Fictional Attorney of the Month: Fred Gailey

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Miracle on 34th Street is an iconic Christmas film starring Maureen O'Hara as Doris Walker and and Natalie Wood as her daughter Susan. The story revolves around a no-nonsense single mother who raises Susan not to believe in fairy tales like Santa Claus.

While much revolves around the life of Kris Kringle and the sales department at a New York City Macy's store, the film's denouement is really a courtroom drama. Doris's neighbor, Fred Gailey (played by John Payne), is an attorney who befriends Kris. When Kris faces legal action declaring him to be insane, Fred quits his job at a law firm and represents Kris in court. In the end, Fred's clever presentation of the evidence (including a display of many mailbags of letters addressed to "Santa Claus") and disarming personality help secure a dismissal.

Slopegraph of electoral votes and popular votes for presidential candidates

After my perspective on electoral vote and popular vote margins--in which I argued that the popular vote is meaningless--I thought about how Electoral College and popular vote margins related to one another. I took a stab at a visualization by creating a slopegraph.

This was much more challenging than I thought. And perhaps it's more deceptive than informative. But why not give it a shot and let the critiques come....

I wanted to show the relationship between electoral votes and popular votes. I started by taking the raw popular vote totals of each candidate--this could have been as a percentage of electoral vote, but 1968 really screwed things up and messed with the visualization if I were using the raw electoral vote totals as the left data point, so I took the slightly less perfect version of the raw vote totals. I started from 1944, which had just 531 electoral votes, in comparison to today's 538, and some other deviations along the way.

Then I opted for the percentage of the two-party popular vote margin, which was also imperfect as a kind of comparison--it might lead to significant fluctuations if there is a particularly significant third-party candidate who draws votes disproportionately from one candidate.

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In order to do the slopegraph on two different Y axes, I opted to calculate Z-scores for each side. That offered the relative performance between electoral votes and between popular votes, and it offered some comparable scale between the two from 1944 to 2016.

You can see a couple of significant differences between the electoral vote "landslides" of 1972 (Nixon winning 520 electoral votes, dark green) and 1980 (Reagan winning 489 electoral votes, light green). In '72, Nixon snagged a whopping 61.8% of the two-party popular vote. But in '80, Reagan secured just 55.3% of the two-party popular vote.

There's not much of a rhyme or reason between the performance in the Electoral College and the popular vote--except that we might notice particularly low-performing popular vote winners: Bush in 2000 (271 electoral votes, blue) had the razor-thin electoral advantage; somewhat healthier were Trump in 2016 (306 electoral votes, pending December 19, red) and Kennedy in 1960 (303 electoral votes, orange).

In any case, perhaps after all the flaws I've identified and the meaningless of the popular vote, anyway, such a slopegraph is of less than even marginal value. But here it is, if you find it of interest.

The National Popular Vote is a pretty terrible way to change our way of electing the president

Given that Hillary Clinton is on pace to outperform Donald Trump in the national popular vote but lose the electoral vote (and the presidency), this currently-meaningless scenario is renewing calls to alter or abolish the Electoral College. The most pressing plan is the National Popular Vote, a compact between the states to award their electoral votes to the winner of the national popular vote once 270 electoral votes' worth of states agree to do so--effectively circumventing the Electoral College and using the selection of electors on a nationwide rather than statewide basis. Having recently been approved in New York, 165 electoral votes' worth of states have approved the plan.

I want to set aside the issue of whether the Electoral College should be (actually or effectively) abolished for a moment. There are some good theoretical grounds, I think, why the Electoral College--at least, a system designed to recognize individual states and all residents in a state as a proxy for political power rather than simply raw voter totals--retains some (admittedly, imperfect!) merit. Instead, this argument will focus exclusively on the means of the National Popular Vote, as a legal matter and as a practical matter. On both grounds, I think it falls quite short.

As a legal matter, I have written extensively that the compact is unconstitutional absent congressional consent. States are prohibited from entering into interstate compacts with one another without the consent of Congress. The Supreme Court has slowly carved out exemptions to this provision and now (or most recently) only requires consent for compacts that affect the balance of power between the federal and state governments or among the several states. The decision of some states to change the balance of power among presidential electors--essentially, prior to an election, ensuring that non-compacting states' electors are irrelevant to the presidential election--is the kind of shift of power among states that requires congressional consent under even the most generous construction of the Compact Clause. As this process was designed to avoid Congress--and because I think congressional consent is unlikely in any event--the compact would fail. (More details can be dug out of those articles.)

There have been other concerns raised by other commentators--that the compact would improperly strip the House of its power to choose a president in a contingent election when no candidate secured a majority; that the state legislature's plan to award electors on a basis other than the decision of the people in that state is prohibited; that the compact may run afoul of the Voting Rights Act for certain jurisdictions with sufficiently minority populations.

As a practical matter, the decision to change presidential elections at a state level without including a uniform national plan for elections, or empower Congress to do so, is deeply problematic. A recent, and quite significant, effort to amend the Constitution took place in 1970, and even it fell short of the likely required federal power we would need to regulate presidential elections. A nice summary from CQ Almanac shows some of the things a federal amendment was designed to do. For instance, the constitutional amendment guaranteed some uniformity in voter qualifications:

"The electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that for electors of President and Vice President, the legislature of any State may prescribe less restrictive residence qualifications and for electors of President and Vice President the Congress may establish uniform residence qualifications."

Additionally, the proposed amendment provided a times, places, and manner provision for presidential elections, similar to such a provision for congressional elections:

"The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations.

But there are no such provisions for the National Popular Vote. I've written about the "invisible federalism" that exists within the Electoral College. Right now, fifty-one jurisdictions set their own rules. That means a true national popular vote would require some significant centralization of our electoral process, some of which was baked into the 1970 proposed constitutional amendment. Consider some things that ought to be nationalized in a presidential election:

Uniform voter qualifications. States have some fairly dramatic differences in the qualifications for voters. Some bar anyone ever convicted of a felony from voting, others permit felons imprisoned to vote. Some in the future may lower their voting age, as they have done in the past. Some have different standards for the mentally ill. When faced with such an option to the proposed amendment, Congress rejected it; but it would likely need to be an element of any future effort.

Uniform voting procedures. States set different absentee and early voting requirements. They set different residency requirements. Some have voter identification laws and others don't. Some open their polls at different hours. Some have all mail-in elections. Recount procedures trigger differently in different states. The proposed constitutional amendment got part of the way there in permitting Congress to regulate such procedures if it deemed such laws necessary to preserve uniformity.

Uniform ballot access standards. Even more so in an election like the one that took place in 2016, state permit different candidates to appear on the ballot. Evan McMullin and Jill Stein appeared on the ballot in a handful of jurisdictions. States like Texas have extremely early ballot access deadlines for independent candidates. Indeed, an effort to keep Donald Trump off the ballot in Minnesota would have wreaked havoc in a national popular vote total.

Standard ballot content. Consider, for instance, California including a dozen ballot propositions on its presidential ballot, boosting turnout; or hotly-contested United States Senate races, which influence turnout. We may see some oddities in turnout simply because of the other races that happen to appear on the ballot--and if we want a truly national election, we ought to aspire to more uniform standards.

A requirement to hold a popular election in the first place. And under the current system, states are not even required to hold a popular election in the first place. A state legislature could strip its citizens of the right to vote in presidential elections if it so desires, something like many states near the Founding did, or like Colorado did in 1876. Of course, such a decision might cut off the nose to spite the face... but remains within the realm of possibility. (A version of this challenge would be a state's future decision to use instant run-off voting, which offers different challenges in tabulating the votes from that jurisdiction--in a true national election, we would need to decide whether first past the post or an alternative system would be used. This is hypothetical at the moment because every state currently uses first past the post.)

One rejoinder I've heard goes something like this: "Yes, the votes are all commingled, but that doesn't really mean anything. After all, the electoral votes are all commingled in the final totals, too, even though there are separate elections that have occurred using different systems."

But I've never understood this rejoinder. It's something like saying, "Yes, I understand you planned to eat roast beef, mashed potatoes, green peas, and apple pie tonight. But because they're all going to end up in your stomach anyway, there's no difference if we simply blended them all together before consuming them."

You see, our present electoral system holds fifty-one separate contests. States can do whatever they want within their electoral process--they're going to get a fixed number of electoral votes, and whatever they do to determine who gets those votes (or, more precisely, who the electors will be) is up to each state. Yes, at the end of the day, the votes are combined, but only after the results have been limited to the boundaries of that particular state.

Now, it's also the case that many elections are administered at the county level, and those county-level decisions affect statewide elections--the format of the ballot, the type of ballot used (optical scan or direct-recording electronic voting machine), local races, the training for poll works, and so on. And perhaps we have to accept some lack of uniformity in our electoral process simply because of the expansive country we live in. But it may be worth thinking carefully about how uniform our elections should look (perhaps drawing inspiration from other countries that maintain both national and local election systems), and what that ought to look like in a constitutional amendment. The National Popular Vote offers absolutely no opportunity to ask these questions.

Finally, I've mentioned before that we tend to prefer majority winners in our electoral system, and we have seen that the Electoral College can turn fairly small margins into rather lopsided victories, a kind of affirmation for the president (mostly, I think, a happy and incidental effect of the system, not a part of its design). Only some presidents secure more than 50% of the popular vote but all secure a majority of the electoral vote (or the House chooses the president by a majority of states). A runoff or some guarantee that the winner gets 50% of the vote--or a nationalized instant run-off process. But the National Popular Vote makes no such guarantee. Perhaps we are ready to say that the person who gets the most votes wins, as we often do in other elections where a plurality winner takes office. But it is worth considering whether that, too, should be a part of the conversation of a new presidential election system--something that simply cannot be accomplished under the National Popular Vote.

It may well be that Americans are ready for a new system of electing the president, the normative or theoretical reasons a matter beyond the scope of this post. But in doing so, the National Popular Vote is a fairly ineffective way of doing so, and, as a cure for the problems perceived by many, may ultimately be worse than the disease.

The coming reckoning for non-JD legal education

As JD enrollment falls and non-JD enrollment increases at law schools, leading to a dramatic increase in the percentage of legal education focused on a non-JD student body, it's worth considering what non-JD legal education looks like, where it's going, and what the future may hold. It's a story of some unusual and under-discussed factors that portend a coming reckoning. (And this assumes demand remains fairly strong--recent reports suggest foreign countries may begin to cut back on sending foreign students to the United States for education if a trade war begins, or if immigration and international travel priorities change.)

As I've noted before, one in ten students enrolled in law schools in the United States are not part of a JD program, a number likely to continue to rise:

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The American Bar Association defines three categories of non-JD degrees: "academic masters degrees for non-lawyer," "post-JD law degrees for practicing lawyers and/or foreign lawyers seeking to practice in the United States" and "research and academic-based doctorate level degrees." The second category, usually LLM degrees, have historically been the largest contingent (at least according to conventional wisdom), and the first category is among the fastest growing (again, at least according to conventional wisdom).

The ABA does not accredit non-JD programs. Instead, the ABA's task is limited to "acquiescence" of a new program. The ABA offers some rather onerous regulations that schools must meet for the JD program, but they offer no guarantee or review of the non-JD programs, except for very limited purposes:

ABA accreditation does not extend to any program supporting any other degree granted by the law school. Rather the content and requirements of those degrees, such as an LL.M., are created by the law school itself and do not reflect any judgment by the ABA accrediting bodies regarding the quality of the program. Moreover, admission requirements for such programs, particularly with regard to foreign students, vary from school to school, and are not evaluated through the ABA accreditation process. The ABA reviews these degree programs only to determine whether their offering would have an adverse impact on the law school's ability to maintain its accreditation for the JD program. If no adverse impact is indicated, the ABA "acquiesces" in the law school's decision to offer the non-JD program and degree.

I sadly must qualify statements above as "according to conventional wisdom" because, as noted, the ABA does not collect data or evaluate matters like incoming student metrics or outcome performance of non-JD graduates. To do so might be a challenge, of course, given the variety of programs that offer quite different things.

But I'll focus on one particular kind of degree to start: the "post-JD law degree" for "foreign lawyers seeking to practice in the United States." In 2015, there were 6529 bar exam test-takers (including repeaters) who attended law school outside the United States. Virtually all of them (4754, or 73%) took the New York bar. Combined with the 1142 who took the California bar, over 90% took these two states' bar exams.

In both these states, and in most others, bar exam test-takers must have additional education at an ABA-approved law school. New York sketches some basic requirements for LLM programming to qualify an individual for the bar, as does California.

But note the gap between the ABA and the state bars: the ABA does not actually accredit these programs or "reflect any judgment" "regarding the quality of the program." But the state bars condition foreign graduates to secure a degree at an ABA-accredited school--even if the degree itself is not approved by the ABA.

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This, of course, means that any of the typical factors one would consider in an accreditation process--including admissions standards, or quality control measures for graduation, like bar pass rates or employment outcomes--do not exist for such programs. Of course, the Department of Education, or other accrediting bodies, may have other things to say about such programs. But it means that there are two sets of programs operating out of ABA-approved law schools: ABA-approved JD programs, and ABA-"acquiesced" non-JD programs.

If one examines the cumulative bar pass rates of non-US law graduates--most of whom have been required to complete a program at an ABA-accredited law school--and compares them to the pass rates of ABA graduates, the results are quite striking. The overall bar pass rate for ABA graduates has been in decline for several years, drifting down from 74.3% in the February & July administrations in 2011 down to 64.4% for the administrations in 2015. (These test results include all test-takers, including repeaters, those who took multiple states' bar exams, those who were not recent law school graduates, and test-takers in United States territories.) But those who were educated outside of the United States--and almost all of whom secured a degree from a program at an ABA-accredited school--now sit at a meager 28% overall pass rate, a slight decline in recent years. (UPDATE November 19: see below.)

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(It might be worth noting that New York's pass rate of 68% is fairly typical of the overall pass rate of 64%, and the 31% New York bar pass rate for non-US law graduates is also fairly typical of the 28% overall pass rate for non-US educated test-takers. That's despite California's lower-than-average bar pass rates being an unusually high component of the non-US law graduate bar exam test-takers.)

Of course, non-US attorneys are still just a sliver of overall bar exam test-takers, particularly because they are concentrated in just two jurisdictions. The chart to the left shows the tota number of test-takers for these categories.

Perhaps, of course, bar pass rates should not be the touchstone for accrediting bodies. And perhaps the incentives are quite different in reviewing such programs.

But it is hard to believe that attention won't shift toward the non-JD market, particularly as it grows in a semi-unregulated fashion. Perhaps the consumer advocacy interests are different from those who are already attorneys in another country seeking to study in the United States, or for non-JD degree-seekers who do not intend to take the bar exam. Only time will tell whether a reckoning is coming.

Display note: I did start the y-axis for non-JD percentage at a non-zero number to avoid excessive white space, but as it displays relative changes in value as a percentage, I think it is not terribly deceptive.

UPDATE November 19: A careful reader wondered about the evidence behind this claim. It's worth referring to a 2014 NCBE "Bar Examiner" report on foreign lawyers who took the New York bar. 75% of them had completed an LLM, and 25% had completed programs abroad that met the New York requirements (e.g., of similar duration and based on English common law). It includes some other breakdowns about the countries of origin of these students and their pass rates based on that country.

No, the Electoral College will not give the presidency to Hillary Clinton

There is a nascent but rapidly growing effort from supporters of Hillary Clinton to persuade presidential electors who would otherwise support Donald Trump to cast votes for Mrs. Clinton instead when the Electoral College meets December 19. Absent an extraordinary change of circumstances, it simply won't happen. Mr. Trump will win a majority of electoral votes on December 19 and become the 45th president of the United States.

It's worth noting that a lot of options to affect the presidential outcome have long since past--usually, waiting until after the election is not a good idea to affect an election.

I wrote back in March that state legislatures could choose their own electors instead of leaving the matter to a popular vote; but after a popular vote was held November 8, that strategy is not an option.

I also wrote in August that parties could select electors inclined to support their preferred candidate. The electors, however, have already been selected.

Instead, the only strategy for Mrs. Clinton's supporters is to turn to the Electoral College itself and persuade electors to be "faithless"--that is, persuade them to vote not for Mr. Trump, to whom they pledged (formally or informally) their support, but Mrs. Clinton.

First, it's worth noting that these are loyal Republicans who were selected as Trump electors. Many of them are loyal Trump supporters. The list of viable options, then, is limited to those who oppose Mr. Trump--and not just oppose him, but affirmatively prefer Mrs. Clinton (more on that point below). And this after Mr. Trump has won the election (at least, by all popular reports). It might be that Mr. Trump is not overly popular with many in the Republican establishment. But convincing them now to vote for someone else seems impossible.

Furthermore, these are electors in states that cast a plurality of their votes for Mr. Trump. Going to them and telling them to ignore the wishes of the voters in their own state for the wishes of the country as a whole--which, really, is overwhelmingly the wishes of California and New York--is even more unlikely.

Second, the electors would need to flip to Mrs. Clinton, and not simply refuse to vote for Mr. Trump. In order for a candidate to win, he must secure 270 electoral votes. If he fails to do so, the race is thrown to the House of Representatives, where each state receives one vote, and a majority of the states (26) is required to secure the presidency. Even if enough Trump electors threw all their votes to, say, Mitt Romney, no one would have a majority, the election would go to the House, and the Republican-controlled House where Republicans control a majority of state delegations would, in all likelihood, simply vote for Mr. Trump--absent yet another colossal effort to convince them to change their minds and somehow vote for Mrs. Clinton.

Third, the margin of victory is onerous for Mrs. Clinton's supporters. It appears Mr. Trump has won at least 290 electoral votes, meaning 21 electors would need to switch to Mrs. Clinton to deny him a majority, 22 electors to give her a majority, and 23 or 24 electors to account for Mrs. Clinton's own possible "faithless" electors. If he holds onto Michigan, she'll have secured 306 electoral votes, meaning the numbers increase to 37, 38, and 39 or 40.

These are Herculean numbers under almost any scenario. Consider that in the last 100 years, just nine (depending on your math) electors have been "faithless" and voted for someone other than the person pledged to support. Granted, no such concerted effort has been made to change electors' minds. Robert M. Alexander has surveyed presidential electors and discovered that serious lobbying efforts have occurred before, and that about 10% of electors in previous elections have considered voting for someone else--but did not do so.

Fourth, a few states purport to bind their electors to the individuals they are pledged to support. I've argued such laws may well be unconstitutional and should be repealed. But as they are on the books, it would either limit the pool of possible electors who could change their minds or stir litigation, possibly in multiple states, that would inspire even greater complexity, particularly if Congress is faced with multiple slates of electors.

In short, there is no realistic chance that the Electoral College will change the result of this election. This is different than saying it is not legally possible; as I've noted and defended repeatedly, electors are permitted to vote for whomever they desire--it is that there is essentially no likelihood enough of the would do so in such a way to change the outcome of the election. Circumstances change, of course, and something might still inspire a significant number of electors to change their minds and vote for someone else. But the odds are low. And we have fairly settled expectations that our electors will not be "faithless," something unlikely to change in the weeks ahead.

Could California vote for #Calexit? Probably not

Recently, "#Calexit" has been trending in California, a type of secessionist movement similar to Britain's exit ("Brexit") from the European Union. By popular vote, Britain approved the move, which has no legal effect according to the High Court but which continues to affect the political sphere.

Could Californians undertake a similar move and vote to "exit" the United States? The short answer is, probably not.

It's worth emphasizing I only examine whether California could vote to leave the United States--but there is some question on the merits I'll mention below. I defer to international law experts about the legality of such a move, but there is some history suggesting it could not, at least on its own, do so.

First, the #Calexit movement is not terribly sophisticated. It's worth noting this effort started months ago and has since been adopted as the new vessel for secessionists. It is not clear whether the proponents intend a ballot initiative, referendum, or an advisory question. (Following some of their comments on social media, proponents use terms like these interchangeably, if not randomly.) The form matters, which I'll broadly outline below.

A ballot initiative would not be permitted. Ballot initiatives in California include proposing new statutes or constitutional amendments. It is not clear that either could properly authorize secession from the United States. A constitutional convention might, I suppose; but that does not occur via initiative.

A referendum also would not be permitted, because it is, well, impossible. In California, a referendum is a decision by the people to ratify or reject a law enacted by the state legislature. Because there is no secessionist law that the state legislature has enacted, there is nothing for a referendum to do.

Instead, an advisory question would be the means to recommend #Calexit, and it would be that--a recommendation by the people, something like a public opinion poll but carries greater weight having come from the ballot box. Even that is limited.

For starters, a citizen-led advisory question is not permitted in California. In American Federation of Labor v. Eu (1984), the California Supreme Court held that the people had the initiative and referendum powers, but those powers extended only to those matters that enacted laws. Advisory questions were not authorized. It explained:

We acknowledge the arguments of the proponents that there may be value to permitting the people by direct vote not only to adopt statutes, but also to adopt resolutions, declare policy, and make known their views upon matters of statewide, national, or even international concern. Such initiatives, while not having the force of law, could nevertheless guide the lawmakers in future decisions. Indeed it may well be that the declaration of broad statements of policy is a more suitable use for the initiative than the enactment of detailed and technical statutes. Under the terms of the California Constitution, however, the initiative does not serve those hortatory objectives; it functions instead as a reserved legislative power, a method of enacting statutory law. The present initiative does not conform to that model.

But a precedent has now been set in California on a different type of advisory question. The California legislature passed what would ultimately become Proposition 59 on the 2016 general election ballot. Some litigation kept a similar proposal off the 2014 ballot, but after full briefing the California Supreme Court considered whether the legislature could refer an advisory question to the people via initiative--here, a call to California's elected officials to lead an effort to amend the United States Constitution to permit greater regulation of campaign finance.

In Howard Jarvis Taxpayers Ass'n v. Padilla, the California Supreme Court permitted such an advisory question to appear on the ballot. The Court accepted the argument that the legislature had "the inherent power to conduct an investigation in order to select the wisest policy course." It could then refer such questions to the people as a part of its investigatory power. But the Court was careful to limit this power: among other things, "the investigative power permits inquiry only into those subjects 'in reference to which [the Legislature] has power to act.'"

An advisory question, then, could not ask for California to secede if the legislature lacked the power to secede. Instead, it could only ask, along the lines of Proposition 59, to urge elected officials to pursue (amicable?) secession with the federal government. That is, unless (and this is on the merits, as mentioned above) the state legislature does have some right to do so, but that is a much more complicated question--even though, I think, the answer is probably no.

That said, the (dare I call them unsophisticated) claims from the current #Calexit movement suggest they will be gathering signatures for this ballot measure, which suggests they do not intend to have the legislature refer the advisory question to the people. (It's also deeply unlikely that the state legislature, if asked, would do so.) Proponents apparently intend to simply gather signatures. And whether they do so as a ballot initiative (which the people lack to enact as a matter of law) or an advisory question (which the people lack the authority to do under the initiative power), the effort would likely fail, and the people could not vote for #Calexit.

UPDATE: The "Yes! California" movement helpfully directed me to their proposal they filed last year. It is an initiative that requires a regular referendum to call for secession, and in the event of a referendum that approves secession, triggers obligations from the California government to pursue good-faith secession negotiations with the federal government. I am fairly confident that laws that purport to bind future legislatures (if not all government officials) to act in a particular way run afoul of basic principles of legislative autonomy. (See generally People's Advocate v. Superior Court (Cal. App. 1986).) Finally, such a transformative change in California is likely a "revision" to the state Constitution, not simply an "amendment," and as such would need to come from the legislature and not an initiative petition.

New on SSRN: "Hillary Clinton, Michelle Obama, and the Unwritten Twenty-Second Amendment"

I have just posted on SSRN a new draft: Hillary Clinton, Michelle Obama, and the Unwritten Twenty-Second Amendment. Here is the abstract:

In 1994, the popular children's cartoon show "Animaniacs" aired a song about the presidents of the United States, culminating in the lyrics, "Now in Washington, DC/ There's Democrats and the G.O.P./ But the one in charge is plain to see/ It's Clinton, first name Hillary." Its humor illustrated what Americans come to expect--first spouses effectively serve in the role of President of the United States, if only informally. When Americans voted in 2016, they recognized that she was ineligible to be elected as President of the United States--she could not serve a third term because of the Twenty-Second Amendment.

This Article proceeds in three parts. First, the Article examines the text of the Twenty-Second Amendment, which provides that "[n]o person shall be elected to the office of President more than twice." Through a Blackstonian understanding of the common law tradition of coverture, the Article argues that the word "person" includes both married spouses, as the public understood the amendment when it was ratified in 1951--even as coverture was being abolished in most jurisdictions.

Second, even in light of some ambiguity of the meaning of the word "person," the "unwritten" Constitution informs us that presidential spouses are ineligible to serve as President. Tracing George Washington's example of serving just two terms in the White House to the enactment of Twenty-Second Amendment, the tradition of no spouse running for the office remains an indelible practice that informs our understanding of the Constitution.

Third, the people's uniform rejection of presidential spouses running for the office of President--in the 2008 presidential primaries, and the 2016 general election--suggests that spouses are not eligible for the office. The people, after all, may independently judge the qualifications of candidates for the office of President, and their interpretation, as construed through their behavior, informs this view of the Amendment. It concludes by teasing out the implications for a potential presidential run for office for Michelle Obama and how litigation seeking to exclude her from running might fare.

Comments (and offers from law reviews) welcome!

Hillary Clinton's popular vote margin is meaningless in every way (except pithy tweets)

Hillary Clinton is on pace to secure about a 1 or 2 percentage point margin over Donald Trump in the popular vote totals in the 2016 presidential elections. As of this moment, Mrs. Clinton has about 1.6 million more votes than Mr. Trump in that tally. (UPDATE: this post was last updated Dec. 30.)

Of course, this margin is meaningless. Except, I suppose, in pithy tweets designed to prove a point that is... well, meaningless.

First, campaigns would behave differently if they won elections based on the popular vote rather than the Electoral College. Jonathan Adler ably makes this point. Campaigns are designed to eek out, at any margin, electoral votes, not popular votes. And if the popular vote mattered, then campaigns would be designed differently. The most common analogy is to look at the 1960 World Series. The Yankees outscored the Pirates 55 runs to 27 runs. But the Pirates won the Series, 4 games to 3. That's because it doesn't matter if the Yankees won a game 16-3 or 12-0; the only thing that matters is winning 4 games. The rules define the contest. (UPDATE: Indeed, it appears the Clinton campaign chose to spend money in places like Chicago and New Orleans to increase the popular vote margin--at the expense of "swing" states in the Electoral College.)

Second, voters would behave differently, too. Would New Mexicans have cast over 73,000 ballots for former Republican Governor-turned-Libertarnian nominee Gary Johnson? Would Utahns have cast over 175,000 ballots for Evan McMullin? Would the Great Plains and upper Rockies have voted in such high numbers for the Libertarian nominee (over 5% of the vote in Montana, Wyoming, North Dakota, and South Dakota)? You see, if their votes "mattered" in a national popular vote total, they may well have voted differently. Instead, because their results were restricted to their home states--often fairly reliably Republican or Democratic--voters may have behaved differently.

Third, our laws would have to be different to have a true popular vote tally. Consider, for instance, that Mr. McMullin was only on the ballot in a handful of states, including Utah; or that Green Party candidate Jill Stein was not on the ballot in all fifty states. Or, consider that some states have strict forms of voter identification, and others have none at all; some allow incarcerated felons to vote, and other prohibit them from ever voting if they have been convicted of a felony. We run fifty-one elections in the presidential election; dumping them into a single basket of the "national popular vote" simply doesn't tell us anything meaningful. (For more on that, consider my article in the Arizona State Law Journal on the topic.)

Fourth, while Mrs. Clinton may have the most popular votes, she will be far from a majority of the popular vote. She is likely to secure something around 48% of the popular vote total--meaning 52% of Americans voted for someone else. We tend to prefer majority winners, even though each state in the Electoral College can be carried by a plurality, and many other elections also occur by plurality winners. Nevertheless, note how the Electoral College requires an outright majority to win. And fairly narrow margins can quickly turn into apparent Electoral College landslides--consider 2012, in which Barack Obama defeated Mitt Romney by a popular vote margin of 51.1% to 47.2%, but won the Electoral College soundly, 332 to 206. Until a system with a runoff is in place, we might prefer a system that offers a fairly clear majority winner, whatever the rules may be.

Fifth, this result is exactly what the Electoral College was designed to do! One reason for the Electoral College was to protect the smaller states by guaranteeing them a meaningful say in the outcome of the presidential election, as each state receives three electoral votes, and the smallest states pack a greater punch in the Electoral College than their populations would otherwise suggest. But the smallest states are quite diverse in their partisan allegiances in recent years, and the Electoral College is doing something else.

But as another way of protecting smaller states, the Electoral College ensures that a candidate must have broad geographic support. That is, she cannot "run up the score" in a small number of jurisdictions. Indeed, at the Founding, some worried that New York or Pennsylvania would simply dominate the elections. That's the flip side of guaranteeing some say to smaller states--it's to ensure a broader base of support across the country. Trump looks to carry the plurality in 30 states. That's very broad support in a country of 51 jurisdictions! Granted, some of the support was somewhat narrow, of course--it's the reason he'll lose the popular vote total.

Indeed, a couple of charts displaying the sheer disparity of performance in two states--California and New York--effectively overwhelm the entire rest of the country.

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Yes, California and New York two of the largest states. But their margin for Mrs. Clinton will likely exceed 4 million votes; the rest of the country combined will offer something like 3.8 million votes in favor of Mr. Trump. It is a deep geographic imbalance, reflecting a strong intensity of preference in two states for one candidate.

Undoubtedly, there is an appeal to the cry, "The person who gets the most votes wins." But given many complications in our federalism-driven election regime, the answers are far more complicated. In particular, there remain good (at least, good to me) normative reasons for the Electoral College--a requirement of broad geographic support for the presidency rather than pockets of intense support in a couple of places being one of them. For more, read some of my articles on the subject.... (For more on this election and the Electoral College, see John McGinnis's perspective here.)

(I should note that I do not believe we'll see a major push to abolish the Electoral College. The National Popular Vote effort has moved forward in a handful of jurisdictions, mostly Democratic-controlled, and it's pretty much run out of new places to go.)

(UPDATE: Some have critiqued this final claim, arguing that it devalues the votes in some states. It's not quite that--instead, it's that the Electoral College is actually designed to ensure broad geographic support rather than intense preferences in a few select states. I concede that "designed" may be a strong term, for some claim that it was not the outright intent of the presidential election system, but simply an indirect byproduct, but it has some support in founding documents.)

(UPDATE: these charts were updated with results as of Dec. 30.)

How recounts in presidential elections work under Pennsylvania, New Hampshire law

Tonight, or this morning, a number of elections are particularly close. From my own guess, I think the margins in Pennsylvania (20 electoral votes) and New Hampshire (4 electoral votes) look to be the closest. In the event that these elections prove to be decisive in a presidential candidate's quest to secure 270 electoral votes, recounts are likely. (Of course, if a candidate concedes, or if the margins become unrealistically large, or if there are still more tipping point states, or there are others, this prediction is sure to be wrong!)

Many recount procedures begin administratively through the Secretary of State or an election board. It's worth noting with any contested election that usual basis for filing a claim is in state court. For all the attention given to federal causes of action, the ordinary act of recounting is typically reserved to state courts. In Florida in 2000, the federal issues were raised as a counter to the procedures implemented by state courts; they were not originally federal causes of action. It's likely, then, that we would expect basic recount procedures to arise in state court; federal claims could arise in that context. It's less likely that claims would originally be filed in federal court, but there are plausible scenarios where it might happen (and where federal courts would not abstain from exercising jurisdiction, another issue!), but I'll focus on the state-based claims at the moment.

It's also worth noting that after Bush v. Gore, the key deadline this year is December 13. That's the date set by federal law for presuming the regularity of the election results in Congress. Most opinions in Bush v. Gore recognized that this deadline was an important date for a state to meet (although some disputed how important or what procedures should take place in the late days before that deadline). Any litigation, then, would occur with an eye toward that date.

Below are the general timing and triggers for basic recounts, but there are obviously many more conditions and opportunities that can arise beyond these. But as we hardly know if there will be challenges, much less here, I'll stick with a couple of bare outlines of order and timing.

Pennsylvania

An automatic recount is triggered under Pennsylvania law if the margin of victory is one-half a percentage point or less. (25 Pa. Stat. § 3154(g)(1)(ii)) (There is no recount if the losing candidate requests no recount.) The Secretary issues an order by 5 pm ET November 17. (25 Pa. Stat. § 3254(g)(2)) The recount and recanvass must be finished by noon ET November 29. (25 Pa. Stat. § 3254(g)(5)) (Some more background is here.)

New Hampshire

There are no "automatic" recounts in New Hampshire, but parties can petition for a recount if the margin is less than 20%. (N.H. Rev. Stat. § 660:1) (Some more background is here.) A candidate must file a petition by November 11. The process to recount must begin by November 16. (N.H. Rev. Stat. § 660:4)