Is the Green Party's vice presidential nominee Ajamu Baraka ineligible for office?

Perhaps you thought the constitutional eligibility concerns for 2016 had reached their end (and you'd no longer have any reason to read my article on the process behind challenges over such disputes), but perhaps they continue....

Jill Stein, the presumptive Green Party nominee, just named her vice presidential running mate--Ajamu Baraka, a Chicago native and human rights activist who now lives in Atlanta.

But quite recently, Mr. Baraka lived in Colombia. A 2015 blog entry on his site describes him as someone who lives in Cali, Colombia. And other media mentions around that time mention him as someone from Colombia.

The eligibility concern relates his residency at that time. (Recall that vice presidents must not be ineligible for the office of president.) Article II provides among other qualifications that a candidate must be "fourteen Years a resident within the United States."

There is some evidence, but certainly not unanimous, that these fourteen years must be accumulated consecutively prior to securing office. But there is some evidence that the requirement can be met cumulatively, over the total course of one's life prior to securing the office.

Additionally, there is the question of what "resident" means. Does living for a stretch of time in Colombia mean one is no longer a "resident" of the United States? It may well mean something like domicile, and a temporary, even extended, presence in another country would not thwart such residency. (James Ho succinctly summarizes some of these views here.)

In short, there is probably good evidence that Mr. Baraka was a resident fourteen years consecutively, and even if he wasn't, that the Constitution permits such residence to be acquired cumulatively. But in the event one concludes that the Constitution requires consecutive residency and that his time in Colombia broke up that residency, then Mr. Baraka would be ineligible.

That might lead to interesting disputes in the event someone sought to challenge Mr. Baraka to keep him--and half of the Green Party's ticket--off the ballot in states that permitted such challenges. Might--one never knows where such challenges to candidate eligibility may lead.

Some on FEC apparently sought to punish media entity for its 2016 GOP debate format

We'll have all the details tomorrow, but an early report from Fox News discloses that there was an FEC complaint filed against Fox last year for its debate criteria. Three FEC commissioners supposedly viewed it as an unlawful contribution to some of the Republican presidential candidates who benefited from the rule change; two commissioners supposedly went so far as to vote to penalize Fox. (UPDATE: apparently these facts are contested; we'll know more shortly.)

It seems absurd to justify--penalizing Fox for inviting more candidates (in the end, 17 candidates) to participate in a pair of debates? But, again, we lack the details. The terms are opaque, but we can pretty easily reconstruct the details.

The seventeen candidates invited to the August 6, 2015 presidential debates included just about everyone--including folks like George Pataki and Jim Gilmore. But the complaint had to have been filed by some other candidate who was left out--some mysterious eighteenth candidate.

It's likely Mark Everson. You may not have heard of him, as his campaign did not last long.

There were reports of him filing such a complaint last August. Here's the text of the complaint. The heart of the claim is this: Fox had "pre-established" and "objective" criteria for debate participation, consistent with FEC rules--after all, networks aren't permitted to invite just the candidates they like, or else it's essentially a campaign contribution to that candidate. (More on this in a moment.) Top 10 candidates in the five most recent polls get in. Other chances for others, it explains, with details later. That was provided on May 20.

Fox later realized that the field was much bigger and much more uncertain than others had anticipated. So they changed the rules: anyone achieving at least 1% in the five most recent national polls; top 10 participate in the "primetime" debate, and others in a debate earlier in the evening. That came June 11.

Then about 10 days before the debate, Fox dropped the 1% threshold and permitted anyone whose names were being "consistently" included in national polls to participate in the debates. That opened up the earlier debate from what might have been just three candidates to six (and later seven) participants, including adding Carly Fiorina, Jim Gilmore, Lindsay Graham, and George Pataki. Mark Everson was not on the list.

Mr. Everson has a point, to a degree. But it's hard to say that "pre-established" precludes networks from responding to changes at later points in time when conditions warrant--as, perhaps, conditions suggested that the May 20 and June 11 criteria were insufficient, and that a modification July 27 was appropriate. Granted, it takes some teeth out of "pre-established." But it was also intended to accommodate more, not fewer, candidates. And the "objective" criteria of those "consistently" included in national polls sounds not terribly objective, until one considers the previous "objective" criteria: candidates with at least 1% in the five most recent national polls... as recognized by Fox News. This is a standard term that gives media outlets flexibility to exclude fly-by-night pollsters touting themselves as "national" pollsters.

One can sympathize, I think, with Mr. Everson's concerns. But one can also understand, I think, why Fox kept modifying its standards in a fairly unusual time before the election. Was it designed to favor these four candidates over Mr. Everson? In a sense, of course it favored them--they got to appear in the debate, and Mr. Everson didn't! Was Fox giving a campaign contribution to these candidates over Mr. Everson?

This is a much stickier issue. Turning the issue around, would the American public have been better off with Mr. Everson, or without Mrs. Fiorina and Messrs. Gilmore, Graham, and Pataki, as the two choices before Fox, rather than the debate format FOX selected?

For the FEC to punish Fox for altering its debate criteria is serious stuff. It's akin to saying the network had the design of manipulating criteria to help a few favored candidates over others, so much so that it ought to be penalized.

But this is the kind of activity that, while on the (admittedly) fringes of "pre-established objective" criteria, threatens a dramatic chilling of debates in the future. How is a network supposed to respond to early-established debate criteria that appear obviously flawed shortly before the debate, having relied on premises that turned out to be false?

This might simply be one of the gray areas in an unusual year where a single candidate suffered from a maladjusted modification in a condensed period of time. But for the FEC to decide to punish that media entity is fairly strong stuff, in my view.

That said, much of this is speculation building upon some history. When the FEC file is disclosed Thursday, we'll see if this speculation has any basis in the facts of the case.

UPDATE: The FEC file, MUR 6952, has been released. The First General Counsel's report, finding that Fox News violated federal law, is here (PDF). Some of the process, however, is not exactly as described. Two of the commissioners agreed with this report; a third dissented not on the merits but as a matter of prosecutorial discretion (that is, the case simply should not proceed). Three other commissioners joined a statement (PDF) that the FEC even lacked the power to investigate Fox for its debate criteria because the First Amendment precluded such investigation; on this, there was divided 3-3 vote.

"Don’t force electors to vote for Trump or Hillary"

I have an op-ed in last week's Detroit News, "Don't force electors to vote for Trump or Hillary." It begins:

Imagine a place where it’s illegal to vote for anyone but a single presidential candidate this fall.

That place exists in Michigan.

Tenth Circuit reverses course, finds no standing for legislators in Guarantee Clause challenge

It's been quiet in the ongoing saga of Kerr v. Hickenlooper, a Guarantee Clause challenge to Colorado's requirement that legislative tax increases be approved by popular vote. The United States Supreme Court remanded the case in light of Arizona State Legislature v. Arizona Independent Redistricting Commission, which concluded that the state legislature of Arizona did have standing to bring a challenge to the authority of an independent redistricting commission. As I noted a year ago, "This, I think, portends poorly for the legislators" bringing the claim here, because they brought their claim as individual legislators, not as the institution of the state legislature.

Sure enough, on remand, the Tenth Circuit concluded the same on Friday. "We now conclude that these individual legislators lack standing because they assert only an institutional injury." The opinion tracks the argument in Arizona State Legislature--and, in my view, the argument that should have been successful even before that case.

"Awarding presidential delegates by congressional district is unfair"

I have a new op-ed in today's Sacramento Bee, "Awarding presidential delegates by congressional district is unfair." It opens:

This year’s presidential primaries have exposed problems in the nomination process, and they’re highlighted by California’s uneven method of awarding its delegates.

And it explains:

The 13th District in San Francisco has about 260,000 registered Democrats and gets eight delegates, or one delegate per 32,500 voters. But there are just 86,000 registered Democrats in the 42nd and 50th districts, and they each will award five delegates, or one delegate per 17,200 voters. It doesn’t take a math degree to recognize that Democrats in San Francisco will have less power than Democrats elsewhere in the state.

For Republicans, it’s far worse.

There are just 27,000 registered Republicans in the 13th District, or one delegate for every 9,000 voters. But the 48th District in Orange County has more than 155,000 registered Republicans and the same three delegates, or one delegate per 51,000 voters.

"The Case for More Money in Politics"

I have a new piece at the Library of Law & Liberty, which responds to the following prompt:

Should a democracy, in the name of combating political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society?

And I frame the issue as follows:

The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.”

Consider, though, that there isn’t a problem with “money in politics” unless there is something bad that “money in politics” does. Rather than assuming a premise of reform, we ought to step back and consider whether or not campaign finance needs reforming. As we evaluate competing justifications for reform, we should be mindful, as citizens of a nation built upon regular and meaningful elections, that these be regulated to do the least damage to our constitutionally guaranteed rights, that is, to the open exchange of political views. As we will see, this priority is largely lacking in today’s reforms, whether existing or proposed.

Has Congress been improperly counting prisoners in the Census since 1790?

Following up on yesterday's take on the Rhode Island "prison gerrymandering" case, a few more thoughts come to mind.

The district court linked apportionment to redistricting (as the Supreme Court in Evenwel did), identifying women, children, slaves, and other non-voters as appropriately included within the apportionment base. The court went on

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

The Census Bureau has, since 1790, counted prisoners as residents of the place where they are incarcerated. When Congress apportions members of Congress to the states, it includes those prison populations--even if a number of the prisoners come from out-of-state.

Does this mean Congress has been unconstitutionally apportioning members of Congress since 1790? That prisoners should have been counted as residents of their home states for the last 220 years, and Congress has simply got it wrong this whole time?

Surely, the swift rejoinder to this claim is that very few long-term prisoners were included in a Census, much less out-of-state prisoners, until recently. But this was the same claim raised by the plaintiffs in Evenwel--that the United States had a very small non-citizen population until recently, a claim that was soundly rejected.

Further, the analogy of apportionment to redistricting grows even worse when one considers redistricting itself--where should prisoners be included for redistricting purposes?

Suppose one makes the claim that prisoners should be located as residents of the address they resided at before being incarcerated. Does this somehow cure the concerns raised by the district court? Suppose you are an incarcerated prisoner in Cranston who was originally residing in Providence. Do you suddenly "have a stake in the Providence public school system"? Do you "receiv[e] constituent services"?

The dangerously overbroad language from the district court would effectively make prisoners invisible! If they are constitutionally forbidden from being considered members of the political community where they are incarcerated, surely considering them members of the political community where they last resided is even more attenuated. It risks making prisoners invisible, uncounted members of any political community.

Instead, the better claim--and it is not a terribly good constitutional claim at that--is that this artificial concentration of non-voters into a single location is suboptimal for other voters in adjacent districts, and an attempt should be made to more naturally redistribute those non-voters in some way.

But this is not a constitutional claim. It is simply a way--perhaps a better way--of drawing districts. But the Supreme Court's decision in the "one person, one vote" cases imposed a one-size-fits-all requirement to redistricting. And rhetoric in cases like this Rhode Island prison gerrymandering case further complicate any meaningful understanding of what that mantra means.

The revival of the Three-Fifths Clause in a Rhode Island prison gerrymandering case

A federal district court handed down a memorandum and order for summary judgment in Davidson v. City of Cranston, a case concerning "prison gerrymandering" in Rhode Island. The court concluded that the city improperly drew districts that included all of the incarcerated individuals in a prison into a single district, distorting representation and voting strength in other districts.

One might have concluded that the Supreme Court's recent decision in Evenwel v. Abbott mandated this case come out the other way. There, the Court permitted Texas to use total population in drawing its districts, even if it included non-citizens (i.e., non-voters) in its population base. Had the case come out the other way and some voter- or citizen-based measure been required for drawing districts, prison gerrymandering may well have ended.

As Adam Liptak and others noted, a win for Texas in Evenwel would deeply undermine constitutional arguments against prison gerrymandering. After all, prisoners are people ineligible, just like non-citizens or children. They're drawn into districts with the rest of the total population. Instead, one must come up with a political theory for excluding this set of non-voters from redistricting, but not other sets of non-voters.

In a recently-published article in the Harvard Journal of Law & Public Policy, Perpetuating "One Person, One Vote" Errors, I highlight the deep problems that arise when courts attempt to insert ever more-detailed theories of political representation into the constitutional doctrine of "one person, one vote." Mercifully, I remarked, the decision in Evenwel leaves some discretion to the states (and cities) in redistricting.

But the decision in Davidson takes away some of this discretion. And it does so using bizarre support from the Three-Fifths Clause. It even suggests prisoners are less worthy of representation than slaves.

To start, one has to make a pair of logical inferences to get from the Court's theoretical findings in Evenwel (and its predecessors) to this case. As I explained at the George Washington Law Review Docket, the Court linked the theory of apportionment of congressional representatives to the reason for drawing equal numbers of people in congressional districts, and then linked that finding to the reason for drawing equal numbers of people in other non-federal districts. It opens with this theory of apportionment--how many congressional representatives should each state get? As the Davidson court explained:

In its review of the drafting history of the Constitution and later the Fourteenth Amendment, the Supreme Court repeatedly stresses the prevailing view that women, children, slaves, tax-paying Indians, and non-land-holding men (in some areas) all deserved representation - though none of these groups could vote.

That syncs with the Court's holding in Evenwel:

In other words, the basis of representation in the House was to include all inhabitants - although slaves were counted as only three-fifths of a person - even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives. Endorsing apportionment based on total population, Alexander Hamilton declared: "There can be no truer principle than this - that every individual of the community at large has an equal right to the protection of the government."

One must appreciate a serious concern here--the Three-Fifths Clause. By including slaves (albeit fractionally) in the apportionment base, the South would receive dramatically more political power in the House than if slaves counted as zero-fifths.

But one should not seriously claim that the Three-Fifths Clause somehow means that slaves were virtually represented by their masters--that voters in the South somehow were protecting slaves through their votes! Instead, as I've pointed out in another piece, one justification commonly raised by the Founders for including slaves in the apportionment base was a notion that it was a proxy for wealth. Population (and slave total) meant roughly the wealth in an area; and more wealthy (or more "productive") areas should have more political power.

Such political theory likely would not garner much support today--indeed, it has been expressly rejected in the "one person, one vote" line of cases. (This is also a major reason Justice Alito wrote separately in Evenwel--he viewed the apportionment question as distinct from the question of drawing districts.) But the only way for "one person, one vote" to work is if one adopts a kind of theory of "virtual representation," where the elected representatives serve the entire population of the region, regardless of whether they are eligible to vote. (Indeed, the Court in Evenwel expressly made this point concerning children.)

The district court's next findings, then, are fairly breathtaking:

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

Really? First, descriptively, this is false at almost all levels. A quick look at Kramer v. Union Free School District No. 15 offers myriad ways (in the right-to-vote context) someone can "have a stake" in the public school system--merely being "interested in" the school board as a resident may be enough, or the note that "[a]ll members of the community have an interest in the quality and structure of public education," which may have "grave consequences to the entire population." Prisoners may write letters to representatives--even if they are not, they are able to do so. It may well be that these are still pretty weak reasons for including prisoners in a district; but that is a far cry from saying that they are constitutionally forbidden from being included in a district.

Second, it rather brazenly suggests that eighteen-century slaves were better represented, and better deserving of representation, than twenty first-century prisoners. How else is one supposed to construe the phrase that "the inmates . . . share none of the characteristics" of "slaves"? It turns the Three-Fifths Clause into a rather favorable view of representation. Justice Alito's concurring opinion in Evenwel is perhaps wise guidance on the Three-Fifths Clause. But its failure to carry a majority of the Court leads to curious decisions such as this.

It may well be the case that Rhode Island and other states should include incarcerated persons in the districts where they last resided. It makes sense to me, as a political matter. As an administrative matter, it also seems to be sensible to include the easy total of the prisoners in the prison where they reside. Indeed, that's how the Census counted them in 2010! It becomes a fairly significant task, then, to create a new population total for redistricting, one that the Census Bureau does not provide. (Indeed, this was a major claim raised in Evenwel.)

But for a federal court to make the claim that slaves were favorably represented in apportionment while prisoners ought never be included in redistricting is a deeply problematic claim. The "one person, one vote" line of cases cannot sustain such decisions of representation equality or political theory, which are best left to the political process.

New opinion piece at Reuters: schooling candidates on GOP primary rules

I have a new opinion piece at Reuters, "GOP Nomination Process 101: Candidate's Remedial Edition." It begins:

Donald Trump has complained that the Republican primary process is a “rigged, disgusting, dirty system” that deprives people of the chance to vote for their preferred presidential candidate. He accuses the Republican Party of stealing delegates from him.

If he thinks this system is complex, Trump should look to the GOP’s past primary elections. Now, those were complicated!