My experience with non-public office microtargeted election campaigns on social media

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“Microtargeting” has become a hot and trendy topic in the world of political advertising—and controversial. (Consider one defense of the practice, and how major Internet companies have approached the matter.) In short, the practice appeals to prospective voters in a particular demographic, often with highly specific traits, and advertises narrowly to that demographic to sway voters in the most appealing way.

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As a resident of the greater Los Angeles region for most of the last decade, I’ve become a new kind of prospective voter: the television and film award voter.

Of course, I’m not such a voter. I am not a part of the Academy, the Hollywood Foreign Press Association, or any other media-related voting group.

But one can’t drive far out of LAX in awards season without seeing billboards advertising shows or movies with the label “For Your Consideration.” That’s polite code for, “please vote for this film for an award.”

It also means I received a number of ads—sometimes Twitter, sometimes Facebook—asking for my vote.

Thanks to greater advertising transparency from Facebook and Twitter, I can see why I’m targeted. And, to be fair, the demographics aren’t terribly precise—at least, as revealed by these companies. Here’s one ad asking for my vote because I’m over the age of 35 in the greater Los Angeles region. A recent Facebook ad was targeted to me as a Malibu resident over the age of 35 who’d recently seen the film advertised (known to Facebook because my spouse tagged me in a status update as we watched it).

Voting isn’t just for public office! It’s for the pope, for corporate boards, for the Baseball Hall of Fame, and for the Oscars. And, of course, we should expect influences to occur for any election, even those not for a public office.

"Lists" of potential Supreme Court nominees and judicial recusals

Senator Bernie Sanders recently stated that he’d consider making a “list” of potential Supreme Court nominees, which would imitate a move that then-candidate Donald Trump made during the 2016 presidential campaign. (Mr. Trump was specifically eyeing prospective nominees to fill the vacancy left by the late Justice Antonin Scalia; Mr. Sanders, presumably, would use the list for any future vacancy.)

Of course, listing names of sitting judges as potentially reaping the benefit of a Supreme Court nomination has consequences.

Justice David Stras of the Minnesota Supreme Court was on Mr. Trump’s list, and he recused himself when a ballot access issue concerning Mr. Trump arose in state court. (Justice Stras was later appointed to the Eighth Circuit.)

Likewise, when a recount issue arose in Michigan after the election, Chief Justice Robert Young (named to a second list of Mr. Trump’s potential nominees) and Justice Joan Larsen (later appointed to the Sixth Circuit) recused themselves—Chief Justice Young with a saltier recusal than Justice Larsen.

For more, see Professor Josh Blackman’s take back in 2016.

The recusals likely didn’t affect the outcome of either strand of election-related litigation (more on that in a moment). But it’s worth considering a couple of things.

First, to what extent should being named as a prospective Supreme Court nominee of a presidential candidate disqualify a sitting judge from hearing cases relating to the election of that candidate? The three recusals mentioned above occurred perhaps out of an abundance of caution than required by judicial ethics—perhaps.

Second, might naming sitting judges ultimately affect the course of litigation in the future in the event of recusals? We saw two cases where it didn’t ultimately affect the litigation—at least, we don’t think so. In Minnesota, the decision was unanimous. In Michigan, however, it was a divided decision in favor of the position advocated by Mr. Trump’s campaign—and one, conventional wisdom suggests, the recused justices would have been inclined to support. And it was a fairly low stakes decision involving a recount by Green Party candidate Jill Stein in a state with little likelihood of any recount changing the outcome.

But if high-profile sitting judges favored by Mr. Sanders (or other Democratic candidates) are named, and they are compelled to recuse in potentially higher-stakes election litigation, it might actually be a real problem in the 2020 election. All something to watch in the event any lists are released.

UPDATE: Helpful feedback also suggested I should distinguish between the situation in 2016 where there was an existing Supreme Court vacancy, and the situation in 2020 where there is only a potential Supreme Court vacancy. That might also affect whether judges feel obliged to recuse.

A proposed voter identification law in Kentucky

The National Conference of State Legislatures keeps good track of the varying voter identification laws in the states. Such laws continue to make their way through the states, with tweaks or alterations to existing ones, and new ones elsewhere. Kentucky is the latest to push for a new voter identification law.

I’m pretty apathetic on the merits of voter identification laws. My best read of the existing political science literature is that they typically have marginal, if any, effects on preventing (or discouraging) voter fraud; raising public confidence in the electoral system; or deterring otherwise-eligible voters from casting a vote. (There are some studies to the contrary that I’m less than persuaded by—for a host of reasons left for other posts and beside the point of this one!)

It’s a reason why I argued in the Washburn Law Journal a few years ago that we ought to reach some kind of equilibrium in voter identification laws—acknowledging their presence and continuing presence while considering things that could mitigate concerns against them, the way we handled voter registration when it was a “new” idea over a hundred years ago.

Not all voter identification laws face the same kind of controversy. For instance, voter identification laws were enacted in South Carolina and Georgia, even when Section 5 of the Voting Rights Act required preclearance of such laws, because the laws did not unduly burden the right to vote.

Professor Josh Douglas has an argument in this vein in a recent op-ed. While he is strongly opposed to voter identification laws, he nevertheless argues for considering how to tweak proposed legislation to minimize the concerns about it.

I imagine we’ll see continued rise of voter identification laws, and continued tweaks to the system to minimize the disruption on voters.

In the Los Angeles Times: "California's election rules make it hard to hold politicians accountable"

I have this piece in the Los Angeles Times entitled “California’s election rules make it hard to hold politicians accountable.” It begins:

On Dec. 18, when the House of Representatives voted to impeach President Trump, some members of California’s congressional delegation voted “yea” and some voted “nay.”

You might want to run against your representative in the 2020 election if you disagree with the way he or she voted that day. But thanks to California’s top-two primary and its March primary date, you’d have to wait until 2022.

As of Dec. 11, no one could throw his or her proverbial hat in the ring from California. In other words, every member of California’s House delegation was insulated from challengers before the impeachment vote happened. That’s not a good system for political accountability.

Can a state constitution contrain a state legislature when the legislature ratifies a federal constitutional amendment?

That’s the question a recent opinion from the Attorney General of Kansas seeks to answer.

In 1974, the Kansas Constitution was amended to require 2/3 consent of each house of the state legislature to ratify any federal constitutional amendment. The federal Constitution, however, simply provides that an amendment is ratified by “three fourths” of the “Legislatures” of the several states. It places no conditions on how a state legislature goes about ratifying it.

The opinion concludes that the “the Kansas Constitution cannot impose a supermajority voting requirement on the Legislature’s decision to ratify a proposed amendment.” This ties to an understanding that the power to ratify is reserved to the state legislature under the federal Constitution, and the state constitution cannot add conditions to the state legislature’s political process when it is acting pursuant to the federal Constitution. Each legislature chooses its own threshold.

This is, of course, not what the Supreme Court concluded in a different context of the term “legislature.” In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court concluded that the term “legislature” in the Elections Clause did not give the state legislature the power to ignore a state constitutional amendment about how redistricting takes place. Adopting a “functional” understanding of the term “legislature,” in this context, at least, the legislature was bound by the state constitution.

I think the Kansas Attorney General opinion is likely right—and, I think, it may well be consistent with the Court’s approach in Arizona State Legislature. For more, dig into the opinion!

If the ballot lists a particular political party's candidates first, is the right to vote "burdened"?

Judge Mark Walker, a federal judge in the Northern District of Florida, recently issued an opinion in Jacobson v. Lee, and in it he concluded that Florida’s law that lists the candidates of the governor’s political party first in all down-ballot cases was unconstitutional.

(Judge Walker is known both for his aggressive hostility to existing Florida statutory election law—he’s found several statutes unconstitutional in recent years, many of which were never challenged on appeal—and his flamboyant-meets-cringeworthy legal opinions. Consider this line with a mixed metaphor and a formulaic construction, which goes on to quote himself using the same formula: “Hogwash. The legislative power is not a Midas touch that gilds a matter on contact and insulates it from judicial review, and a decision does not become a political question merely because it is made by a political branch of government. See Fla. Democratic Party II, (“It has been suggested that the issue of extending the voter registration deadline is about politics. Poppycock. This case is about the right of aspiring eligible voters to register and have their votes counted.”).”).

The basis for the court’s determination is that under the Anderson-Burdick balancing test, the right to vote has been sufficiently burdened, and Florida lacked a justification for the law.

It’s true, I think, that ballot order can influence voter behavior. First-listed candidates receive some modest advantage—the political science literature I’ve seen said it may be pretty marginal in high-salience elections and something as high as 5-10% of the vote in low-salience elections (Judge Walker credits expert testimony saying it’s 5% in Florida, apparently in all races).

We might randomly rotate names, which might be harder for voters to find the candidates they want. We might go in alphabetical order, which gives an advantage based upon the happenstance of the name.

One reason to give certain political parties first-name advantage is that the major parties are probably more popular—the governor’s party the most popular last time—and placing them adopt the ballot eases voter selection. True, it gives that party an advantage (again, in high-salience elections, maybe not so much). So we should consider the tradeoffs of this system against other systems.

All good political judgments. But… is Florida’s system unconstitutional?

Here’s the Supreme Court’s articulation of the (fairly malleable) test in Anderson v. Celebrezze: a court “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must determine not only the legitimacy and strength of each of those interests; it must also consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.”

In a situation where a candidate is not allowed to appear on the ballot for failing to gather sufficient signatures, then, we look at how serious that burden is (given the steps a candidate must take, and that the voter can’t vote for that candidate whose name doesn’t appear on the ballot). For a voter identification law, we examine the steps a voter has to go through to obtain a ballot, a voter who’d otherwise be unable to vote without it.

On the first step, here’s how Judge Walker explains how his analysis will proceed: “To apply the Anderson/Burdick standard, this Court will first examine whether and to what extent Plaintiffs’ rights have been burdened by Florida’s ballot order scheme. This entails investigating whether the primacy effect exists, how large it is, and the character of its effects on Plaintiffs’ rights.” He explains that the statute “imposes a discriminatory burden on Plaintiffs’ voting rights which is not of the same magnitude as entirely denying Plaintiffs the franchise, but is not negligible either”

The court, however, makes an important elision: what is the burden on the right to vote? The candidate’s names are on the ballot. Voters have full opportunity to cast a vote for those candidates. Alternative systems may not guarantee a voter’s preferred candidate listed first. So what’s the burden?

Is there a “primacy effect,” a benefit to first-listed candidates? Yes the court finds. How large? 5%-ish. So what?

Ah, here’s the court’s take:

[G]iven Florida’s history of election results in which the margin of victory or defeat is less than three to five percentage points, this Court finds section 101.151(3)(a) has impacted Plaintiffs’ First and Fourteenth Amendment rights by systematically allocating that small but statistically significant advantage to Republican candidates in elections where the last-elected governor was a Republican, just as it awarded that advantage to Democrats in elections when Florida’s last-elected governor was a Democrat.This Court need not find a precise percentage attributable to every election uniquely to determine whether Florida’s ballot order scheme violates Plaintiffs’ rights, particularly because Plaintiffs seek declaratory and injunctive relief. Rather, this Court need only find—and does hereby find—that Florida’s ballot order statute systematically awards a material advantage to candidates affiliated with the political party of Florida’s last-elected governor solely on the basis of their party affiliation, and therefore systematically disadvantages other candidates on the basis of their party affiliation.

This is a remarkable holding. For several reasons.

First, how does it “impact” voters’ “rights”? Are voters unable to cast the vote for their preferred candidate of choice? Or that their votes will be inconsistently tabulated? Of course not.

Now, might it advantage particular candidates at the expense of others? To the extent a “primacy effect” exists, yes.

So here’s actually a fairly novel holding: even in the event you are still able to cast a vote for whomever you want, your right to vote may be “burdened.” I’m aware of few contexts where courts have said this, much less then found for the plaintiffs.

In the partisan gerrymandering cases, some district courts (like in Rucho v. Common Cause, the North Carolina case that the Supreme Court ended up determining was non-justiciable in the end) veered into examining the right to vote as burdened by the ability to elect the preferred candidate of choice. In other contexts relating to vote dilution claims, the focus has never been this “burden” on the right to vote. In the racial gerrymandering cases, for instance, even if one is able to vote, but less effectively able to translate that vote into choosing a winning candidate, courts have focused on the intentional racial classification that must survive strict scrutiny under the Equal Protection Clause. Section 2 of the Voting Rights Act gives minority voters the opportunity to elect the preferred candidate of their choice if they meet certain threshold considerations, but this is not a constitutional violation.

In other cases, courts find such burdens slight. Consider Libertarian Party of Virginia v. Alcorn, a 4th Circuit ballot order case in 2016: “What is denied, therefore, is not ballot access, but rather access to a preferred method of ballot ordering. But mere ballot order denies neither the right to vote, nor the right to appear on the ballot, nor the right to form or associate in a political organization.”

It’s hard to find other examples that don’t involve vote denial. In Washington State Grange v. Washington State Republican Party, the Supreme Court found no severe burden on associational rights of the political party in a top-two primary, referring at times to Burdick-style balancing.

In short, this is a far-reaching conclusion that, I think, is inconsistent with how other associational-right-to-vote claims have been adjudicated.

Indeed, the court never really identifies how voters’ right to vote is affected (but more on that in a bit). For instance, the court explains that “first-listed candidates in Florida have historically gained an average advantage of five percentage points due to their position within their office block on the ballot.” Candidate advantage? Sure. Voter burden? What’s the burden?

Second, there are many advantages that holding the governor’s mansion offers, being an incumbent offers, that name recognition offers, that the franking privilege offers, and so on. It’s unclear the impact that other practices that “advantage” one party over another may be deemed to “burden” the right to vote.

Third, the court seems to find that the margin of victory in recent elections being tied to the potential “primacy effect” is what makes it determinative. He says so elsewhere, too: “[A]lthough a donkey vote of three or even five percent is not, in and of itself, a large proportion of the total vote, it is often a decisive proportion in terms of the spread between the candidates in a Florida election. This suggests that, although the quantitative burden on Plaintiffs’ rights is small, the practical burden is severe indeed.” This seems unusual. Most of the time, the right to vote does not turn on the likelihood of success—if the right to vote has been burdened, regardless of your likelihood to vote for a winner, it’s simply been burdened. We don’t ratchet the right to vote in closer elections and watch it recede in landslides.

Fourth, the court finds that the decision to list the governor’s party first fails even rational basis! The court goes on, “As Defendants correctly contend, it does not prevent any individual from voting, nor does it prevent their votes from being counted. Under similar circumstances, other courts have found it appropriate to apply a rational-basis standard.” The court then says (1) that it ought to review under a “higher than rational-basis review” standard, but (2) the statute “cannot even clear the lowest available bar” of “extremely deferential rational basis.”

There are a lot of problems here. But I want to return to the earlier point. First-listed candidates have an advantage. But how? In what way?

The Court explains that “voters are more likely to make errors in favor of first-listed candidates and are alos less likely to make errors which disadvantage first-listed candidates.” But that, of course, always extends to all listed candidates, regardless of the reason. Is the right to vote “burdened” simply because errors can happen more in some cases than others?

If the problem is that party-preferred candidates are listed first, that seems untethered from the error rate—that is, there is going to be an error rate regardless of the first listing. The court, however, seems to believe that the burden is less on voters if the errors are based on criterion other than partisan listings—even though the voters would still be casting a vote in error!

This is really a fundamental problem with a lot of federal election law jurisprudence under rather malleable tests like Anderson-Burdick. Terms like “burden” are omitted in a catch-all federal review of election laws. Election laws that feel “wrong” in some way, like a law that lists the incumbent party’s candidate’s first and offers that party a modest advantage in the ballot listing, are shoehorned into these causes of action. Aggressive federal judges then elide the language of the jurisprudence to identified the “wrong”-ness of the statute.

In short (ed.: too late!), the court never identifies the burden on voters, except an error rate that will always occur regardless of the method used. As the case heads to appeal, it would be useful for the Eleventh Circuit (or maybe ultimately the Supreme Court) to provide greater precision to how these election law disputes are to be handled. And it might be time to reconsider whether Anderson-Burdick are really consistent with what the Constitution requires, anyway—as it increasingly appears to be a roving invitation for federal courts to patrol state election laws.

California Supreme Court unanimously finds presidential tax return disclosure requirement violates state constitution

A federal district court already found that California’s new law requiring presidential primary candidates to disclose their tax returns as a condition of ballot access violated several provisions of the United States Constitution. The case is being appealed to the Ninth Circuit, and there was little rush to have the law take effect for 2020.

Now, the California Supreme Court has weighed in with a unanimous decision finding that the state constitution precludes the tax disclosure requirement, too. The California Constitution includes a provision enacted by initiative that requires “recognized” candidates to appear on the primary ballot; this tax return disclosure requirement, the court reasoned, exceeded the legislature’s power. (Justice Mariano-Florentino Cuéllar wrote a brief concurring opinion to indicate his concerns about corruption.)

While my recent draft article emphasized only one facet of these ballot access disputes—whether such conditions are legitimate “manner” restrictions or whether they exceed the state’s power under the Elections Clause and Presidential Electors Clause—I noted that state constitutional law might be an alternative basis for these claims. And here’s one such example.

What might a constitutional amendment capping the age of the President look like?

I recently published an op-ed in the Wall Street Journal suggesting that we should consider a constitutional amendment capping the age of the president.

Undoubtedly, the decision to amend the Constitution is significant, and the decision to do so by limiting voters’ choices even more so. The Constitution does limit our choices for president, however—there’s an age minimum of 35, the natural born citizen requirement, and the 14-year residency requirement. The 22d Amendment was enacted to forbid candidates who have served two terms (or 10 years’ service) from taking office—even though the people had just elected Franklin Delano Roosevelt to four terms.

But if voters lack adequate information about candidates’ health (as I argue in the piece), and health-related risks increase significantly with age, we may want to cap the age of the president.

Here’s a proposal for a constitutional amendment:

Section 1. No person shall be elected to the office of the President who shall have attained to the age of seventy-five years on the date on which the term of office begins.

In the opinion piece, I offer 70, 75, and 80 as possible benchmarks. I like 75 for a few reasons. First, Ronald Reagan was elected at 69, reelected at 73, and left office at 77. Like a two-term limit patterned after George Washington, an age-related requirement closely mirroring Mr. Reagan has a nice practical background. At 75, it’s a number that nicely mirrors 35. (Okay, so I’m too into the aesthetics….) Finally, it requires a president to leave office before turning 80, which starts to feel (?) like an upper bound.

The amendment is patterned off language in Article II and the 22d Amendment. It would allow a 70-year-old to seek two consecutive terms of office, and a 74-year-old to seek one.

It uses the word “elected,” which means, I think, that a vice president could be older, or someone from the cabinet who ascends to the office of president could be older. It simply means those individuals could not be “elected” to the office of President. And it fixes the date of age at the time the term of office begins.

Of course, such a hard number is going to be overinclusive and underinclusive. But if it’s a matter of risk tolerance, it strikes me that this is a pretty good marker.

Some might point to the extremely short life expectancy at the Founding, but I think those figures are deceptive. Life expectancy was short because of infant mortality. If you made it to the age of 21, your life expectancy, particularly among the upper class, was not much shorter than today. Indeed, among our first several presidents, most died late in life—Mr. Washington at 67, John Adams at 73, Thomas Jefferson at 83, James Madison at 85, James Monroe at 73, and John Quincy Adams at 80.

The requirement would undoubtedly alter how presidential campaigns would run. Candidates would recognize that they have a “window,” one that might “close” if they wait too long. But I think having two generations to seek the office of president is a sufficiently long window for most candidates.

I think the office of President is unique because it is a single-headed executive. It might be, of course, that we have concerns about other federal positions. So here are some proposals to add to this amendment.

Section 2. No person shall be elected to Congress who shall have attained to the age of eighty years.

Section 3. No person shall hold the office of judge of the supreme or inferior courts who has attained to the age of eighty-five years. Any judge holding that office who has attained to the age of eighty-five years shall no longer hold that office.

Section 2 would cap the age of members of Congress. It would serve as a soft term limit—much better than the deeply restrictive suggestions proposed recently of things like two- or three-year limits. In the Senate, a person could be elected at 79 and end the term at 85. In the House, it would be 79 and 81.

Right now, there are just two senators over the age of 85 (Dianne Feinstein and Chuck Grassley) and three others over the age of 80. In the House, there are 9 representatives over the age of 80—some elected as far back as 1973, the most recent elected in 1999. It would effectively offer rotation for some members of the House. It also allows a governor to appoint an over-eighty Senator if a vacancy occurs, consistent with the 17th Amendment—that Senator simply couldn’t be elected. It also reduces vacancies that arise from death given that very senior members would not be serving in Congress.

On the federal judiciary side, many federal judges already go “senior” at the age of 65 or so anyway. It would simply pull those—and all other—judges out of active service at the age of 85, which is fairly late in a career anyway. There are concerns that occasionally arise about the age of district court judges in particular, which this amendment would address. It would also compel retirements of Supreme Court justices upon turning 85 (two current justices are over that age). It might lead to younger-than-ever Supreme Court nominees, or strategic timing of retirements… but let’s face it, those are already occurring.

I’m sure many might quibble or wonder about these precise contours. Or maybe you’ve identified weaknesses I haven’t considered. But these are, I think, worth considering.

In today's WSJ: "No Country for Old Presidents"

In today's Wall Street Journal, I have an opinion piece entitled, “No Country for Old Presidents.” It begins:

Should there be an upper age limit on the presidency? Former New York Mayor Michael Bloomberg, 77, may join a crowded and aging field of candidates. Last month Bernie Sanders, 78, was hospitalized with what the campaign called “chest discomfort” and turned out to be a heart attack. In September 2016, Hillary Clinton, then 68, was privately diagnosed with pneumonia. The campaign concealed the diagnosis until she was caught on camera fainting from dehydration.

Mental health is another concern. “Gaffes” on the campaign trail drive observers to wonder whether the slip-ups reflect a candidate’s age and are a sign of some greater health concern. Voters have no way of knowing.

It concludes:

The Constitution sets a minimum age of 35 to serve as president. Maybe it should be amended to set an upper age limit at 70, 75 or 80. Like the 22nd Amendment limiting presidential terms, such an amendment shouldn’t take effect immediately, lest it affect the outcome of the 2020 race. But it’s worth having a conversation about age for future presidential candidates before an age-related crisis strikes a president.

I’ll have more about what a constitutional amendment might look like soon.