This is the written version of a keynote address delivered to the Southern California Law and Social Science (SOCLASS) Forum, “Elections, Law and Democracy” Conference, Whittier Law School, March 28, 2014. Using examples from ballot access cases, campaign finance cases, redistricting cases, and election administration/voter identification cases, the address makes two arguments: First, in the Supreme Court’s election law cases, talk about “facts” and “evidence” is the tail wagging the dog. The Court is imposing value judgments in these cases, but sometimes camouflaging them behind a search for evidence, or worse yet, asserting facts about the state of the evidence which are not borne out by the evidence. This is true for both liberal and conservative Justices. Second, the Court needs to take one of two paths to correct its approach. Either it needs to get serious about facts and evidence in these cases, a change which has the potential to profoundly change our laws about campaign finance, voter identification, gerrymandering, and ballot access. Or the Court needs to stop camouflaging its value judgments and admit that facts don’t matter and no amount of evidence will matter given the Justices ideological commitments. I strongly favor the first approach, but the second approach would be better than the status quo when it comes to transparency and intellectual honesty. After discussing these two points the paper turns to a final question: how should social scientists and law professors who value social science respond to the Court’s misuse and abuse of social science in the election law cases?
One of the most important theoretical contributions to election law in the past generation has been Sam Issacharoff and Rick Pildes’s article, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stanford Law Review 643 (1998). (The article was part of an election law symposium for the 50th anniversary of the Stanford Law Review; Nate Persily was President of SLR that year. I, as a new law professor, wrote this response to their article, Richard L. Hasen, The “Political Market” Metaphor and Election Law, 50 Stanford Law Review 719 (1998).)
Next week, to commemorate the 25th anniversary of the publication of Politics as Markets, we will have a special symposium assessing its significance and pondering its implications for the future. It will kick off next Monday with some introductory remarks from Sam and Rick P.
Below the fold you can find the abstract to Sam and Rick’s original paper, now posted for easy access on SSRN.
As I have explained, although the Supreme Court in Moore v. Harper rejected the most extreme version of the independent state legislature theory, it endorsed another theory that amounts to a “time bomb:”
It is indeed a cause for celebration that the United States Supreme Court, on a 6–3 vote in Moore v. Harper, rejected an extreme version of the “independent state legislature” theory, which could have upended the conduct of elections around the country and paved the way for state legislatures to engage in election subversion. But after the celebration comes the inevitable hangover, and with all the hoopla, it is easy to miss that the Supreme Court has now set itself up, with the assent of the liberal justices, to meddle in future elections, perhaps to even decide the outcome of future presidential elections (as it has done in the past). Chief Justice John Roberts drove a hard bargain….
But Moore is not all good news. In the last part of his majority opinion for the court, the chief justice got the liberal justices to sign on to a version of judicial review that is going to give the federal courts, and especially the Supreme Court itself, the last word in election disputes. The court held that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
I wanted to expand more on why the liberal Justices may have signed onto this part of the majority opinion in Moore (It is Section V) rather than concurring in part and dissenting in part. (And I think this explanation may explain something about the coalitions in Bush v. Gore, the 2000 case ending the presidential election dispute over Florida’s electoral college votes.) But first a detour about . . . ice cream.
Imagine that there are three people deciding together which pint of ice cream to buy at the supermarket. Here are the three people and their preferences:
Alice: Vanilla > Chocolate > Strawberry
Brian: Chocolate > Strawberry > Vanilla
Carlos: Strawberry > Vanilla > Chocolate
If they each vote for their favorite, it’s a three way tie. So suppose the vote first is on vanilla v. chocolate. Vanilla wins. Then vanilla is put up against strawberry, and strawberry wins. Then strawberry against chocolate, and chocolate wins. This is a voting cycle that comes under Arrow’s impossibility theorem. There needs to be some way to break the cycle.
Consider what would happen if I’m right about the preferences of the Justices below:
Roberts/Kavanaugh/Barrett: Weak ISLT > Strong ISLT > No ISLT
Thomas/Alito/Gorsuch: Strong ISLT > No ISLT > Weak ISLT
Kagan/Sotomayor/Jackson: No ISLT > Weak ISLT > Strong ISLT
If the liberals just allow the two conservative coalitions to vote, we end up with Strong ISLT (because both prefer Strong ISLT to No ISLT), the last choice of the liberals. But if the liberals vote for weak ISLT, then they can peel the Roberts group away. This is what I mean when I talk about Roberts driving a hard bargain. This is how the liberals could get out of the cycle.
(For those who think I’m wrong and the Thomas group would prefer Weak ISLT to No ISLT, read Thomas’s dissent going hard after Weak ISLT).
Similar logic explains why the conservative group of Rehnquist, Scalia, and Thomas in Bush v. Gore not only adopted the weak version of ISLT but ALSO concurred in the equal protection rationale in the per curiam opinion (authored, we now know, by Justice Kennedy). Scalia later said the equal protection rationale is, “as we say in Brooklyn, a piece of shit.”
If the Rehnquist group voted sincerely rather than strategically, there would be a majority of Justices rejecting the equal protection rationale (the Rehnquist group and the four liberals) and a majority of Justices rejecting the weak ISLT rationale (Kennedy, O’Connor, and the four liberals). Bush would still win even though a majority of Justices rejected both theories on which he won. That was intolerable for such a politically sensitive case.
Jim Gardner has posted this draft on SSRN (forthcoming, University of Chicago Law Forum). Here is the abstract:
It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.
The possibility of sorting things out in a rational way – long the object of legal and political science scholarship in the field – has recently been greatly complicated by an unexpected resurgence of various forms of illiberalism, especially populist authoritarianism, a conception of popular self-governance that rejects liberal understandings of democratic processes and politics. This new political alignment is especially complicating because liberals and illiberals disagree profoundly about the nature of the body politic, its susceptibility to division, and the significance and proper goals of such division.
This article traces the evolution of American practices of political self-division from premodernity through the present, explores how present political trends affect longstanding disputes over practices of legislative districting, and concludes with a brief examination of some possible ways of establishing a workable modus vivendi.
Twenty years ago this month, I began the Election Law Blog. It was a continuation of sorts of news and commentary that I had been sharing with election law professors, first via a listserv Dan Lowenstein and I created that was housed at Chicago-Kent, starting in 1995, when I first began teaching. It seemed much more efficient than cutting and pasting in emails to post the material on a weblog, an innovative type of website introduced to me by my then-Loyola Law School colleague Larry Solum. I modeled it after the new website How Appealing by Howard Bashman, and content first was posted at blogspot (https://electionlaw.blogspot.com). You can still see the early posts there. I’d now call the look ugly but functional. One observer called it “early mySpace.”
ELB has been a labor of love and a fourth child, always demanding my attention. Being the first mover in the field certainly helped me solidify my reputation, as I pitched blog posts to new bloggers like Ben Smith to help spread the word. Blog posts also did (and still do) go out to an election law listserv community made up of about 1300 people. There, blog posts often generate spirited debate but also a sense of shared purpose and, usually, a commitment to disagree civilly.
Later, Twitter became the most common way that people found my blog posts, and I posted there a lot (too much!) until the Elon Musk takeover convinced me to scale back. ELB started as a solo blog but I have gradually added contributors and guest blog posts, both to lessen the load and to increase the diversity of voices in the field. Today it is a far richer site because of these additional voices.
The next month will feature posts from ELB contributors and other friends of ELB, reflecting on changes in election law over the 20 years of the blog. I will open with this first post with my observations on how things have changed in the last two decades, and I may chime in again at the end of the period to respond to some of the reflections.
Ronald Reagan was famous for asking during the 1980 presidential campaign, “Are you better off now than you were 4 years ago?” If we ask this question about the state of American democracy comparing now to 20 years ago, and particularly the role of the Supreme Court, we would have to say we have seen a slow but steady deterioration.
Consider first voting rights. In 2003, when this blog started, jurisdictions with a history of racial discrimination in voting had to submit their voting changes for federal approval (or “preclearance”) and had to prove changes would not make minority voters protected by the Voting Rights Act worse off. In 2013, the Supreme Court killed off the precelarance regime in its Shelby County v. Holder decision. In 2003, Section 2 of the Voting Rights Act was read (thanks to the Supreme Court’s 1986 decision, Thornburgh v. Gingles) to give minority voters a fair opportunity to elect candidates of their choice it legislative districts. Today, that ruling is under a shadow as the Supreme Court considers the Milligan case (expected by June). It has already been undermined by earlier decisions such as Abbott v. Perez. And the Court has already severely weakened Section 2 in the vote denial context in the Brnovich decision of 2021.
In 2003, as the blog started, Congress had passed the first meaningful campaign finance law in a generation in the McCain-Feingold law. We were waiting to see in February 2003 of what the courts were was going to do with a law that was meant to limit the role of big money in politics and provide voters with an effective system of campaign finance disclosure. Later in 2003, the Supreme Court upheld the key parts of the law in McConnell v. FEC, confirming and expanding an earlier ruling (Austin) limiting independent spending by corporations and labor unions.
By 2010, after Justice Sandra Day O’Connor left the Supreme Court and was replaced by Justice Alito, the Court’s campaign finance rulings have done a 180 degree turn toward deregulation. The Court in the 2010 Citizens United v. FEC case reversed Austin and parts of McConnell, freeing corporate spending with language that inexorably led to the creation of super PACs and the effective demise of meaningful campaign finance limits for political players.
At the time of McConnell, opponents of limits touted disclosure as a more narrowly tailored solution to issues of money in politics. Today, disclosure has become porous once again, as creative lawyers funnel money through nondisclosing nonprofits such as 501(c)(4)s. At the same time, the Supreme Court in cases like AFPF v. Bonta has signalled it is going to take a harsh look at campaign finance laws going forward. As I recently wrote in a draft law review article honoring the scholarship of nonprofit law professor Ellen Aprill, it is easy to imagine, though the use of nonprofit plaintiffs, “a world in which many of the remaining regulations of money in politics could well be struck down as unconstitutional or rendered wholly ineffective by a Supreme Court increasingly hostile to the goals of campaign finance law and extremely solicitous of religious freedom.”
There are other troubling signs on the horizon too such as a threat that the Supreme Court will shut down efforts by state supreme courts (and perhaps voters acting through the initiative process to rein in partisan gerrymandering). Attacks on the initiative process by state legislatures shuts off one of the few avenues to counter democratic backsliding.
These threats are about the slow devolution of American democracy, brought on by a judiciary increasingly hostile to democratic initiatives and intense partisan competition that has raised incentives for partisan manipulation of election rules.
But things are in fact much worse than just the slow devolution. I never expected to see it when I began blogging in 2003, but we cannot take peaceful transitions of power for granted anymore in the United States. No one wondered whether conservative Republican George W. Bush would leave office in early 2009 when he was being replaced with liberal Democrat Barack Obama. On the day of Obama’s inauguration, I blogged: “Regardless of your politics, today is a day to celebrate the remarkable peaceful transitions to power that occur in this country with each presidential transition. It is something we should not take for granted.”
This is no longer true. The events during and after the 2020 election showed that much of our hyperdecentralized, partisan system of election administration is open to manipulation. The new threat of election subversion, a term I never even thought of in relation to the United States in 2003, is the main focus of my scholarly concerns today.
It would be easy to become defeated by the slow and fast threats. But I flag them here, and write about them in my general work, as a wake-up call that we cannot take democracy for granted and it needs work. The defeat of many election deniers in the 2020 elections is one hopeful sign, as is bipartisan congressional action to fix the Electoral Count Act. These took organizing and perseverance, and cross-ideological coalition building. Now is the time for more work, not less.
I hope my next project can help take us there. But whether it only gets us a little out of the starting gate or moves us much further along, I plan on continuing the ride, at least for now, with help from many friends.
Thanks as always for reading, for passing along tips, and for sharing your feedback.
New article by Steven Hill at DemocracySOS that does a deep dive into Anthony Downs’ seminal work, Economic Theory of Democracy, and its ramifications for today’s politics. In particular, the article focuses on how Downs’ work has been misrepresented so as to mask the instability and polarization of the U.S. political system. Check it out!
Paula Monopoli (University of Maryland Francis Carey School of Law) has a new article out entitled, “Gender, Voting Rights, and the Nineteenth Amendment.” The article is forthcoming in the Georgetown Journal of Law & Public Policy. The abstract is below:
One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that ‘there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment’. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.
Can’t wait to read this one! Important and timely.
Must read article by Judge Luttig in The Atlantic on the independent state legislature theory. Judge Luttig argues that there is nothing in the text or structure of the Constitution that insulates the decisions of state legislatures, regarding the times, places and manner of federal elections, from state judicial review. Indeed, Judge Luttig contends that the opposite is true–that recognition of this theory would not only be counter to the Framers’ intent, but would also undermine the power conferred to state courts by both their state constitutions and the Supremacy Clause of the U.S. Constitution:
“When the state courts review the decisions of their state legislatures under their state constitutions, they are not exercising federal power delegated to them by the state legislatures; they are exercising the judicial power of the states, which was reserved to the states by the federal Constitution and accorded the state supreme courts by their state constitutions.”
The whole article is insightful and worthwhile. Check it out!
I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:
This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.
Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment
In advance of the 2020 election, I devoted a significant portion of my scholarship to this issue: given an official announcement (or certification) of an election’s result, how are citizens, journalists, judges–all of us–to determine whether the result should be accepted as valid?
I considered this question especially important in the aftermath of the 2016 presidential election because I thought that public discourse on this topic had become dangerously muddy, with many individuals characterizing Donald Trump’s victory as somehow invalid because of Russian interference. To me, this discourse seemed extremely problematic because I had no doubt that the vote tallies that produced Trump’s win were a sufficiently accurate count of ballots entitled to be counted and that there was no basis for considering that the wrong candidate had been declared the winner of the election. To characterize Trump’s victory as somehow invalid confused public discourse on this important topic, hindering the ability to distinguish the circumstance in which an election is truly invalid because the wrong candidate has been declared the winner.
Kilgore acknowledges: “Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy.” Further, this reasonable self-restraint on the part of Democrats means, Kilgore continues, their “voting-rights bill imposed by a filibuster carve-out … need not include every conceivable or advisable reform, so as to enable Republican claims of a ‘power grab.’” Since the reason for my blog post was to explore how to reduce the risk of Republicans repudiating valid election victories by Democrats based on claims that Democrats unilaterally imposed electoral rules yielding results that can’t be trusted, there may not be much distance between Kilgore and me practically speaking.
Still, I think it’s worth considering for a moment the idea of Democrats “as sole custodians of small-d democracy.” For how long? The whole point of a fair two-party electoral system is that each party has a good chance of winning. In next year’s midterms Republicans may take back the House, and perhaps the Senate as well, even assuming Democrats unilaterally enact all the provisions in their newly unveiled Freedom of Vote bill. Then what?
Politico has a story on a new federal lawsuit raising a constitutional challenge to the procedures that California uses for its gubernatorial recall. The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.
But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.
Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.
Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.
The USA women’s soccer team is advancing out of the preliminary round-robin stage of competition based on a “goal differential” tiebreaker used to differentiate teams with the same win-loss records. “The United States finished second in Group G on the strength of its plus-3 goal differential,” the Washington Post reports. I mention this here because a similar “vote differential” statistic is used to break ties among candidates in Round-Robin Voting. One reason for developing Round-Robin Voting as an electoral system is its straightforward comparison to round-robin competitions in sports. If the public can understand how a round-robin tournament works in the Olympics, the public can understand how round-robin competition would work in an election. The ability of the public to understand its own electoral system is an important feature of a democracy, including the public’s willingness to adopt the system in the first place. Obviously, there are other important criteria in making a choice among alternate electoral systems, including those directly relevant to how each system translates voter preferences into an overall winner entitled to govern in the name of the people. Still, as this year’s Olympics unfold, it’s a useful reminder that the idea of Round-Robin Voting should not be ruled out solely on the ground that it is too complicated for voters to understand.