Pennsylvania Supreme Court quickly dispatches of challenge to Cruz's eligibility

Last week I blogged about the expedited briefing in the Pennsylvania challenge to Ted Cruz's eligibility to appear on the ballot--and the wrong-headed reasoning of the district court's decision. Today, more than a week after briefing was completed, the Pennsylvania Supreme Court issued a brief per curiam opinion affirming the district court's order without reasons given. It's impossible to know whether it agrees with the district court's reasoning or simply affirmed the order on other grounds. Regardless, this maneuver avoids setting any ill-advised precedent on the scope of Pennsylvania ballot access disputes, and it effectively insulates the case from a certiorari grant to the United States Supreme Court (which would likely refuse to hear the case on the pragmatic reason that it lacks certainty about why the Pennsylvania Supreme Court did what it did and finds no other reason compelling it to weigh in, apart from any prudential or discretionary concerns that may incline it to reject the case).

Fictional Attorney of the Month: Herr Huld

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In Franz Kafka's The Trial, Josef K. is arrested. But he doesn't know why--he's not sure who's arresting him, where they're taking him, or what he did. Indeed, the reader never learns of the crime that is at the center of the story.

But things don't look up for Josef K., as the farce of a trial only grows worse when he is given his attorney, Herr Huld (seen left as played by Jason Robards in a BBC adaptation). The lawyer is the epitome of everything a lawyer should not be. Huld is long-winded, arrogant, and overconfident. He explains that the case is difficult and writing a brief will be a challenge--but he never completes the brief as he spends more time describing how hard it will be than working on it. And Huld constantly brags about his vast network of connections with influential members of the legal system, which, he believes, are truly the most important things the lawyer does.

Over time, the client slowly learns that the case is quite hopeless as the system is manifestly unjust. And it is made worse by a lawyer whose other clients have never achieved success. One of Huld's clients, Block, describes to Josef that his attorneys is principally responsible for his financial and professional ruin over the last several years. Huld is the epitome of a bad lawyer in all aspects of his work--not simply poor at his job, but unethical, a terrible counselor, and malicious.

Pennsylvania Supreme Court expedites hearing on spurious Cruz eligibility claim

Recently, a state court in Pennsylvania found that Ted Cruz is a natural born citizen and entitled to ballot access. The Pennsylvania Supreme Court has expediting briefing in the case. The docket reflects that the appellant has a couple of amicus briefs on his side: one by Einer Elhauge at Harvard Law, another by Mary Brigid McManamon at Widener Law.

I use the adjective "spurious" in the title of this post not because I believe that it's obvious that Mr. Cruz is a natural born citizen; indeed, I've conceded that the question is closer than one may expect, and I have my own inclinations, but I've found Michael Ramsey's perspective to be the most persuasive in concluding that he is eligible.

Instead, it is because there is simply no requirement under Pennsylvania law that a citizen be "eligible" to obtain ballot access. Indeed, the very opposite is true.

I've written, extensively, about this very basic error in these qualifications disputes. There is no free-standing ability for courts to scrutinize qualifications of candidates for president. Instead, it is reserved to the states to administer ballot access. States can decide whether to list a candidate, or not list a candidate. One must refer to state law. To be sure, there is a concern that a state may list a candidate ineligible for office--but there is no federal right to keep an unqualified candidate off the ballot. Instead, such decisions reside in state law.

This is in part because there are many who may evaluate the qualifications of a candidate--voters, being one of them! But presidential electors can also decide whether a candidate is eligible or not, and decide not to vote for him. Indeed, many (but not all!) decided that Horace Greeley was no longer eligible after he died in 1872 after the election and cast votes for others.

The state court in Pennsylvania was in grave error when it concluded otherwise: "the Constitution does not vest the Electoral College with power to determine the eligibility of aPresidential candidate since it only charges the members of the Electoral College to select acandidate for President and then transmit their votes to the nation's 'seat of government.'" What does the power to "select" mean if it does not include the discretion to decide whether someone is fit for office--including, whether someone is eligible for office?

And the Court was wrong to conclude that Congress lacks this power, too: "no Constitutional provision places such power in Congress to determine Presidential eligibility. Moreover, other than setting forth the bare argument, the Candidate offers no further support for the contrary proposition."

Well, apart from my Indiana Law Journal article extensively discussing this precise point, one could easily cite the instance of Congress refusing to count electoral votes cast for Horace Greeley in 1873 because it believed he was not eligible to serve as president; or Congress's resolution in 2008 decreeing that John McCain was a natural born citizen, presumably because it believed it had the power to scrutinize qualifications in its power, likely under the subsequent language of the Counting Clause of the Twentieth Amendment, at the very least.

But this is essentially because the Pennsylvania state court confused the political question doctrine--that a question is exclusively reserved to another branch--with this issue. That is, it may not be a political question; but, it is certainly the case that many other political actors hold the power simultaneously. That, I think, is good reason to give pause.

It is further reason to give pause when one consider whether any cause of action exists. After all, what right is there to remove someone from the ballot? That is an operation of state law--of state ballot access law, in particular. And Pennyslvania's election code and election practice expressly display how spurious this claim against Mr. Cruz is.

Many states, understandably, do not want to engage in much scrutinize of the qualifications for these offices--let voters, electors, and Congress sort it out, rather than election officials and courts. And Pennsylvania law expressly disclaims any requirement that presidential candidates declare they are eligible.

Consider Section 2870 of the election code: candidates for office typically must file a nomination petition with an affidavit stating "that he is eligible for such office." But the end of the section provides something quite contrary for presidential candidates: "In the case of a candidate for nomination as President of the United States, it shall not be necessary for such candidate to file the affidavit required in this section to be filed by candidates, but the post-office address of such candidate shall be stated in such nomination petition." (Emphasis added.)

Pennsylvania leaves it other actors--not election officials, and, by proxy, not courts reviewing the decisions of election officials--to scrutinize qualifications.

Historical practice supports this view. In 1972, for instance, Linda Jenness and Andrew Pulley, both under 35 years of age, appeared on the Pennsylvania ballot under the Socialist Workers Party presidential ticket. Pennsylvania recorded thousands of votes cast for them. Even though both were ineligible.

These nuanced points are often lost in these eligibility cases. The salacious story of the merits--born in Canada!--or the more routine standing doctrine issues often garner the greatest attention. But this claim has no merit simply because Pennsylvania law allows anyone on the ballot, without any scrutiny of qualifications. The question of eligibility is reserved to others in Pennsylvania--not election officials, and certainly not courts.

New op-ed at Washington PostEverything: state legislatures can select presidential electors themselves to stop Trump

I have a new opinion piece at Washington PostEverything: "If no one else stops Trump, the Electoral College still can. It’s in the Constitution." It calls for states to consider selecting presidential electors for themselves this cycle, rather than leaving the selection of electors to a popular vote. It includes the following idea:

“State legislatures should consider whether to retake this authority in the 2016 election in an effort to stop Trump. Republicans control 31 state legislatures. Many could consider this proposal, but the Texas state legislature is a natural place to start. It could easily pass a law returning power to the legislature. After Election Day, the legislature could decide whether to vote for Trump or Mitt Romney, the prior Republican nominee; former Texas Gov. Rick Perry, who dropped out of the 2016 race early on; a popular GOP figure like Condoleezza Rice, whose name has recently been floated as an alternative; or their own junior Sen. Ted Cruz, presently trailing Trump in the Republican Party delegate count.”

Setting aside the extremely low likelihood of doing so or political outcry, I wanted to emphasize the possibility--one that had not yet been examined anywhere (as far as I saw). Indeed, it also has the virtue of being a measure that a state legislature could enact at any time before the election day--and perhaps even after.

There are three extra wonky things to consider that I couldn't fit into the piece and are better examined in detail here.

First, would the Voting Rights Act prevent states from passing such a law? It is hard to say that Section 2 would prevent states from passing such a law--that is, it's not immediately obvious that transferring the selection of electors from the people to the state legislature would necessarily "result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." There is likely much that could be written on the subject, but I simply flag the matter as a possible complicating factor.

Second, would a state legislature need to pass a law? Strictly speaking, the task is left to the "legislature" of the state to decide the "manner" of the selection of electors. The governor has no role in that selection process. So could a state pass a law (signed by the governor) that would bind future legislatures in how they select presidential electors? Or could the state legislature simply choose to ignore any gubernatorial veto and select the electors themselves? My inclination is that the legislature could do it without gubernatorial interference--despite recent Supreme Court suggestions that "legislature" might not always mean "legislature.

Third, would the state legislature have to do so before the election, or could it do so after the election and effectively nullify the results? That would be an even more radical version of my proposal. Recall that the Florida legislature was preparing to select its own electors in mid-December as Bush v. Gore was pending before the courts. But that was a case in which there was a dispute over which slate of electors should be certified, and the legislature needed to at to comply with the "safe harbor" provision of federal law concerning the selection of electors. It might be the case that a state legislature could simply select its own elect its own slate and send the competing slate to Congress for its own examination of who "won" the election. (EDIT: probably not, given that the time is fixed by federal law for selecting electors--it would have to occur in the legislature on Election Day.)

In any event, it's a controversial--but creative!--idea I've been kicking around and thought it would be interesting to float to a broader audience.

Will states like California lower their bar standards to help schools comply with new ABA mandate?

Unintended consequences are common. One develops a great idea; it takes form; it is discussed and debated; and, finally, it takes effect. But it may result in unintended consequences, it's always been fascinating to think about those unintended consequences. I've extensively discussed unintended consequences of matters such as LSAT administration, accommodated LSAT test-taking, and distortions in law school admissions.

The American Bar Association has moved closer to approving a new accreditation standard. At least 75 of law graduates from an institution must pass the bar exam within two years. It is a much simpler rule than the previous standard, and it holds schools to a higher standard.

Might there be unintended consequences? Many schools right now currently fail that standard. Professor Brian Leiter rightly wonders if schools will focus more on bar prep than other aspects of legal education. It is also likely that many schools will seriously reconsider their class sizes, admissions standards, academic dismissal rates, and transfer students.

But it's also worth noting that not all state bar exams are created equal. Perhaps nothing makes that point so clearly as looking at the passing scores required for the Uniform Bar Exam, a standardized bar exam with a single score, and varying scores required for admission in different states. A 260 will pass in Minnesota or Alabama, while a 280 is required to pass in Alaska or Idaho. My colleague Rob Anderson has identified the varying degrees of difficulty of many states' bar exams. And California is at the top--I've identified how California bar test-takers are more capable than test-takers in other states, but they fail at higher rates because of the difficulty of the bar.

So take a state like California. It is very likely that a number of schools will face serious difficulty meeting this standard--the first time rates for many schools are well below 50%, much less 75%, and even students who retake the test may make it a challenge for the total to pass the 75% threshold.

Some schools may begin to "export" students to jurisdictions with easier exams and higher pass rates--perhaps incentivizing them with stipends on the condition they take the exam in an easier jurisdiction.

But that's a potential unintended consequence that is school-centered. Might there be bar-centered consequences?

Suppose the state bar of California suddenly finds that four or five of its law schools are at risk of losing ABA accreditation. While some may praise that outcome, it's not clear that the state bar would do so. It might be inclined to lower its standards to increase pass rates (more in line with other states) and keep its schools in the ABA's good graces. Other states with particularly difficult bar exams, or with law schools that have significant political clout, may do the same.

Of course, this is speculative. And I make no claim as to whether such decisions would be good or bad--one could think some state bars are too difficult and that the pass rates should be increased, or one could think that the bar should not lower its standards. Instead, it's simply to identify some of the potential consequences that may come about from proposals like this. Only time will tell whether such consequences actually arise.