What Happens if Trump Drops Out?

Posted on Categories Constitutional Law, Election Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court3 Comments on What Happens if Trump Drops Out?

Donald_Trump_-_CaricatureWhat happens if Donald Trump drops out of the presidential race?  Some Republican politicians have begun to call on Mr. Trump to step down as the Republican nominee for President (he cannot be forced out).  If this happens, the Republican Party would then select a new nominee for President.

It might be conceivable for Donald Trump to voluntarily step down, and for the Republican Party to select an alternative nominee.  However, the real issue is whether the name of the alternative nominee would appear on the ballots of a sufficient number of states to permit an Electoral College victory.  At this late date in the election cycle, the names of presidential candidates on absentee ballots have already been finalized in many states.  In fact, early absentee voting using the final ballots already is underway in Wisconsin and many other states such as California, Ohio and Indiana.  Every day, more state deadlines for placing names on the ballot pass, and it is probably already too late to prevent Donald Trump’s name from appearing as the Republican nominee on a majority of the ballots used by states across the country.  To get state officials to print new ballots and then allow re-voting of ballots already turned in would require 1) litigation in state courts across the country and 2) the willingness of a large number of these state court judges to adopt an unprecedented procedure based upon vague “emergency” arguments.  Such a high stakes multi-state litigation effort would make the combative Bush v. Gore lawsuit look like a law school moot court competition in comparison.   Continue reading “What Happens if Trump Drops Out?”

Is the Senate Free to Ignore President Obama’s Choice of a Replacement for Justice Scalia?

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Federal Law & Legal System, President & Executive Branch, Public, U.S. Supreme Court2 Comments on Is the Senate Free to Ignore President Obama’s Choice of a Replacement for Justice Scalia?

Court[The following is a guest post from Professor J. Gordon Hylton, a former member of the Marquette Law School faculty.]

Justice Scalia’s unexpected death this past weekend has raised the question of how his seat on the Supreme Court will be filled. Some Republicans have already asserted that it would be inappropriate for the president to even place someone’s name in nomination during an election year.  Others have more modestly pointed out that the Republicans in the Senate would be within their constitutional function to use their majority power to veto any potential justice that the president might put forth.  Democrats, in contrast, emphasize the president’s constitutional duty to fill the slot and reject the idea that the impending election out to somehow stay the process of replacing departed United States Supreme Court rules.

What does the history of the Supreme Court tell us about this situation? As it turns out, in the Court’s more than 225 year history, sitting justices have died or retired/resigned from the Court during an election year (or the brief stretch of the president’s term in the following year) on twenty occasions.  In 14 of the 20 cases, a new justice was appointed and confirmed before the president’s current term ended.  (In 7 of the 20 cases, the sitting president was re-elected, but in none of these cases did the nomination go into the following term.)

However, the story is a bit different when the sitting president’s political party does not control the United States Senate. Not surprisingly, in the 12 cases when the president’s party has been in control of the Senate, the open-vacancy has been filled 11 times.  The one exception came in 1968, when sitting Chief Justice Earl Warren announced in June that he planned to retire before the end of the year.

Continue reading “Is the Senate Free to Ignore President Obama’s Choice of a Replacement for Justice Scalia?”

The Wisconsin Supreme Court’s Caperton Moment

Posted on Categories Election Law, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on The Wisconsin Supreme Court’s Caperton Moment

wisconsin-supreme-courtThe definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal. Continue reading “The Wisconsin Supreme Court’s Caperton Moment”

ACLU Attorney Says Tighter Voting Rules “Not Healthy” for Democracy

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Speakers at Marquette5 Comments on ACLU Attorney Says Tighter Voting Rules “Not Healthy” for Democracy

There was a sea change in the approach to election issues across America in the late 2000s, as Dale Ho sees it. He isn’t sure what the cause was, but he is sure it wasn’t a good development. Ho is director of the American Civil Liberties Union Voting Rights Project, which makes him one of the leaders of legal opposition nationwide to tightening the rules on who can vote.

Ho told an “On the Issues with Mike Gousha” session at Eckstein Hall on Wednesday that voting rights issues had largely drawn bipartisan support for decades.

“We had thought we had largely achieved a consensus in this country around universal suffrage, basic access for everyone (to voting),” Ho said. “Most of the debates about voting rights since the early 1970s were about redistricting – are the lines being drawn fairly for every community, are they being gerrymandered for partisan reasons, things like that. The trend remained toward greater liberalization in terms of ballot access. We didn’t see a lot of fights about registration and ballot access. .  . .

“In the late 2000s, something changed.” Continue reading “ACLU Attorney Says Tighter Voting Rules “Not Healthy” for Democracy”

Same-Sex Marriage Referendums: Major Metropolitan Areas Out of Step With Less Populated Regions

Posted on Categories Election Law, Political Processes & Rhetoric, Public1 Comment on Same-Sex Marriage Referendums: Major Metropolitan Areas Out of Step With Less Populated Regions

In most states same-sex marriage has become the law of the land by judicial decision. In a smaller number, the institution has been recognized by acts of the state legislature. Although there were numerous public referendums attempting to ban same sex marriage before 2008, in recent years only twice have the voters of a state had the opportunity to vote directly on the recognition of marriages between individuals of the same gender.

Both opportunities came in November 2012, as voters in Maryland and Washington State confirmed their state’s recognition of a new definition of marriage. However, both episodes revealed a sharp divide between the majority views of those who live in major metropolitan areas and those who live in less densely populated areas.

Continue reading “Same-Sex Marriage Referendums: Major Metropolitan Areas Out of Step With Less Populated Regions”

Prisoner Enfranchisement in Ireland

Posted on Categories Criminal Law & Process, Election Law, Human Rights, Prisoner Rights, Public1 Comment on Prisoner Enfranchisement in Ireland

I was surprised to learn recently from an Irish law professor that Ireland gave its prisoners the right to vote in 2006. Felon disenfranchisement is such a pervasive fact of life in the United States that many Americans might assume, as I did, that this is the accepted practice everywhere. This turns out not to be the case. Ireland is hardly alone, even among the common-law countries, in giving prisoners the right to vote, although the case of Ireland may be unusual in that its legislature acted in the absence of a court directive. Canada and South Africa, by contrast, required court rulings before their prisoners were enfranchised. The Irish story is nicely recounted in an article by Cormac Behan and Ian O’Donnell: “Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility,” 48 Brit. J. Criminology 319 (2008).

Before proceeding with the Irish story, a little on the American situation:   Continue reading “Prisoner Enfranchisement in Ireland”

Supreme Court Roundup Part One: McCutcheon v. FEC

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on Supreme Court Roundup Part One: McCutcheon v. FEC

Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent. Continue reading “Supreme Court Roundup Part One: McCutcheon v. FEC”

Single Sixteen-Year Terms Would Build Confidence in State Supreme Court, Task Force Members Say

Posted on Categories Election Law, Public, Speakers at Marquette, Wisconsin Supreme CourtLeave a comment» on Single Sixteen-Year Terms Would Build Confidence in State Supreme Court, Task Force Members Say

The idea of the judiciary as independent guardians of the rule of law has taken a beating in Wisconsin in recent years, amid highly contentious state Supreme Court races and the widely publicized divisions within the state Supreme Court.

What plan with a realistic chance of being enacted could help restore respect for the judicial branch of state government as separate from politics?

That premise and that question shaped the work of a four-member task force of the State Bar of Wisconsin, and what the task force recommended recently is a plan that would be unique in the nation: Election of state Supreme Court justices to 16-year terms, without any opportunity to run for reelection.

The four members of the task force described how they settled on that proposal in a recent “On the Issues with Mike Gousha” program at Eckstein Hall. Continue reading “Single Sixteen-Year Terms Would Build Confidence in State Supreme Court, Task Force Members Say”

Boden Lecture: Gerken Warns About “Shadow Parties” Dominating Politics

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment» on Boden Lecture: Gerken Warns About “Shadow Parties” Dominating Politics

Heather Gerken views the political party faithful in the Republican and Democratic parties as “the most glorious creatures in American politics.”

But Gerken, the J. Skelly Wright Professor at Yale Law School, told several hundred people in the Appellate Courtroom in Eckstein Hall on Monday that she is concerned that the party faithful are being left out as political power moves increasingly into “shadow parties” of powerful people in political elites. She feared the result would be a decrease in the force on parties to “do right” by voters.

Gerken, whose views on how politics works in America have received wide attention from both scholars and policymakers, gave the annual Boden Lecture at Marquette University Law School.

In a second session at the Law School, she addressed a separate provocative topic: how innovation in American policy has been undertaken increasingly at the state and local levels in recent years, rather than at the national level. She discussed “How ‘Local’ Should Politics Be?” along with Charles Franklin, professor of law and public policy at the Law School, and Craig Gilbert, Washington bureau chief of the Milwaukee Journal Sentinel, as part of the “On the Issues with Mike Gousha” series. Continue reading “Boden Lecture: Gerken Warns About “Shadow Parties” Dominating Politics”

Margaret Thatcher and Women in Government

Posted on Categories Election Law, Federal Law & Legal System, Feminism, International Law & Diplomacy, Political Processes & Rhetoric, Popular Culture & Law, Public3 Comments on Margaret Thatcher and Women in Government

“I am extraordinarily patient, provided I get my own way in the end.”

— Margaret Thatcher

One of the world’s most powerful women died today.  Margaret Thatcher, Britain’s only woman prime minister, was 87.

Thatcher, leader of the country’s Conservative Party, was British prime minister from 1979 to 1990.  According to CNN.com, she shared “a close working relationship” with former President Ronald Reagan, “with whom she shared similar conservative views.” Initially dubbed “Iron Lady” by Soviet journalists, she was well known (for better or for worse) for her personal and professional toughness. (For interesting commentary on Thatcher and her impact, see here, here, and here.)                                               

Thatcher was a trailblazer, one of just a very few women to become heads of their country’s government. While women make up nearly half of the world’s population, worldwide, they represent roughly 16% of the members of national governing bodies.  In the United States, women account for only 18.1% of Congress, 33% of the United States Supreme Court, and no woman has ever been elected president.

So, what’s the problem? Some would argue that there’s nothing stopping women from running for office, even for president. True, there are no laws that outright prohibit women’s participation in government.  (Saudia Arabia, long the hold out on allowing women to vote and to serve in government, has finally reversed course.)  But there are other barriers that may be less obvious. Continue reading “Margaret Thatcher and Women in Government”

Today’s Most Important Assignment

Posted on Categories Election Law, PublicLeave a comment» on Today’s Most Important Assignment

About a month ago, Anna Kloeden raised thought-provoking questions about how a compulsory voting system might affect the candidates’ substantive positions as well as the ways in which campaigns are conducted. Her post made me wonder what is known about nonvoters. How numerous are they? Where are they on the political spectrum? What are the reasons they don’t vote?

According to a report from the U.S. Census Bureau, 64% of voting-age citizens voted in the 2008 presidential elections, and 71% were registered to vote. The report notes significant variations in voting turn-out depending on race / origin (non-Hispanic blacks and whites had significantly higher voting rates than Asians and Hispanics), age (voting rates increased with age), and education level (higher education levels corresponded with higher voting rates). Nonvoters are not without opinions. A recent survey by the Pew Research Center suggests that non-voting hurts the Democrats: nonvoters overwhelmingly favor Obama (59%) over Romney (24%), and the Democrats (52%) over the Republican Party (27%). Nonvoters express stronger support for a more active government and for the 2010 health care law. As for foreign policy issues, withdrawal of U.S. forces from Afghanistan finds significantly more support under nonvoters than under likely voters. Nonvoters are less supportive of an aggressive stance toward Iran because of its nuclear program. Continue reading “Today’s Most Important Assignment”

What Happens if the Presidential Election Is a Tie?

Posted on Categories Congress & Congressional Power, Constitutional Law, Election Law, Public6 Comments on What Happens if the Presidential Election Is a Tie?

Suppose President Obama wins all of the electoral votes from (1) all of the Northeastern states except New Hampshire; (2) Maryland, Delaware, the District of Columbia, and Virginia; (3) all of the states that border on the Pacific Ocean except Alaska; and (4) New Mexico, Colorado, Minnesota, Illinois, and Michigan. Assume also that Governor Romney wins all of the electoral votes in the remaining 30 states. The results? A 269 to 269 tie, in terms of electoral votes.

What would happen then?

If, when the electors vote on December 17, each elector casts his or her ballot for the candidate each supported, the failure of any candidate to achieve a majority of the votes would be certified on January 6 by the President of the United States Senate, who is, of course, Vice President Joe Biden.

Under the terms of the 20th Amendment to the Constitution, the newly elected House of Representatives, which took office on January 3, will then vote to elect a President. Under the 12th Amendment, Congress is required to choose from the three candidates with the highest total of electoral votes from among those receiving electoral votes. Since under this scenario, only Romney and Obama receive electoral votes, the House would have to choose either Romney or Obama.

Under the terms of the Amendment, each state has a single vote, which is determined by how a majority of that state’s Representatives vote. This means that both Alaska and California would have the same one vote, and 26 votes would be necessary to elect a president.

Continue reading “What Happens if the Presidential Election Is a Tie?”