2015

Publication of new BALLOT BATTLES book

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I’m delighted that Oxford University Press has published my new book Ballot Battles: The History of Disputed Elections in the United States. Rick Hasen was kind to let me write a series of blogs discussing five themes in the book.  They are:

1. Florida Was Not a Fluke

2. The Risk of Another Presidential Election is Higher Than Most Think

3. The History of Disputed Elections Shows that When Institutions are Weak, Individual Character Really Matters

4. Ballot Battles in the Nineteenth Century Were Beset by Violence and Civil Strife; Not So in the Twentieth, and This Progress is Reason to Hope for Even More

5. The Great Dissenter in Plessy Anticipated the Role for Federal Courts Embraced in Bush v. Gore—But Will the Court Repeat that Role Next Time and, If Not, What Then?

Also, electionline invited me to write a piece discussing how the history in the book helps identify reforms for the future; that piece is The Ghosts of Elections Past — and Yet to Come

Finally, Salon excerpted the book’s chapter on Florida 2000.

Happy reading–and happy holidays!

The Constitution Needed a Judicial Assist

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“The majority contends that its counterintuitive reading of ‘the Legislature’ is necessary to advance the ‘animating principle’ of popular sovereignty.” With this sentence in his dissent (at page 14), Chief Justice Roberts gets to the heart of the debate in today’s 5-4 decision in the Arizona redistricting case.

Roberts undoubtedly is correct that the much more straightforward reading of the term “Legislature” is to say that it means the institutional entity that consists of representative lawmakers elected by the citizenry, rather than to encompass the citizenry itself when it engages in a direct lawmaking capacity through the device of a referendum or ballot initiative. This more straightforward reading, as Roberts points out, sits more easily with other uses of the term “Legislature” in the U.S. Constitution, most especially the provision—subsequently superseded by the Seventeenth Amendment—that gave the power to elect U.S. Senators to the “Legislature” of each state, rather than to the citizenry.

But this straightforward reading would have the pernicious consequence of prohibiting the states from attempting to curb the evil of partisan gerrymanders by taking the power to draw congressional districts away from state legislatures and putting this power instead in the hands of independent redistricting commissions designed to be nonpartisan. As today’s opinion for the Court (written by Justice Ginsburg) observed on its very first page,       partisan gerrymandering has no legitimate defense in a democracy; it’s only a question of what means are available under the Constitution to combat it.

Chief Justice Roberts (for himself and the three other dissenters) acknowledged the evil of partisan gerrymandering, but did not believe that distorting the language of the U.S. Constitution was justified by the desire to let states use independent commissions for congressional redistricting. Roberts pointed to amending the U.S. Constitution as the way to give the states this power, just as the Seventeenth Amendment was added to provide for direct election of U.S. Senators.

The problem with the Chief Justice’s argument on this point is the extreme difficulty of amending the U.S. Constitution. Roberts himself (on his own first page) noted how long and arduous the process was to achieve the adoption of the Seventeenth Amendment, with success finally coming in the Progressive Era. If anything, American politics has become even more sclerotic, making it virtually impossible to achieve a constitutional amendment even when the American people persistently and overwhelmingly want it. The Electoral College is a case in point; the American people for decades, by large majorities, have wanted to replace it with direct election of the president, but have been unable to achieve this strong and persistent preference through the means of constitutional amendment.

Roberts observed that some provisions of our eighteenth-century Constitution are fixed in their meaning, until amended, even if these provisions are undemocratic. We cannot elect “a 25-year-old Senator, or a foreign President” even if we want to, given explicit clauses in the Constitution to the contrary (dissent at 25 n. 6).

True, but those other clauses are constitutional “straightjackets” providing no interpretative wiggle-room whatsoever. The word “Legislature,” even though its much more natural reading is to refer to the institutional body of elected representatives, has some wiggle-room in it. It can be construed to mean whatever authority enacts the laws of a state, including the state’s citizenry when it undertakes the lawmaking authority directly.

Thus, the question in the case boils down to whether the Court was justified in using that little bit of wiggle-room to achieve its desired result.

The Court’s opinion was unusually candid in the results-oriented nature of its reasoning. “We resist reading the Elections Clause to single out federal elections as the one area in which the States may not use citizen initiatives as an alternate legislative process,” the Court said (at page 28). Elsewhere (at 31), the Court added that “it would be perverse to interpret the term ‘Legislature’ in the Elections Clause to exclude lawmaking by the people.”

In other contexts, it might make sense to be wary of judicial manipulation of constitutional text to achieve a “policy” goal (as Roberts pejoratively put it). But here what is to be gained by insisting upon a literal reading of the term “Legislature”? Vindicating the particular method of constitutional amendment set forth in Article V of the original document?

The Constitution sets forth a plan for a “republican form of government,” to use the phraseology favored by the Framers. That plan has been remarkably successful in many respects over the life of the nation. But that plan has also been short-sighted in other aspects—notably, again, the Electoral College, which never worked as intended and which James Madison himself (a principal drafter of the original Constitution) recognized needed replacement in the 1820s.

The particular procedures for constitutional amendment set forth in Article V have never been among the document’s strongest features. Yes, they prevent altering the fundamental charter too hastily or easily. But they also impede constitutional adjustments whose time is far overdue. The Framers did not perfectly calibrate the balance between making textual changes to the document too easy or too difficult.

When the electorate itself is divided among reasonable arguments concerning whether the Constitution should be read (or amended) to achieve a particular policy result, there is a strong case to be made for the U.S. Supreme Court staying out of the policy debate by siding with whatever the more straightforward reading of the existing Constitution entails—even when doing so consigns one side of the policy battle to the uphill challenge of amending the text using the procedures of Article V. But when there is no such divide on the relevant policy matter, then there is no good reason to defend literalism for the sake of literalism—or to make achievement of the policy objective so much harder by forcing it to resort to the high hurdles of Article V.

What is especially striking about the Arizona redistricting case is that no one is defending the practice of partisan gerrymandering. Even more to the point, no one is arguing as a matter of policy that states should be deprived of the option of using independent commissions, rather than conventional legislatures, to draw congressional districts. Roberts, to be sure, questions whether independent commissions will prove to be as nonpartisan in practice as their advocates claim. But he acknowledges that states can use independent commissions to draw the district lines for their own state legislatures, and he recognizes why states would want the constitutional power to do so for congressional districts as well. Thus, the relevant policy here is not whether a state should adopt an independent commission over other method of congressional districting; rather, the policy question is simply whether states should be denied the right to experiment with this particular tool in the anti-gerrymandering toolkit. No one—certainly not Roberts—is attempting to make this policy argument.

Thus, in this particular context, to stand on literalism is to do so purely for its own sake. It serves no higher constitutional value here. The better course in this situation is to do as the Court did: let’s give the term “Legislature” not its most natural reading, but a more “republican” one—one that better achieves the aim of popular sovereignty.

Enabling states to employ independent commissions for congressional redistricting may ultimately prove unsuccessful in resisting the scourge of partisan gerrymanders. But massaging the Constitution’s text to give the states the chance to try this approach, without having to jump through the hoops necessary for a constitutional amendment, is a decision that vindicates the reason why we have the Constitution in the first place: to provide a workable structure of government through which the American people can continue to conduct their collective experiment in self-government.

Tokaji’s Testimony re Ohio’s Initiated Constitutional Amendment Process

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By Daniel P. Tokaji

The following written testimony was submitted to the House Government Oversight and Accountability Committee for a June 23, 2015, hearing on the proposed amendment to Ohio’s initiated constitutional amendment process. I sympathize with the goals of Sub. H.J.R. 4 but, for the reasons stated more fully below, oppose the proposal in its present form. Its vague and ambiguous language is an invitation to judicial lawmaking and would do more harm than good if adopted.

Thank you for allowing me to present testimony regarding this proposed constitutional amendment. I sympathize with the goals of Sub. H.J.R. 4 but, for the reasons stated more fully below, oppose the proposal in its present form. Its vague and ambiguous language is an invitation to judicial lawmaking and would do more harm than good if adopted.

By way of introduction, I am Charles W. Ebersold & Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University, Moritz College of Law. I am also a Senior Fellow with Election Law @ Moritz, a nonpartisan program devoted to providing accurate information, analysis, and commentary on election law and administration. My primary area of research and expertise is election law. I am co-author of the casebook Election Law: Cases and Materials (5th ed. 2012), author of the book Election Law in a Nutshell (2013), and former co-editor of Election Law Journal, the only peer-reviewed academic journal in the field. I have written numerous academic articles on various election law topics, including election administration, redistricting, and campaign finance. One of the courses I teach is Legislation, which includes statutory interpretation and ballot propositions. This testimony is solely on my own behalf and does not represent the views of any entities with which I am affiliated.

The current version of Sub H.J.R. 4 would amend the Ohio Constitution to prohibit initiative constitutional amendments that grant a “monopoly or a special interest, privilege, benefit, right, or license of a commercial economic nature….” I not only understand but also share the concern that motivates this initiative. There is a legitimate worry that powerful economic interests have too much influence on ballot measures. In particular, it is easy for those with substantial wealth to get a proposed initiative constitutional amendment on the ballot, in Ohio and in other states, although economic resources are not sufficient to ensure passage. There is also a reasonable concern, also one I share, with particular persons or groups being granted economic benefits from ballot measures that are disproportionate to the benefit that the general public would derive.

Notwithstanding my sympathy for the concern that motivates Sub. H.J.R. 4, I am concerned about the unintended consequences of its current language. Its wording is intolerably vague and poorly drafted, in my opinion. More specifically, the proposal’s loose and malleable language would confer enormous discretion on judges to invalidate ballot measures that differ from their with their own policy preferences, while upholding ones that accord with judicial preferences. Sub. H.J.R. 4 is therefore an invitation to judicial lawmaking that would overrule citizen-initiated democracy.

My greatest concern is with Sub. H.J.R. 4’s language regarding a “special interest, privilege, benefit, right, or license” in subsection 1e(B)(1). No definition for this term is provided. While the goal of this provision may be laudable, there is no universally or even commonly accepted definition of a “special interest.” One person’s special interest is another person’s public interest. The meaning and application of this provision will ultimately be decided by judges of our state supreme court, and there is no telling exactly how they will interpret such a vague, open-ended term.

What we can be certain of is that placing such a vague provision in our state constitution will multiply litigation over initiative constitutional amendments. The opponent of virtually every initiative will claim that it benefits a special interest at the expense of the public interest. We can also safely anticipate that this language will invite our judges to apply their own political or ideological values in determining which initiative constitutional amendments will stand and which will fall, supplanting the role that the people are supposed to play under direct democracy.

This concern is not merely hypothetical. It is instead based on research of scholars who have carefully studied judicial intervention in ballot measures. For example, a study by two prominent scholars of direct democracy examined state appellate court judges’ decisions in five states, involving more than 150 cases and 700 individual judges’ votes on single-subject rules. They found that judges were more likely to uphold initiatives if their partisan affiliation indicate that they would be sympathetic to the proposed initiative. John Matsuzaka & Richard L. Hasen, Aggressive Enforcement of the Single Subject Rule, 8 Election Law Journal 399 (2010).

Professors Matsuzaka and Hasen’s finding is directly applicable to the proposed subsection 1a(C) of Sub H.J.R. 4, which would constitutionalize the single-subject rule. But the “special interest, privilege, benefit, right, or license” language raises even graver concerns. That is because the definition of “special interest” (and the other terms that immediately follow it) is even less defined – and definable – than single-subject rules. We now have considerable precedent on what a single subject means, but we do not have any established precedent on the meaning of “special interest” or the like terms that follow. Accordingly, there is no constraint on judicial subjectivity. Sub. H.J.R. 4 will inevitably lead judges, consciously or not, to substitute their own policy preferences for the will of the people. We can expect that judges will strike down initiatives with which they personally disagree, even though they command majority support among the people of Ohio.

What is the proper response to the concern about certain groups earning a windfall from a particular constitutional amendment at the expense of the general public? This is a reasonable question, given the ease with which well-financed groups can qualify initiatives for the ballot. The answer is that we should trust the people to make the right judgment. We should also do our best to inform them if we believe that a ballot measure would disproportionately benefit a powerful economic interest. In other words, this is an area where the best answer to speech we don’t like is more speech. Those who are active in public discourse, especially elected public officials, have a responsibility to help educate the public about the undesirable effects of ballot measures.

The empirical research generally shows that, while it is relatively easy for wealthy groups to qualify a ballot measure, it is not so easy to pass one. Our citizens do a good job, better than most elite observers suppose, of sniffing out ballot measures that enrich the few at the expense of the many. See, e.g., John Matsuzaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (U. Chicago Press 2004). We would do well to trust the people to make policy judgments about the public interest, rather than foisting that responsibility on state judges.

I am aware that language has been added to the proposed constitutional amendment that, as I understand it, is designed to limit its application to commercial activities. While I agree that such a limitation is appropriate, the current language is carelessly written and therefore ill-tailored to accomplish this objective. To see why, I quote the full text of subsection 1e(B)(1), with the relevant language italicized:

The power of the initiative shall not be used to pass an amendment to this constitution that would grant or create a monopoly or a special interest, privilege, benefit, right, or license of a commercial economic nature to any person, partnership, association, corporation, organization, or other nonpublic entity, or any combination thereof, however organized, that is not available to other similarly situated persons, partnerships, associations, corporations, organizations, or other nonpublic entities at the time the amendment is scheduled to become effective.

Although I agree that the prohibition, if adopted at all, should be limited to activities “of a commercial economic nature,” the proposed language is not carefully drafted to achieve this limitation. Under the “last antecedent” canon on statutory interpretation, a modifying word or phrase is presumed to apply only to the last word which preceded it – in this case, the noun “license.” Accordingly, if this canon were followed by a court, the modifying term “of a commercial economic nature” would not apply to measures that “grant or create a monopoly or a special interest, privilege, benefit, [or] right.” Rather, the “commercial economic” limitation would apply only to measures that grant a “license.” It is likewise unclear whether the adjective “special” is meant to modify only the noun “interest” or, alternatively, to modify the nouns “privilege,” “benefit,” “right,” and “license” as well. I believe that the intent is the latter but, again, the language is not carefully drafted to accomplish this end.

Fortunately, the ambiguous application of these two modifiers can be repaired without much difficulty. The modifying term “of a commercial economic nature” could be added immediately after each of the nouns preceding it (i.e., “monopoly,” “interest,” “privilege,” “benefit,” “right,” and “license”). In addition, the adjective “special” should be added immediately before each of the nouns it is intended to modify. For purposes of clarity, each of the full terms (e.g., “special privilege of a commercial economic nature”) should appear on a separate line preceded by a parenthetical letter (i.e., (a), (b), (c), (d), (e) and (f)). I hope this description is understandable, but if you would like further clarification, please let me know and I would be happy to assist your staff in drafting alternative language.

So there is no confusion, this suggested modification to the existing language would not fully resolve my concerns about Sub. H.J.R. 4. Even if limited to commercial economic activity, the references to “special interest,” “special benefit,” and the like are still too vague for adoption, in my opinion, opening the door to judges giving effect to their personal, political, and ideological predilections. While the above-mentioned modification would improve the proposal slightly, Sub. H.J.R. 4 would still remain too vague, and thus an invitation to judicial subjectivity.

Finally, there is a problem with subsection 1e(B)(4) of this proposal, which provides in pertinent part:

If, at the general election held on November 3, 2015, the electors approve a proposed constitutional amendment that violates or is inconsistent with division (B)(1) of this section … then notwithstanding any severability provision to the contrary, that entire proposed constitutional amendment shall not take effect.

This provision is invalid and therefore would be inoperative if the measure becomes law. That is because the current Article II, Section 1b of the Ohio Constitution provides:

If … conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes …. shall be the amendment to the constitution.

To see why the proposed language from Sub. H.J.R. 4 is unenforceable, suppose that the November 3, 2015 ballot includes a citizen initiative that would amend the constitution in a way that “violates or is inconsistent” with Sub. H.J.R. 4. Suppose further that both the citizen initiative and Sub. H.J.R. 4 are approved by a majority of voters. By definition, those two constitutional amendments would be “conflicting” under current section 1b, because they are inconsistent with each other. Accordingly, only the constitutional amendment receiving the greater number votes would be operative. If the citizen initiative received more votes than Sub. H.J.R. 4, then Sub H.J.R. 4 – at least its provision purporting to nullify conflicting constitutional amendments – could not be given effect. At this time, I have no position on whether the remainder of Sub. H.J.R. 4 could still take effect. The irony is that the provision of Sub. H.J.R. 4 purporting to nullify conflicting initiative constitutional amendments is itself null, and could potentially have the effect of nullifying other parts of Sub. H.J.R. 4.

For all these reasons, I oppose Sub. H.J.R. 4 in its current form. Thank you for considering my views on this important subject.