Most Important Election Law Decision: It’s Not Citizens United

Posted on Categories Constitutional Interpretation, Election Law, First Amendment3 Comments on Most Important Election Law Decision: It’s Not Citizens United

In late October, I had the privilege of speaking at Chapman University’s Nexus Symposium on Citizens United – article to follow. For the four of you that haven’t heard, Citizens United held that corporations may use general treasury funds to finance independent communications that expressly advocate the election or defeat of a candidate – even during times proximate to the election.

The response to Citizens United has been, in my view, overstated.  Continue reading “Most Important Election Law Decision: It’s Not Citizens United”

How Far Should Disclosure Requirements Go?

Posted on Categories Election Law, First AmendmentLeave a comment» on How Far Should Disclosure Requirements Go?

I’ll be appearing tongight on Wisconsin Public Television’s Here and Now, discussing the Government Accountability Board’s new rule requiring groups and persons who spend more that $ 25 on something called “political communications” during a set period preceding an election to register, make certain filings and disclose the source of their funds. Joining me will be Mike McCabe of the Wisconsin Democracy Campaign. Continue reading “How Far Should Disclosure Requirements Go?”

Barrett on Redistricting: What Isn’t There

Posted on Categories Election Law, Political Processes & Rhetoric, Wisconsin Law & Legal SystemLeave a comment» on Barrett on Redistricting: What Isn’t There

Tom Barrett’s proposal for “nonpartisan” redistricting may reduce the degree of “incumbent protection” that takes place in the redrawing of legislative districts, but I think it is more interesting for what it does not do.

There is a movement in the country to have redistricting by commission according to what are generally though to be neutral redistricting principles, i.e., the creation of compact and contiguous districts that, to the extent possible, respect municipal and county boundaries and (perhaps) geographical barriers that seperate one community from another. See. e.g., California’s Voter First Act. These principles restrict discretion in redistricting and, or so the theory goes, minimize the opportunity for political maneuvering. This doesn’t eliminate contention but the establishment of physical requirements reduces the opportunity for gerrymandering to protect incumbents or to maximize the opportunities for the party in power.

That’s not what Barrett wants to do and that’s not surprising. As a general matter, Democratic voters are more concentrated that Republican voters. Contiguous and compact districts will tend to create a smaller number of heavily Democratic districts.  Continue reading “Barrett on Redistricting: What Isn’t There”

Curb Your Enthusiasm

Posted on Categories Election Law, First Amendment, Political Processes & RhetoricLeave a comment» on Curb Your Enthusiasm

I’ve met Democratic Party Chair Mike Tate.  Mike was nice enough to speak to my Election Law clase and was candid, informative and entertaining.  I have to confess that I like the guy.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren’t playing beanbag. As a consultant on my side told me, we can’t play nice when the other guys play nasty. I couldn’t argue with her. It’s a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules. Continue reading “Curb Your Enthusiasm”

Are “Clean Election” Schemes Headed to the Supreme Court?

Posted on Categories Constitutional Interpretation, Election Law, First AmendmentLeave a comment» on Are “Clean Election” Schemes Headed to the Supreme Court?

In a recent piece in the Harvard Journal of Law & Public Policy, I predicted the “lonely death” of public campaign financing. The point was that public financing schemes that provided what are often called “rescue funds,” i.e., additional public money for candidates who face an opponent (or independent opposition) that has spent more than some triggering amount. So, for example, if I am a publicly financed candidate who is running against an internet billionaire or a well financed independent campaign against me (undoubtedly by some group that is for “the children”), I can get additional public money to match the expenditures against me.

My argument was that these asymetrical financing systems are probably unconstitutional and that, as a result, any public financing system will be dwarfed by self financed candidates, independent expenditures or, increasingly, opposition campaigns whose use of the Internet and bundling is likely to dwarf any politically feasible amount of public financing. Continue reading “Are “Clean Election” Schemes Headed to the Supreme Court?”

What Does Citizens United Mean for the Workplace?

Posted on Categories Election Law, First Amendment, Labor & Employment Law, Legal ScholarshipLeave a comment» on What Does Citizens United Mean for the Workplace?

Few recent Supreme Court decisions have provoked such heated debate as Citizens United v. FEC, which undermined federal restrictions on corporate and union contributions to political campaigns.  Despite all of the discussion of Citizens United, little attention has been paid to the decision’s implications for the workplace.   In a new paper on SSRN, however, Paul Secunda argues that Citizens United may have the effect of lifting some longstanding restrictions on the ability of employers to communicate political messages to their employees.  Paul argues for a statutory response that would prohibit the termination of employees for refusing to attend political meetings at the workplace.

Paul’s paper, entitled “Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment,” appeared in the Yale Law Journal Online here.  The abstract appears after the jump.  Continue reading “What Does Citizens United Mean for the Workplace?”

How Much Difference Does the Small State Advantage in the Electoral College Really Make?

Posted on Categories Election Law, Political Processes & Rhetoric, President & Executive Branch6 Comments on How Much Difference Does the Small State Advantage in the Electoral College Really Make?

EV_map_081104-1400ZOne of the many unusual features of the Electoral College established by Article II, Section 1, of the United States Constitution is the provision that specifies that each state shall have “a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

The one obvious consequence of this provision is to enhance the influence of the smaller states in the selection of the president.   Because of this provision, smaller states are disproportionately represented in the Electoral College.  For example, the 12 smallest states today—Alaska, Delaware, Hawaii, Idaho, Maine, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming together account for only 17 (of 435) representatives in the House, or 3.9% of the total.  However, in the Electoral College, thanks to the “Senate bump,” the same states account for 41 electoral votes, or 7.6% of the total of 538.

Would the history of American presidential elections have been different, had this non-democratic element not been added to the Electoral College formula in 1787?  What if Electoral votes were calculated only on the basis of the number of representatives in the House of Representatives?  Have some presidential candidates been elected only because they captured the electoral votes of a disproportionate number of small states?

It turns out that the answer to the last question is yes, although the results of only three of the fifty-six presidential elections have been effected.  Not surprisingly, the three affected elections are also the three closest in American history.

The first was the Hayes-Tilden Election of 1876.  Widespread voter intimidation and corruption in the South made it impossible to determine which of the conflicting returns from South Carolina, Florida, and Louisiana were accurate, and Congress ended up establishing a special Election Commission composed of Senators, Representatives, and Supreme Court justices to sort out the mess.  Apart from the merits of the Commission’s decision, the official count produced the closest finish in history, with Hayes edging Tilden by a single electoral vote, 185-184.  However, Hayes carried 21 states to Tilden’s 17.  Had it not been for the assignment of two additional electoral votes to each state, Tilden would have prevailed, the rulings of the Electoral Commission notwithstanding, 150-143.

The second affected election occurred in 1916 when Democrat Woodrow Wilson ran for reelection against Charles Evans Hughes who stepped down from the Supreme Court to run for president.  In an election in which Wilson’s slogan was the ironic “He kept us out of war,” Wilson edged Hughes by a margin of 23 electoral votes, 277-254.  In sharp contrast to the late twentieth and twenty-first century pattern, the Republican Hughes’ support was concentrated in urban areas in the North and Midwest, while Wilson was strongest in the smaller states of the West and South.  Wilson ended up carrying 30 states to Hughes’ 18, and if the two additional votes were to be subtracted for each state, Hughes would have prevailed 218-217.

The third election was the 2000 presidential election in which George W. Bush defeated Al Gore, albeit not without great controversy, by a margin of 271-266 electoral votes.  (The total electoral vote was 537  because one Gore elector refused to cast his ballot.)  As in 1916, but with the parties switched, Bush carried most of the smaller states while Gore’s support was stronger in the larger, more urban states.  With the two electoral vote bump removed, Gore would have won 225-211.

If we view the “Senate bump” in the Electoral College as undesirable, nothing short of a constitutional amendment can completely remove it.  A dramatic increase in the size of the House of Representatives, which is within the power of Congress, could have almost the same effect, in that the value of the extra two votes would be minimized, if there were, say, 870 members of the House of Representatives rather than 435.  However, a much larger House of Representatives does seem to be an item on anyone’s political agenda.

That the Electoral College with its strange features has survived for more than two centuries (and with no modification since 1804) is more than anything else a tribute to the stability of American politics and the narrowness of the American political spectrum.  Compared to most European countries, the left and the right in American politics are so close together that presidential elections usually have little real effect on the direction of the country.  The Electoral College may produce an occasional unfair result, but so far the consequences of the unfair results have not been significant enough to inspire a large numbers of Americans to demand change in the current system.

Federalism, Free Markets, and Free Speech

Posted on Categories Business Regulation, Constitutional Interpretation, Corporate Law, Election Law, Federalism, First Amendment, Judges & Judicial Process, Legal History, U.S. Supreme Court11 Comments on Federalism, Free Markets, and Free Speech

2not even-handed justiceThe Supreme Court decision in Citizens United v. FEC strikes down as unconstitutional a federal law that prohibits corporations and unions from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of candidates for office.  The majority opinion, written by Justice Kennedy, ignores hundreds of years of Supreme Court history in interpreting the subjects of federalism, free markets, and free speech.  In its place, Justice Kennedy presents a textualist interpretation of the First Amendment that is divorced from any history or context.  Justice Kennedy engages in the sort of “faux originalism” (syn. “fake,” “artificial,” “false”) that has been criticized by Judge Richard Posner.  Kennedy places a historical glaze on his own personal values and policy preferences, and calls the result the “original understanding” of the First Amendment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.” Continue reading “Federalism, Free Markets, and Free Speech”

A Different Way to Run the Electoral College

Posted on Categories Election Law, Federal Law & Legal System, Legal History, Political Processes & Rhetoric16 Comments on A Different Way to Run the Electoral College

800px-Simple2008PresElections-USA-statesIn an earlier posting, Rick Esenberg expressed his opposition to recent George Soros-sponsored efforts to devise a plan to circumvent the operation of the Constitution’s venerable Electoral College.

The “problems” with the Electoral College are well-known.  Its “winner-take-all” feature supposedly distorts the electoral process, and on four occasions (1824, 1876, 1888, and 2000), it has chosen a president who received fewer popular votes than one of his opponents.

Debates over the future of the Electoral College often assume that there are only two options:  scrap the institution altogether or else accept that it will continue to operate as it has in the past.  Scraping the Electoral College is usually assumed to require a constitutional amendment, although the Soros plan would actually leave the Constitution unchanged but seek to bind electors to cast their votes for the candidate with the largest national popular vote regardless of the results in their particular state.

There is an alternative, however, that would make the results of the Electoral College more democratic but would leave the Constitution unchanged.

Although it has long been the practice that individual states award their entire electoral vote allotment to the candidate receiving the largest number of popular votes in the state, there is no constitutional requirement that states follow this approach.  In the first part of the 19th century, many states split their electoral votes, and today two states, Maine and Nebraska, have abandoned the “winner take all” rule.  (In 2008, Nebraska split its electoral votes between McCain and Obama.)

In the first third of the 19th century the selection by a single state of electors supporting different candidates was a frequent feature of American presidential elections.  As late as 1824, five of 24 states did just that.  In 1828, three states did so, including New York, which cast 20 votes for Andrew Jackson and 16 for the incumbent John Quincy Adams.  By the mid-1830’s, every state appears to have embraced the winner take all system, although in 1860, New Jersey reverted to the older system and ended up dividing its seven electors between the Republican Abraham Lincoln (4) and the Northern Democrat Stephen Douglas (3)

Article II of the United States Constitution makes it clear that each state has the power to adopt a different system of choosing electors, should it choose to do so.  There are at least three ways that states could chose to apportion their electors that would produce more equitable allocations of electoral votes.

A state could simply apportion its electors on the basis of the popular vote.  For example, in 2008, Wisconsin’s 10 electoral votes could have divided six for Obama and four for McCain based upon Obama’s 56% to 44% margin of victory.  On the other hand, such a system can run into problem because of the presence of “third” parties.  Like Wisconsin, Minnesota currently has 10 electoral votes.  In 2008, Obama and McCain received 54% and 44% of the popular vote, respectively, with 2% going to third parties.  The Constitution requires the appointment of actual electors, so it is not obvious as to whom the tenth Minnesota elector would be assigned.

A second possibility would be for a state legislature to divide the state into “electoral districts” with each district choosing one elector.  Because each state has two more electors than it has representatives in Congress, congressional districts could not be used for this purpose.  Instead, states would have to create special districts.  Wisconsin, for example, would have to be divided into ten districts whose sole function would be the selection of presidential electors.  Obviously, this could be done, but the process would involve many of the same difficulties that arise when the state has to redraw the lines of congressional districts.

The third possibility is the approach currently taken in Maine and Nebraska.  The presidential candidate receiving the largest number of popular votes in each congressional district receives one elector, and the winner of the statewide popular vote is awarded an additional two electors.  In Wisconsin in 2008, Obama received the largest number of popular votes in seven of the state’s eight Congressional Districts.  Consequently, under the Maine/Nebraska system he would have received nine of the state’s ten electoral votes with the other vote going to McCain.

While this approach would have had only a slightly different effect in Wisconsin (where Obama received all ten electoral votes), there are other states where the impact would have been greater.  In Ohio, for example, this system would have divided the state’s twenty electoral votes evenly between Obama and McCain instead of having all twenty go to Obama.  Even in large states won easily by one candidate or the other, the losing candidate would have collected electoral votes.  Under this system, McCain would have received eleven electoral votes in California and four in New York, while Obama would have received eleven votes in Texas and five in Georgia.

Obviously, the great advantage of this system is that it does not require the creation of additional electoral districts.  It would also create an incentive for candidates to campaign in states even if they perceived that they had no real chance of winning the overall popular vote in that jurisdiction.  On the other hand, it is also possible that this system might make third party candidacies more popular since it would not be necessary to carry entire states to have a presence in the Electoral College.

Had the Maine/Nebraska system been in effect in every state in 2008, the final result would have been a 301-237 victory for Barack Obama, compared to the actual margin of 365-173.  Very few states under this system would have awarded all of their electoral votes to a single candidate.  In fact, if we remove the eight jurisdictions with three electoral votes (where a divided vote was impossible), 32 of 43 jurisdictions would have divided their electoral votes.  Of the eleven that would have voted unanimously, only four had more than five electoral votes, and only one (Massachusetts) had more than ten.

Although the allocation of electoral votes would have looked much different, the Maine/Nebraska system would not have produced a different result in any of the last three presidential elections (which are the only ones for which I have recalculated the vote).  Obama would have won in 2008, although not by as large a margin.  Earlier in the decade, the geographic dispersion of his supporters would have meant that George W. Bush would have twice been elected president under the district system.  In fact, he would have won by even larger margins under this system than he did in 2000 and 2004, even though he received fewer popular votes than Al Gore in 2000.  Under the Maine/Nebraska system, Bush would have defeated Gore in 2000 by a margin of 288-250 (rather than 271-266), and John Kerry in 2004 by 317-221 (instead of 286-252).

Even though the Maine/Nebraska system would not eliminate the possibility of a “minority” president, it would “decentralize” the electoral process and would better protect the rights of those who reside in less populous parts of the country to participate in the presidential election process in a meaningful way.

The challenge of course is to convince the other 48 states that it would be in their and the nation’s best interest to adopt the Maine/ Nebraska approach.  Unless all states adopted the “district” approach, states retaining the winner-take-all system might actually become even more important.  As critics of this approach have pointed out in the past, the original system of district elections disappeared in the early 19th century because of a perception that the winner-take-all states were able to exercise greater influence.

Of course, states could be required to adopt a district system, but that would require a constitutional amendment.

What follows is a state by state breakdown of electoral votes for the 2008 presidential election, had the Maine/Nebraska system been in effect in each state. The numbers following the name of each state are the electoral votes for Obama and McCain, respectively.  In states marked with an * Barack Obama was the recipient of the largest number of popular votes.

2008  Results, Alternative Approach to Choosing Electors.

Alabama  1-8
Alaska  0-3
Arizona  2-8
Arkansas  0-6
*California  44-11
*Colorado  5-4
*Connecticut  7-0
*Delaware  3-0
*Florida  12-15
Georgia  5-10
*Hawaii  4-0
Idaho  0-4
*Illinois  18-3
*Indiana  5-6
*Iowa  6-1
Kansas  1-5
Kentucky  1-7
Louisiana  1-8
*Maine  4-0
*Maryland 8-2
*Massachusetts  12-0
*Michigan  14-3
*Minnesota  7-3
Mississippi  1-5
Missouri  3-8
Montana  0-3
Nebraska   1-4
*Nevada  4-1
*New Hampshire  4-0
*New Jersey  12-3
*New Mexico  4-1
*New York  27-4
*North Carolina  8-7
North Dakota  0-3
*Ohio  10-10
Oklahoma  0-7
*Oregon  6-1
*Pennsylvania.. 11-10
*Rhode Island  4-0
South Carolina  1-7
South Dakota  0-3
Tennessee  2-9
Texas  11-23
Utah  0-5
*Vermont  3-0
*Virginia  8-5
*Washington  9-2
West Virginia  0-5
*Wisconsin  9-1
Wyoming  0-3
District of Columbia  3-0

Presumably the DC election would be on a winner-take-all basis, as it is in other states with three electoral votes.

Some Thoughts on Redistricting

Posted on Categories Election LawLeave a comment» on Some Thoughts on Redistricting

GERRYMANDERAs we head into the fall election cycle, one of the most important consequences of state legislative and gubernatorial races will be the impact on redistricting in 2011.

Current doctrine requires that legislative districts be equal in size and racial gerrymanders are subject to constitutional and statutory challenge. But partisan gerrymanders are almost impossible to challenge. In a case called Vieth v. Jubelirer, a four justice plurality held that allegations of a partisan gerrymander are nonjusticiable. Justice Kennedy was unwilling to say so, but conceded that he could not yet conceive of a judicially manageable standard. (Perhaps, one day, one will emerge.) While I think that Article IV, sec. 4 of the state constitution may provide a bit more room for a challenge to partisan gerrymanders of the state legislature, I wouldn’t bet the 401(k) on it.

As James Troupis, a Madison lawyer and national expert on redistricting, recently told my Election Law class, partisans can work gerrymandering wonder by “cracking,” “stacking” and “packing” voters. I shared with the class this example of a gerrymander that would create seven majority Democratic districts in Wisconsin and make reelection a very difficult prospect for Congressman Paul Ryan. Continue reading “Some Thoughts on Redistricting”