Sorting out the Alabama Senate election: could the governor reschedule the special election?

Whew. After musing about possibilities in the Alabama Senate special election, and digging deeper into vote-counting for a withdrawn candidate, a new scenario has popped up: the governor postponing the election. As reported in the New York Times:

State law gives the governor broad authority to set the date of special elections, and Ms. Ivey, who is a Republican, already rescheduled the Senate election once, after inheriting the governor’s office in April when her predecessor, Robert Bentley, resigned in a sex and corruption scandal. Ms. Ivey’s advisers have not ruled out exercising that power again, according to Republicans in touch with her camp, but she has signaled that she would like reassurances of support from the White House before taking such an aggressive step.

. . .

But there is no apparent precedent for rescheduling an election so close to the planned vote, Republicans acknowledged. In addition to state election laws, such an extreme step could also run afoul of federal voting rights law.

The thought goes, I suppose, that a delay would give extra time for Mr. Moore to withdraw (voluntarily or involuntarily), and such a withdrawal, which might occur outside of the 76-day withdrawal window, would permit the party to replace Mr. Moore's name on the printed ballot.

Could this actually be the case? I'm not so sure. (I'll only address here a proposal to postpone the election, not to cancel it, and it would not require any action on the part of the legislature. I won't address whether independent Alabama constitutional rights would prevent this action from the governor in a voting rights context. I'll also emphasize, a I did in my last post, that this appears quite speculative, as Governor Kay Ivey has indicated no intention of changing the election date. Finally, I'll only discuss Alabama state law. I won't discuss the possibility that this act might run afoul of federal law or the United States Constitution.)

First, Ms. Ivey "rescheduled" the special election after Governor Robert Bentley resigned. Mr. Bentley had previously scheduled the special election to coincide with the 2018 regularly-scheduled primary and general elections. Each did so ostensibly pursuant to Alabama Code 36-9-8: "Whenever a vacancy occurs in the office of senator of and from the State of Alabama in the Senate of the United States more than four months before a general election, the Governor of Alabama shall forthwith order an election to be held by the qualified electors of the state to elect a senator of and from the State of Alabama to the United States Senate for the unexpired term. If the vacancy occurs within four months of but more than 60 days before a general election, the vacancy shall be filled at that election. If the vacancy occurs within 60 days before a general election, the Governor shall order a special election to be held on the first Tuesday after the lapse of 60 days from and after the day on which the vacancy is known to the Governor, and the senator elected at such special election shall hold office for the unexpired term."

But Mr. Bentley faced a legal challenge to his scheduling of the special election. He claimed that he had authority to push the election back to the general election. Challengers noted that he must "forthwith order an election" if the vacancy occurred "more than four months before a general election," and that only in instances where the vacancy occurred between four months and 60 days of the next scheduled general election could the governor hold the special election concurrent with the general election. A memorandum from the Legislative Reference Service concurred.

These are interesting matters of statutory interpretation under state law. But if Mr. Bentley lacked the power in the first place (that is, his original writ of election was inconsistent with Alabama law), then Ms. Ivey's pronouncement for an earlier special election was not a "change" or a "reschedule" of the special election; it was the first valid writ of election issued. While the Times describes this as a "rescheduled" election, the legal effect matters. If Mr. Bentley's original election lacked the force of law, Ms. Ivey practically (but not legally) rescheduled the election.

So, is there anything that constrains the governor? At least some constraints appear in the statute and its interpretation (apparently flouted by Mr. Bentley). But consider other relevant portions of the messy Election Code.

Consider constraints on the governor's power under Alabama Code 36-9-9: "The Governor . . . must give notice of a special election to elect a senator for an unexpired term in the same manner and for the same time as is prescribed for special elections to fill a vacancy in the office of members of the House of Representatives in Congress."

That refers to Alabama Code 17-15-3: "All special elections provided for by this chapter are to be ordered by the Governor, who must issue writs of election, directed to the judge of probate of the counties in which such election is required to be held and must specify therein the district or county in which, and the day on which, such election is to be held; the cause and object of the same; the name of the person in whose office the vacancy has occurred and, in all cases in which a special election is directed in a district composed of more than one county, such election must be directed to be held on the same day in each county." And Alabama Code 17-15-4, "The Governor must give notice of any special election for representatives in Congress, or state officers, by proclamation." Finally, Alabama Code 17-15-7, "Special elections are to be held and conducted, the returns thereof made and certificates given, and, unless otherwise expressly provided, regulated in all respects by the provisions in relation to general elections."

It's very hard for me to read these statutes together to suggest that the Alabama legislature has empowered the governor to schedule and reschedule, unilaterally, without constraint, special elections. First, 36-9-8 already places some timing restraints on the governor. Second, portions of Title 17 limit the discretion given to the governor, as special election are largely designed to resemble general elections.

The Seventeenth Amendment includes this relationship between the governor and the legislature: "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: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

I think the best way of harmonizing these statutes, and the way that events have transpired so far, is that Ms. Ivey's scheduling of the special election was the first valid proclamation from the governor (and that Mr. Bentley's proclamation was void under state law); and that she lacks the power to change the date. But, others may differ... and I'm always happy to consider competing theories or a more complete understanding of state statutes.

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):

View fullsize

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.

Sorting out the Alabama Senate election possibilities in light of Roy Moore

After recent scandalous news surrounding Alabama Senate candidate Roy Moore, some have wondered what might happen in Alabama. There are just two candidates on the ballot, Mr. Moore and Doug Jones.

Mr. Moore cannot be replaced. Alabama Code 17-6-21(c) requires any withdrawal to occur at least 76 days before Election Day; we're about a month out now. It's the same deadline for parties to replace their nominees under 17-13-23. It used to be 45 days until a series of 2014 amendments.

It's understandable that we have pretty early withdrawal deadlines. The dramatic expansion of early and absentee voting around the country, coupled with the long lead time to print ballots and then mail them, especially to overseas uniformed military personnel, has pushed these deadlines out.

But, withdrawing does have an impact, even if no can can replace him. That is, if Mr. Moore withdraws from the race, votes for him would not be counted: "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."

UPDATE: Per an exchange with @Taniel on Twitter, I construe this to mean that in the event Mr. Moore withdrew, but still received the most "votes," the second-best winner would actually win the race, because those "votes" for Mr. Moore would not be counted. It would be as if there were no candidate at all. It does not mean that there is now a vacancy in the office. I think that's the best reading of 21(c) (and this provision was added in 2014, with no meaningful legislative history that I can find). FURTHER UPDATE: It appears that Alabama in 2014 overrode several previous state supreme court holdings on this subject. Alabama had adhered to the "American rule," which would count votes for deceased, ineligible, or other withdrawn candidates, and in the event that candidate won, the office would be declared vacant and a new election held. The "English rule," a version of which Alabama adopted, disregards votes cast for such candidates. I have found no particular motivation for doing so (as of yet!).

UPDATE: There's a similar set of rules in 21(b) for instances in which the party withdraws its support for the nominee. It isn't clear to me from the Alabama Republican Party how it might go about doing that--in a sense, stripping the nomination from Mr. Moore to render all votes cast for him as null. But, it is also there in the statute.

Anyone may be a write-in candidate in Alabama. Alabama law does not require pre-election filing requirements for write-in candidates. Its write-in law hasn't been used much but was recently heavily revised in 2016. That means that anyone can start a campaign right now and run as a write-in. The last write-in to win a senate election? Lisa Murkowski in Alaska, 2010. Before that? Strom Thurmond in South Carolina, 1954.

Alabama's "sore loser" law does not prevent Luther Strange from running a write-in campaign. Alabama does have a "sore loser" law that prevents a candidate from appearing on the general election ballot if he lost the primary election. But that condition does not apply to write-in candidates--only candidates whose names might appear on the ballot. The Alabama Secretary of State has made this clear. Some have mentioned memoranda from Mr. Strange expounding upon the "sore loser" law. But those refer to printing the name on the ballot; they do not extend to write-in candidates.

A court could pull a "Torricelli" from 2002. In 2002, Robert Torricelli withdrew 35 days ahead of the election. State law prohibited filling vacancies within 51 days of the election. The New Jersey Supreme Court in Samson concluded that in order to effect the state legislature's desire that the popular will of the people control the outcome of the election, and given that it would be feasible to replace Mr. Torricelli's name on the ballot despite some absentee ballots already having been sent out, it would be acceptable to create a judicial exception to the statute and permit a replacement.

There are good reasons, I think, why these kinds of judicially-created post hoc exceptions are not terribly persuasive to me; Bob Levy in 2002 offers his scathing critique here. In contrast, Professor Rick Hasen offered a defense of such moves under the Democracy Canon, to extend deadlines to benefit voters.

Regardless of what one thinks is right, it's a claim that might be made to the Alabama courts. Even there, complications remain. As Professor Hasen notes, many overseas voters have already received ballots, and it might be a challenge to get them replacement ballots in time for the election.

In the event Mr. Moore withdraws, however, recall that votes for him do not count. A court balancing the equities (assuming it's persuaded to create a judicial exception to the replacement statute) might conclude that in the event the candidate has withdrawn, and the overseas voters' votes for that candidate might not count anyway, it may be the case that replacing a candidate would be acceptable.

If this occurred, then, I think, Alabama's "sore loser" law would still remain in effect, and Mr. Strange could not be the replacement. But I'm less confident of how this might work....

In the event I have updates, I'll revise this post as necessary.

Partisan gerrymandering: never trust John Kasich with any power or responsibility

This is the fourth in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here. The third is here.

Among the many amicus briefs filed in behalf of the plaintiffs and appellees challenging Wisconsin's state legislative district maps, one can find many current and former elected officials, Republicans and Democrats. One of those is Governor John Kasich of Ohio.

In 2011, Mr. Kasich signed into law a new congressional map for the State of Ohio, described by some as one of the most gerrymandered maps in the country. He was, quite literally, in a singular position as an elected official to veto the map and, as an actor in the political process, take a "stand" against partisan gerrymandering.

Instead, here, six years later, he has asked the Supreme Court never to trust him again--indeed, he has represented to the people of Ohio that he cannot be trusted with power or responsibility. He has asked the federal courts to step in and help draw district maps, because he cannot be trusted to do so.

It is a rather shocking thing, to me, at least, to read so many elected officials happily asking the federal courts to take political power from them, and expressly on the basis that they cannot be trusted to use it responsibly. That, I suppose, is par for the course for many politicians in our time of delegation to the administrative state and a reluctance to engage in the hard decisionmaking required of them. And it is, I suppose, to be expected for those currently (and, of course, temporarily) in the political minority in their jurisdictions, who may be tempted to seek an immediate and expedient solution to their political challenges.

But reading these pleas from politicians should be jarring. Some, I imagine, would read it very differently from the way I do--that is, they view this as the ultimate cry for help from a political process that cannot effectively respond in an effort to secure some help from a place of last resort, the federal courts. I, however, see it just the other way--the disappointing response of elected officials who hold the power and fail to exercise it responsibility, then seek to discard it into the responsibility of another.

Quick thoughts from today's oral argument in Gill v. Whitford

This is the third in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here.

Here are a few quick running thoughts from today's oral argument in Gill v. Whitford. This post will be updated. The transcript PDF is here.

Standing? A question mostly ignored in the run-up to argument was the question of standing, because plaintiffs challenged the entire map, not specific districts. But it lurked in the background: Professor Ned Foley has mentioned it, and it's been looming ever since the Court accepted the case leaving open the question of jurisdiction. Right off the top, Justice Kennedy concedes, "You have a strong argument" on the standing issue. That remains a major question as the case moves forward. I wonder, however, if Justice Kennedy feels more comfortable with a more, shall we say, "creative" standing analysis if the claim arose under the First Amendment, a place known for exceptions to standing (e.g., the overbreadth doctrine). When the appellees rose to argue, Chief Justice Roberts came out of the gate calling it "arresting" to have racial gerrymandering claim that must be district-specific but partisan gerrymandering statewide.

Justice Kagan pushed back that in one-person-one-vote cases, the person in an overpopulated district can challenge the entire map.

First Amendment v. Equal Protection: Justice Kennedy has long suggested he prefers the case to turn on the First Amendment rather than the Equal Protection Clause. He returned to this theme repeatedly in this argument, too. A three-judge panel in Maryland seized on the First Amendment claim earlier. Whether it's a better doctrinal foothold is one thing; whether it gives rise to a more workable standard is another. Only time will tell.

Justice Breyer's Multi-Step Test: He quick offered a multi-step test. First, was there one-party control? If not (e.g., a bipartisan commission), end of case. (As a note, this would tend to insulate a good number of partisan gerrymandering challenges.) Second, is there partisan asymmetry? (And here the "efficiency gap" makes an appearance.) Third, is it "persistent" over a "range of voters." Next (he didn't number it), he looked to whether it's an "extreme outlier." Finally, then ask if there's "any other motive" or justification. Justice Breyer wasn't "positive" it's manageable but offered it quite early.

Justice Kagan and Evidence: Justice Kagan pinned Wisconsin on points about the evidence. She emphasized that if legislators are capable of considering the evidence, why not courts? She noted that there's "good evidence" of partisan intent, and intent that led to an effect, "which was to entrench a party in power." She tended to emphasize the problems in this record and the capability of the courts to handle it. What that looks like in a standard is a different matter.

Justice Kagan also believed that Wisconsin went "over pretty much every line you can name," but wondered about line-drawing for future cases to prevent "a world in which in every district somebody can come in and say: A-ha, there's been a violation of partisan symmetry; we're entitled to a redrawn map." The word "outlier" arose as a possible standard.

Justice Gorsuch and Guidance: Justice Gorsuch wondered how the Court's standard might guide the legislatures in the future: what would it need to know "to avoid having every district and every case and every election subject to litigation"? He wondered, "how durable" the efficiency gap might look like in the event a standard like Justice Breyer's was adopted. He later worried that "it would yield about a third of all the districts in the country winding up in court."

Predictability of voters: A common theme was not just durability, but the extent to which voters' preferences are predictable--and the relevance that should have. Justice Kagan and Sotomayor noted that the legislature wanted to maximize Republican seats, and it predicted how voters behaved, and they did a great job in doing so--the predictions were quite accurate, so why complain that voters preferences might vary from case to case? Chief Justice Roberts, in contrast, was concerned that it was "stereotypical" to assume that voters are going to vote simply based on partisan affiliation, and that people "vote for a wide variety of reasons."

The judicial function: Chief Justice Roberts emphasized the concern that if courts throw out a map because one party wins too often, "the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state." He worried, "It is just not, it seems a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn't sound like language in the Constitution." He continued that it would sound like "sociological gobbledygook."

Justice Gorsuch later wondered where the judicial power resides; Congress has the power, why judges? (Justice Ginsburg rejoined that one-person-one-vote came from the same place.)

Proportional representation? Proportionality only made a brief appearance when Chief Justice Roberts suggested that partisan asymmetry sounded "exactly like proportional representation to me," something "which has never been accepted as a political principle in the history of this country."

Guarantee Clause: It made a brief appears when Justice Gorsuch, no stranger to the Clause!, raised the issue that the heart of the claim was really a more specific claim in the Guarantee Clause rather than an Equal Protection Claim.

Prediction: No prediction from me! Nothing terribly remarkable from oral argument, but Justice Breyer's suggested path might be a starting point in the event the Court does decide to articulate a test. The question of a limiting principle, as Justice Kagan suggested, would be firm in their minds. I do expect, however, an important standing analysis to follow....

Partisan gerrymandering: a problem with an assumed solution

This is the second in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here.

I'll stipulate it. Partisan gerrymandering is a problem. And it has long been a problem. From the early days of the Republic to the present, it has vexed the political process.

But if that is a problem, the question is, what should the solution look like? Or, more specifically, who should fashion the solution?

Even if partisan gerrymandering is a problem, a solution that turns on the federal judiciary assumes that it is best suited, or suited equally with the political branches, to address the problem. There has been no meaningful argument that the federal courts are to be a last resort (a weaker version of the justiciability claim) or that they lack the institutional competence to handle these matters (the basic argument concerning the "political question doctrine").

Indeed, even in Baker v. Carr, the Court went out of its way to point out the (practical) political futility of trying to change redistricting by the political process, emphasizing that the people of Tennessee lacked the initiative power to amend the state Constitution to address concerns about malapportionment in the state legislature. (Of course, I should note, the people of Wisconsin also lack that power!)

It will inevitably stifle any innovation at the state level. Florida, California, and Arizona are just a few of the states that have initiated efforts to change how redistricting occurs in each state. (Arizona's even survived a legal challenge, albeit, I think, dubiously.) Florida added a constitutional amendment with fairly specific provisions that invited state judicial involvement; California created a citizens redistricting commission to draw the lines; Arizona developed a bipartisan redistricting commission. Whether these are the right solutions (as each is different) is probably a question of perspective.

But, I think, political, state-based efforts like these will be overwhelmed by litigation in the federal courts in the event the Supreme Court articulates a constitutional standard and finds that Wisconsin's redistricting runs afoul of it. True, some states (or, probably more specifically, their voters!) might want to go above and beyond this standard. But I do think that political innovation will dry up fairly quickly.

State law in Wisconsin already provides some modest protection against gerrymandering. The Wisconsin Constitution requires that state legislative districts be "contiguous territory and be in as compact form as practicable," and that "no assembly district shall be divided in the formation of a senate district." These help prevent--but by no means end!--some manipulation in redistricting.

And the governor--from a statewide elected office--is still involved in redistricting. To the extent the legislature has entrenched itself, a statewide, non-districted office remains a part of the process.

All this is to say that a three-judge federal court stepping into a traditional political area, and longstanding state practice, is the assumed solution in this case, and it is not immediately obvious that ought to be so. When courts articulate a standard, or apply their own judgment to a case, it simply looks different than political or state law-based redistricting. It is by no means obvious to me that the flaws of a few federal judges (and the litigation that surrounds such cases) are going to be somehow better for our democracy than the messy, sticky politics we've slogged through for a couple of centuries.

Some, of course, have pointed to the fact that only in cases of extreme partisan gerrymandering should courts intervene, or that this era is unique in partisan gerrymandering (to be fair, a claim made in the 1980s and 2000s in the last go-arounds, too). But to invite federal courts to weigh in on the state legislative redistricting process is, I think, significant to a degree not sufficiently recognized (in my own view!) in the discussions surrounding partisan gerrymandering so far. That is, even if gerrymandering is a problem, assuming that the federal courts are the best (and, indeed, they will become the prime place if the appellees succeed in Gill v. Whitford), or the necessary, place for such a solution is, I think, a logical step that requires something more.

Partisan gerrymandering: a scatterplot clause in the Constitution

This is the first in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week.

The Supreme Court is set to hear Gill v. Whitford, an appeal from a three-judge panel finding that Wisconsin's state legislative redistricting was an unconstitutional partisan gerrymander. A read of the amicus briefs in support of the appellees, however, suggests that the resolution of this case doesn't have much to do with the Constitution.

Among the 32 amicus briefs filed in support of appellees, just 12 even bother to cite the United States Constitution (from my review of the tables of authorities). Among those, just eight cite the most relevant texts: the Fourteenth Amendment (the basis for the finding that partisan gerrymandering claims are justiciable under the Constitution in Davis v. Bandemer) or the First Amendment (Justice Kennedy's suggested alternative constitutional provision for assessing partisan gerrymandering claims in Vieth v. Jubelirer). Indeed, even the brief of Constitutional Law Professors fails to cite the Constitution. And the appellees themselves do not cite to the Constitution, either. [UPDATE: A commenter below notes that the briefs do refer to these constitutional provisions in other places. The Constitution is not cited or included in the Table of Authorities, but it is referred to.]

Briefs understandably do different things. But most appear to drift away from any attempt to figure out what the Equal Protection Clause means: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."

The briefs, and the public commentary surrounding them, have focused on something else: political evidence and political science data surrounding Wisconsin in particular and redistricting generally. Maps showing old and new district lines and political boundaries, shaded maps with voter preferences, bar charts, and scatterplots overwhelm the discussion.

It's true that the bulk of the case is about what evidence courts can, or should, use when evaluating a partisan gerrymander. But that gets a bit ahead of the first question, in my view: what does the Constitution demand in redistricting? That is, what does it mean to "deny" a person (perhaps, in particular, a voter) the "equal protection of the laws"? It appears to me, at least, that this question of law has been relegated to an assumption or afterthought as the data and tools and evidence dominate the debate. Others, I'm sure, may disagree, pointing to the language from cases like Bandemer or Vieth in establishing the relevant legal standard. But, I think, given the uncertainty for three decades in these partisan gerrymandering cases, I think spending time working with the text of the Constitution remains a question of prime importance.

Incumbent protection likely biggest effect of California moving presidential primary to March

California's SB 568, which has been sent to Governor Jerry Brown for his signature, would move the presidential primaries from June to the first Tuesday after the first Monday of March.

There’s an old saying applied to many business decisions reflecting the tradeoffs that must be made: “Fast, good, or cheap—pick two.” For presidential primaries in California, the saying might be modified: “Competitive, influential, or cheap—pick two.” The California legislature is trying to plan a presidential primary that is both cheap and influential, but doing so would make most elections in California less competitive. At its outer bounds, that may be unconstitutional, but the answer on this question is far from clear.

California had for some time held its presidential primaries in March. In 2008, it pushed that primary back to February and was part of a glut of states that held primaries on a “Super Tuesday.” But California voters didn’t exercise outsized influence because so many other states were holding primaries the same day. And a primary that early was costly—it cost about $100 million to hold that primary, and voters would still have to go to the polls twice more, once for congressional and state primaries in the summer and once for the general election in November.

Rather than burdening voters with three trips to the polls in one year, California consolidated the presidential primary with its June state primaries. That saved money in the state budget, too. But it came at a political cost—one of influence. By June, there is little influence left for California voters in a presidential primary. In 2016, for instance, Donald Trump and Hillary Clinton had all but secured their parties’ nominations.

Of course, by the first week in March, many candidates have already dropped out of the race after Iowa, New Hampshire, South Carolina, and Nevada have voted. But, the opportunity to influence the selection of the presidential candidate is certainly at least somewhat greater in March than June.

Then came a couple of complications. A March presidential primary would return to a third election in that year. A concern is voter fatigue, but the greater concern for California is another nine-figure election. So the legislature chose to push all primaries back to March in presidential years. That yielded some uncertainty in non-presidential years and might confuse voters or cause irregularities by having primaries back in June for those off-cycle years, so the legislature then chose to put all primaries in March.

Just a handful of states in 2016 had congressional primaries in March: as far as I could discern, Alabama, Arkansas, Illinois, Mississippi, Ohio, and Texas were the only states that hold congressional primaries that early. Many jurisdictions hold primaries much closer to the general election, often in September.

There are good reasons for later primaries. They give potential candidates a longer opportunity to consider challenging an incumbent or entering the race for an open seat. They also allow voters to consider more political information about a candidate, particularly an incumbent, before voting.

A March primary in California, however, means that challengers must file by the December before, and enter the race (and begin collecting signatures) well before that. For a two-year House race, that's a very long lead time. Granted, in many contemporary cases, candidates for office frequently announce their candidates well before this time period. But that is out of choice, not necessity.

It also has the effect of insulating incumbents. Incumbents will have much more limited political accountability if candidates must file so early. If an incumbent sees no serious competitors, that incumbent may feel sufficiently insulated and politically unaccountable to act without regard to voters' preferences. The earlier the field is set, the more confident the incumbent can be, either at the filing deadline in December or after the primary in March.

It can have very practical effects. Assuming the law took effect for 2018, for instance, a sitting member of the House could shoot someone at the Rose Bowl on New Year's Day in 2018, but might not face any new competitors in the March primary or the November election. Competitors could only enter the race for 2020. It's a practical effect that redounds to the benefit of incumbents.

A further complicating factor is California’s “top two” primary. The top two voter-getters in the March primary will face off in the November general election. That might be two candidates from the same party, or a fairly marginal candidate in a race without much likelihood that the incumbent would lose, further ossifying the effects of an early primary and insulating the incumbent.

Here's where the constitutional element comes into play. In Anderson v. Celebrezze in 1983, the Supreme Court concluded that a March filing deadline for a November presidential election was too severe a burden, too stringent a ballot access requirement, to withstand constitutional scrutiny. The case included some qualifications about one state impacting a presidential election, which may, in turn, limit its value in applying the precedent in quite the same way with congressional or state offices.

But, importantly, California's top-two system limits opportunities in ways these other states with early filing deadlines don't have. Because other states may permit independent candidates to secure ballot access much closer in time to the election (because they aren't participating in a primary), there are more opportunities than in California, which will require filing in December the year before an election.

The Ninth Circuit in Washington State Republican Party v. Washington State Grange in 2012 approved of the burdens on minor-party candidates in Washington's top-two system, but emphasized that the "primary is in August, not March." And that was a concern raised by the Libertarian Party, not an independent candidate (i.e., one who was not seeking a nomination from a party).

We shall see if anyone raises a sufficient constitutional challenge to this early primary. But it's worth emphasizing that the constitutional issues, while present, are only one concern. The more significant, practical concern remains, in my view, the increased insulation of incumbents who seek reelection.

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.