It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia.  (The piece was presented at a symposium on “The Voting Wars” that took place last spring at UVa.)

The piece is an analysis of shifts that have occurred in presidential elections between initial returns and final certified margins of victory.  The piece analyzes these shifts for all presidential elections going back to 1960, for potential swing states—including Virginia—as well as all states.  The major takeaway from the piece is that something has changed in the canvassing process since 2000 that makes it significantly more likely that a Democratic candidate for president will be able to gain large number of votes during the canvassing process.

Consider Colorado, for example.  As shown in Table A, on page 511 of the piece, prior to the 2004 election the Republican candidate for president gained during the canvass every time except 1964, the year of LBJ’s landslide.  Then, in 2004, Kerry gained over 30,000 votes during the canvass—not enough to overcome Bush’s initial lead of over 130,000 votes (see Appendix B, page 543), but a significant cut in that lead nonetheless.  Then in 2008, Obama padded his lead during the canvass in Colorado by over 70,000 votes, huge amount.  He did not do quite as well in the state in 2012, extending his lead there by “only” 26,884 votes.

The fact that in the three most recent elections Kerry and Obama have been able to gain significantly during the canvass in Colorado, whereas Democrats generally could not do so before, suggests that something new is occurring in the canvassing process that did not happen prior to 2004.  Is it a consequence of HAVA and its nationwide requirements concerning provisional ballots?  Is it increased reliance on absentee voting?  A combination of both, or some other factors?

My piece explores these issues for all swing states as well as the nation as whole.  But more data, and more sophisticated statistical analysis of the numbers, will be necessary to draw any definitive conclusions.  Charles Stewart and I plan to collaborate on future efforts to see what more illumination we can tease out of available evidence.

Meanwhile, with current attention focused on the Virginia Attorney General’s election, here are some observations.

The AG race is undoubtedly important in its own right.  But it is also a chance to see how Virginia’s procedures would handle a super-close presidential election.  Whenever there has been a vote-counting dispute in Ohio recently (as there have been in some congressional and local races), the participants involved—including the lawyers—know that they are potentially setting precedents that might affect a presidential election.  Indeed, the Sixth Circuit’s 2011 decision concerning provisional ballots in a judicial election, Hunter v. Hamilton County Board of Elections, was a major Equal Protection precedent for litigation that occurred in Ohio during the 2012 presidential campaign.

Virginia, albeit to a lesser extent than Colorado, seems consistent with the general trend showing that Democratic presidential candidates now are able to do better during the canvass than they usually did in the past.  Obama was able to gain almost 80,000 votes during the canvass there in 2008 and over 40,000 in 2012.  But Kerry did not gain during the canvass in 2004; Bush did by almost 10,000 votes.  And both Carter and Clinton were able to gain during the canvass in the three years that those Democratic candidates won the White House: 1976, 1992, and 1996.  Thus, Virginia’s numbers suggest that what may matter more there is the prevailing political atmosphere at the time: the candidate that wins the White House tends to gain during Virginia’s canvass.  But, interestingly, it is not uniformly a situation in which the candidate who won the state added to his lead during the canvass: although Obama won Virginia in both 2008 and 2018, Carter and Clinton lost Virginia in 1976, 1992, and 1996.   And it is worth noting that Carter and Clinton’s gains in Virginia during the canvass were miniscule in comparison to Obama’s: about 500 votes in 1992, about 1200 in 1976, and less than 2000 in 1996.

What may be most intriguing about Virginia’s numbers is the possibility they suggest of a Democrat being able to come from behind and overtake a Republican opponent during the canvass.  Suppose, for example, that in 2016 Hillary Clinton trails Chris Christie in Virginia by just 1000 votes on the morning after Election Day—and that whoever wins Virginia wins the White House.  The numbers from previous presidential elections in the state suggest that Clinton might well overtake Christie during the canvass.  (I make this observation, not from a partisan perspective, but as an analyst concerned at how rules governing the vote-counting process might affect conduct by actors, especially partisans, within that process.  Any rules that potentially have an effect of engendering distrust in the vote-counting process are a cause for concern, and if one party has an asymmetrical advantage as a result of some rules, there is a risk that this asymmetry might breed distrust.)

It is with what might happen in 2016 in mind that I’ve been watching the numbers move during the canvass in this year’s Virginia Attorney General race.

I don’t profess to have followed all the numerical shifts during the canvass as closely as others have, especially Dave Wasserman of Cook Political Report (whom Chuck Todd of NBC News has nominated for the yet-to-be-created position of national director of counting votes).  Wasserman has been keeping a Google Doc of all these vote changes so far and tweeting as they come in.  (This VA AG canvass has put Twitter in a whole new light for me.)  My impression, from keeping an eye on his great work as well as related tweets from others, is that the lead has gone back and forth repeatedly since Election Day, sometimes because of an accumulation of small shifts and sometimes because of single larger ones (like the so-called “Seven Corners Surprise”).  So far, I haven’t detected a distinct trend in either direction, and I haven’t seen shifts of the magnitude that have occurred in presidential elections.

Of course, the canvass is not yet finished.  As I understand it, counties must certify their results this coming Tuesday, but the State Board of Election has until Nov. 25 to certify a statewide result, and a recount most probably will follow that.  Thus, final certification of the election is likely weeks away.  And, if recent reports are any indication, there may be litigation over provisional ballots.  As Rick Hasen observes, if it is true that the State Board of Elections has ordered a change in the procedures by which provisional ballots may be validated, that rule change potentially raises federal constitutional questions under both Bush v. Gore and the earlier important appellate precedent of Roe v. Alabama.

But for now I’m curious about the “bouncing ball” quality of the Virginia AG canvass so far in comparison to the “big blue shift” that I generally observed in my analysis of the numbers from presidential elections.  If there is a difference, what accounts for it?  Are presidential elections simply distinct from other statewide races, especially in “off year” elections—or “off off year” ones, as some people call elections in odd-numbered years when there are no federal races on the ballot?

Since working on this “Big Blue Shift” piece, I’ve wanted to expand the project by collecting equivalent data for gubernatorial, U.S. Senate, and other major statewide elections.  It will be interesting to see if in each state there are similar shifts in the canvass each year regardless of which statewide race is at issue (in other words, for example, a presidential year whether the state is also electing a governor or U.S. Senator).  Or, conversely, perhaps there are race-distinctive patterns that emerge even within particular states.  Maybe, perhaps, this “Big Blue Shift” is a uniquely presidential phenomenon.  But if so, why?

So stay tuned.  Both to the Virginia AG race specifically and to the implications it might have for the understanding of the vote-counting process more generally.

There is so much more to learn about how the vote-counting process actually works in our fifty states, as well as the extent to which this process may have changed in each state since 2000.  As Doug Chapin, Heather Gerken, and others like to say, we really need more data on how our whole election administration works.  This point certainly applies to the canvassing of returns after Election Day and the effect the canvass can have in super-close races.

These remarks were delivered at the Ohio Judicial Conference’s 50^th anniversary celebration, on September 12, 2013, to honor the late Chief Justice Thomas Moyer. In light of the theme of reflecting on the differences in our legal system between 1963 and now, this talk focused on the Reapportionment Revolution that occurred a half-century ago, how it compares to the Progressive Era’s political reforms a full century ago, and how future generations will look back upon our time and the way in which we handle the current dysfunction of our political system. The talk specifically mentioned the Ohio Constitutional Modernization Commission, an inherently bipartisan body tasked with proposing political reforms for the state, and concluded with the observation that Tom Moyer would have wished for this Commission to succeed.

Thank you for inviting me to speak tonight as the first Moyer Professor. I call it the “Moyer Professor” for short because the full title is rather long. “Chief Justice Thomas J. Moyer Professor for the Administration of Justice & the Rule of Law.” But it really does need to be that long.

The beginning is my favorite part. “Chief Justice Thomas J. Moyer.” That’s because of the man it appropriately honors. He is the whole reason for the creation of this professorship, and he is every bit worthy of the recognition—and more. Anyone who knew Tom Moyer admired him immensely and would want to pay tribute to his legacy in this and other ways.

This tribute however is bittersweet, because it comes much too soon. Tom Moyer should be with us still. His work here remains unfinished, and it is up to us to carry on in his honor and memory.

This is where the rest of the title comes in. “Administration of Justice and the Rule of Law.” Justice and Law. The twin pillars of Tom Moyer’s lifework. It is absolutely necessary to have both because, as Tom Moyer knew, that you can’t have one without the other.

You can’t have Justice without the Rule of Law, because without Law there is either anarchy or arbitrary despotism and neither of those is just. And without Justice, what purports to be Law is merely Force. The exercise of sovereign power needs more than the sheer capacity to coerce to qualify as the Rule of Law. It needs the ingredients of regularity and predictability. It needs the imprimatur of legitimacy. It needs also comply with an elementary requirement of Justice, namely treating like cases alike. To be the Rule of Law, in other words, and not just the Rule of Force, two cases presenting equivalent facts must be treated the same, according to the same impartial application of the governing principle of law.

Tom Moyer knew all this. For it was he who said, upon reaffirming his judicial oath in 2005, “the American justice system resolves disputes by a process that is guided by fundamental principles of fairness and impartiality.”

But Tom Moyer also knew that the relationship between Law and Justice is not a simple or static one. It is an ever-evolving, dynamic relationship. It was different a half-century ago from what it is today, as it was different another half-century before that, and likely will be different another half-century hence. Thus, as we appropriately celebrate 50 years of serving justice at this gala dinner, and the whole conference of which the dinner is a part, it is worth taking a few moments to examine the present relationship of law and justice, how it compares to fifty years ago, and how it might look another fifty years into the future.

A half-century ago, the nation was on the cusp of what scholars today call the “reapportionment revolution.” In the fall of 1963, the case of Reynolds v. Sims was argued in the U.S. Supreme Court. When Chief Justice Earl Warren announced the Court’s ruling in the following spring, he declared that both houses of every state legislature must comply with the constitutional standard of one-person-one-vote. It was the universality of that sweeping standard that caused the reapportionment revolution, as all fifty states scrambled to redraw their legislative maps to comply with the new constitutional requirement.

As you can imagine, the decision caused an uproar. And one can understand why. It was an exercise of judicial activism. Earl Warren had invoke the Equal Protection Clause of the Fourteenth Amendment as the basis for the one-person-one-vote principle, but the authors of the Fourteenth Amendment had not intended the Equal Protection Clause to affect legislative apportionment or even voting rights more broadly. Indeed, section two of the Fourteenth Amendment explicitly details how a state is entitled to deny voting rights to its citizens, with the only consequence being a loss of seats for that state in the U.S. House of Representatives. Furthermore, after the Civil War, everyone one knew that it was necessary to adopt the separate Fifteenth Amendment to prohibit states from denying voting rights on the basis of race.

Yet despite its judicial activism, the one-person-one-vote doctrine of Reynolds v. Sims has stood the test of time. In this respect it differs from many other Warren Court decisions, which have remained much more controversial and have been overruled or pruned significantly back. Indeed, Earl Warren himself called Reynolds v. Sims his most important decision, even more than Brown v. Board of Education. And the reason that Warren gave is interesting; he justified the judicial activism of that case as necessary to reduce the overall need for judicial activism in our system of government. He said and I quote: “If everyone in this country has an opportunity to participate in government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community and not some special interest, then most of the problems that we are confronted with would be solved through the political process rather than through the courts.” A few years later, in another one-person-one-vote case, Warren expanded on this rationale. He said that for the law to be legitimate, and thus worthy of judicial enforcement, it must stem from the people pursuant to one-person-one-vote. Therefore, the judiciary must insist upon compliance with one-person-one-vote in order to uphold the rule of law itself. On Warren’s view, law and justice were inextricably entwined in this specific way.

Now, to give you a sense of how settled the doctrine of one-person-one-vote has become, I’d like to share with you a case from my own experience. I had the tremendous fortune to clerk at the U.S. Supreme Court in 1989, and in that year one of the cases on the docket concerned the application of the one-person-one-vote doctrine to the government of New York City. To understand the case, you need to know that New York City is the union of what previously were five independent municipalities. The so-called boroughs of the city—Manhattan, Brooklyn, Queens, the Bronx, and Staten Island—were five separate cities before their union in 1897. At the time of this union, it was thought necessary to give the new federated city a bicameral legislature for the same reason that Congress is bicameral. One chamber of the city’s legislature would represent all the citizens of the city on the basis of population—and thus comply with the principle one-person-one-vote. But the other chamber of the city’s legislature would represent each of the five boroughs—the five previously independent cities—in the same way that the U.S. Senate represents each of the fifty states as such. It was thought just as necessary to protect State Island, the least populous borough, as it was thought necessary to protect Rhode Island and Delaware, the least populous states.

In the Supreme Court, the claim was that Reynolds v. Sims required both chambers of the city’s legislature to comply with one-person-one-vote, regardless of the particular historical circumstances of the city’s federation. The Supreme Court easily could have rejected this claim, precisely because of this special history. Just as Reynolds itself had said that the U.S. Senate was a special circumstance, exempt from the doctrine of one-person-one-vote, so too the Court could have said that New York City and its upper chamber were exempt for the same sort of reason. As long as the city’s lower chamber complied with one-person-one-vote, as it did, and as long as the internal subsidiary governments of each borough complied with one-person-one-vote, as they did, then it could have been okay for the city’s upper chamber to be structured according to the same rationale as the U.S. Senate.

But the U.S. Supreme Court unanimously and emphatically rejected this attempt to limit the applicability of Reynolds v. Sims. From Justices Brennan and Marshall, on the one hand, to Justices Rehnquist and Scalia, on the other, all nine Justices unequivocally agreed that one-person-one-vote applied to both chambers. There was no appetite among any of the Justices to carve out an exception or roll back Reynolds v. Sims. Nor has any such appetite developed since then. Indeed, just last year, the U.S. Supreme Court again unanimously reaffirmed the principle of one-person-one-vote in a case from West Virginia. There was not a whiff of abandoning or cutting back on the doctrine.

Thus, “one-person-one-vote” has become “one of the fixed stars of our constitutional constellation.”

This does not mean, however, that all the details of our democracy are fixed forever more. On the contrary, our democracy is an evolving process—like the relationship of Law and Justice, of which democracy is an essential part, as Earl Warren said. If we go back a half-century before Reynolds v. Sims, to 1914—one hundred years ago—our nation’s democracy looked very different from how it looked fifty years later in 1964. Remember, women did not get the right to vote until 1920, with the ratification of the Nineteenth Amendment. And 1914 was the very first year in which Americans had the right to vote for U.S. Senators, as a result of the Seventeenth Amendment.

Now it is important to recognize one obvious difference between the profound changes in our democracy that occurred a century ago compared to the reapportionment revolution of a half-century later. The monumental expansion of voting rights one hundred years ago occurred by means of explicit constitutional amendments, the Seventeenth and the Nineteenth. The reapportionment revolution occurred by judicial decree. I think both Chief Justices, Earl Warren and Tom Moyer, would agree that it is far, far preferable to produce such constitutional change by means of a written amendment rather than innovative judicial interpretation. The question on which they might differ is, when does it become unavoidably necessary to engage in innovative judicial interpretation because the system has become incapable of generating imperative constitutional amendments and is susceptible of losing legitimacy without innovative judicial interpretation.

This is a point worth keeping in mind as we think about the current state of our democratic government, both in the nation as a whole and here in Ohio. The conditions are unfortunately not good, as you well know. Almost every day we hear in the news about the dysfunctional nature of Congress, its incapability of handling the nation’s finances or other issues because of gridlock and paralysis. Some people blame gerrymandering. Others blame the way we do primary elections. Still others see more complicated causes. But whatever the diagnosis, the disease is regrettably deep, and it affects Ohio as well as the nation.

We are fortunate, however, here in Ohio that we have a Constitution Modernization Commission, that is up-and-running. It is inherently bipartisan, and has a decade-long mission to modernize our own Ohio constitution so as to improve the operation of democracy here in Ohio. Let us hope with all our hearts that it is successful. I know Tom Moyer would hope so, and one reason again is to avoid the necessity of constitutional change coming from the judiciary that would much better come from the people through explicit constitutional amendments.

Therefore, when fifty years in the future the Ohio Judicial Conference holds another gala celebrating its 100 anniversary, I hope that it is able to look back to our time and say now was when the political process was able to improve itself through much-needed constitutional amendments. I hope they don’t look back and lament that the political process became so sclerotic that it was incapable of amending itself, and needed the judiciary to intervene in order to sustain the basic legitimacy of the Rule of Law. Or worse, that our democracy deteriorated to the point that it became no democracy at all.

Let me close with this observation. Tom Moyer was an avid sailor. And as any sailor knows, when facing a headwind, you can’t sail directly ahead. Instead, you have to tack a little bit this way, and a little bit that way, in order to maintain your course overall. Because of his sailor’s instincts, I think, Tom Moyer was so adept at managing the ever-evolving relationship between law and justice during the era of his stewardship. He did not keep too rigid a hand on the tiller. He was capable of tacking a little this way and a little that way, as necessary in order to keep true to his overall course.

And we all know the true course that Tom Moyer set his sights on. It remains a destination just over the horizon, ever worth striving for. The destination is that ideal, full fusion of law and justice. It is that perfect harbor where every citizen is able to fully embrace and applaud the social contract that each of us is obligated to uphold, and every citizen does so because that social contract—and the rule of law that enforces it—is fully fair to each citizen.

In our never-ending quest for that ideal destination, one thing I know is this: if we keep Tom Moyer, his legacy, and his values as our compass, we will be heading in the right direction and we will keep a steady course. Thank you.