Weaponizing the ballot: voters sue to keep candidate off ballot for unpaid campaign finance fines

Richard Winger over at Ballot Access News has the details about a lawsuit filed in federal court challenging a candidate’s appearance on the ballot. Brenda Jones, a former member of Congress, is challenging incumbent Rashida Tlaib in the Democratic Party primary in a congressional district in Michigan. Plaintiffs in this lawsuit claim Ms. Jones falsely attested that she had no unpaid campaign finance fines, when she apparently did.

In Weaponizing the Ballot, I emphasize that even fairly light restrictions on a candidate’s ballot access that do not pertain to the “manner” of holding an election—that is, procedural rules pertaining to an election—would run afoul of the Constitution’s enumerated qualifications for federal office and exceed a state’s power under the Elections Clause. The claim holds here, in my view—the lawsuit should fail, and Ms. Jones (whose name already appears on the ballot—plaintiffs ask that votes cast for her not be counted) should be able to seek office unencumbered by the Michigan statute.

Analysis of the Supreme Court's decision in the "faithless electors" cases

The Supreme Court has issued its decision in Chiafalo v. Washington and Colorado Department of State v. Baca. The primary opinion in Chiafalo is here. A brief per curiam in Baca is here. Justice Elena Kagan wrote the principal opinion joined by all justices except Justice Clarence Thomas; Justice Thomas filed an opinion concurring in the judgment, joined by Justice Neil Gorsuch in part. The power of the state to regulate “faithless electors”—either fining them or replacing them—was affirmed.

In Chiafalo, three electors cast votes for Colin Powell for president and assorted candidates for vice president instead of Mrs. Clinton and Tim Kaine. Congress counted those votes for Mr. Powell. Those electors were each ultimately fined $1000.

In Baca, an elector who attempted to cast a vote for John Kasich for president instead of Hillary Clinton was deemed to have vacated his office. He was replaced, another elector voted for Mrs. Clinton, and that vote was counted in Congress. (Justice Sonia Sotomayor was recused from this case because she had a friendship with one of the parties.)

Justice Kagan’s opinion relies heavily in part on Ray v. Blair, the 1952 Supreme Court decision that permitted states to require a pledge to support the candidate, but it reserved on the enforceability of that pledge. The “longstanding practices” of electors weighed against the challengers in Ray v. Blair, and it’s the same here in Chiafalo. Justice Kagan’s opinion also relies on the NLRB v. Noel Canning decision (slip op. at 13) to emphasize longstanding practices.

Justice Kagan’s decision really relies on a phrase she notes on p.10 of the slip opinion, “The Constitution is barebones about electors.” This gives states broad power over electors.

Justice Kagan is less than impressed with the argument that “vote” or “ballot” necessarily implies choice. She explains, “But those words need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying he 'votes' or fills in a 'ballot.'" (Slip op. at 11, with more onto 12.)

Justice Kagan also situated the Twelfth Amendment as an important qualification to the original understanding of the scope of elector discretion. She emphasized, “The Amendment thus advanced, rather than resisted, the practice that had arisen in the Nation’s first elections,” that is, party-line voting. (Slip op. at 14-15.)

Congressional deference matters some, but not the way the electors suggested: “Congress’s deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one.” (Slip op. at 17.)

To my mind, of note includes footnote four, which provides, “And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” That’s a view suggested in Term Limits v. Thornton and which I get at in Weaponizing the Ballot, about whether states have the power to add qualifications to presidential candidates—yes, there’s a “may,” but the suggestion continues that states may not do so.

Footnote eight also concedes questions about how to handle candidates who die between Election Day and the meeting of the Electoral College. In my mind, there are interesting Twentieth Amendment questions in such circumstances, too, that may lessen the concern—but, as the Court notes, it’s not something for the Court to confront at this time.

Justice Thomas filed an opinion concurring in the judgment, joined in part by Justice Gorsuch. Justice Thomas returned to his dissenting opinion in Term Limits v. Thornton (1995)—he views the Constitution’s elections clauses not as granting power to a state, but requiring states to perform a duty. He returned to a more vigorous view of the Tenth Amendment (this is the portion of the opinion Justice Gorsuch joined). The Constitution’s silence on the power to control electors should lean toward the state’s reserved powers under the Tenth Amendment to regulate them. His views didn’t carry the day, obviously, but they do get to the same place as the majority opinion.

In short, all nine justices agreed that states may fine faithless electors or replace them. I anticipate more states will enact statutes doing so just in the years ahead.

This post has been updated.

Related reading:

No, the Electoral College will not give the presidency to Hillary Clinton, Nov. 13, 2016

New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment, Dec. 6, 2016

The Electoral College won’t stop Trump—but it may change how political parties pick electors in 2020, Dec. 11, 2016

Faithless electors: Now it’s up to Congress, Wall St. J., Dec. 21, 2016

Status of 2016 faithless presidential elector litigation, Dec. 19, 2017

Washington State Supreme Court upholds finds for 2016 faithless electors, May 23, 2019

Analysis: 10th Circuit finds Colorado wrongly removed faithless presidential elector in 2016, Aug. 21, 2019

Why “faithless electors” have little power to change the winner of presidential elections, Oct. 14, 2019

Symposium: Leave courts out of presidential elector dispute, SCOTUSblog, Apr. 20, 2020

Brief of Professor Derek T. Muller as amicus curiae in support of neither party, Chiafalo v. Washington & Colorado Department of State v. Baca

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?, May 13, 2020

A literature review of some studies about the bar exam

In recent weeks, there’s been a surge in assertions that the bar exam does “nothing,” is “pointless,” is “worthless,” and so on. Take, for instance, the claims in this op-ed from an Oregon appellate judge, critiquing the claim that the bar acts to protect the public as “completely unfounded,” the bar “does not function to protect the public,” and “I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.”

These assertions are wrong. I thought I’d start to compile a literature review of studies about the bar exam (one that assuredly can and will be supplemented!).

Here, I seek to compile two sets of studies that may be relevant. (I only include a brief excerpt from each; please do read the entire study for more about the size of the sample, the strength of the inferences, the location where the study took place, and so on!) The first are studies that examine the relationship between bar exam performance and attorney discipline. The second are studies that examine the relationship between bar exam performance and law school grades.

One can challenge these studies, of course (e.g., the strength of the evidence, how significant the effect in any given study is, etc.). And one can still conclude that the bar exam is too costly, too high a barrier to the practice of law, and so on. And one could finally admit these relationships but examine alternative concerns, like the coronavirus pandemic and bar exam logistical problems. But these are, of course, distinct arguments—and I’ve found arguments about the bar exam are too quickly and easily conflated.

For instance, one could accept that there exists a relationship between bar exam performance and attorney discipline—lower bar exam scores correlate with higher ultimate attorney discipline rates, and failing the bar exam at least once correlates with higher ultimate attorney discipline rates. But one could still argue that the risk is too low, or too distantly removed; or, that the increased risk should lead bar licensing authorities to use more powerful tools to prevent that discipline later through better mentoring and oversight. Indeed, in the article I co-authored with Professor Rob Anderson, we identified several of these points—do read the piece!

Additionally, the relationship (at least, a moderate relationship) between law school grades and bar exam performance, I think, tends to undermine the claim that the bar exam is “meaningless”—unless law schools are willing to concede that their own grading is meaningless and employers are willing to concede that reliance on grading is meaningless. (Maybe some will!) While the bar exam is a different test than law school exams (and both are different from the actual practice of law), they do, I think, all tend to test legal analysis, albeit in varied ways. One could still, of course, critique the bar exam as excessively reliant on rote memorization, too costly an investment for law school graduates, and so on. (And while one might ask why the bar exam continues to require graduates of ABA-accredited schools to pass the exam, it’s principally because licensing authorities distrust law schools to maintain adequate admissions, retention, and graduation standards.)

Two more things to consider, too. The first is how to examine the bar exam—one could look at the binary pass-fail outcome, or one could examine a given bar exam score (e.g., distinguishing performance on the bar exam of, say, a score of 145 versus a score of 130). The second is Type I & Type II errors—for instance, the bar admits some people who may end up facing discipline one day, but it does not admit some people who may go their entire careers without facing discipline.

There is much to chew on when examining the relationship between the bar exam and other items, but these, I hope, provide a fruitful starting point for discussions about the bar exam—without the heated (and erroneous) rhetoric that’s too common in these debates.

Please, of course, feel free to contact me if you find a useful study that merits inclusion!

Relationship between bar exam performance and attorney discipline

Leslie C. Levin, Christine Zozula, & Peter Siegelman, A Study of the Relationship Between Bar Admissions Data and Subsequent Lawyer Discipline, LSAC (2013) [archive]

[Ed.: In a Connecticut study, Model 4 drops law school rank and grades as variables, revealing that failing the bar exam is a predictor of future discipline, even when many “character and fitness” variables are controlled.]

Jeffrey S. Kinsler, Is Bar Exam Failure a Harbinger of Professional Discipline?, 91 St. John’s Law Review 883 (2018)

Using bar exam and disciplinary data from Tennessee, this Article substantiates the following theses: (1) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for ethical violations, particularly early in the lawyer’s career; and (2) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for lack of diligence—including non-communication—and/or incompetence.

Robert Anderson IV & Derek T. Muller, The High Cost of Lowering the Bar, 32 Georgetown Journal of Legal Ethics 307 (2019)

Using a large dataset drawn from publicly available California State Bar records, our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career. We investigate these claims by collecting data on disciplinary actions and disbarments among California-licensed attorneys. We find support for the assertion that attorneys with lower bar examination performance are more likely to be disciplined and disbarred than those with higher performance.

Kyle Rozema, Does the Bar Exam Protect the Public?, draft 2020

I study the effects of requiring lawyers to pass the bar exam on whether they are later publicly disciplined for misconduct. In the 1980s, four states began to require graduates from all law schools to pass the bar exam by abolishing what is known as a diploma privilege. My research design exploits these events to estimate the effect of the diploma privilege on the share of lawyers who receive public sanctions by state discipline bodies. Lawyers admitted on diploma privilege receive public sanctions at similar rates to lawyers admitted after passing a bar exam for the first decade of their careers, but small differences begin to emerge after a decade, and larger differences emerge after two decades. The estimates suggest that the diploma privilege increased the share of lawyers who received a public sanction within 25 years after bar admission from 4.5 percent to between 4.6 and 6.5 percent.

Relationship between bar exam performance and overall law school grades

Douglass Boshkoff, Phillips Cutright, & Karen Cutright, Course Selection, Student Characteristics and Bar Examination Performance: The Indiana University Law School Experience, 27 Journal of Legal Education 127 (1975)

For example, [the table] shows that 90.9% of students with a cumulative grade point average of 2.8 or higher passed the examination, while only 38.4% of those with an average of 2.0 to 2.3 were successful. The differential indicates a powerful effect of academic performance in law school. Furthermore, this differential is affected little when the other characteristics of graduates with high or low grades are considered . . .

Kristine S. Knaplund & Richard H. Sander, The Art and Science of Academic Support, 45 Journal of Legal Education 157 (1995)

UCLA students with a B+ (83) average in law school are one-tenth as likely to fail the bar exam as students with a C+(73) average.

Linda F. Wightman, LSAC National Longitudinal Bar Passage Study (1998)

Using data from all jurisdictions combined, the logistic regression analyses showed that both adjusted LGPA and LSAT score were statistically significant factors in explaining bar examination outcomes. Another way to evaluate the utility of this model for explaining bar examination outcomes was to examine the correlation between predicted and actual outcomes. For these data, the correlation between predicted and actual pass or fail was .52. (By comparison, the mean correlation between LSAT score and first-year law school average [FYA] was .41 for law schools participating in the 1990-92 LSAC correlation studies. The multiple correlation of LSAT score and UGPA with FYA was .49 for those same schools.)

Linda Jellum & Emmeline Paulette Reeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School Bar Support Program Enhances Bar Performance, 5 Nevada Law Journal 646 (2005)

From the July 1997 examination [of the Virginia bar exam] through the February 2001 examination, the passage rate for students [from Richmond Law] in the bottom half of the class was 51.3%. The fourth-quartile passage rate was 26.0%. In comparison, the passage rate for the top half of the class was 93.9%.

Michael Kane, Andrew Mroch, Douglas Ripkey, & Susan Case, Impact of the Increase in the Passing Score on the New York Bar Examination, National Conference of Bar Examiners (2006)

The high correlations between the two versions of the L-GPA and bar examination scores indicate that there is substantial overlap in what is being evaluated on the bar examination and what is being evaluated in law schools. The strong positive correlation (.63) between the 4-pt L-GPA and bar examination scores indicate that relative performance in law school (independent of the selectivity of the law school) is an important determiner of performance on the bar exam; the 4-pt L-GPA accounts for almost 40% of the variance in bar examination scores. The Index-Based L-GPA has a somewhat higher correlation with bar examination scores (.68) indicating that the strength of the relationship between grades in law school and performance on the bar examination can be enhanced by taking the selectivity of the law school into account; the Index-Based L-GPA accounts for about 47% of the variance in bar examination scores.

The bar examination scores have their highest correlation with the Index-Based L-GPA and their second-highest correlation with the 4-pt L-GPA. So it is clear that performance on the bar examination is strongly related to performance in law school. The correlation of bar examination scores with LSAT scores is fairly high, and the correlation with U-GPA, which has the lowest value of the four correlations, is also reasonably high. Note that U-GPA has a higher correlation with bar examination scores than it has with the LSAT scores. This is somewhat surprising, because the bar examination is taken three or more years after graduation from college, while the LSAT is generally taken closer to the completion of undergraduate education.

Lorenzo A. Trujillo, The Relationship between Law School and the Bar Exam: A Look at Assessment and Student Success, 78 University of Colorado Law Review 69 (2007)

Through research, surveys, and compilation of the resulting data, it became apparent that the single most important predictor of bar passage rate was a student's relative law school class rank.
. . .
This research indicates that neither the LSAT nor undergraduate GPA are as meaningful indicators of success on the bar exam as class rank, which remains the best predictor for success on the bar exam.

Douglas K. Rush & Hisako Matsuo, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of Factors Related to Bar Examination Passage during the Years 2001 through 2006 at a Midwestern Law School, 57 Journal of Legal Education 224 (2007)

Table 2 demonstrates a strong association between a graduate's final class rank, by quartiles based on final LGPA, and bar examination passage. Graduates of the School of Law who ranked in the first quartile of their law school graduating class passed the bar examination at a 100 percent rate over the five year period of the study. Graduates who ranked in the second quartile of their law school graduating class passed the bar examination at a 95.6 percent rate during the same period. Graduates who ranked in the third quartile of their graduating class passed the bar examination at an 82.6 percent rate and the bar examination passage rate dropped to49.5 percent for those graduates who ranked in the fourth quartile of their graduating class.

The association becomes even more apparent for those graduates who ranked in the bottom 10 percent of their graduating class. Those graduates passed the bar examination at a 27.6 percent rate during the five year period of the study.

Donald H. Zeigler, Joanne Ingham, & David Chang, Curriculum Design and Bar Passage: New York Law School's Experience, 59 Journal of Legal Education 393 (2010)

The bar pass rate of the bottom 10 percent of the graduating class [of New York Law School] was truly abysmal, as is the case at many law schools. The pass rate was sometimes in the single digits and never more than 20 percent.

Derek Alphran, Tanya Washington & Vincent Eagan, Yes We Can, Pass the Bar-University of the District of Columbia, David A. Clarke School of Law Bar Passage Initiatives and Bar Pass Rates - From the Titanic to the Queen Mary!, 14 UDC/DCSL L.Rev. 9 (2011)

As shown in Table 1 there was a difference in bar passage rates on first attempt of 36.8% between students in the upper half of the law school GPA distribution and the bottom half of the GPA distribution. The bottom half of the class was students with a GPA of 2.91 and below. There was a bar passage rate of 92.7% for first and multiple attempts for the top half of the class and 66.4% for the bottom half of the class. This difference in bar passage rates is more pronounced when GPAs are broken out by quartile (Table 2). The bar passage rate on first attempt of the top quartile was86.8% and of the bottom quartile was 25.0%. Over 94.2% of students in the top quartile had passed the bar after their second attempt as compared to 46.0% of students in the bottom quartile.

Nicholas L. Georgakopoulos, Bar Passage: GPA and LSAT, not Bar Reviews, draft 2013

The most striking result of the analysis is the accuracy with which the law school GPA predicts bar passage on the first try. This is visible in the probit models of the first and fourth columns but also in the simple frequency table 5. Graduates with a GPA below 2.6 pass the bar at a less than 10% rate, with two out of 21 students passing. Students with a GPA over 3.2 pass the bar at a well over 95% rate, with three graduates out of 110 failing.

The extraordinary power of GPA to predict bar passage diminishes dramatically for graduates taking the bar for a second time. The second time takers are significantly fewer in number. As a corollary of the high success rate of graduates with GPAs above 3.2 on their first try, very few such graduates appear in this subsample. The success rates, however, do not change nearly as fast as in the subsample of first-time takers. From GPAs of 2.5 to GPAs of 3.1, success rates hover about 50%.

Leslie C. Levin, Christine Zozula, & Peter Siegelman, A Study of the Relationship Between Bar Admissions Data and Subsequent Lawyer Discipline, LSAC (2013) [archive]

Higher law school grades and law school class rank are both negatively associated with discipline risk, but the effect is only statistically significant for grades.

Scott Johns, Empirical Reflections: A Statistical Evaluation of Bar Program Interventions, 54 University of Louisville Law Review 35 (2016)

We found that LSAT and bar exam scores share about 20% of variance . . . 1LGPA and bar exam scores share about 40% of variance . . . and GLGPA and bar exam scores share about 50% of variance . . . . In sum, traditional law school variables share a moderate to strong relationship with bar exam scores but still leave nearly 50% or more of bar exam scores explained by other variables.

Katherine A. Austin, Catherine Martin Christopher, & Darby Dickerson, Will I Pass the Bar Exam?: Predicting Student Success Using LSAT Scores and Law School Performance, 45 Hofstra Law Review 753 (2017)

For first-time bar exam takers, linear regression was conducted to determine whether Texas Tech Law final GPA predicted an individual’s bar exam score. Final law school GPA significantly predicted bar exam performance . . . .

Roger Bolus, Performance Changes on the California Bar Examination: Part 2 (2018)

Based on the results of over 7,500 examinees sitting for the CBX in 2013, 2016 and 2017, the single best indicator for predicting success on the CBX was the final law school GPAs of candidates. This result, while important, is not surprising: students who excel on law school exams would be expected to perform well on the bar as well. Overall, the statistical models developed below which include examinees demographic characteristics, pre-admission credentials and law school performance predicts more than 54 percent of the variability in CBX Total Scale scores. By social science standards, this degree of predictive power is reasonably strong, and well in-line with findings of past efforts in this area.

Amy N. Farley, Christopher M. Swoboda, Joel Chanvisanuruk, Keanen M. McKinley, & Alicia Boards, Law Student Success and Supports: Examining Bar Passage and Factors that Contribute to Student Performance, AccessLex (2018)

More specifically, the post-1L [GPA] model accurately identified 58% of failers, and the most comprehensive post-3L [GPA] model accurately detected nearly 4 out of 5 students who would fail the bar.

Robert R. Kuehn & David R. Moss, A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 Journal of Legal Education 623 (2019)

Similar to other studies, performance in law school, measured by LGPA, bears the strongest relationship to bar exam outcomes at [Washington University in St. Louis and Wayne State]. Yet LGPA explains only approximately twenty percent of the variability in bar passage rates among graduates. One notable finding at both schools was the correlation coefficient between first-year and final law school grades--above 0.92. This high correlation strongly signals at the end of the first year which group of students is most likely to fail the bar exam and therefore might merit additional assistance over the next two years.

Barriers facing a Kanye West 2020 presidential run

It’s hard to know how seriously to take a tweet from Kanye West. On July 4, he tweeted, “I am running for president of the United States!” Sadly, “journalists” from outlets like Reuters and ABC News chose not to investigate and simply engaged in the embarrassing contemporary practice of reciting a tweet as if it’s news, without, say, you know, engaging in journalism (e.g., investigating, interviewing relevant parties, reporting, etc.).

I doubt it’s serious, but for the good reason that even if it’s earnest, it’s still probably not serious. Ballot access remains a real issue for a presidential candidate at this late date. Mr. West would have two viable paths.

The first is to co-opt an existing political party’s presidential nomination. It seems unlikely the Democratic or Republican Parties would do so, nor the Libertarian Party, which formally has a nominee. Other parties like the Green Party, Constitution Party, or Reform Party are at various stages of their nominating process, and they’re unlikely to appear on the ballot in all fifty states and D.C. I suppose it’s possible, but this process seems unlikely.

The second is to run as an independent candidate. (A related path would be to establish a new political party, but this is more complicated and something I’ll dismiss for the moment.) This requires the Herculean effort of securing ballot access in all fifty states and D.C. One doesn’t need to get on the ballot everywhere to win the presidency—in theory, access in 270 electoral votes’ worth of states is enough. But, to be frank, there’s a material difference, in my view, between serious independent candidates like John Anderson in 1980 and Ross Perot in 1992, and unserious independent candidates like Lyndon LaRouche in several elections and Evan McMullin in 2016—breadth of a campaign to every (or nearly every) state lends seriousness to the ticket. And while write-in candidates should not be easily dismissed in local or even statewide elections, presidential candidates seem hard to take seriously.

(It’s worth noting that while I’ve seen the claim that Mr. West’s name could be written-in “anywhere,” that’s not true—at least, not written in and counted anywhere. Several states do not recognize write-in votes for the president, which the Supreme Court has acknowledged is legitimate if ballot access rules otherwise are not too onerous. Indeed, think how a presidential election works—one isn’t casting votes for the president, but for a slate of electors who’ll cast votes for that candidate when the Electoral College meets. A write-in campaign ought, I think, to require, at the very least, some pre-election filing of the slate of electors who’ll support that candidate, given that the ballots in most states don’t list the electors. And frankly, several states don’t have rules about even this while purporting to authorize write-in presidential votes.)

The ballot access deadline has (in theory—more on that in a moment) already passed in Texas, Indiana, Maine, New Mexico, New York, and North Carolina. Other ballot access deadlines arise in the next couple of weeks for some states. Off the top, Mr. West would be hard to take seriously, even if, today, he had amassed an army of signature-gatherers to canvass the remaining states (and challenges for signature-collection seem exacerbated during a pandemic). Some of these efforts seem tough at this stage—like Florida’s 132,000 signature requirement by July 15.

In theory, for two reasons. I borrow deadlines from Ballotpedia, and maybe they’re not all up to date. But that’s in part because many states have been pushing back their ballot access deadlines by legislative rule or executive order due to the coronavirus pandemic. Some have lowered signature requirements, and there have been rumbling about moving to online signatures in places. States like New York have shown willingness to be more generous. It’s possible, then, that pending or apparently-passed deadlines may not have yet actually passed.

Another is that Mr. West could litigate, a la John Anderson in 1980. Federal courts have been using flabby balancing tests to justify giving independent or minor party candidates additional opportunities to secure ballot access when the rules are too restrictive—and courts seem increasingly willing to do so during the coronavirus pandemic. Nevertheless, winning several kinds of challenges in different federal courts (absent Supreme Court intervention), all ahead of Election Day, seems not only to require extraordinary legal coordination and preparation (something a tweet on running a campaign seems to lack), but also extraordinary levels of success. UPDATE July 6: The Fourth Circuit has recently affirmed North Carolina’s exceedingly early March 3 independent presidential candidate petition deadline.

I’m sure some will speculate about which major party candidate Mr. West’s candidacy would most affect, whether his appearance on the ballot in certain states but not others might alter the Electoral College, and so on. My point is rather this—it’s hard to take a candidacy announced this late terribly seriously because, to be a serious candidate, one ought to appear on the bulk of ballots in the United States, and candidates announcing at this late date have little chance of doing so.

It’s also true, of course, that even an unserious candidate like Messrs. LaRouche and McMullin could disrupt a presidential election—playing a “spoiler” role in select states, and so on. That’s different than how I’m using the term “serious,” but, of course, I recognize that this may be the greater concern for many political watchers.

This post has been updated as new information arises.

UPDATE July 7: As of early July 7, there is no indication of any attempt by Mr. West to gather signatures in any states, which suggests, as this opening paragraph provided, that a tweet is not newsworthy.

UPDATE July 8: This free-wheeling interview at Forbes shows a couple of things. First, while he coins the name “Birthday Party,” his bid would assuredly be an independent one, and the “party” affiliation would be informal, at least for 2020. Second, Forbes reports, “For much of the phone calls, his core message, strategically, was that he has 30 days to make a final decision about running for president. At that point, he says, he’d miss the filing deadline for most states, though he believes an argument could be made to get onto any ballots he’s missed, citing coronavirus issues.” This reflects a seriousness I hadn’t anticipated—as I explained earlier, some ballot access deadlines might be feasible to make up given the coronavirus. But, 30 days as a “final decision” suggests that he’s not trying to get on the ballot today, which, as I noted in my July 7 update, seems strange and hard to justify. While coronavirus issues can help him make up some ground in some states, the more state deadlines slip away, the harder it is to meet them. Starting a run in early August—that is, starting signature-gathering then—would not be feasible.

UPDATE July 14: Ben Jacobs reports that there were some fits and starts of an attempt at ballot access in at least Florida and South Carolina, but it appears those have ended.

UPDATE July 15: Mr. West has filed an independent candidate statement in Oklahoma with a slate of electors.

Three curiosities of Oregon's diploma privilege rule for the 2020 bar exam

On the heels of Utah and Washington, Oregon has announced it will enact a form of diploma privilege. Oregon’s rule is closer to Utah’s than Washington’s—like Utah, it extends only to first-time test-takers who recently graduated from ABA-accredited schools, with some caveats. I had my analysis on Utah’s proposal then, with some “heat and light” reactions to it. But I wanted to highlight three curiosities.

First, it expressly treats Oregon schools differently from out-of-state schools. From the rule:

Granting a one-time "diploma privilege" to persons who timely submitted complete applications for the July 2020 Oregon bar examination and who either (1) graduated in 2020 from one of the three Oregon law schools; or (2) graduated in 2020 from any other law school accredited by the American Bar Association that had a minimum of 86 percent of graduates pass a 2019 Bar exam on their first attempt. All character and fitness requirements continue to apply.

Among Oregon’s three schools, only the University of Oregon (86%) had a first-time passing rate that met or exceeded the 86% threshold. Both Lewis and Clark (81%) and WIllamette (82%) would have failed the standard. Utah’s rule was an 86% threshold that applied to everyone, but one that both Utah schools met. It’s not clear how such in-state favoritism will be received. But, as I noted in the Utah proposal, recognizing diploma privilege for about a third of all law schools is generous compared to in-state only practice.

Second, it uses the 86% standard, and I don’t know where or why. The first-time pass rate for the July 2019 exam was 84%. That’s lower if you count the February 2019 exam results, too. Did Oregon just use the 86% Utah used? Maybe? Given that Utah and Oregon use different cut scores, it seems extra strange. (If someone has more information, please share! I’m dealing with a second-hand report here!)

Third, the 86% standard seems even less justifiable given that Oregon is announcing a temporary reduction in the cut score from 274 to 266. That moves Oregon from one of the highest in the country to at the bottom end of average. Schools that historically have a sub-86% pass rate would assuredly do better on this exam than their overall pass rate would otherwise suggest. (Conversely, however, and undermining my own point, the pass rate should also increase in this administration, so perhaps it accounts for the fact that the test will be easier and therefore a school’s cumulative pass rate should be accordingly higher.)

In any case, I think both Utah and Oregon recognize that first-time test-takers pass at overwhelmingly high rates in their jurisdictions, and the cost of a handful of additional admitted attorneys outweighs the consumer protection concerns. Washington’s rule, in contrast, would admit far more who failed the bar once, or even multiple times. It remains to be seen what long-term effect this has, or whether other jurisdictions adopt similar proposals.

But both Utah and Oregon emphasize that overall pass rates matter a lot for out-of-state benefits. Schools with relatively high pass rates in tougher jurisdictions like California and Virginia won’t reap the benefit unless they can secure more success for their students in absolute terms.

UPDATE: I’m usually pretty generous with the comments for posts, but this one has prompted some bickering and I’ve trimmed back on them.

Voting rights problems with the District of Columbia statehood bill

I’ve previously discussed the District of Columbia statehood bill, H.R. 51, and how, I think, D.C. statehood (or retrocession of D.C. to Maryland) should be contingent on a repeal of the Twenty-Third Amendment. The bill would carve out most of D.C. as a new state, but the remaining tiny enclave of federal buildings would remain, and that enclave would be entitled to three electoral votes.

One problem is a politically sticky first-mover question. If you condition statehood on repeal, a handful of states can effectively block statehood; if you grant statehood and hope for repeal, it may never happen.

I’ve tried to figure out what the remaining enclave looks like. The D.C. planning commission offers a sketch of that proposed residual district as of 2016. It mostly (but not entirely!) tracks with Census Tract 62.02, which, as of the 2010 census, had 33 inhabitants, and around 60 inhabitants as of 2018. This is imperfect, because it’s not entirely aligned with the census tract. And it doesn’t tell us how many are eligible voters. But it’s my start. And a 60-person jurisdiction receiving 3 electoral votes is, shall we say, suboptimal.

Under the Twenty-Third Amendment, Congress has power to choose how to award D.C.’s electors. So some have proposed interesting alternatives: give the votes to the winner of the Electoral College, or the winner of the national popular vote (if there’s such a thing). Another suggestion is that Congress doesn’t have to award them at all, which might lead to denominator problems in ascertaining a “majority” of the Electoral College. Now, the Twelfth Amendment says “majority of the whole number of electors appointed,” so perhaps those three aren’t counted as “appointed,” and we have (at least here) no problem.

But what Congress says it will do today isn’t necessarily what it’ll do tomorrow. There remains the possibility of Congress choosing three electors on its own, which seems to open up opportunities for mischief if we invite Congress to decide what to do with those electors. Since the Twenty-Third Amendment, Congress has assumed the people of D.C. vote for those electors. Shifting the power back to Congress invites a parliamentary-style choice. Only three electoral votes, but nevertheless congressional influence.

Section 206 of the bill anticipates this problem and provides for expedited repeal of the Amendment. But, there’s no guarantee that 2/3 of each house of Congress and 3/4 of the states would agree—or agree in time for a least one presidential election.

H.R. 51 also anticipates that there will be eligible voters remaining in the seat of government. Section 204 anticipates giving the remaining residents (33, 60, or some other tiny figure) the power to vote in federal elections. It says those residents are permitted to vote by absentee in the state where they last resided. (No word on what happens to those who never resided in another state.)

But this remedy in Section 204 is, in my view, constitutionally suspect. Congress has no power to establish voter qualifications—certainly not under the Elections Clause, as the Supreme Court said in Arizona v. Inter Tribal Council of Arizona, Inc., and perhaps not elsewhere. Of course, other Supreme Court precedents, like Oregon v. Mitchell, have approved congressional rules on voter qualifications, like reducing the federal voting age to 18 and establishing minimum residency rules for presidential elections. The Uniformed and Overseas Citizens Absentee Voting Act does the same, but, as Professor Brian Kalt has, in my view, persuasively argued, is likely unconstitutional (even if exceedingly popular).

For Congress to extend this residual group of inhabitants voting rights—and by compelling states to accept them as voters—would raise, I think, a significant constitutional question. Granted, there’s case law on Congress’s side, as well as a similar (and exceedingly popular) statute for uniformed and overseas citizens—litigation challenging Section 204 might sweep away much more than Section 204. But it remains, I think, a challenge to consider.

Finally, Section 205 is misleadingly titled, “Repeal of law providing for participation of District of Columbia in election of President and Vice-President.” All this does is repeal a conforming amendment to the Electoral Count Act of 1887, which sets the rules for Congress counting electoral votes from the states. It treats D.C. as a “state” for purposes of the rule. Repealing this statute doesn’t really do anything. Congress still has to count votes from D.C. under the Twenty-Third Amendment, if cast; if Congress casts those votes, then it has to count those votes, too, regardless of whether the Electoral Count Act gives express guidance of how to do so. Prior to the Electoral Count Act, Congress built up its own body of rules that, well, collapsed in the Election of 1876. The Electoral Count Act doesn’t “provid[e]” for D.C.’s participation in federal elections, and this section is only a technical provision that helps after the Twenty-Third Amendment is repealed.

In short, there are some election law problems with D.C. statehood absent a repeal of the Twenty-Third Amendment, and other problems that persist for the remaining few inhabitants in the residual district.

Should district court judges go "Reinhardt" on election laws during the coronavirus pandemic?

That’s the gist of Professor Nicholas Stephanopoulos’s conclusion in a recent University of Chicago Law Review Online piece.

If there’s a saving grace here, it’s the ratio of lower court to Supreme Court activity: about twenty-to-one, so far, in the area of pandemic-related election litigation. The sheer volume of these suits guarantees that the vast majority of them will never be subjected to Supreme Court review. To be sure, the Court will probably decide additional pandemic-related cases—and decide them badly, misapplying sliding-scale scrutiny and furthering its ideological agenda. But as Judge Stephen Reinhardt once said of the Justices, their limited caseload means “[t]hey can’t catch ’em all.” What they don’t catch in the leadup to the November election is likely to be better, legally and democratically, than what they do.

Professor Stephanopoulos believes that the Supreme Court is wrong on law (and on the political consequences) on a variety of election law cases, including the Supreme Court’s recent decision in RNC v. DNC out of Wisconsin. But advocating for district courts to, for lack of a better phrase, “go Reinhardt” on the Supreme Court struck me as particularly notable.

The Washington State bar exam experiment of 2020 will be one to watch

The bar exam continues to confound licensing authorities in light of the coronavirus pandemic. There are many cohorts to consider, and there are many questions I still have.

Utah’s proposal is to offer diploma privilege to (1) first-time test-takers from (2) ABA-accredited schools whose overall first-time pass rate exceeded the Utah state average. I noted this was a fairly generous proposal considering how stingy “diploma privilege” has been, but that did cut some out. It certainly has not been without critique as too generous and too stingy. Nevada’s proposal updates the “performance test” for online administration. Time will tell what these or others may yield.

Washington, however, is doing something far more notable. To begin, it lowered its cut score from 135 to 133. This is a fairly modest change—most jurisdictions are in the 133 to 135 range, but it will certainly make the exam easier.

But Washington has gone a step farther. It announced the following change: all graduates of ABA law schools may have “diploma privilege” and earn admission. That includes, “The diploma privilege option will be available to applicants currently registered to take the examinations who are taking the tests for the first time and those who are repeating the tests.”

Now, this is remarkable in going beyond Utah for a couple of reasons. First, it applies to all ABA law grads, not simply those whose schools met the Utah threshold (although, as I noted, most Utah applicants would meet this test). Second, it includes repeaters, a cohort I’ve found mostly neglected in scrutinizing how to handle the bar exam.

I’m a little surprised on the repeater front, and it’s a reason to watch Washington in the decade (!) or so to come. Here’s why.

We know that lower bar exam scores are associated with higher ultimate attorney discipline rates, as Professor Rob Anderson and I have chronicled in California and studies elsewhere. Professor Kyle Rozema finds a similar effect.

It’s worth looking at the July 2019 bar exam cohort of ABA law school graduates to see what happened in Washington and what we can roughly expect from this July 2020 decision.

536 graduates took the July 2019 bar exam in Washington. 465 were first-time test-takers, and 71 were repeaters.

Among the 465 first-time test takers in July 2019, 366 passed, a 78.7% pass rate. Nearly 4 in 5 passed on the first attempt. 99 failed. One could imagine, then, a bar exam that exclusively looked to this cohort. Indeed, Washington has lowered its cut score. The pass rate would likely exceed 80% and perhaps even 85%. The vast majority of first-time test-takers pass.

Among those who fail the first time, a number likely would pass on the second attempt. From the February 2020 exam, we saw 96 repeat, 44 pass and 52 fail. We don’t know how many of those were on their second attempt or a subsequent attempt, but it’s likely a good number who passed on the second attempt. (It’s also worth noting that some number of the 99 who failed presumably didn’t try again in the February 2020 exam.)

Back to the July 2019 results. 71 repeated. Of those, 27 passed, and 44 failed for a 38% pass rate. Of note, 44 of test-takers (about 8%) failed the bar exam at least twice, and some of those more than that.

So that’s, I think, where the interesting part of this experiment lies. One can question the efficacy of the bar exam and the like, but it matches pretty closely with law school grades. Furthermore, we know lower scores or those who’ve failed at least once tend to face higher discipline rates. This could be a fairly notable shock to the system to admit so many at once who’ve failed multiple times and may never be admitted to the bar otherwise. Those whose entry would be delayed, those who’d drop out from taking the bar—they’re now all admitted, and all at once.

One could raise “access to justice” issues for underserved legal populations, which is a reason to admit more lawyers to the bar, but I wonder about this at a couple of levels. Are these exam test-takers who’d otherwise fail serving those “underserved” populations? And if so, will they do so well?

Another is that Professor Anderson and I, along with the study of Professor Rozema, noted that attorney discipline tends to manifest later in careers. Will we see more discipline earlier?

I don’t want to portend too much doom and gloom. Optimistically, perhaps the Washington State Bar has some relevant basis for helping supervise attorneys and identify those who are at-risk of discipline earlier in the career to prevent it from happening; indeed, Professor Anderson and I suggest that might be one such solution in the event state bars lower their cut scores. And, to be fair, character and fitness and other related scrutiny will still apply, which means that the bar exam is not the only thing standing between law school graduates and the practice of law.

Still, this is a fairly remarkable one-time event in Washington that should be worth watching. As states continue to grapple with the appropriate bar licensing regime, the results of this experiment will be helpful in assessing the costs and benefits of a bar exam.

Judges relying on Bostock v. Clayton County to interpret statutes

The Supreme Court’s recent decision in Bostock v. Clayton County, interpreting the language “because of . . . sex” in the Civil Rights Act of 1964, has already yielded extensive debate and discussion, but particularly within politically conservative legal communities, as Justice Neil Gorsuch drafted a majority opinion over the dissenting opinions of Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh.

In part, there is a debate about what “textualism” means and what tools of statutory interpretation are or are not appropriate. In another part, there is a debate over the result, concerning a federal anti-discrimination statute and its application to cases involving sexual orientation and gender identity.

The en banc Fifth Circuit recently issued a brief opinion in Thomas v. Reeves, concluding that a dispute over legislative district maps in 2019 was moot. But the case spawned 50 pages of essentially dicta concerning the proper scope and application of 28 U.S.C. § 2284(a), or the scope of authority for three-judge courts to hear election law cases.

Of note—to me, at least—was some language in Judge Don Willett’s opinion, joined by Judges Jerry Smith, Jennifer Elrod, Kyle Duncan, and Kurt Engelhardt, on statutory interpretation. In doing so, Judge Willett’s opinion pulls quotations from Justice Gorsuch’s opinion in Bostock:

Just this week, the Supreme Court issued a landmark decision, holding that the 56-year-old Civil Rights Act forbids workplace discrimination on the basis of sexual orientation or gender identity. Specifically, the Court declared that “because of sex” encompasses “because of sexual orientation or gender identity.” The latter is not distinct from sex discrimination, but a form of it. Hearteningly, all nine Justices applied textual analysis to Title VII, as we do today with § 2284(a), but, just like us, they reached polar-opposite conclusions. In dissent, Justices Alito and Thomas charged the majority with “disregarding over 50 years of uniform judicial interpretation” and protested that “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.” The Bostock majority did not—indeed, could not—dispute those facts. It just deemed them immaterial, insisting that what matters (all that matters) is the literal text within a statute’s four corners—what it called “Title VII’s plain terms.”

A time traveler from 1964 would doubtless express astonishment that Congress had, unwittingly and unbeknownst to everyone, equated sex discrimination with sexual orientation discrimination (much less with gender identity discrimination)—and that it had done so by adopting a one-word amendment (inserting “sex”) from a representative who was cynically trying to scuttle the entire Civil Rights Act. But the Bostock majority focused on the “broad language” that Congress adopted, not on the ripple effects, however unforeseen, that flowed from it five decades later. The Court thus gave no interpretive weight to the fact that not a single drafter of Title VII in 1964 intended, noticed, or anticipated that “because of ... sex” would cover discrimination against homosexual or transgender persons. The Court remarked that resorting to “expected applications” or only those “foreseen at the time of enactment ... seeks to displace plain meaning of the law in favor of something lying beyond it.” Text is paramount—“only the words on the page constitute the law”—and if those words lead to “unexpected consequences,” so be it.

Settled practices matter not, nor does the “unanimous consensus” among the courts of appeals stretching across a half-century. As the Court put it: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” In the Bostock majority’s view, language codified by lawmakers is like language coded by programmers. A computer programmer may write faulty code, but the code will perform precisely as written, regardless of what the programmer anticipated. Courts, no less than computers, are bound by what was typed, and also by what was mistyped. What this means for Title VII: “When a new application emerges that is both unexpected and important,” said the Court, it is no answer to “have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.” We are bound by Bostock, whose ascetic interpretive rules for Civil Rights Act cases apply with equal force to Voting Rights Act cases.

Judge Costa’s opinion asserts virtually the same arguments as the Bostock dissenters, appealing to “venerable” understandings, “widely accepted meaning,” and “uniform caselaw.” He labels the State’s § 2284(a) argument “unprecedented,” invoking Justice Scalia’s colorful elephants-hiding-in-mouseholes aphorism. . . .

(Emphasis added.) It’s interesting—to me, at least—that Judge Willett, who was one of the original eleven names on then-candidate Donald Trump’s “list” of Supreme Court nominees—has quickly and readily embraced Justice Gorsuch’s approach in Bostock, and critiqued Judge Gregg Costa for adopting the approach (as he saw it) of Justices Thomas, Alito, and Kavanaugh.

It’s also notable, I think, to see who signed onto this interpretation—Trump-nominated Judges Duncan and Engelhardt signed onto it, but Judges James Ho and Andy Oldham (who wrote separately on a different issue) did not. Judge Edith Jones also did not join Judge Willett’s opinion. (Others joined Judge Gregg’s opinion, didn’t participate, or didn’t weigh in.)

Was Justice Gorsuch’s approach in Bostock right? We already have several members of the Fifth Circuit who think so. We’ll see whether Bostock’s approach holds sway over other judges in the years ahead.