Does Colorado want to win the state's faithless elector case?

I am reluctant to question the motives of litigators, particular a former law professor (indeed, law dean!) who now serves as the Colorado Attorney General. But I wonder about the state’s recent decision to petition the United States Supreme Court to hear the case arising from the “faithless elector” litigation from the 2016 election.

For background, I covered the earlier litigation here, including the Tenth Circuit’s 2-1 decision finding that Colorado wrongly replaced an elector who attempted to cast a vote for a candidate other than the one he pledged to support before Election Day. The one dissenting judge would have found the claim moot.

There are a number of procedural oddities in the case. For one, Colorado waived sovereign immunity, which seems like a bizarre strategic decision if Colorado wanted to defend the claim.

Colorado also did not argue that the state fell outside the scope of Section 1983 claims, which allows a “person” to be held liable for damages. The majority concluded this claim, too, was “waived.” But if Congress denied a remedy under the statute, a party cannot waive that—the federal judiciary has no power to hear the case.

The dissenting judge pointed out that there was no authority to hear the case. It’s a pretty good argument. So why not take the case to the Tenth Circuit en banc, which may be interested in cleaning up such a conclusion? It would allow Colorado’s faithless elector law to stand.

Indeed, the Eighth Circuit reached a similar result in its claim arising out of a faithless elector in Minnesota—a case the Tenth Circuit never even cited!

So why go to the Supreme Court to argue about the merits of the faithless presidential electors issue? Why do it this way, arguing that the “foundation of our nation is at risk”?

After all, if the Supreme Court looks at this case and sees a moot claim… would it take the case? It’s not clear. The Supreme Court doesn’t just engage in error correction of lower courts. Maybe it would feel compelled to correct the lower court’s decision to avoid the faithless elector precedent from sitting out there. Or, maybe it would simply kick the case because it wasn’t significant enough given the procedural error. (Or, maybe it found no procedural error at all, I suppose!)

I’m not sure why this strategic path was taken. Understandably, the Supreme Court has been asked to hear a challenge in which the Washington Supreme Court upheld fines for three faithless electors in the state—so maybe, I guess, there’s a sense of urgency. It’s easier for the United States Supreme Court to ignore a case that (1) preserves the status quo, (2) affects just one state, and (3) didn’t actually replace an elector. Adding the Colorado case (which found the statute unconstitutional, is precedent for all states in the Tenth Circuit, and actually replaced an elector) is a much riper target to find the state law unconstitutional, the opposite of what defenders of the law would want.

Alternatively, maybe the hope is to resolve this definitively by 2020, and an en banc review may still leave time for review with the United States Supreme Court.

Maybe it’s the juiciness of raising a highly salient election law challenge before the Supreme Court, or maybe it’s a strategic reason I haven’t considered. But it’s a curious one that I thought I’d highlight.

UPDATE: Professor Rick Hasen blogs his thoughts here. He writes: “Here’s one possibility I don’t think Derek covers: Colorado wants definitive Supreme Court precedent allowing states to block faithless electors. If Colorado went to the 10th circuit and won on procedural grounds, that would not resolve the merits of barring faithless electors in the 10th circuit, it would not resolve the issue nationally, and it would make it less likely the Supreme Court would take the Washington case, because there would no longer be a split among the courts.”

Experimentation in reforming legal education

Professor Dan Rodriguez has a terrific and helpful post over at Legal Evolution, Toward evidence-based legal education reform: First, let’s experiment. This comes on the heels of his call for more data to help improve law school decisionmaking.

“Data-driven” is one of the trendiest buzzwords around at the moment, but he points out that we too easily assume the status quo is the most effective form of legal education or that we can’t figure out if it or another form is any good. We need evidence—data, yes, but really means of comparing different kinds of legal education and ascertaining whether one is better than another. I think Professor Rodriguez rightly notes that “internal political difficulty” tends to inhibit experimentation in legal education to a greater degree than accreditation bodies or rankings factors—that is, there’s plenty of flexibility within existing accreditation frameworks that minimally impact USNWR rankings factors, but it’s simply a question of will, desire, priorities, and the like.

One is that this language sounds so scientific, and it may lead to concerns about institutional review board reviews and the like. But as an exchange on Twitter recently illuminated, labeling them “pilot programs” over experimentation or other overly scientific-sounding phrases may help ease some political concerns.

Additionally, I think it’s worth emphasizing that a lot of what we subjectively believe to be “uniform” is not very uniform at all, which opens up opportunities to treating similarly-students differently within appropriate boundaries. There might be concerns about “experimenting” with a 1L section in the legal curriculum, but, really, 1L professors might have vastly different approaches to a theoretically identical subject, including different exam and grading methodology. Willingness to try “pilot programs” among subsets of law students should extend beyond professors’ academic freedom in the classroom, an acknowledged differentiator among similarly-situated sets of students.

Importantly, Professor Rodriguez highlights the randomized nature of such programs. That’s also essential. Many students opt to take certain things, like bar prep classes, clinics, or externships. That self-selection means that we may lose the ability to identify any independent value those programs may have once bias clouds the results—for instance, self-motivated students may opt for a bar prep class over a fellow student with similar grades who lacks the motivation, and it may tell us less (if anything) if the first student passes the bar but the second doesn’t.

In short, it requires political will and time from invested professors to make some of the changes Professor Rodriguez identifies. Unfortunately, it appears little of significant has happened in legal education, even in the face of dropping bar exam pass rates, in recent years. Some schools and some isolated programs may be doing some things, but even those haven’t been deemed so wildly successful that other schools are racing to replicate them. Let’s hope there’s more movement in the years ahead.

Why "faithless electors" have little power to change the winner of presidential elections

Adam Liptak at the New York Times highlights the request for the Supreme Court to consider “faithless” presidential electors from the 2016 presidential election. The headline (not written by Mr. Liptak): “‘Faithless Electors’ Could Tip the 2020 Election. Will the Supreme Court Stop Them?”

It’s not a great headline. Could faithless electors sow chaos and discord into the 2020 presidential election? Certainly. Could they alter the outcome? That’s another matter entirely….

Below is a charge of “faithless” presidential electors since 1900. (This excludes faithless vice-presidential votes.) It’s tough to make apples to apples comparisons much earlier (or, indeed, even before World War I) because states often printed ballots with individual electors, to the extent voter expectation or reliance is a factor. But this nicely covers recent history.

Year Faithless winners Faithless losers Winner's presumptive margin of victory
1948 1 0 37
1956 0 1 191
1960 0 1 34
1968 1 0 32
1972 1 0 251
1976 0 1 27
1988 0 1 156
2000 0 1 1
2004 0 1 16
2016 2 5 36

It’s worth noting that there have been more “faithless” votes cast from losing candidates (11) than winning candidates (5). (If we included the 3 electors who actively attempted to vote for another candidate in 2016 but were replaced or revoted for the pledged candidate, the margin would rise to 14 to 5.) Even excluding 2016, the margin is 6 to 3. (That said, it’s hard to count the likely mistaken vote of a 2004 Minnesota presidential elector for “John Ewards [sic]” as truly “faithless” for the loser. UPDATE: An elector in 1948 was on two separate slates, one for the Democratic candidate and one for the Dixiecrat candidate, and even though the Democratic candidate won he cast hist vote for the Dixiecrat candidate. One can question whether this is “faithless,” too.) Of course, there are perils in such a small sample size. But it reflects that it’s easier for losing slates of presidential electors to protest or make a “statement” with their faithless vote. That is, there’s essentially no cost for electors of losing candidates to behave faithlessly—their candidate was already going to lose. Winner candidates, however, have much more to lose; we might expect electors to take their role more seriously (and faithfully).

Note, too, that the margin of victory can matter. In each race, I list the winning candidate’s presumptive margin of victory (i.e., how many votes the winner could spare to ensure he received a majority of the vote, and presumptive assuming no electors were faithless). Note that a faithless vote in 1972 was comically unconsequential: Nixon had a 251-vote margin of victory. Of course, 2000 is the opposite: George W. Bush could afford just one defection to retain his majority, as he had just 271 electoral votes and needed 270 to win the election. (Professor Robert Alexander has examined efforts from 2000 and beyond to court faithless electors, particularly in close matchups.) The higher the leverage of the situation, the less likely it’d be that an elector would behave faithlessly.

Win. That’s another caveat. If no candidate secures a majority, the top three receiving vote-getters proceed to the House, where the House votes and each state’s delegation receives one vote. That includes a 269-269 tie, which means, with no majority, those two candidates would go to the House.

Another way, then, to think about the faithless electors is to look at who the faithless electors cast their votes for. Did they try to make the second-place vote-getter (the runner-up) win the election? Or did they cast their vote for someone else?

Year Faithless winners Faithless votes cast for runner-up Runner-up's presumptive margin of loss
1948 1 0 -77
1968 1 0 -79
1972 1 0 -253
2016 2 0 -38

Since 1900, exactly zero faithless electors have cast a vote for the runner-up. Faithless electors have cast a vote for a third-party candidate who placed third, or for a marginal candidate who’d otherwise receive zero electoral votes. They have never in recent history attempted to help the runner-up win the election.

Note how this second examination works. Faithless electors could deprive the winner of a majority. But to deprive the winner of the majority, and to give another candidate the majority (i.e., the power to change the winner) is something else altogether. And we have zero instances of any faithless elector ever attempting to do so.

Of course, past performance is no indication of future performance. But it’s another piece in our examination of presidential electors. Faithless electors would’ve needed astonishing coordination to pull off the feat, and they’re unlikely to be so malleable in the future.

It’s entirely possible that very aggressive courting of presidential electors can deny a candidate a majority. But to court them to change the winner? We have no evidence of that from extensive past practices.

Denying the majority to the winner sends the election to the House. In the 1824 election, the only post-12th Amendment election sent to the House, we saw the House choose the second-place vote-getter (John Quincy Adams) when no candidate received a majority of the electoral vote and Andrew Jackson received a plurality of the vote. It’s not clear how the House might handle an election where a candidate had the presumptive edge in the Electoral College and was denied the majority simply by faithless electors—it’s possible the House would play “constitutional hardball” and exercise its independent judgment; but, more likely, I think, is a vote for the presumptive winner to nullify the effect of the faithless electors. I could be wrong.

But, at best, faithless electors have historically sought chaos, not a different winner. I’ve explained some reason why they’ve done so. And I think it’s a reason we wouldn’t expect faithless elector to “tip” a presidential election.

California's presidential tax return disclosure requirement may not take effect for 2020

On September 19, a federal judge announced from the bench that he would enjoin enforcement of California’s law that requires presidential candidates to disclose their tax returns as a condition of securing ballot access in the presidential primary. He announced he would issue a written order by October 1, which he did (with a later amendment to that order October 2).

California announced it would appeal the ruling, but it has dragged its feet in doing so. The notice of appeal was filed October 8. The matter (five consolidated matters, really) was docketed before the Ninth Circuit on October 10. The clerk of the Ninth Circuit announced its briefing deadline, which extends as late as December 24 for the reply brief. Oral argument would likely be after that, and a ruling issued after that. UPDATE: The California Supreme Court is also hearing oral argument on a state-law claim on November 4.

Presidential candidates who intend to secure ballot access must circulate petitions between November 4 and December 13. The California Secretary of State plans to announce all “generally recognized” presidential primary candidates, pursuant to the state constitution, by December 26.

California moved up its presidential primary to March 3, 2020, which means that it has this exceedingly early ballot access deadline. It has to print ballots to begin delivery to overseas and military voters on January 3, 2020.

There appears to be no urgency or movement to try to resolve this case ahead of the ballot access deadline, in which case the preliminary injunction would remain in effect for the 2020 primary. (Later events might change that, of course.)

To the extent this law is targeting President Donald Trump in particular, the law will have no effect on any effort to secure his tax returns—unless, I suppose, he lost the election in 2020 and ran again in the primaries in 2024, or the Twenty-Second Amendment was repealed to abolish presidential term limits.

It’s also reason why I focus on the broader portrait in Weaponizing the Ballot on states’ power over ballot access rules. Tax return disclosure requirements targeting Mr. Trump in particular may be the primary political lens through which we view the validity of such laws. But these laws, if enacted, would affect a far broader pool of candidates and extend far longer than the 2020 election. It’s worth reflecting upon that if the law is enjoined ahead of the 2020 primaries.

Recent Supreme Court clerk placement into the legal academy

On the heels of my recent annual survey of where Supreme Court clerks end up 10 years after their clerkships, I thought I’d look at the data a different way. I’ve done this survey for seven years and have a good chunk of placement data for Supreme Court clerks. I thought I’d look at the 56 clerks who ended up as law professors 10 years after their clerkships, and where they’d landed in that time. Of course, clerks may have moved on to other schools after 10 years, some may have left the academy by 10 years, or others may enter the academy after 10 years. But looking at the same 10-year window of similarly-situated clerks across several years was of interest (ed.: or more likely serves as a Rorschach to confirm priors…).

I’ve sorted below by justice and then by school, among those who clerked OT 2003 to OT 2009, and where they were 10 years out.

Ginsburg (11): Yale, Harvard, Chicago (x2), Duke, Michigan (x2), Berkeley, Fordham, Wisconsin (x2)*

Stevens (11): Columbia (x3), Michigan, Penn, Duke, Wisconsin, Florida, Cardozo, Georgia State, American

Souter (10): Harvard, NYU (x2), Columbia, Virginia, Michigan, Northwestern, UCLA, William & Mary, Pepperdine

Kennedy (7): Harvard, Washington University in St. Louis, George Washington, Notre Dame (x2), Ohio State, Hastings

Breyer (4): Harvard, Chicago, Columbia (x2)

O’Connor (4): Yale, Chicago, Emory,** BYU

Roberts (3): Chicago, Duke, Missouri

Scalia (3): Columbia, Virginia, Richmond

Sotomayor (2): Georgetown, Wisconsin*

Thomas (2): Notre Dame, George Mason

Alito (1): Emory**

*Clerked for both Ginsburg and Sotomayor in different terms

**Clerked for O’Connor and later Alito in the same term

Columbia (7): Stevens (x3), Breyer (x2), Scalia, Souter

Chicago (5): Ginsburg (x2), Breyer, O’Connor, Roberts

Harvard (4): Breyer, Ginsburg, Kennedy, Souter

Michigan (4): Ginsburg (x2), Souter, Stevens

Duke (3): Ginsburg, Roberts, Stevens

Notre Dame (3): Kennedy (x2), Thomas

Wisconsin (3): Ginsburg, Ginsburg/Sotomayor, Stevens

NYU (2): Souter (x2)

Virginia (2): Scalia, Souter

Yale (2): Ginsburg, O’Connor

American (1): Stevens

Berkeley (1): Ginsburg

BYU (1): O’Connor

Cardozo (1): Stevens

Emory (1): O’Connor/Alito

Florida (1): Stevens

Fordham (1): Ginsburg

George Mason (1): Thomas

George Washington (1): Kennedy

Georgetown (1): Sotomayor

Georgia State (1): Stevens

Hastings (1): Kennedy

Missouri (1): Roberts

Northwestern (1): Souter

Ohio State (1): Kennedy

Penn (1): Stevens

Pepperdine (1): Souter

Richmond (1): Scalia

UCLA (1): UCLA

Washington University in St. Louis (1): Kennedy

William & Mary (1): Souter

Where are they now? Supreme Court clerks, OT 2009

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003, October Term 2004, October Term 2005, October Term 2006, October Term 2007, and October Term 2008, here's what the clerks from October Term 2009 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links admittedly often aren't the best source material). Some designations including “recently” are the last-available information. As always, please let me know of any errors or corrections (Twitter DM or email is fine, no need to comment!).

Chief Justice John G. Roberts

Roman Martinez (Yale 2008 / Kavanaugh), partner at Latham & Watkins

James M. McDonald (Virginia 2007 / Sutton), Director of Enforcement, CFTC

Stephen E. Sachs (Yale 2007 / S. Williams), law professor at Duke

Erik R. Zimmerman (Stanford 2007 / Wilkinson), attorney at Robinson Bradshaw

 

Justice John Paul Stevens

Hyland Hunt (Michigan 2008 / D. Ginsburg), partner at Deutsch Hunt PLLC

Adam C. Jed (Harvard 2008 / Calabresi), DOJ, recently Civil Division and Office of Special Counsel, DOJ

Merritt E. McAlister (Georgia 2007 / R.L. Anderson), professor at Florida

David E. Pozen (Yale 2007 / Garland), professor at Columbia

 

Justice Antonin Scalia

Jonathan C. Bond (GW 2008 / Sutton), recently partner at Gibson Dunn

Steven P. Lehotsky (Harvard 2002 / D. Ginsburg), Senior Vice President & Chief Counsel, U.S. Chamber Litigation Center

Daniel M. Sullivan (Chicago 2008 / O’Scannlain), partner at Holwell Shuster & Goldberg

Katherine Twomey (Allen) (Virginia 2008 / Wilkinson), DOJ, Civil Division

 

Justice Anthony Kennedy

Daniel Epps (Harvard 2008 / Wilkinson), law professor at Washington University in St. Louis

Allon Kedem (Yale 2005 / Leval / Kravitz (D. Conn.)), partner at Arnold & Porter

Scott A. Keller (Texas 2007 / Kozinski), partner at Baker Botts

Misha Tseytlin (Georgetown 2006 / Kozinski / J. R. Brown), partner at Troutman Sanders

Justice Clarence Thomas

Tyler Green (Utah 2005 / McConnell / Cassell (D. Utah)), Solicitor General of Utah

Brian Morrissey (Notre Dame 2007 / O’Scannlain), DAAG, DOJ

Elizabeth P. Papez (Harvard 1999 / Boggs), partner at Gibson Dunn

Marah Stith McLeod (Yale 2006 / O’Scannlain), professor at Notre Dame

Justice Ruth Bader Ginsburg

Elizabeth B. Prelogar (Harvard 2008 / Garland), recently Solicitor General’s Office and Office of Special Counsel, DOJ

Pamela Bookman (Virginia 2006 / Sack), professor at Fordham

Vincent G. Levy (Columbia 2007 / D. Ginsburg), partner at Holwell Shuster & Goldberg

John Rappaport (Harvard 2006 / Reinhardt), professor at Chicago

Justice Stephen Breyer

Andrew Manuel Crespo (Harvard 2008 / Reinhardt), professor at Harvard

Bessie Dewar (Yale 2006 / W. Fletcher / L. Pollak (E.D. Pa.)), State Solicitor of Massachusetts

Chris C. Fonzone (Harvard 2007 / Wilkinson), partner at Sidley

Jennifer Nou (Yale 2008 / Posner), professor at Chicago

Justice Samuel Alito

Amit Agarwal (Georgetown 2004 / Kavanaugh), Solicitor General of Florida

K. Winn Allen (Virginia 2008 / Sutton), partner at Kirkland & Ellis

Jaynie Lilley (Yale 2006 / Cabranes / M. Patel (N.D. Cal.)), Civil Division, DOJ

Lucas C. Townsend (Seton Hall 2004 / Barry / Ackerman (D.N.J.)), partner at Gibson Dunn

Justice Sonia Sotomayor

Jeremy C. Marwell (NYU 2006 / S. Williams), partner at Vinson & Elkins

Eloise Pasachoff (Harvard 2004 / Katzmann / Rakoff (S.D.N.Y.)), law professor at Georgetown

Lindsey E. Powell (Stanford 2007 / Stevens / Garland), civil division, DOJ

Robert Yablon (Yale 2006 / R. B. Ginsburg / W. Fletcher), law professor at Wisconsin

Justice Sandra Day O'Connor

Joshua Deahl (Michigan 2006 / Benavides, shared with Kennedy), appellate division, Public Defender Service

Justice David H. Souter

Thomas Pulham (Yale 2004 / Katzmann / Cote (S.D.N.Y.), shared with Breyer), Civil Division, DOJ

As usual, there’s a mix of government attorneys (DOJ and state SG most common), law professors, and law firm partners, with scattered other positions. Of note, two from this class served on Robert Mueller’s investigation team.

One more note: as I perused those were partners at law firms, I was struck by the number who’re heading or a part of the “appellate” teams at these firms. I know, this is a popular reason to hire or pursue Supreme Court clerks. But I’ve been looking at 10-year profiles for several years, and it struck me that there were disproportionately more in this field this year.

By that I mean, in previous years, I’d commonly find partners doing “real law” (okay, I don’t mean to be pejorative here)—tax law, white collar criminal defense, complex litigation, and so on. Appellate might have been a part of the portfolio, but it wasn’t the defining area. Now, it seems that more are specifically in appellate work without other defined practice areas.

Maybe I’m just misremembering (possibly) or observing selectively (probably). But it’s worth considering whether Supreme Court clerk trajectories are changing among those who remain in private practice.

A few Microsoft Word keyboard shortcuts for legal writing

On the heels of a fairly popular tweet, I thought I’d dig into a few of my favorite Microsoft Word keyboard shortcuts that may be particularly useful for legal wrigin.

Small caps: Ctrl + Shift + K

Most Word users know Ctrl + B (bold), Ctrl + I (italics), and Ctrl + U (underline). But for small caps—those journal titles or book titles—Ctrl + Shift + K can be a real time saver.

Insert footnote: Alt + Ctrl + F

No more raising the mouse to the ribbon, finding References, then Insert Footnote. The Alt then Ctrl function can be a little counterintuitive, but Alt + Ctrl + F inserts a footnote right in place—and moves your cursor down to that newly-created footnote. (If you want to move immediately back to the body of the document, try Shift + F5—this moves you among the last four places your cursor was, so it only works immediately and won’t work the same way if you start typing in the footnote.)

Find & replace: Ctrl + H

I often use “Find” as the somewhat intuitive Ctrl + F, but I often want to replace apostrophes and quotation marks to ensure that whatever I’ve cut and pasted end up as serifs. Ctrl + H allows you jump right to the find and replace function.

En-dash: Ctrl + Minus sign (on numeric keypad)

Em-dash: Alt + Ctrl + Minus sign (on numeric keypad)

Not the best option for a laptop, but a convenient tool if you’re at your desktop. Rather than trying to autocorrect en-dashes and em-dashes, this inserts those symbols immediately.

§: 00A7, then Alt + X

Okay, not a great shortcut…. Word lets you insert any Unicode character by typing that four-digit code, then Alt + X: 00A7 being the section symbol. But other users had better ideas. Professor Leandra Lederman notes that Alt + 21 on the numeric keypad gives you the section symbol. (and Alt + 20 for the paragraph symbol). Several users (and I’m among them) created a keyboard shortcut of Alt + S. (I also created Alt + P for the paragraph symbol.)

Judge Jennifer Perkins added that the non-breaking space is Ctrl + Shift + Space, which is particularly valuable in conjunction with the section symbol to ensure that the number doesn’t break from the section symbol in the event they move from one line to the next in the document.

I’m sure there are others, but these are a few I’ve found most valuable.

Federal judge finds tax return disclosure requirement for ballot access cases violates Elections Clause, First Amendment, and Equal Protection Clause

A federal court in California issued its order (PDF) after enjoining California’s tax disclosure requirement for presidential candidates. Earlier, I noted the court suggested that California’s statute was preempted by the Ethics in Government Act. The court did make that finding. But the court also found it unconstitutional on three other bases.

First, the statute runs afoul of the Elections Clause, meaning California lacked the power to add this rule as a condition of ballot access. (This is the argument I make in Weaponizing the Ballot.) It relies on Term Limits v. Thornton and Cook v. Gralike, in addition to a Ninth Circuit opinion Schaefer v. Townsend that struck down a voter registration requirement as a condition of ballot access.

Second, the court concluded it burdened the associational interests of candidates, voters, and political parties under the First Amendment. The court concluded the burden was “severe” because it was a “functional bar” on candidates who refused to disclose tax returns, a “severe” burden that the state failed to justify.

Third, the court held that it violated the Equal Protection Clause by “distinguishing among constitutionally eligible candidates,”—that’s because general-election independent candidates would not need to disclose their tax returns, but primary candidates would.

In short, the court found four separate reasons why the law failed. We’ll see what happens as this case proceeds to the Ninth Circuit—given that time is precious as the ballot petition period begins in a matter of weeks, and given that the California Supreme Court is considering an independent challenge, we’ll see what choices the parties and the courts make moving forward.