What does it mean for a presidential election to be "independently certified"?

I didn’t watch the presidential debate (I typically don’t watch any of them), but someone alerted me to this question that arose, which I report from a transcript:

WALLACE: Alright, so wait a minute. Final question is, in eight states, election workers are prohibited, currently by law in eight states, from even beginning to process ballots, even take them out of the envelopes and flatten them, until Election Day. That means that it's likely, because there's going to be a huge increase in mail-in balloting, that we are not going to know on election night who the winner is. And it could be days, it could be weeks.

TRUMP: Could be months.

WALLACE: -- until we know who the new president is. So I first for you sir. Finally, for the, for the vice president. I hope neither of you will interrupt the other. Will you urge our supporters to stay calm during this extended period, not to engage in any civil unrest? Will you pledge tonight that you will not declare victory until the election has been independently certified?

That phrase “independently certified” is curious. Here are some ways of thinking what it might mean.

Presidential candidates can declare “victory” whenever they’d like, of course. But that can be rather embarrassing if they haven’t actually achieved victory (think “Dewey Defeats Truman” headlines).

So, presidential candidates often wait until the other major party candidate has formally conceded. That can be embarrassing, too—think Al Gore conceding in 2000, followed by George W. Bush declaring victory, only for Al Gore to retract it.

A candidate might wait, then, until a candidate concedes. But that also might require waiting when the facts otherwise indicate a candidate has lost. In 2004, for instance, John Kerry did not concede until the day after the election—apparently, consulting with attorneys about whether a challenge to the results in Ohio was feasible. Of course, Mr. Kerry was within his rights to do so.

Independently, however, news networks had “called” states in patchwork fashion, but in all cases refused to “call” at least 270 electoral votes for Mr. Bush until after Mr. Kerry conceded.

One might, then, say that news networks “certify” the outcome of the election—and networks are “independent” of the candidates. But that seems odd phrasing. Networks don’t really certify anything, they just call it based upon their predictive power. And different networks make different calls at different times. So one might say, “Don’t declare victory until a major news network calls it,” but that seems, well, again, odd.

One could turn to the actual entity that “certifies” elections—the state election authority. That’s not a great answer, either. In most states, formal certification can take well over a month. Even states that have a preliminary certification process take weeks. And, of course, no state certifies a result until all the ballots are in, which, as the moderator noted, could be weeks in some jurisdictions—much less that all the ballots are counted. But, it seems unrealistic, even in 2020, to require candidates to wait until at least 270 electoral votes’ worth of states have certified their results. Even then, legal challenges could remain.

In short, I don’t really understand the phrase “independently certified” here. Really, it means some general sense that some authority outside the campaign identifies the campaign as the winner. But beyond that, I don’t know how helpful it is.

The Commission on Presidential Debates has flexibility, but some legal constraints, on how it conducts a debate

The Commission on Presidential Debates (“CPD”) is “eligible under federal law” to conduct presidential debates. That means they thread the needle between maintaining their non-profit status (not acting on behalf of any political campaign) and not providing an in-kind contribution to a political candidate. 11 CFR § 110.13 covers some of the rules for hosting a debate. Disputes most commonly arise over eligibility standards (often, independent or minor party candidates litigate whether the CPD’s threshold is permissible, as those candidates are usually excluded). But the CFR includes some rules for the debate format:

(b) Debate structure. The structure of debates staged in accordance with this section and 11 CFR 114.4(f) is left to the discretion of the staging organizations(s), provided that:

(1) Such debates include at least two candidates; and

(2) The staging organization(s) does not structure the debates to promote or advance one candidate over another.

Advisory Opinion 1986-37 offers some insight on this standard in rejecting the form of one proposed debate:

Each invitee will be allowed to speak to the assembled attendees at the convention for 20 minutes on a topic or topics of his or her selection. At the end of this address, there will be a 15-minute question and answer session with questions being asked by attendees from the convention floor. There will be a moderator who will not comment on the questions or otherwise make comments that imply approval or disapproval of any of these invitees.

[] Each invitee will deliver his or her address from the podium on the dais on the convention floor. Specific portions of the convention agenda will be set aside for these addresses so that each invitee will be given a comparable time for his or her address, such as 10 a.m., 2 p.m., or 4 p.m.

…

The Commission notes that your proposed candidate debate features individual appearances by each of the candidates at separate times over the course of the convention rather than concurrent, face-to-face appearances. Such face-to-face appearances or confrontations have historically been an inherent characteristic of candidate debates since the prototypical Lincoln-Douglas Debates in 1858 and, more recently, the presidential debates in 1960, 1976, 1980, and 1984. Although the format and structure of these debates varied from one instance to another, the common element in all of them was a face-to-face confrontation. The Commission's nonpartisan candidate debate regulations were drafted with this historical, traditional concept of candidate debates in mind. Accordingly, the Commission does not view your proposed candidate appearances as constituting a candidate debate.

Another statement from the FEC in 1995 on a related issue:

Nevertheless, the requirement of including two candidates would be satisfied, for example, if two candidates were invited and accepted, but one was unable to reach the debate site due to bad weather conditions, and the staging organization held the debate with only the other candidate present. Other situations will be addressed on a case-by-case basis. The Commission does not intend to penalize staging organizations for going forward with debates when circumstances beyond their control result in only one candidate being present and it is not feasible to reschedule.

The standards, then, are quite flexible—two candidates, not promoting one over another. That said, there is an expectation that they will be “face-to-face” or “confront[]” one another.

As the CPD considers modifying its debate standards for President Donald Trump and former Vice President Joe Biden, there will need to be some confrontation between the two candidates. But it has broad flexibility to work within those parameters—at least, under existing interpretations of the law.

Four (unlikely) ways the 2020 presidential election ends up in the House of Representatives

President Donald Trump recently noted that the presidential election could be “thrown” to the House. Speaker of the House Nancy Pelosi did the same. But how does this work? And how likely is it?

It happens when no candidate wins a majority of the Electoral College. The House (the new House, which is sworn in January 3, then counts electoral votes on January 6) then chooses among the top three vote-getters, with each state casting one vote. Vermont gets one vote; California gets one vote. It takes a majority (here, 26 states) to choose the next president. As occurred historically, a tie vote in a state’s delegation (say, one state with 26 representatives is 13-13) did not count toward that majority.

A so-called “contingent election” is rare. It happened in 1800, when it took 36 votes in the House before Thomas Jefferson was chosen as President. Since the Twelfth Amendment, it happened only once, after the 1824 election, when Andrew Jackson won a plurality of the electoral vote but John Quincy Adams carried the House vote in the contingent election. (The vice presidential election of 1836 was also thrown to the Senate.)

So, how can it happen? Briefly, there are four ways to look at it (with some sub-scenarios noted, and some even more unusual outliers omitted).

First, there’s a tie in the Electoral College. The 12th Amendment requires that the president receive “a majority of the whole number of electors appointed.” If two candidates tie at 269-269, the House chooses between those two candidates.

When did this last happen? Since the Twelfth Amendment, which separated presidential and vice presidential votes, never. (A tie did happen in 1800 under different presidential election rules.)

How is this scenario possible? Presidential electors are based on each state’s Senate and House delegation. The Senate always has an even number of Senators, because each state receives two. The House is currently fixed at 435 members, an odd number. The District of Columbia is guaranteed a number of presidential electors, but no more than the least populous state (which, at the moment, is three, two senators plus one representative). Even number (Senate) + odd number (House) + odd number (DC) = even number. (We could increase the size of the House to 436….)

What are the odds? Very low. FiveThirtyEight puts the odds of no one winning a majority (which includes a tie scenario and others, below) at less than 1 in 100.

Second, three or more candidates divide up presidential electoral votes on Election Day, and no one gets a majority.

When did this last happen? In 1824, four presidential candidates divided up the electoral votes. The top three vote-getters were then sent to the House. While Andrew Jackson had 99 electoral votes to John Quincy Adams’s 83 (but neither crossed 131, the number needed for a majority), the House ultimately backed Adams.

How is this scenario possible? It requires one or more strong third-party candidates. Because all states award their presidential electors on a winner-take-all basis (except for Maine and Nebraska, where it’s winner-take-all for two statewide, and winner-take-all, or really winner-take-each, per congressional district), a third-party candidate would need more votes than both the Republican and Democratic candidates in a state, and end up depriving those candidates of a majority in the Electoral College. Strong third-party candidates like Ross Perot in 1992 won zero electoral votes. Others, like George Wallace in 1968, won a substantial number of electoral votes but did not deprive a candidate of the majority in the Electoral College.

What are the odds? Very low—and here I’ll add, exceedingly low. FiveThirtyEight puts the odds of no one winning a majority (which includes a tie scenario and others, below) at less than 1 in 100. I’ve seen no state polling to suggest that any third-party candidate is close to exceeding even 5% of the statewide popular vote total.

Third, faithless presidential electors deprive the apparent majority-winner of electoral votes, and no one gets a majority.

When did this last happen? Never.

How is this scenario possible? When we vote for the president and vice president on Election Day, we’re actually voting for a slate of presidential electors who later formally vote for president and vice president. Those electors are typically “faithful” to the popular will of the people of the state. Sometimes, however, electors vote for someone else, behaving as “faithless” electors. Historically, however, faithless electors have been rare. They’ve been rarer still to defect from the majority vote-getter to someone else. This past Supreme Court term, the Court in Chiafalo approved of state moves to cabin the discretion of presidential electors. And the faithless electors in 2016 likely have prompted the parties to look closely at how they vet electors in 2020.

What are the odds? Very low, likely exceedingly low. It requires a narrow electoral vote victory (certainly plausible), and faithless electors denying a majority (not just faithless electors generally). Chiafalo reduces those odds further.

Fourth, the House rejects some number of electoral votes that denies any candidate of a majority.

When did this last happen? Never.

How is this scenario possible? There are a few ways it could occur, because Congress formally counts the vote. A state might not send electors to Congress (which seems unlikely in the present day). It could send a slate of electors, but Congress refuses to count them (like it did in Louisiana in 1872)—perhaps because Congress deems the votes not “regularly given.” It could choose between multiple slates of electors (which has only happened once since 1876, Hawaii in 1960), and end up with a tie (which has never happened). One wrinkle is that the winning candidate under the Twelfth Amendment is among those from “a majority of the whole number of electors appointed” (emphasis added). If Congress throws out votes, it depends on whether it includes those votes in the denominator of “electors appointed.” (In other words, if it throws out 20 electoral votes, it might go from a majority requirement of 270 of 538, to 270 of 538—with 20 votes not counting—or, instead, and easier to meet, 260 of 518.) In short, there are a number of complicated things that might happen in Congress, which would be unusual and historic decisions in Congress.

What are the odds? Well, again, likely on the verge of exceedingly low. Congress has been reluctant to throw out electoral votes since Reconstruction. Recent attempts to do so in Congress—Florida in 2000, Ohio in 2004, and a slate of states in 2016—lacked even modest support in Congress (only Ohio 2004 went to a congressional vote, where it was soundly defeated and Ohio’s votes were counted). It all depends on the complexity of the decisions left to Congress and Congress’s trust in the electoral outcomes—all with the added condition that these decisions ultimately deny any candidate a majority.

*

In short, the 2020 presidential election could end up in the House, as it could have done for any presidential election in the last 195 years. There are plausible reasons to think up any one of these scenarios. But, I think, it’s worth thinking through, with some precision about these scenarios, and how they may or may not occur.

Would you rather take the bar exam, or work 6000 hours as an apprentice?

Emergency “diploma privilege” has been a hot topic around the bar exam. Modified versions of the privilege have been cropping up. Utah’s, for instance, limits it to certain would-be attorneys, along with a condition of 360 hours’ supervised practice. I won’t rehash a lot of the debate for now.

The District of Columbia recently adopted a version of this. But the version is hardly “diploma privilege”—that is, upon receiving a law school diploma, you are eligible to practice law. Instead, DC’s rule requires recent graduates to have three years of supervised practice in the District of Columbia. Assuming 50, 40-hour weeks (or a 2000-ish-billable year), that’s 6000 hours of work. Yes, you can get paid, but there are strings attached to the practice, and it’s limited to practice within DC.

We’ve moved far afield from “diploma privilege” into, essentially, other alternatives to the bar exam. A three-year apprenticeship might be a good thing, but it’s also a very different kind of requirement from true diploma privilege. Indeed, tacking a three-year apprenticeship at the end of a three-year law degree feels onerous. Advocates for “diploma privilege” in DC have recognized this and pushed back against this new requirement.

To me, the bar exam would be a superior path for most law school graduates than this model. But it’s also worth considering the broader list of costs and benefits with all non-bar exam alternatives. Supervised practice might be better for some cohort—but it does offer a particular delay to the full practice of law. Maybe at the end of it, those under supervised practices are subject to less career discipline, or are more “competent” attorneys. All good things to measure. But, and I just note it here briefly, that it’s hardly the case that all replacements for the bar exam should be deemed “diploma privilege,” and it’s not sure that all alternatives are better than the bar exam.

Brief thoughts on court packing

First, some terms are negative and, no matter how much they’re used, never, at least in my ears, become positive. The phrase “going viral” is one. “Court packing” is another. I’m not a legal historian, but my understanding is that President Franklin Roosevelt proposed—admittedly, with some level of disingenuity—expanding the membership of the Supeme Court to assist aging justices hear cases and increase workload opportunities for the Court to hear more cases. “Court packing” was the critical term for the act, to suggest that his true motivation was to “pack” the Court with justices sympathetic to his political causes. So I’m not really a fan of using this phrase as a political rallying cry, as, I think, it’s a negative take. But maybe that ship has sailed, or maybe I’m idiosyncratic.

Second, it’s interesting to think about the procedural hurdles to clear. Expanding the Court requires legislative from the House and the Senate, including abolishing or surviving the legislative filibuster, and a presidential signature, followed by nominees from the president confirmed by the Senate. It’s a several stage process that takes all of government. It’s entirely achievable, of course, but it’s worth considering that the process may take some time.

Third, if “court packing” is the express goal—bringing on justices to the Court sympathetic to the expanding party’s political views—I wonder about the next question, the number of justices. In the event that a “conservative” jurist (for lack of a better descriptor) replaces the late Justice Ruth Bader Ginsburg, the “median” justice on the Court (again, imperfect as it may be) may well be someone like Justice Brett Kavanaugh. Currently, it might be deemed Chief Justice John Roberts. Before that, it was Justice Anthony Kennedy. Those are fairly significant moves in the last couple of years.

Replacing a sitting justice with one at the other end of the ideological spectrum is essentially a two-step move: subtracting a vote on one end, and adding a vote on the other. So any “court packing” requires two justices to “make up” for a one-justice switch. (And of course there’s no requirement for an even number of justices.”) If left-of-center parties expand the Court to eleven and secure two more Supreme Court justices, the median justice shifts back to Chief Justice Roberts. If they expand to thirteen and secure four more justices (and four more confirmation hearings!), the median justice shifts to, say, Justice Stephen Breyer or Justice Elena Kagan (or maybe one of the newly-confirmed justices). Fifteen, and move it farther still.

In short, another important question is what one wants to achieve in “court packing.” One might want to restore “balance.” One might want to move the “median” vote. One might say, “they got three in the last four years, we want three.” Whatever it might be, there are political arguments that would need to be raised, then legislation to be drafted.

I confess, I think it’s exceedingly unlikely that “court packing” occurs for any number of reasons. But if it does, these are the questions that come to mind—and I’m sure some others have thought more deeply about them before, but I plead mostly ignorance on that point!

Are any law schools launching mid-1L transfer opportunities?

“Wow, what a terrible idea,” I’m sure many readers immediately think. But let’s face it, the coronavirus pandemic has “disrupted” (to use an overused term) higher education in a number of aspects. Why not transfers?

I can think of a number of reasons students might want to transfer in the middle of their first year as opposed to the end of it. Students may have expected a particular educational experience (online or in-person, among other expectations), and that experience might have been changed very late in the process—or it might be that the students experienced the option and dislike it, preferring an alternative. Students who want to be in-person, for instance, might want to move to an institution where that’s an option and a university administrative commitment (coupled with state and local authorities permitting such an option). Students who are studying remotely anyway wouldn’t have to move mid-year, as they could stay at home and take online classes (if that’s the option) at an institution in the Spring 2021 term.

Some might note that students haven’t received any 1L grades yet. True, but schools have already been recruiting transferring students before they’ve received their fall 1L grades (a dirty secret of legal education!). Early hints at a student’s grades exist in 1L legal writing assignments. LSAT/UGPA profiles are imperfect, but they’re still useful—and, indeed, the overwhelming focus of admissions remains on these factors. And many schools might say these factors are good enough.

Maybe there’s some ABA rule against this. But it struck me that, in the middle of a pandemic, we might see traditional rules go out the window, at least in some places.

The tension in measuring law school quality and graduating first generation law students

We (I’ll use pronoun here capaciously) know how most law school rankings are generated or how most assessments of law school quality (at least, as measured by law students) are developed. We look to the incoming metrics, the quality of the LSAT scores and undergraduate GPAs among incoming students. We look at attrition rates, including how many are academically dismissed or otherwise withdraw. We look at bar exam passage rates. We look at student debt loads, including those who graduate without debt. We assess “gold standards” in employment outcomes, specifically those who land positions in high-quality positions like full-time, long-term, bar passage-required positions; or those in “elite” outcomes like federal judicial clerkships or large law firm associates.

And while we might pick at elements of these rankings, we might look for “better” ways to measure quality. I think employment outcomes are a great standard. I also like to examine law school student debt loads.

But over the years, I keep wondering whether these “better” ways are, really, better. Prompted from a recent story about the USNWR “best colleges” ranking, I thought I’d muse about why.

Imagine two prospective students, Student A and Student B. Both have poor “predictors” of law school performance (below median LSAC index score, say). Student A is the child of a successful attorney in a mid-sized practice; or perhaps the parent founded and runs a small firm. Student B is a first-generation law student, perhaps a first-generation college student.

Both students will pay the sticker price for law school tuition and cost of attendance. They don’t earn “merit” scholarships. At many law schools, that can easily exceed $100,000, and often tops $200,000 or even nowadays $300,000.

Student A has the wealthy attorney-parent pay the bill; Student B secures, say, $150,000 in federal loans (if the school lacks much in the way of need-based aid, or if the student is just well-off enough to miss the cutoff).

Both students achieve what their predictors did predict: rather marginal law school performance. Job-hunting is tough for students with a bottom-quartile law school grade point average. After graduation, however, Student A gets a job at the parent’s law firm. Student B is left unemployed and searching, or perhaps in a marginally-attached job.

By a pair of the metrics I admire most—low debt loads and high-quality employment outcomes—Student A looks much better than Student B. But, isn’t it simply the path of least resistance to admit Student A over Student B and preserve legacy status? Or, if a school does well on these metrics, how often is it simply because of the cohort of students more closely resembles A over B?

It’s very expensive to a law school to help Student B succeed, both in reducing debt and in ensuring employment placement (or maybe as a prerequisite ensuring academic success).

I don’t have great answers at this point, except to say that I’m puzzling over the next level of data. I think law schools rightly ought to move away from focusing on inputs to focusing on outputs. (USNWR law rankings, not so much.) At the same time, I confess that moving to such measures offers their own limitations—at least, to the extent we think that we want to reward, say, schools for upward social mobility, or schools actually adding value to students as opposed to conferring status. I hope to think more about this in the years ahead.

Kanye West, federalism, and party disaffiliation statutes in presidential elections: Idaho edition

Last week, I noted that an Arizona trial court, in my view, got a party disaffiliation requirement wrong in the Kanye West ballot access case. Mr. West may be a registered Republican in Wyoming, but he is not a member of any recognized political party in Arizona. When the Arizona Supreme Court affirmed the trial court’s judgment, it did so on a different ground.

There’s a similar challenge in Idaho now. Idaho Code § 34-708A provides, "Such declarations must state that such persons are offering themselves as independent candidates and must declare that they have no political party affiliation." But a “political party” is defined specifically under Idaho law. For instance, "Upon certification by the secretary of state that the petition has met the requirements of this act such party shall, under the party name chosen, have all the rights of a political party whose ticket shall have been on the ballot at the preceding general election." The Republican Party of Wyoming has no such rights in the State of Idaho.

Again, this isn’t a mere technicality. It’s simply that presidential candidates look different because they’re crossing state lines. John Anderson might be a registered Republican in Illinois but could run as an independent candidate in the general election. George Wallace might be a registered Democrat in Alabama but run under the banner of the “American Independent Party.” The Democratic-Farm-Labor Party is unique to Minnesota for Democratic presidential candidates; the U.S. Taxpayers Party is unique to Michigan for the Constitution Party’s candidates. And fusion tickets in state like New York might result in unusual translation of voter registration across states. In a state like Idaho, the only way for the Green Party candidate to get on the ballot is via the independent route—because the Green Party is not recognized in Idaho.

To the extent Mr. West’s petition has other problems, those might well be good reasons to exclude him from the ballot. But on this measure, it’s not.

My 2013 blog post that consistently gets the most hits: "Ranking the most liberal and conservative law firms"

It’s not even close. On a given week where I don’t blog, it’s usually the top hit on my site. Even when I do blog, it’s still usually the top. It’s at or near the top of my year-end report, year in and year out.

It’s a post from 2013, “Ranking the most liberal and conservative law firms.”

I used to be way more into rankings on this blog (they’re clickbait-y, and it was a weakness in my early blogging days, I confess). This was an effort (with some help!) to look at campaign finance data, who contributed to the Obama and Romney campaigns in 2012, and figure out which firms, based on employee contributions to the candidates, were the most “conservative” or “liberal.” Plenty of open questions about how to use it, of course!

I didn’t update after 2016 because, well, maybe things were different in 2016. And maybe they’ll be different again in 2020. Maybe I should update. After all, seven years is a long time! But people keep coming back to it.

It’s also noteworthy that the bulk of the hits to this page come in as searches for some version of “conservative law firm,” and almost never as “liberal law firm.” It appears there’s some Google appetite among prospective law firm associates to identify the conservative ones.

This piece by Bonica, Chilton, and Sen in 2016 offers a more robust look at the political leanings of American lawyers—also a useful resource.

I don’t know if I’ll do something like this again, or if I did how I might change the reporting or methodology used. But it’s wild to me that after seven years it remains one of this site’s most popular posts. Then again, rankings do tend to hold as clickbait….