieve campaign finance reform goals is significant. This Essay analyzes the conditions under which private ordering, rather than public law reform, can limit third party spending in elections. It draws on examples, particularly that of the original "People's Pledge," to illustrate the general parameters of these contracts, and it considers the implications of these contracts for election law and policy.

Does it even matter if Ted Cruz is a "natural born citizen"?

This is the first in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

Senator Ted Cruz is an American. But he was born to a Cuban father and an American mother in Calgary, Alberta, Canada. He may run for president one day. But the office of president is limited to "natural born citizens." Is Mr. Cruz one?

Questions about the qualifications of presidential candidates are nothing new--but they certainly reached new frenzied heights as conspiracy theorists wondered whether Barack Obama was born in Indonesia or Kenya, and had manufactured a fraudulent (or concealed a nonexistent) Hawaiian birth certificate. They persisted for John McCain, too, as he was born in the American-controlled Panama Canal Zone. They lingered for Dick Cheney, who prior to moving to Wyoming resided in Texas, George W. Bush's home state, which would have precluded Texan presidential electors from voting for both candidates. And they've lingered for many other prospective candidates.

And although these election disputes seem like distant memories, they are still being litigated today--and their results could impact future hopefuls like Mr. Cruz. Indeed, the Alaska Supreme Court, in an unpublished decision Lamb v. Obama, and the Alabama Supreme Court, in McInnish v. Bennett, both addressed these issues in March; the Ninth Circuit heard oral argument in Peace & Freedom Party v. Bowen on these issues in February.

Litigants bring these questions on the merits. A candidate is included on the ballot whom a litigant believes is not qualified and should be excluded; or an election official excludes a candidate on the ballot because she believes the candidate is not qualified and the candidate sues to obtain ballot access. And most of the public debates on this issue arise on the merits of whether a candidate is or is not qualified.

But there is a predicate question: can the litigant even sue in court? This question is asked less regularly, but there are usually barriers to justiciability, particularly standing, in federal court, which means that courts often don't even answer the question on the merits.

But there's a predicate question even to this inquiry. What power do states have in evaluating the qualifications of candidates for federal office? And if they have power, where does it come from? If states have no power to evaluate qualifications for federal office, then courts need not even adjudicate these questions. In that sense, it may not "matter" whether Mr. Cruz is a "natural born citizen" for purposes of ballot access (sorry for the provocative headline); it may be simply a question reserved to other parties. Or, if states do have some power to scrutinize qualifications, is that a constitutional question or a statutory question? And what are the contours of their power?

My forthcoming article addresses these questions. Courts have been inconsistent in their approach. Sometimes, they refuse to answer the question and argue that scrutiny of qualifications is a question left to Congress or other political actors. At other times, they approve the inclusion or exclusion on the ballot, concluding that the state had the power to scrutinize qualifications.

I'll look at what qualifications are, and who has the power to examine qualifications for federal office--for Congress, and for president. I'll then figure out what role, if any, states have in scrutinizing those qualifications, and how courts should approach those questions of scrutiny.

Why aren't more journals like the Case Western Reserve Law Review?

What is the purpose of a Law Review?

It's 2013, but consulting the first issue of the Harvard Law Review (1 Harv. L. Rev. 35 (1887)) may prove instructive.

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In many ways, the purposes of law reviews have not changed in 126 years. There is less an emphasis on "news" from the law school, but from symposia to student scholarship there is a school-centered emphasis in the scholarship published. The journal seeks to assist the profession as a whole (although its success achieving this point is certainly debatable). And it hopes to provide scholarship of "permanent value."

And while the purposes (as a general matter) have not changed, neither have the means. Apart from the thickness or a journal, the frequency of publication, the length of articles, the quantity of citations, and so on, law reviews look pretty much the same. They communicate to a generalist audience with a general subject matter. They are published at a few intervals each year, in print, with a lengthy editing process. They are printed, and circulated, and the process resumes.

The bulk of student editors' work is focused on citations. While the original Bluebook manual for citations, published in 1926, did "not pretend" to be exhaustive, the latest manual spans over 500 pages, is updated every few years, and consumes the overwhelming portion of students' attention. And students have just a year in charge of the journal: they accept positions in the early spring of their second year; they hit the ground running in article selection and editing; and, in one year, they turn over their duties to another set of students who begin again. Institutional memory is limited. Rewards for innovation appear few, as the process rewards catching up and meeting short-term goals in a one-year term over long-term investments beyond one's limited term.

But the Case Western Reserve Law Review has introduced a number of innovations to share scholarship and scholarly ideas in a variety of formats, and it has reconsidered some of the traditional means of scholarship in very good ways.

It has renovated its typography and publication format. It created a font, Legal Modern, [update: it is a "a repackaged distribution of Computer Modern for lawyers, not a new design"] designed for optimization both in print and on electronic media. It includes, among other things, "true" small caps. The old wide page margins were abolished in favor of very narrow margins, a recognition that reading an article in PDF on an electronic reader like a Kindle or iPad would improve. The old printed format had different headers on even and odd pages, assuming one viewed pages two at a time; the new format assumes single-page headers.

The law review hosts a podcast, Below the Line (available on iTunes), in which a recent author and two other scholars in the field discuss the author's recent work. It produces an organic and often lively discussion of the recent scholarship, and it provides an alternative outlet for learning about the work.

Its Twitter account is active, with a sense of humor and a high level of engagement. It accepts submissions via Twitter. It launched a Twitter symposium, first "Terrorism and Miranda," then on the Court's decision in Myriad, in which it retweeted law professors' thoughts on the matter and noted the "organic and lively" discussion that took place. And it's sponsoring a Lego Supreme Court giveaway for those who review a recent article published in the Law Review. It's more than simply a feed repeating the titles of articles: the social media is used as a different kind of presence.

(Let me offer a small word about letterhead bias and Twitter. The Cornell Law Review has a single tweet from 2010 and has over 400 followers. The Duke Law Journal has no tweets and over 350 followers. In contrast, the Case Western Reserve Law Review has interesting and unique content, an engaging and interactive presence, but boasts just over 250 followers. It's staggering to me that such a disparity exists.)

When I asked the Law Review about the barriers to innovation given a limited institutional memory, I was told that the enthusiasm from the previous editorial boards helps drive future boards to take the innovations and develop them. The ideas have been communicated to the new staff members at a very early stage with the hopes that they will take the inheritance and continue to improve upon the foundation created.

And what about the print edition itself? Well, the Law Review is going to preserve that form for a while longer, but I may have some words on it in a post to come. 

Why aren't more law reviews doing it?  Admittedly, institutional memory is a significant problem, as are the seemingly pressing short-term goals. But with vision and a staff that buys in, positive changes can occur. 

So take note, law reviews, about the changes that the Case Western Reserve Law Review has begun--and keep an eye out for future changes.  This is the way to operate a law review.

Special thanks to Volume 64 Publisher Elizabeth Horan for taking the time to discuss the Case Western Reserve Law Review with me.

Scholarship highlight: Kirsten Nussbaumer, The Election Law Connection and U.S. Federalism

Kirsten A. Nussbaumer has just uploaded a revised draft of her piece The Election Law Connection and U.S. Federalism . The intersection of elections and federalism is a personal fascination of mine, and she highlights its uniqueness in the American system:

Addressing the comparative-federalism literature, this article offers a sketch of how the unique character of U.S. election law may have shaped U.S. federalism as a whole -- hypothesizing that the extent to which each level of government has controlled the other's electoral arena may have partly determined each government's relative policy autonomy, and thereby impinged upon the direct constituency relationship between each level of government and its voters.

The article proposes that we view "the election-law connection" between state and federal officials as a central field where 'federalism happens' -- where the making and implementing of a shared election law has given rise to linked electoral incentives and intergovernmental networking, expressed most notably in strategic relationships that are keyed to state and local decision-making forums.  Over time, the law of U.S. federal elections has exhibited complex patterns of mutual dependence between federal and state officials, but the dominant pattern has been a state-tilted story of subnational control over federal election law -- to the extent that it may be meaningful to conceptualize the election-law connection as a 'constituency relationship' that tends to work to the benefit of the state and local actors who exercise control over the federal electoral arena.  This electoral dependency of federal officials may have created a tendency towards greater federal respect for the institutional prerogatives of state and local governments, though the relationship is dynamic and contingent, interacting with other interests and factors such as the prevalence of divided or unified party government at the national and state levels.

The argument -- while offered as an exercise in deductive theory-building more than empirical conclusion -- is illustrated with recent election-law examples, especially intergovernmental communications about congressional redistricting that exhibit patterns of federal-to-state lobbying (a decentralized or 'downward' pattern not previously considered in the scholarly literatures).  The election-law connection is also explored through a reading of two canonical texts in the literature on "political safeguards of federalism" (Herbert Wechsler 1954, Larry Kramer 2000), joining their insights about constitutional history and political parties with the election-law-focused account here (itself, a friendly amendment to that theory), while contending that the "political safeguards" explanation of U.S. history is more plausible when combined with a relational, strategic understanding of election-law incentives.

Finally, the constituency conception of the election-law connection gains added plausibility through a consideration of the large gap between, on the one hand, Congress's arguable preemption power over federal elections and, on the other hand, the historical patterns of relative congressional abstention in formal law-making, and the federal legislative tendency to de-centralize many partisan and factional conflicts about election law.

 

New work: "Disfavored Candidates and the Democracy Canon"

The Florida Law Review Forum kindly invited me to offer a response to Chad Flanders's recent article, "Election Law Behind a Veil of Ignorance" (PDF).​ Here's my response (PDF), "Disfavored Candidates and the Democracy Canon." And here's the opening:

"Democracy" is a chameleon-like word, used almost everywhere and meaning almost anything. Chad Flanders's thoughtful article in part disciplines the meaning of "democracy" when it draws an important distinction between popular democracy and legislative democracy when interpreting election statutes and evaluating the applicability of the Democracy Canon. Indeed, in statutory interpretation, we often justify canons by democratic values, particularly the accountability of the representatives who promulgate those statutes.​

Recent election law cases in the Harvard Law Review

The Harvard Law Review often has excellent summaries of recent notable cases. The April 2013 issue has two summaries of note in the area of election law.

Fourth Circuit Holds that Ban on Corporate Direct Contributions Does Not Violate the First Amendment. United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012), cert. denied, No. 12-579, 2013 WL 656067 (U.S. Feb. 25, 2013), 126 Harv. L. Rev. 1707 (2013).

​Eighth Circuit Grants Injunction Against Minnesota Reporting Requirement for Independent Corporate Political Expenditures. ​Minnesota Citizens Concerns for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012) (en banc), 126 Harv. L. Rev. 1715 (2013).

Scholarship highlight: Michael McConnell, In Defense of Citizens United

Michael W. McConnell, In Defense of Citizens United (forthcoming Yale Law Journal)​.

Professor McConnell ​emphasizes he is not an opponent of reform efforts:

Unlike some defenders of Citizens United, I am not hostile to efforts to reform our system of campaign finance, which is a disgrace. I believe the current system favors incumbents and breeds an unhealthy collaboration between government and powerful entrenched economic interests, both labor and corporate, at the expense of small business, ordinary citizens, free enterprise, and the forces of economic change. I find the majority’s sunny dismissal of the corrupting influence of independent expenditures wholly unpersuasive. In the past I have proposed campaign finance reforms that avoid these pitfalls, would serve better to democratize elections, and would pass constitutional muster.​

At 2-3.​

His first point looks at the Press Clause. He notes problems with the Press Clause in attempts to regulate corporate spending to speak on behalf of a candidate; I excerpt one point here:​

Although I am unaware of any litigated cases on the point, it probably does not matter whether a newspaper or documentary producer is non-profit. Because the Press Clause forbids the licensing of the press, it would seem to follow that the government has no authority to regulate the financial structure or source of funds of an organization as a condition to the right to publish.​

At 9.​

​His second point challenges the contribution-expenditure distinction. He notes there is a majority on the Court that would abolish the distinction, but that this majority fractures on Congress's proper role in regulating contributions and expenditures. I'll just pick one of his points here as he critiques the conclusion in Buckley v. Valeo that (and this is greatly simplified) a contribution to a candidate can be limited because any contributions symbolizes allegiance to the candidate:

To say that contribution limits impose no significant restraint on speech is like saying that a 15-minute limitation on labor picketing would be fine, on the theory that once the picketer has engaged in the “symbolic act of picketing” there is no point in keeping it up.​

At 33.​

A thoughtful read.​