Author Archives: Richard Pildes

Next time someone asks you why we can’t yet have secure enough electronic voting if we can have ATM machines, send them to this story.

Early voting (EV) is a recent development in American democracy. The 2008 election was the first time EV was used extensively in presidential elections.  And in the 2012 election, the courts began to confront for the first time the issue of how to understand early voting as a legal matter, including for purposes of constitutional law.  The most significant election litigation in 2012 involved early voting, with cases in Ohio and Florida (including cases litigated the weekend of the election) leading to more than 106,000 people in Ohio alone making use of judicial decisions to vote the weekend before the election.

If we reason by analogy, the question is whether early voting should be thought about more like election-day voting or like absentee voting.  Is EV best understood, legally, as expanding election day back in time a bit, so that the legal and constitutional framework should be thought about much like the framework that applies to election day in general?  Or is EV best understood as like traditional absentee voting, in which States have long made decisions about which groups of voters have sufficiently good “excuses” for not being able to show up on election day to justify their access to an absentee ballot?  This was one of the fundamental questions underlying the Obama campaign’s constitutional challenge to Ohio’s “decision” (I will explain the quotes later) to open early voting to some voters but not others the weekend before the election — i.e., military and overseas voters.

To assess the federal courts’ decision that it was unconstitutional for Ohio to open early voting to some voters but not all voters on equal terms, this fundamental question about how to understand early voting has to be confronted.  Yet most of the critical commentary (by which I mean, mostly, Rick Hasen’s blog posts) on the Sixth Circuit and federal District Court decisions doesn’t start the process of beginning to come to terms with this issue. Much as the state of Ohio did during that litigation, this commentary just assumes that EV should be treated under Supreme Court precedents that apply to absentee voting, which permit the state to pick and choose among “proper” voters to vote absentee.

The reason every federal judge to address the merits of these issues rejected that position has much to do, I believe, with the way federal judges are beginning to understand EV as they start to work out its legal meaning.  As a matter of the actual practice on the ground, EV looks in virtually every way like election-day voting:  voters line up in person, sometimes for hours, at state polling locations and they go in and cast their vote.  Unlike with absentee voting, no state has ever tried to carve up its electorate during early voting and insist that some voters can vote early but others cannot.  Since early voting has been developed, it has always been open to all voters on equal terms, just as election day voting is.  Everything about the way early voting is covered in the media and treated by campaigns is just the same as it is on election day.  And voters use early voting in massive numbers that dwarf the traditional absentee ballot process.  Yet what Ohio wanted to do the weekend before the election was to have polling locations that were open, but to turn most voters away while letting a select group of voters through the doors.  No state had ever adopted a policy like that before.   That was the situation the federal courts confronted.

As a window into how federal courts thought about EV, those courts cited many of the classic right-to-vote cases, such as Kramer, Dunn, and Harper.  That is a powerful signal that the courts did not think that EV should be viewed through the lens of absentee voting.  Instead, the courts viewed EV as much like election-day voting, just extended earlier in time.  That is why the courts invoked these foundational precedents that preclude states from opening their polls to some voters but not others.  Because the commentary fails to recognize that the courts viewed EV as better analogized to election day voting than absentee voting, that commentary has bypassed the central issue that made the litigation successful.

Could a state ever permit some voters to vote early and not others, if the state truly had some compelling reason for picking and choosing among voters?  We don’t know the answer to that yet at this early stage of the development of the jurisprudence of early voting.  But that issue was not convincingly presented in the Ohio litigation, because Ohio appeared to have stumbled into the situation it created:  the state actually enacted two separate statutes, one that would have treated everyone equally for early voting, and one that permitted only military voters to vote the final weekend.  In the face of such keystone cops-like legislative efforts (again, the commentary doesn’t take into account these specific facts about the bizarre situation Ohio stumbled into), the federal courts found it hard to credit any post-hoc claim that there were powerful and convincing reasons that justified Ohio opening its polls for EV to some voters but not others.

I did not comment or blog about this case or any other matters during the election because I was working as a Senior Legal Advisor to the Obama campaign and considered it inappropriate to write as an academic expert when I was directly involved in these matters.  But now that the election is over and I’m free to write, I want to make the point that once you conclude that the best way to understand EV is that it is an extension of election-day voting earlier in time — which is what the federal courts concluded and which is how, I would venture to say, voters overwhelmingly understand EV — it is easy to understand why the courts would have held it unconstitutional for a state to open its doors to some voters but not others.  That is why I also thought the constitutional challenge to Ohio’s selective access to early voting would be successful and why I think most federal judges, not just those who sat on the case, would be likely to come out the same way.

Her enigmatic, knowing smile comes to mind each time I re-read Chief Justice Roberts’s opinion. How much of his opinion reflects his own purely internal legal analysis, how much his concern for perceptions about the institutional authority and legitimacy of the Court? Did he always accept the tax power argument or did his views shift during the course of the opinion-writing process? Did he do any work to persuade Justices Breyer and Kagan to join his opinion on the Medicaid issue, or was that their view from the start? John Roberts is hauntingly, gently smiling out at us from his opinion, and we will be staring back at it for years trying to come to terms with all that the opinion might or might not imply.

We will know, of course, in a couple of hours. But in all the commentary on the health-care cases, I do not recall seeing the following possibility explored (though surely someone else must have had this thought). So I wanted to flag the thought in case it does end up being expressed in the opinion. From his comments at the oral argument on the mandate, it is possible to read CJ Roberts as believing two crucial things about the mandate: (1) that a mandate to purchase certain kinds of health insurance – in particular, catastrophic coverage – would be constitutional, based on the government’s argument that enough of the uninsured will eventually consume these kind of medical services so that everyone is, indeed, in the market for these services at some point in time but that (2) the scope of the specific mandate in the ACA is overly broad with respect to this justification, because it requires some categories of people to purchase insurance for services they are almost certainly never going to use (pediatric care for people who are not going to have kids) or for services that are not random events but ones over which people have some control (coverage for substance abuse).

For someone who believes both of those things, what would that mean for the outcome in the case? I see two possibilities:

1. CJ Roberts could write an opinion establishing the principle that a mandate to purchase certain health-care services is constitutional under the commerce clause. He could then, however, hold the specific mandate in the ACA unconstitutional on the ground that it is not reasonably tailored to the specific justification the government offers for the mandate. The opinion would presumably assert that a high-level of constitutional scrutiny is required to justify the mandate, for reasons along the lines Justice Kennedy suggested at the argument, and that the mandate is unconstitutionally overbroad. This would leave open the possibility that a more narrowly drafted mandate, such as one tied to catastrophic coverage, would be constitutional. Of course, the current Congress is unlikely to generate any legislation that would in the short-term accept this invitation to craft a more narrow mandate. And I don’t know whether the health-care economics are such that a narrow mandate would achieve the necessary objectives if policymakers would seek to maintain guaranteed coverage and community rating. But in principle, this kind of opinion would leave the door open to future Congresses to adopt a more narrowly framed mandate.

2. More intriguingly, CJ Roberts could conclude that the mandate is not unconstitutional on its face. At this stage, the litigation involves what’s known as a facial challenge to the mandate; the claim is that the mandate is unconstitutional across the board and in essentially all its applications. In upholding the mandate on its face, CJ Roberts could conclude that the way to deal with the overbreadth of the mandate – if that’s the way he sees it – is to handle that in later as-applied challenges that would arise down the road, in which specific categories of individuals who claim that they will never need some of the specific services they are being asked to purchase would be able to make that claim and perhaps prevail with respect to certain categories of services.

The effect of this resolution would be to uphold the mandate for now but to have the courts carve down the scope of the mandate in later cases. One downside to this approach would be that it would spawn a good deal of litigation down the road and would create uncertainty in the health-care markets until the issues were resolved fully. On the other hand, one of the characteristic themes of the Roberts Court has been to resist deciding cases as facial challenges and to insist that more cases be handled as as-applied challenges. So such a resolution would be consistent with that larger set of jurisprudential themes.

3. I am not in the prediction business and this is not a prediction. But I have thought for a long time that this is an intriguing option I have not seen discussed elsewhere, and so I wanted to raise it in advance of the decision.

In holding Montana’s ban on corporate electioneering unconstitutional today, the Supreme Court stuck to its guns about Citizens United and put the lie to shallow, but frequently repeated, theories about how much public opinion constrains the Court. According to these theories, the Court’s decisions do not and will not stray far from “mainstream public opinion” because political institutions or “the public” will punish the Court if its decisions do so. Savvy to this dynamic, the Court factors the “anticipation” of this potential punishment into its decisions and hence avoids from the start decisions that will inflame large majorities. Thus, these large structural forces supposedly constrain the Court to issue only opinions that are well within the mainstream of public opinion on even the most controversial issues. Rather than decisions reflecting a mix of jurisprudential, philosophical, ideological, and legal understandings, the decisions should be understood more like weathervanes in which the Court tilts toward the direction in which the most dominant popular forces happen to be blowing. Journalists are drawn to these theories, since they can take readers outside the more legalistic issues within the opinion to speculate more broadly (even if without any foundation) for why the Court “really” decided a case the way it did.

In recent years, the biggest embarrassment to these theories — which I have criticized in depth in my academic writing — has been the Court’s extremely well known, controversial, and greatly unpopular decision in the Citizens United case. From the moment the Court held two years ago, in a 5-4 decision, that corporations have the constitutional right to spend unlimited amounts of money to seek to influence election outcomes, polls have consistently shown that roughly 80% of the public strongly opposes the decision. Measured by “mainstream public opinion” (not a concept I like, since getting a meaningful handle on “public opinion” is so elusive, but a concept central to theories that insist “public opinion” strongly constrains the Court), few decisions in recent decades can be said to so boldly fly in the face of “public opinion.” So how do the theorists who insist the Court is strongly constrained by “public opinion” explain the decision?

They cannot conclude that the majority of the Court has strong constitutional or even ideological convictions (whether right or wrong) that corporate political speech is just as entitled to First Amendment protection as other political speech. After all, to conclude that these Court commentators would have to accept that the Court’s decisions in big cases rest on something other than guesses about where “mainstream public opinion” lies. So instead, these Court commentators have to assert that the otherwise savvy Court just made a massively mistaken miscalculation when it decided Citizens United. Thus, my colleague Barry Friedman and his co-author, Dahlia Lithwick – two of the biggest proponents of the view that Court decisions will not stray far from “public opinion” – assert that no one could have known how negative the reaction to Citizens United would turn out to be. As they put it in a recent Slate piece: “[The Justices] could not have anticipated the strength of the negative public reaction to the Citizens United decision on campaign finance reform. . . . Who knew the public was so enamored of McCain-Feingold? The answer is no one—until the court showed what life without campaign finance regulations would look like.” In other words, had the Court realized what the reaction to the decision would have been, the case would have come out the other way.

Even on its own terms, though, the claim that the Court just miscalculated and would never have decided Citizens United had it known how negative the popular reaction would be seems like a desperate attempt to salvage a fundamentally flawed theory. Anyone following these debates at the time, or the general debates about the role of corporations in American democracy, knew how vehemently most of the public would react to the Court overturning decades of campaign finance law and licensing unlimited corporate election spending. Indeed, the best evidence that hindsight wasn’t necessary comes, ironically, from Friedman and Lithwick themselves. For one week after the decision in another Slate piece, they criticized the “bombshell” Citizens United decision for being dramatically out of touch with public opinion – as evidence by polls they cited even back then which showed that 76% of people believed government should have the power to limit corporate election spending. Perhaps we are supposed to think that the Justices in the majority were the only ones in the political elite who failed to understand how controversial and unpopular their decision would be.

But today’s Montana decision means we no longer have to speculate about such matters. Because if the Court made a mistake and simply miscalculated how the public would react to Citizens United, the Montana case presented the perfect opportunity, just two years later, for the Court to “correct” its mistake. Now in a position to fully appreciate “the strength of the negative public reaction” to the original decision, the Court nonetheless not only reaffirmed that decision but doubled down on it by making clear that it would tolerate no exceptions to Citizens United. That outcome comes as no surprise to those of us who believe Citizens United reflected powerfully held philosophical and constitutional convictions, whether we agree with those convictions or not. But it should put the final nail in the coffin of theories that assert the Court could have decided Citizens United only “by mistake” and, more generally, put to rest the view that Court decisions are destined to reflect “mainstream public opinion,” rather than sometimes standing forcefully against such opinion in the name of powerfully held philosophical and legal convictions. The American public might not believe in unlimited corporate speech rights in elections, but the Court’s majority does – and no amount of public backlash is going to cause this Court to back down.

Thomas E. Perez, the Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice, is speaking today at an academic forum for students and faculty at NYU Law School.  I am the host and moderator for this event.  He will be addressing current controversies concerning enforcement of the Voting Rights Act.  This should be an exciting and major forum for discussion of current voting-rights issues. In addition to me, the panelists with whom Mr. Perez will discuss and debate these issues include the following academic experts and experienced practicioners in the voting-rights field:

Professor Guy Uriel-Charles, Professor of Law, Duke Law School

Professor Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU School of Law

Wendy R. Weiser, Director, Democracy Program, Brennan Center for Justice at NYU School of Law

Under the broad heading of Living in a Citizens United World, the NY Times has a longer-than-usual editorial entitled “When Other Voices Are Drowned Out.”  The key sentence is this:  “But when outside spending is unlimited, and political speech depends heavily on access to costly technology and ads, the wealthy can distort this fundamental element of democracy by drowning out those who lack financial resources.”

The Times’s reasoning confirms a point I have made several times, including here and here, on this blog:  those, like the Times, who are concerned that “the wealthy” can “distort” democracy by “drowning out” those with fewer resources need to understand that their complaint lies with the Court’s decision in Buckley v. Valeo, not the more recent Citizens United decision.  The most famous and most cited passage in all of campaign-finance law, from Buckley, is the following:

But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” New York Times Co. v. Sullivan, supra at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. The First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors,365 U.S. 127, 13 (1961).

It is this reasoning from Buckley that directly holds unconstitutional precisely the position that the Times editorial today advocates.  Those who hold the view the Times does need to understand that their real complaint is with Buckley.  Put another way, if Citizens United were overruled tomorrow, the problem that concerns the Times would remain essentially the same.  The Times editorial should really be titled Living in a Buckley v. Valeo World.

Today’s Supreme Court decision in the Texas redistricting case is largely a win for the State of Texas, for reasons I explained in advance of the decision.  But the Court forged a “compromise” solution that was not raised or discussed at all at the oral argument in the case, nor one raised in the briefs.  It is actually not the “compromise” solution that Justice Kagan raised at the argument, but a somewhat different one the Court apparently came up with during its internal deliberations in the case.  And I fear that this compromise is going to make an already complex situation even more unwieldy when these situations arise in the future.

Until today’s decision, there was at least one clear rule when we have dueling federal courts dealing with redistricting plans that have to be evaluated under both Section 5 of the Voting Rights Act and Section 2 of the VRA and the Constitution:  only the pre-clearance court in D.C. could address the Section 5 issues, while the second federal court (here, in San Antonio) was the only court that could address the Section 2 and constitutional issues.  Now, the Supreme Court has decided that the second federal court should also become a second court for looking at the Section 5 issues as well – thus putting two federal courts in the position of addressing the identical issue, with the possibility that those courts could come out differently on the question.  The Court has held that the San Antonio court has to make the predictive judgment of whether there is a “reasonable probability” that the state’s plan will fail to gain preclearance in the other federal court – the preclearance court in DC.  So the court in Texas has been given added legal responsibilities in which it is already under enormous time pressure to come up with an emergency, temporary and interim redistricting plan – it now has to address the Section 5 issues, in addition to the Section 2 and constitutional issues.  This solution is going to proliferate litigation complexities and create even more confusion, rather than reduce the uncertainties.

There are at least two better solutions to this trainwreck situation of two different federal courts both reviewing the same redistricting plan.  First, the Court could have said that if the case is one in which the Department of Justice has already taken the legal position in the pre-clearance court that the plan does have Section 5 violations, the Texas court should be obligated to accept those objections, if there is a reasonable legal basis for them, and cure them when it creates an interim plan.  Indeed, DOJ has done exactly that in this case.  Yet one of the oddities of the Court’s opinion is that there is no mention of this fact, let alone any discussion of its relevance. I am puzzled as to why the Court said nothing about the relevance of the already-existing DOJ Section 5 objections to Texas’ plans, although the argument did not flag this issue clearly for the Court.  So the situation now is that even if DOJ has not yet taken a position on whether a plan complies with Section 5, the second court still has to make its own inquiry into that question.

If the second court is going to be instructed to reach Section 5 issues, it would be better to have its inquiry anchored in a firm baseline, such as whether DOJ has argued that Section 5 is indeed violated.  Instead, the Court’s decision instructs the second court to engage in essentially a general, wide-ranging Section 5 analysis.

The even better solution to this problem, which is not one the Court itself was asked to adopt in this case, is for the system to find a way to consolidate the two actions in a single court, which would be the pre-clearance court in D.C.  It makes little sense to have two courts addressing the same redistricting plan, in the midst of uncertainty about how the other court will act, and under tremendous time pressures.  This consolidation could be accomplished either by a statutory enactment, if necessary, or possibly by the pre-clearance court exercising powers under the All Writs Act to transfer the merits case to its jurisdiction if a pre-clearance action had already been filed.  That would be a much more creative solution than any court has yet undertaken or any litigant proposed, and courts might be reluctant to exercise such powers.  But either through statutory amendment or such use of judicial power, we would be far better off with these issues all consolidated in front of one three-judge federal court to avoid the kind of trainwreck this case represents.

And Rick Hasen has indeed sneaked in under the wire on the last day and earned the right to have me buy him a beer, which I will gladly do!

The 2011 Supplement to the The Law of Democracy:  Legal Structure of the Political Process (3rd ed.), written by Samuel Issacharoff, Pamela Karlan, and Richard Pildes, is now available.  Foundation Press has graciously made the Supplement available without charge to casebook users.  You can download the Supplement here on the Foundation Press website; click on the link for “2011 Update Memo.”

Much of the initial reaction to the Edwards indictment from experts in campaign-finance law has been critical or skeptical of the government’s theory. But in my view, the reaction has not been critical enough. Some skeptics think the problem with the government’s case is figuring out what the “true motives” of Edwards and his supporters were when they gave large amounts of money to keep his affair secret. If their motives were to benefit Edward’s campaign, then perhaps this money was an illegal campaign “contribution;” if their motives were anything else, like preserving Edward’s family relationships, then the money was not a campaign contribution. On this view, the government has a difficult, but not impossible, problem on its hands only because sorting out mixed motives in a situation like this is extraordinarly complex. This is Rick Hasen’s view of the case: the government’s case is difficult, but plausible, because if the government can prove Edwards and the donors “really intended” the money to benefit his campaign, then a crime will have been committed.

But I believe the government’s case is even more tenuous than Hasen’s view suggests. What constitutes a “campaign contribution” under the federal election law for criminal-law purposes must be defined in objective terms. The definition of a “contribution” cannot turn on the subjective motive of the actors involved. There are a limitless number of ways supporters of a candidate can spend money that could indirectly benefit the electoral prospects of that candidate. Whether any of these means are “contributions” or not should depend, for purposes of criminal law, on objective facts, not on whether those involved intended to benefit some candidate. For example, if a candidate has published an autobiography, a supporter could buy up thousands of copies of the book and help turn it into a bestseller, which could enhance the candidate’s stature and visibility. Most forms of this kind of indirect activity will cost more than the $2300 cap on campaign contributions (at $25 a book, buying 93 books would exceed that cap). But the courts are unlikely to accept the view that whether buying up these books constitutes a crime turns on whether the purchases were motivated by a desire to help the campaign or, instead, a belief in the correctness of the ideas expressed and a desire to share those ideas with others. Motives are irrelevant. The FEC has already recognized this in the flip-side of the Edwards case; when a donor gives money directly to a candidate, this will be treated as a contribution, regardless of whether the donor says my real motive is to give a gift to the candidate, not a campaign contribution. But just as subjective intent cannot turn a contribution into something else, it cannot turn something not a contribution into one. There are two points here: (1) not every form of spending that indirectly benefits a candidate is, in legal terms, a “campaign contribution;” (2) determining which forms of spending are contributions cannot turn on whether the actors involved are motivated to help the campaign or not — especially in the criminal-law context, where due process considerations require that potential defendants have clear notice of whether their conduct constitutes a crime or not.

The question in the Edwards case is thus whether money given to support a mistress is, under the law, a campaign “contribution,” period, regardless of trying to sort out why the money was given. Based on my knowledge of the election laws, I find it hard to believe the courts will answer yes to that question. For one, the money involved here was not a substitute for money the campaign itself might otherwise have spent; indeed, if Edwards has used campaign money to support his mistress, that would itself have violated the criminal law. So the donors did not save the Edwards campaign from spending money it might otherwise have spent. Criminal prosecutions under the federal election laws are extremely rare to begin with; the government has never brought a criminal case involving an expansive notion of “contribution,” let alone one as expansive as this case involves. Indeed, even in the civil context, the FEC has never tried to stretch the definition of “contribution” this far. The money spent here is almost certainly not a “contribution” within the meaning of the election laws, at least for criminal-law purposes. I believe at least nine out of ten election-law experts would have been of that view before this prosecution was announced. But even if there is uncertainty about that, the Constitution prohibits criminal prosecutions under statutes that are too vague to provide fair notice about the boundaries between lawful and criminal conduct.

The confusion on this issue might be a result of the fact that specific intent is necessary to establish a criminal violation of the federal campaign finance laws. Thus, the government must generally prove that the offender was aware of what the law required, and that he or she violated that law notwithstanding that knowledge. But the fact that intent is necessary doesn’t mean it’s sufficient: the payments either are contributions, within the meaning of the law, or they are not. Whatever motivated the donors or Edwards cannot turn spending that is not a contribution into a contribution. I have no sympathy as a moral matter for John Edwards, but regardless of his motives, I doubt the courts are going to accept the view that he can be prosecuted for criminal violations of the federal campaign-finance laws — regardless of whether he or his donors intended to benefit his campaign through the payments.