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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

California postpones an election to help one of its own

A sure sign of political manipulation of an election is delaying it. Troubled states like the Democratic Republic of the Congo, Somalia, and Haiti have recently come under United Nations scrutiny for delaying their elections.

And then there’s California, where Democrats are attempting to postpone a recall effort to hold onto a supermajority in the legislature.

In April 2017, the California legislature approved a major new gasoline tax and annual vehicle fee signed into law by Governor Jerry Brown. The tax is projected to raise $5.2 billion per year for transportation-related projects. (For perspective on the size of the tax hike, consider that the entire state of West Virginia’s total tax revenue from all sources was $5.1 billion in 2016.)

Tax hikes require a two-thirds vote of each legislative chamber, and Democrats hold precisely a supermajority in both. The tax passed with the bare minimum support in each chamber, with one Democrat opposed and one Republican vote in favor (in exchange for a half a billion dollar earmarked for special projects).

Republicans targeted Democratic Senator Josh Newman of Fullerton for a recall, which, if successful, could end Democratic supermajority control. Mr. Newman won his seat in 2016 by a slim 50.4%-49.6% margin.

Democrats complained that the recall campaign has been deceptive, as petition circulators broadcast that signing the petition would help “stop the car tax.” Rather than fight the recall in the political arena, however, they’ve tried to postpone the election.

The legislature swiftly enacted a law to include a number of dilatory tactics. First, the bill would permit those who signed a petition to withdraw their names up to 30 days after the petitions have been submitted. Many jurisdictions permit withdrawal of signatures while the petition is circulating. But to permit signers to withdraw after the petition has been submitted invites untold mischief. Recall opponents could initiate a counter-campaign to secure enough withdrawals and thwart the recall from ever happening.

Worse, the legislature enacted this law retroactively. While recall petitioners were in the midst of circulating their petition, the California legislature changed the rules on them. Petition circulators surely would have collected more signatures if such a law were on the books when they began.

The 30-day window also postpones the date of the recall, which is fixed by the California Constitution. Recalls must occur within 60 to 80 days, unless the petition is certified within 180 days of the next regularly scheduled general election. Governor Jerry Brown assuredly would call for the election at the next general election if the deadline could be pushed back long enough. So the California legislature began adding dilatory time periods to push back the recall as long as possible.

Counties must verify the validity of the signatures from the petitions, usually by a statistical sample of three percent of the signatures. They check to make sure that the signatures are authentic and come from registered voters. The new law abolishes sampling as a permissible technique and requires examination and verification of each and every signature, a costly and time-consuming endeavor. This is a thirty-fold increase in the time and cost of checking signatures. (The legislature didn’t even bother to find that recall signature fraud was a problem or that recall petitions needed special treatment from other election-related petitions. It simply made the process more cumbersome to slow it down.)

The legislature then added a 30-day window after the signature withdrawal window closes for the Department of Finance to estimate the cost of the recall. After that, the legislature tacked on another 30-day window for the Joint Legislative Budget Committee to weigh in on the cost estimate. Only then may the Secretary of State certify the sufficiency of the recall signatures.

The bill is even more absurd with its final act. After a lawsuit challenging the law, a court stayed application of the law, finding that it likely violated the “single subject rule.” California requires that laws embrace one topic, and here the legislature logrolled this election law into a budget bill. Fearing that they’d lose in court, the legislature moved with remarkable speed—in a single day, August 24, a newly-amended clean election bill made its way through both chambers and received the governor’s signature. There is a chance that a state court still finds the law unconstitutional, given, for instance, its retroactive effect, and its tenuous reasons for delaying the election.

The law will affect recalls in more than just Mr. Newman’s race. Efforts to recall Judge Aaron Persky, criticized for his lenient sentence handed down to Brock Turner, convinced of sexual assault at Stanford University, will face similar delays.

Even in 2003, when California’s voters recalled Governor Gray Davis just 9 months into his term, the legislature didn’t attempt to thwart the voters.

The successive and repeated delays all but guarantee that Mr. Newman's recall, like virtually all recall elections, will be pushes to next June’s primary election. True, Mr. Newman must still, at some point, face recall. But the California Constitution’s 60-to-80 day guarantee for recalls has become a nullity.

Politifact fact-check: the Ninth Circuit is, in fact, the most reversed federal court of appeals

Recently, cable news personality Sean Hannity commented that the Ninth Circuit is the "most overturned court in the country." Politifact rated that claim as "false." But Politifact's analysis is seriously flawed and suffers from selective analysis of the evidence, and misrepresentation of the evidence in other respects.

I recently had the opportunity to appear on NPR's AirTalk to support a proposal from Arizona Senator Jeff Flake's office to split up the United States court of Appeals for the Ninth Circuit. The "Judicial Administration and Improvement Act of 2017" would keep California, Oregon, Hawaii, and some U.S. territories in the Ninth Circuit. It would create a new Twelfth Circuit out of Arizona, Nevada, Montana, Idaho, Washington, and Alaska.

One reason for splitting the circuit is systemic dysfunction in the Ninth Circuit. It has 29 active judges, (but four vacancies at the moment) nearly the size of the 30-member Arizona Senate (to speak on terms for those from the Grand Canyon State). That's nearly twice as large as the 17-member Fifth Circuit. It's little wonder that decisions take longer (often much longer) to issue from the Ninth than anywhere else. Splitting the circuit would help create a new "Mountain Circuit" that would function fairly effectively, and the new Ninth Circuit would remain the largest circuit in the country.

More judges might help the Ninth speed along cases, but it would not help its high reversal rate. That's because the court lacks the ability to self-correct with true en banc procedures; the entire 29-member court can't really assemble, and it's left instead to a lottery of some subset of these judges to correct errors from three-judge panels. And in a lottery of three judges among 29, some combinations are sure to be greater outliers than others. Splitting the circuit would allow it to have true en banc procedures and minimize reversal rates.

The Ninth Circuit's legacy is cemented by instances like October Term 1996, when it went 1-for-28, the stuff of legend. The Ninth Circuit is reversed more often perhaps because its size accounts for poorer outcomes.

So, to Mr. Hannity's claim that the Ninth Circuit is the "most reversed." While there are arguments raised in the Politifact piece that "most reversed" may have limited normative significance, that's a separate argument. (But, Politifact can't help itself to weigh in on the normative claim, concluding, "More broadly, experts say this statistic is a poor way of comparing courts.") Instead, as a matter of pure math, is the Ninth Circuit the "most reversed"?

Politifact says no. The answer is resoundingly yes.

Politifact chooses a cohort of data from 2010 to 2015 to conclude that the Ninth Circuit is the third-most reversed, behind the Sixth and Eleventh Circuits. But why pick this window of time?

I used the same analysis with slightly different data--Politifact uses the SCOTUSBlog Stat Pack, which is slightly simpler and less comprehensive in time than the Harvard Law Review statistics, which I opted to use (and may result in some slight variations of the numbers). Because of changes to the Harvard Law Review statistics system, I also didn't have ready access to Eleventh Circuit data between OT1994 and OT1996.

The chart below displays the cumulative reversal rate, which includes opinions from the Supreme Court that reverse a court, vacate an opinion from a court, or reverse in part or vacate in part. It is the cumulative reversal rate based on the term listed: so, for instance, OT2014 data is the cumulative reversal rate for OT2014 & OT2015; OT2013 is the cumulative reversal rate for OT2013, OT2014, and OT2015. I ran the figures for the Sixth, Ninth, and Eleventh Circuits.

It would be hard for Politifact to manufacture a window that more perfectly enables it to refuse Mr. Hannity's claim. If you begin to include any earlier terms, the Eleventh Circuit quickly falls behind the Ninth in reversal rates; by including a 12-year window back to OT2004, the Ninth Circuit is the most reversed, and holds that trend back through cumulative data to at least OT1994.

Now, there are, of course, many ways to slice such data. Is the Ninth Circuit relatively better than it has been? (Answer: yes, but not by much--its cumulative reversal rate since OT2012 was around 80%, not much better than the rate of around 82% since OT1994). Is the Ninth Circuit not as bad as other circuits in recent years? (Answer: yes, but only with a fairly limited window of time.)

But for Politifact to so brazenly rate Mr. Hannity's claim as "false" displays its choice to evaluate his claim through a single and precise window--perhaps to achieve a result that the fact-checker desired to reach.

Below are charts for the 9th Circuit and 6th Circuit reversal rates dating back to OT1994.

9th Circuit rev/vacate total rev rate
OT1994 14 17 82%
OT1995 11 13 85%
OT1996 27 28 96%
OT1997 14 17 82%
OT1998 14 18 78%
OT1999 9 10 90%
OT2000 13 17 76%
OT2001 14 18 78%
OT2002 18 23 78%
OT2003 19 25 76%
OT2004 16 19 84%
OT2005 15 18 83%
OT2006 19 21 90%
OT2007 8 10 80%
OT2008 15 16 94%
OT2009 11 15 73%
OT2010 19 24 79%
OT2011 18 24 75%
OT2012 12 14 86%
OT2013 10 11 91%
OT2014 10 15 67%
OT2015 8 10 80%
Total 314 383 82%
6th Circuit rev/vacate total rev rate
OT1994 4 7 57%
OT1995 2 4 50%
OT1996 2 3 67%
OT1997 3 3 100%
OT1998 2 4 50%
OT1999 3 4 75%
OT2000 5 7 71%
OT2001 9 10 90%
OT2002 5 7 71%
OT2003 6 8 75%
OT2004 7 11 64%
OT2005 6 8 75%
OT2006 4 7 57%
OT2007 2 3 67%
OT2008 5 5 100%
OT2009 7 7 100%
OT2010 5 6 83%
OT2011 5 5 100%
OT2012 2 2 100%
OT2013 9 11 82%
OT2014 4 5 80%
OT2015 3 4 75%
Total 100 131 76%

Additionally,  and inexplicably, the Politifact analysis includes this absurd claim:

We also found that the 9th Circuit never had the highest reversal rate in any individual term between 2004-15. (That’s the farthest back we could go.)

Just as it would be wrong to look at the total number of reversals--the Ninth Circuit is the largest circuit, and we would expect it to have the most raw reversals (and the most raw affirmed opinions) over a period of years, such as 314 reversals in a little over 20 years, which dwarfs all others--it would be just foolish to look at a single year's data for which circuit had the highest reversal rate. While it sounds impressive that the Ninth Circuit was "never" the "highest" in a single year for 12 years, Politifact's own reporting in this same piece explains why a single year's data is a silly metric:

In 2014, for instance, the 2nd Circuit had a reversal rate of 100 percent, which sounds pretty bad until you find out that the Supreme Court only heard one case from the 2nd Circuit that entire season.

There are plenty of years where a single circuit's record is 0-1, or 0-2, giving it a 100% reversal rate; meanwhile, the Ninth Circuit, with an appeals load of at least 10, and often more than 15 cases, it almost assuredly guaranteed at least one decision affirming what the court did.

Politifact's fact-check, then, is false.

It's worth emphasizing that what bearing this particular claim has on the merits of a decision to split the Ninth Circuit into smaller courts is a different matter. There are many good reasons for dividing the Ninth Circuit up, which I discussed in my AirTalk interview, and which Mr. Flake's offices will surely raise to his constituents.

On the precise point raised by Mr. Hannity, however, he is, at least in some measure, quite right--the Ninth Circuit is, in recent history, the most reversed federal court of appeals.

Please notify me of any errors in the data!

Notable pending election law bills in the 114th Congress

Here's the list of notable election law bills in the 114th Congress. ("Notable," in that I've decided they're notable?) It does not include any proposed constitutional amendments.

Two trends notable among these notables. First, none have made it out of committee. Second, I'd guess a majority are have serious constitutional doubts anyway, so maybe it's better that way?

H.R. 12: Voter Empowerment Act of 2015 (introduced March 19, 2015, by John Lewis; 178 co-sponsors). "To modernize voter registration, promote access to voting for individuals with disabilities, protect the ability of individuals to exercise the right to vote in elections for Federal office, and for other purposes."

H.R. 20: Government By the People Act of 2015 (introduced January 21, 2015, by John Sarbanes; 147 co-sponsors). "To reform the financing of Congressional elections by broadening participation by small dollar donors, and for other purposes."

H.R. 154: Close the Floodgates Act (introduced January 6, 2015, by Derek Kilmer; 87 co-sponsors). "To repeal the provisions of the Consolidated and Further Continuing Appropriations Act, 2015, which amended the Federal Election Campaign Act of 1971 to establish separate contribution limits for contributions made to national parties to support Presidential nominating conventions, national party headquarters buildings, and recounts."

H.R. 367: Campaign Sunlight Act of 2015 (introduced January 14, 2015, by Theodore Deutch; 7 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to require the Federal Election Commission to establish and operate a website through which members of the public may view the contents of certain political advertisements, to require the sponsors of such advertisements to furnish the contents of the advertisements to the Commission, and for other purposes."

H.R. 411: Streamlined and Improved Methods at Polling Locations and Early (SIMPLE) Voting Act of 2015 (introduced January 20, 2015, by Steve Cohen; 27 co-sponsors). "To amend the Help America Vote Act of 2002 to promote early voting in elections for Federal office and to prevent unreasonable waiting times for voters at polling places used in such elections, and for other purposes."

H.R. 412: To reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns (introduced January 20, 2015, by Tom Cole; 1 co-sponsor).

H.R. 425: Stop Super PAC-Candidate Coordination Act (introduced January 21, 2015, by David Price; 6 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to clarify the treatment of coordinated expenditures as contributions to candidates, and for other purposes."

H.R. 599: Stop Targeting of Political Beliefs by the IRS Act of 2015 (introduced January 28, 2015, by Paul Ryan; 13 co-sponsors). "To prohibit the Internal Revenue Service from modifying the standard for determining whether an organization is operated exclusively for the promotion of social welfare for purposes of section 501(c)(4) of the Internal Revenue Code of 1986."

H.R. 714: Leadership PAC Limitation Act (introduced February 4, 2015, by Michael Capuano; 2 co-sponsors). "To amend the Federal Election Campaign Act of 1971 to prohibit the conversion of leadership PAC funds to personal use."

H.R. 871: Formerly Incarcerated Voter Registration Act of 2015 (introduced February 11, 2015, by Hakeem Jeffries; 1 co-sponsor). "To amend title 18, United States Code, to direct the Bureau of Prisons to provide certain voting information to Federal prisoners upon their release from prison."

H.R. 885: Voting Rights Amendment Act of 2015 (introduced February 11, 2015, by Jim Sensenbrenner; 64 co-sponsors). "To amend the Voting Rights Act of 1965 to revise the criteria for determining which States and political subdivisions are subject to section 4 of the Act, and for other purposes."

H.R. 951: State Sovereignty in Voting Act (introduced February 12, 2015, by Matt Salmon; 4 co-sponsors). "To amend the National Voter Registration Act of 1993 to permit a State to require an applicant for voter registration in the State who uses the Federal mail voter registration application form developed by the Election Assistance Commission under such Act to provide documentary evidence of citizenship as a condition of the State's acceptance of the form."

H.R. 1346: Redistricting Transparency Act of 2015 (introduced March 10, 2015, by Jim Cooper; 19 co-sponsors). "To require States to carry out Congressional redistricting in accordance with a process under which members of the public are informed of redistricting proposals and have the opportunity to participate in the development of such proposals prior to their adoption, and for other purposes."

H.R. 1347: John Tanner Fairness and Independence in Redistricting Act (introduced March 10, 2015, by Jim Cooper; 14 co-sponsors). "To prohibit States from carrying out more than one Congressional redistricting after a decennial census and apportionment, to require States to conduct such redistricting through independent commissions, and for other purposes."

H.R. 1518: Let It Go Act (introduced March 19, 2015, by Mark Takano; 1 co-sponsor). "To amend the Federal Election Campaign Act of 1971 to provide for a limitation on the time for the use of contributions or donations, and for other purposes."

H.R. 2143: EMPOWER Act (introduced April 30, 2015, by David Price; 1 co-sponsor). "To amend the Internal Revenue Code of 1986 to reform the system of public financing for Presidential elections, and for other purposes."

H.R. 2173: Redistricting Reform Act of 2015 (introduced April 30, 2015, by Zoe Lofgren; 35 co-sponsors). "To require States to conduct Congressional redistricting through independent commissions, and for other purposes."

H.R. 2392: Restoring Important Voter Eligibility Requirements to States Act of 2014 (introduced May 18, 2015, by John Culberson; 1 co-sponsor). "To amend the National Voter Registration Act of 1993 to require an applicant for voter registration for elections for Federal office to affirmatively state that the applicant meets the eligibility requirements for voting in such elections as a condition of completing the application, to require States to verify that an applicant for registering to vote in such elections meets the eligibility requirements for voting in such elections prior to registering the applicant to vote, and for other purposes."

H.R. 2501: Citizens’ Districts Preservation Act (introduced May 21, 2015, by Dana Rohrabacher; 15 co-sponsors). "To require certain States to retain the Congressional redistricting plans in effect as of the first day of the One Hundred Fourteenth Congress until such States carry out a redistricting plan in response to the apportionment of Representatives resulting from the regular decennial census conducted in 2020."

S. 212: LINE Act of 2015 (introduced January 21, 2015, by Barbara Boxer; 3 co-sponsors). "A bill to amend the Help America Vote Act of 2002 to ensure that voters in elections for Federal office do not wait in long lines in order to vote."

S. 229: Democracy Is Strengthened by Casting Light On Spending in Elections Act of 2015 (introduced January 21, 2015, by Sheldon Whitehouse; 42 co-sponsors). "A bill to amend the Federal Election Campaign Act of 1971 to provide for additional disclosure requirements for corporations, labor organizations, Super PACs and other entities, and for other purposes." (See also H.R. 430.)

S. 366: Senate Campaign Disclosure Parity Act (introduced February 4, 2015, by John Tester; 37 co-sponsors). "A bill to require Senate candidates to file designations, statements, and reports in electronic form."

S. 457: Civil Rights Voting Restoration Act of 2015 (introduced February 11, 2015, by Rand Paul; 1 co-sponsor). "A bill to secure the Federal voting rights of non-violent persons when released from incarceration." (See also H.R. 1556.)

S. 772: Democracy Restoration Act of 2015 (introduced March 18, 2015, by Ben Cardin; 10 co-sponsors). "A bill to secure the Federal voting rights of persons when released from incarceration." (See also H.R. 1459.)

S. 1088: Voter Registration Modernization Act (introduced April 27, 2015, by Kirsten Gillibrand; 5 co-sponsors). "A bill to amend the National Voter Registration Act of 1993 to provide for voter registration through the Internet, and for other purposes."

S. 1139: Same Day Registration Act (introduced April 30, 2015, by Amy Klobuchar; 1 co-sponsor). "A bill to amend the Help America Vote Act of 2002 to require States to provide for same day registration."