MBE scores improve for July 2019 exam

The National Conference of Bar Examiners recently shared that mean Mulistate Bar Exam scores have improved for the July 2019 test—and the biggest improvement in over a decade.

View fullsize

Coming off a 34-year-low in MBE scores, the news is welcome. First-time test-takers were roughly the same over the July 2018 and July 2019 exams, which is also good news—it likely means first-time pass rates will improve, at least modestly, in most jurisdictions. Still, the median 141.5 score is a far cry from the July 2018 administration, which had a 145.6 score. Schools continue to see higher-than-hoped failure rates because admissions and retention practices still haven’t kept pace with changes in student quality. Whether this July is a turning point for future years remains to be seen—pessimistically, the turn in July 2017 scores didn’t portend much good news for July 2018, but time will tell.

New draft posted on SSRN: "Weaponizing the Ballot"

I’ve just posted a draft of an article, Weaponizing the Ballot, on SSRN here. From the abstract:

States are considering legislation that would exclude presidential candidates from appearing on the ballot if they fail to disclose their tax returns. These proposals exceed the state’s power under the Elections Clause and the Presidential Electors Clause. States have no power to add qualifications to presidential or congressional candidates. But states do have constitutional authority to regulate the manner of holding elections and to direct the manner of appointing presidential electors. Manner regulations that relate to the ballot are those that affect the integrity and reliability of the electoral process itself or that require a preliminary showing of substantial support. In other words, they are procedural rules to help voters choose their preferred candidate. Tax disclosure requirements are not procedural election rules, which means they fall outside the scope of the state’s constitutional authority to administer federal elections and are unconstitutional.

And from the introduction:

This Article makes three principal contributions to help understand the scope of state authority to regulate access to the ballot in federal elections. First, while states may not add qualifications to candidates seeking federal office, this Article finds that “manner” regulations may at times legitimately affect the ability of candidates to win office. Second, this Article defines the constitutional scope of “manner” rules as election process rules, and it synthesizes alternative judicial formulations of state power over the “manner” of holding elections as variations of this definition. Third, this Articles applies this definition to proposals that compel disclosure of information as a condition of ballot access—applied here to tax returns, but applicable to other disclosures like medical records or school transcripts—and finds that they exceed the state’s power to regulate the manner of holding elections.

I’m pleased to share this major work, which builds off ideas I floated in a New York Times op-ed many months ago, and which builds off my scholarship thinking about state control over ballot rules generally and review of qualifications of candidates for federal office.

Is your law school being ranked by an SEO clickfarm? Click here to find out!

There are a lot of law school rankings out there. And law schools are often desperate to validate themselves by some—really, too often, by any—metric that purports at having any objectivity. Rankings are numerical, and often that’s enough to suggest that there’s something objective happening.

So when Above the Law picked up a ranking from “Online Paralegal Programs”—which became its second most-read story of the week (and a click-through story, ‘natch)—any sensible person would ask, “What?” That is, the site online-paralegal-programs.com (which based on its URL alone should fail any scrutiny) offers what, exactly?

Take a visit to the site, and you’ll see all the stock images and hot links of a typical SEO clickfarm. There are dozens of articles written in relatively poor English with a stream of conscious quality about them—and with a lot of self-referential links along with random infographics. There are rarely authors identified with any of the stories. Each page opens with a “sponsored” set of paralegal schools for you to sift through.

The “About Us” page also doesn’t pass the Turing test:

Online Paralegal Programs was formed by a small group of friends when we realized there was a shortage of truthful, unaffiliated, information available to students online. We want to help students get informed so they can make the best decision regarding their education and employment. Our goal is to provide useful, well researched rankings and resources to those interested in going to work in the paralegal field.

Our main editor is Oliver Plante. Oliver has been interested in the paralegal field his whole life. He was frustrated at the lack of information available to those seeking to become educated when he was looking to become educated himself. It was his frustration that caused us to start this site.

I confess, I find it unlikely that groups of friends have a multi-year passion for online paralegal rankings websites. The only name on the site, Oliver Plante, sounds suspiciously like a caller to Moe’s Tavern—and which, unless he’s a tech consultant in Toronto, may well be fictitious.

Of course, law school social media accounts eagerly promoted being ranked by this SEO clickfarm. Because, truth be told, for a lot of law schools, the source doesn’t matter.

The methodology is entirely subjective? Still promote.

The rankings come from 2014? (Scroll to the bottom to see the one comment.) Still promote.

A story by author “Oscar Jenkins,” with no bio or ability to contact? Still promote.

We live in an era where law schools constantly fret about misinformation and “fake news,” and lament how they feel beholden to meaningless rankings. But the rapid spread of “rankings” like these only does harm to both claims. Modest scrutiny should precede any such sharing.

Analysis: 10th Circuit finds Colorado wrongly removed faithless presidential elector in 2016

In the latest of a string of faithless elector litigation arising from the 2016 presidential election, the 10th Circuit issued a decision finding that Colorado wrongly removed an elector pledged to support Clinton after he attempted to cast a vote for John Kasich. (Disclosure: I filed an amicus brief in support of neither party but calling for affirming the district court result below; the bulk of the brief focused on whether ballots must be secret, an issue the court did not reach.)

The question is a hard one, I admit, but the majority opinion suffers from a number of weaknesses. I’m not entirely certain of whether the case still presents a case or controversy, as the dissenting opinion points out; indeed, remarkably, the majority never cites the Eighth Circuit opinion on a removed faithless elector from Minnesota, which concluded the claim was moot. My guess is that if the case is taken en banc or to the Supreme Court, it could well be tossed on procedural grounds.

The opinion also does what many analyzing the Electoral College do: confuse ought and is. Federalist 68, for instance, describes how Alexander Hamilton envisions the Electoral College will function; but that says very little about what the state may do to regulate its function. Indeed, we see very quickly that Hamilton’s “ought” never comes to fruition, and the Electoral College never functioned as designed. Additionally, I’m not convinced that the role of electors before the Twelfth Amendment is necessarily the same as after—particularly given that states had begun to regulate the behavior of electors, such as authorizing their replacement in their absence or in the neglect of duty.

But, as I note, these are hard questions, and it is quite common to see ought/is confusion pertaining to the power of the state over presidential electors. I want to focus on two particular weaknesses of the opinion. First, the role of Congress; and second, the role of elector “choice.”

Late in the opinion (pp. 100-101), the Court notes that Congress has historically counted the votes of faithless electors, citing a string of instances, an “uninterrupted history of Congress counting every anomalous vote cast bay an elector.” That’s both irrelevant and false.

It’s irrelevant, because, until 2016, never had an elector cast a vote in a state that had a law with a mechanism that authorized that elector’s replacement. Undoubtedly, Congress believed that electors could be faithless—they repeatedly counted votes of faithless electors. But could a state cabin the faithless elector—that is, replace a faithless elector? That question was never raised in a count before 2016, so Congress’s past act says little about state power.

And it’s false, because, in 2016, Congress did count the electoral votes for both a replacement elector in Colorado and a replacement elector in Minnesota—meaning, Congress twice ratified the state’s power to replace a faithless elector.

Granted, no one objected to either vote cast, so it’s hard to say that Congress has expressly ratified it. But there were a dozen attempted protests lodged during the 2016 counting of electoral votes, ranging from concerns about voter suppression to Russian interference, and Vice President Joe Biden, presiding over the joint session to count electoral votes, found each objection out of order (because while members of the House continued to object, no Senator joined any objection, which the Electoral Count Act of 1887 requires before Congress will entertain an object). I argued in the Wall Street Journal in 2017 that this is Congress’s prerogative.

So, Congress counted Colorado’s replacement elector. A federal court has now held that Colorado lacked the power to replace that elector. Was Congress wrong? Should it have ignored that replacement elector’s vote and docked an electoral vote from Hillary Clinton? Were the other eight electors wrong to sign a list saying that the state cast nine votes for Hilary Clinton? The court would never say so, given that it claimed it was only handling a claim for nominal damages. But the suggestion that a court might tell Congress it wrongly counted an electoral vote is, in my view, significant.

View fullsize

Second, the court phrases its holding in various ways, but the crux is something like this: “we conclude the states may not interfere with a presidential elector who exercises discretion in casting votes for the President and Vice President of the United States.” Elsewhere: “they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.” Still elsewhere: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”

As the facts lay out, “Despite taking the oath, Mr. Baca crossed out ‘Hillary Clinton’ from his presidential ballot and wrote in ‘John Kasich.’” The form of the ballot is replicated here.

The power of the elector to choose leaves some unanswered questions. First and foremost is Colorado’s ballot. In any other election in the United States, this ballot would be thrown out. Why? The ballot has one option, one name, and does not authorize write-ins—this is essentially a spoiled ballot. So did the state print the ballot wrong? Does the state lack the power to print the ballot in presidential elections? Must the state count the write-ins of electors?

What if the elector’s choice is to not vote? Could the elector be replaced then? Or, to cast a blank vote? Could the elector be replaced then?

What about if the electors vote for an ineligible candidate, as the court acknowledges is a limitation on electors in n.27 of the opinion? Does the state have the remedy to replace them—even though there’s no “express” authority in the Constitution that would give the state that power?

Colorado requires presidential candidates to file ahead of the election as a condition of ballot access for their slate of electors. John Kasich never did. Could the state restrict the electors’ decision to only to choose among those candidates who filed before the election?

John Kasich also expressly disclaimed that he was a candidate. Could the state restrict the electors’ discretion to only candidates who want to serve in the office—that is, to prevent the state’s electoral vote from being thrown away?

(Professor Michael Morley identifies still other good questions about the scope of the opinion—in particular, could the Secretary of State simply ignore the vote rather than replace him? Or file a competing slate of electors with Congress to let Congress sort it out?)

Each of these are challenging questions, in my view. But the court’s opinion would seem to elide over all of them. That’s because it quickly moves past the state’s power to “direct” the “manner” of “appoint[ing]” electors and concludes that the state lacks any power once the elector starts to act. I’m not entirely persuaded—that is, I think the state probably has some power to replace electors (including those who don’t show up, or those who fail to act), and perhaps even replace electors who cast illegal votes (e.g., for a non-citizen). And the Uniform Law Commission has recognized some of the subtleties in its Faithful Presidential Electors Act. Electors can, after all, resign from office. The Act suggests that when the elector casts a vote for someone other than the candidate he has pledged to support, he has resigned from office and created a vacancy.

Nevertheless, the breadth of this opinion—a suggestion that there’s a virtually unfettered choice, or at least that the state can’t fetter the choice—is what’s the most remarkable part of it. The contours of that choice are not defined, and the power of the state to act with electors who do a variety of things listed above may well be foreclosed by the court’s underdeveloped opinion.

But I want to close with one thought about the opinion’s impact. For decades, electors and states have had an uneasy kind of truce. Electors typically aren’t faithless, and states have wielded the threat of replacement even if they haven’t actually replaced them. This opinion, however, collapses that truce. Electors are now instructed that they can vote for whomever they want, and replacement is not an option. While that might have been true decades ago, too, before any replacement laws were on the books, one wonders whether electors will be more inclined to stray in 2020—particularly given fawning attention from disgruntled voters. True, these handful of electors didn’t change the outcome of the election, and in a closer election it’s less and less likely that electors are faithless, as their votes are more significant and their ability to protest carries greater weight. But I wonder about what this might yield in closer elections. Political parties have significant power to choose presidential electors—they may be scrutinizing their choices much more carefully in 2020.

California's leak of bar exam topics should have little if any impact on likelihood of passing

The California State Bar made a big mistake with a lot of questions that remain to be answered. Fortunately, the mistake should have little, if any, impact on anyone’s likelihood of passing the July 2019 bar exam.

From the scant details we know so far, the Bar disclosed to a “number of deans of law schools” the topics that will be tested in the essay portion of the bar exam. That leak took place Thursday, July 25. Late Saturday, July 27, the Bar said it only recen0tly discovered this and emailed all test-takers the same information.

It’s not clear how the leak occurred. It’s also not clear who received the information or what they did with it. Law deans who received this information could have (1) not read the email; (2) read it, but kept its contents confidential; or (3) read it, and shared that information with some test-takers. (3) is the obvious problem. It’s also possible they forwarded the email along to other law school administrators with (1) or (2) in mind, but someone else did (3). (It’s also unclear how the error came to the attention to the Bar or whether any deans revealed this information to the Bar.)

But the obvious concern among test-takers is how this affects their chances of passing the bar. Fortunately, it won’t affect just about anyone’s odds, with a possible exception I’ll get to near the end.

The bar exam is equated and scaled. The essays are scaled to the multistate bar exam (“MBE”), the multiple choice component. I’ve written about what equating and scaling looks like. What it means very roughly is this: there is an opportunity to account for the difficulty or ease of the test itself, and for the higher or lower quality of test-takers, by looking at how those test-takers have done compared to other test-takers on previous administrations of the exam. It’s all anchored to the MBE.

Let me make up a few numbers for the hypotheticals. Suppose there are three bar exam test-takers who get a 150, 140, and 130 on the MBE. Now suppose on the essays they get a 151, 141, and 131. The bar associates the 151 with the 150, the 141 with the 140, and the 131 with the 130, to help scale the scores in recognition that maybe these essays were a bit easier than usual. If the essay scores were 149, 139, and 129, they’d scale them to account for the fact that the essays were a bit tougher than usual.

Suppose that the essays instead are 160, 158, and 156. High compression now—but no difference. They’re still scaled back to the MBE and turn into the equivalent of 150, 140, and 130. These numbers could be 8,000,000,000, 17, and -216: the importance is the relative rank of test-takers against one another, then scaling it back to the MBE.

Revealing the topics of the essays gives everyone two advantages. The first is common (assuming everyone opens the email more than a few hours before the essays Tuesday, July 30.) You know that Question 1 is about Civil Procedure. Everyone knows that and can start from word go addressing Civil Procedure and only Civil Procedure on Question 1. So everyone’s scores may go up a bit.

I say “may,” because what this really does is help the students with the very lowest scores who may have missed the fact that it was a Civil Procedure question in the first place. I think most test-takers know what the call of the question is about. The very lowest scoring test-takers may not. So it may help their scores. But, again, if the scores shift from, say, 151, 141, and 91 to 152, 142, and 97 (disproportionately helping the very lowest scores), it won’t really matter—they’ll still be scaled back to the MBE.

The second advantage is that students can stop studying other, irrelevant topics like Wills & Trusts and focus exclusively on these areas. Again, it should have the same effect: everyone studies the same set of topics, everyone knows them a bit better, everyone scores a bit better. It probably helps the more marginal test-takers over the highest scoring test-takers, but, again, scaling accounts for that if all the boats are rising.

The problem may arise in a narrow set of circumstances. First, suppose the leak did make its way to some (likely very small set of) test-takers, and say it did so very promptly—perhaps as early as 120 hours before the bar exam. Those test-takers immediately stop preparing for irrelevant essays and focus only on relevant essay topics (and the MBE).

Other students only get the information when the Bar emails them, about 58 hours before the essays.

So we have to assume that the three years of legal education, the two months of bar exam preparation, and so on fall to the wayside, and the definitive change in knowledge and understanding occurs in a 62-hour head-start on eliminating some irrelevant subject of study. And in that 62 hours, the students effectively gain additional knowledge to help them for the essays that their peers did not have.

All possible (but, I think, pretty marginal). But it also has to have another effect. It doesn’t really matter if you were a test-taker who was going to get a 157 but for the head start and now gets a 158; it doesn’t really matter if you were a test-taker who was going to get a 92 but for the head start and now gets a 93. In both cases, you’d pass or fail regardless, and it’d have no impact on anyone around you.

Instead, assuming this did confer an advantage (again, possible, but pretty marginal), let’s look at the test-taker on the outside. That test-taker got a 143.9, the closest cut score to passing, but failed. She then looks at the test-taker who got a 144.0 and passed, or maybe a couple who did so (or even those who got a much higher or lower scores)—and these are test-takers who got a 62-hour head-start and eked out a higher score because of that advantage. And they specifically leap-frogged the 143.9—that is, their essay scores in particular would have been lower for the 143.9 but for the 62-hour head start, but they received higher scores, which were then scaled higher. Only for those students whose essay scores improved at a higher rate than others, in a way that affected those at or near the cut score, would experience any material change. (Of course, part of this is context: rather than thinking of a 62-hour head start, it might be useful to say that the person spent only ~1300 hours instead of ~1362 hours thinking about irrelevant topics, assuming two months’ preparation for the bar exam….)

Realize that a lot of things have to happen for this scenario to occur. It’s narrow, sure. But it’s certainly possible. It’s a reason I say “little, if any” impact—this is the scenario where it could change, but it requires a lot to align.

Undoubtedly, test-takers are understandably worried and anxious about any change in information about the bar exam, or any even potential inequities. Law deans will no doubt use this to highlight the incompetence of the Bar and call for an overhaul, perhaps a temporary reduction of the cut score to account for these inadequacies. (What the right solution is, I don’t know. Whether scoring changes come remains to be seen.)

But for the vast majority of law students, the leak should not affect them at all. I hope this gives a small comfort to the thousands of test-takers ahead of Tuesday’s test—you have worked very hard for many long hours, and it is that that will overwhelmingly determine your performance. Hang in there.

I have been lightly updating this post for clarity.

UPDATE, 7-28: Joan Howarth and Rob Anderson have helpfully pointed out that scores might actually increase. By eliminating some subjects, test-takers can now focus on the MBE all the more, too. If that increases MBE scores on Wednesday, then it lifts essay scores that are scaled to those MBE scores, and the overall pass rate could rise. Again, it may be marginal in these last few hours, but it remains possible.

UPDATE, 7-29: I’ve received some thoughtful emails about impact that the disclose may have that I didn’t consider (or didn’t adequately consider) in this post—the mental impact on subgroups, the effect on accommodated test-takers or non-native English speakers, the number of test-takers who have digitally “shut down” and may not learn of this information, and so on. It’s true that all these could have an impact in a way that wouldn’t be reflected in equating and scaling. And these are things very difficult to identify after the fact. Of course, a death in the family or a virus contracted shortly before the exam could have a similar impact—except, of course, (1) this affects all test-takers, and (2) it’s caused by an error from the bar. I appreciate people carefully thinking through the potential effects.

Do state bar licensing authorities distrust law schools?

It’s late July, so it’s time for another round of op-eds and blog posts about the bar exam—it doesn’t test the things that are required of legal practice, the cut score is unjustifiably high, it’s a costly and burdensome process for law students, etc.

Granted, these arguments have may varying degrees of truth, but, as any reader of this blog is no doubt familiar, I am pretty skeptical of these claims—and I say that as one who, as a law professor, in my own self-interest, would subjectively like to see an easier bar exam for law school graduates. But graduates have had persistently low scores for coming up on half a decade, mostly attributable to the decline in admissions practices at many law schools. And I think we too quickly conflate a lot of arguments about the bar exam.

But I’ve long had an uncomfortable thought about the bar exam as I’ve read the claims of legal educators (often law school deans) over the last several years. Law schools complain that their students have invested three years of their lives, plus tuition, plus the effort to pass the bar exam, and many fail—only, of course, to retake at still more invested time and cost before ultimately passing (or maybe never passing). Isn’t it unfair to these graduates?

Maybe, of course, depending on the “right” cut score in a jurisdiction. But… what about the opposite perspective? That is, are law schools graduating students who are not qualified to engage in the practice of law?

That’s a very cold question to ask. The ABA’s (new, slightly higher) standard for accrediting law schools is that at least 75% of its graduates should pass the bar exam within two years—it’s long had an outcome-oriented element to accrediting law schools. So the ABA admits that law schools can graduate a significant cohort who are never able to pass the bar.

Now, getting 100% first-time bar passage rate is pretty challenging—there are usually at least a couple of students at even the most elite law schools in even the biggest boom-times of legal education who’d fail the bar exam on the first attempt, for lack of effort or personal circumstances even if not for lack of ability.

But nevertheless, why do state bar licensing authorities—which also have a role in the accreditation of schools in the state (even if they mostly outsource it to the ABA)—require graduates of in-state law schools to take the bar exam? Does it reflect a distrust of those in-state law schools?

There’s only one state now with “diploma privilege,” Wisconsin. That is, graduates of law schools at the University of Wisconsin or Marquette University are automatically admitted to the bar. Many more states had diploma privilege several decades ago, but those have gradually been replaced until just Wisconsin remains.

Some complain about Wisconsin’s diploma privilege in the vein of, “Does it seem like Wisconsin’s law schools are really teaching sufficiently Wisconsin-centric law to preclude the need to take the bar exam?” But I think that mistakes what may be a driving force in these discussions (and the barrier that’s happened in jurisdictions considering reinstating diploma privilege).

In short, the bar exam is essentially a licensing authority’s way of verifying that the law schools are graduating qualified practitioners of law. Yes, the bar exam may be an imperfect way of doing it. But given that the bar exam highly correlates with law school grade point average, one can’t say it’s particularly irrelevant (unless law professors make the same claim about law school grades!).

Now imagine you’re the bar licensing authority in Wisconsin. You look at what’s happening at Wisconsin and at Marquette. And you’re satisfied—these two schools admit a good batch of students each year; their academic dismissal and transfer acceptance rules are sound; they graduate qualified students each year. Yes, maybe a few would fail the bar exam in Wisconsin each year—but we know there can be some randomness, or some cost of retaking for candidates who’ll ultimately pass, and the like. But the licensing authority trusts the law schools in the state. The law schools are consistently graduating students who, on the whole, are capable of practicing law in the state.

That’s a really good relationship between the state bar licensing authority and the law schools in the state, no?

So… what does that tell us about the other 49 states and the District of Columbia? (Although Alaska doesn’t have a law school….)

It may tell us that state bar licensing authorities do not have the same faith in these in-state law schools. That is, they believe law schools are not consistently graduating students capable of practicing law in the state. And that’s a cold truth for law schools to consider.

Of course, state bar licensing authorities may also have idiosyncratic reasons for preserving the bar exam (e.g., “We took the bar, so kids these days have to take the bar!”). And it might also be the case that many law schools or bar licensing authorities haven’t seriously considered trying to reinstate diploma privilege.

But I wonder about three persuasive reasons—which should cover the ideological spectrum!—for law schools in a few jurisdictions to consider pressing for diploma privilege. I look at the upper Midwest, the Great Plains, and northern New England in particular.

First, it encourages greater diversity in the legal profession. These arguments are consistently raised in California among other places—law schools are simply more diverse than the legal profession as a whole (due largely in recent years to changes in demographics), and reducing a barrier to the bar would immediately lift the diversity of the legal profession. (It would also encourage increased residence in state of those graduates, as the third point below indicates.)

Second, it reduces state regulatory occupational licensing authority burdens. We’ve seen a small revolution in states from Arizona to Pennsylvania to try to reduce the amount of occupational licensing burdens, from reducing the kinds of positions that need licensing to allowing interstate recognition of occupational licenses. Allowing a reduction in the burdens of occupational licensing would be consistent with that trend—even if it’s of a long-regulated profession like law.

Third, in these jurisdictions I named, states can offer a competitive advantage against other states where demographics favor more rapid population growth. Declining birth rates, aging populations, migration patterns, whatever it may be—there is simply less growth in the upper Midwest, Great Plains, and northern New England than other areas of the country. By offering in-state graduates the guarantee of bar admission, there is a greater incentive for these younger attorneys to stay in the state and practice locally rather than migrate elsewhere.

I also mention these jurisdictions because many have just one or two law schools, similar to Wisconsin, and therefore relatively easy for the schools to act together (or as one institution!) to meet the standards that would satisfy the state bar licensing authority.

The tradeoff for law schools? All the law schools in the state have to admit and graduate students who consistently appear able to pass the bar exam and practice law—a particularly high first-time pass rate and a near-100% ultimate pass rate.

As law schools for a few years have reduced admissions standards to preserve revenue, this is a particularly challenging prospect. State bar licensing authorities often appear increasingly distrustful of law school behavior, just as law schools often appear increasingly distrustful of state bar licensing authority behavior.

But developing a local community of trust between the state bar and in-state law schools could redound to significant benefits for all parties in short order. Whether that claim can be made persuasively, and whether law schools could alter their behavior in the short term for a potential long-term improvement of both their graduates’ positions and their state bar’s position, remains to be seen.

Maine, ranked choice voting, and the National Popular Vote Compact

Maine recently enacted ranked choice voting (“RCV”) for most of its elections. Very briefly, it allows voters to rank the preference of candidates instead of just picking one.

The original Maine bill excluded presidential elections from RCV. But the legislature recently approved expanding that to presidential elections (only later to be hung up and carried over to a later legislative session).

The new 21-A Maine Rev. Stat. Ann. § 805, sub-§2, if approved in the future, would be amended to read: “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State according to the ranked-choice method of counting votes described in section 723-A. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district according to the ranked-choice method of counting votes described in section 723-A.”

Here’s how RCV looks in 723-A:

Except as provided in subsections 3 and 4, the following procedures are used to determine the winner in an election determined by ranked-choice voting. Tabulation must proceed in rounds. In each round, the number of votes for each continuing candidate must be counted. Each continuing ballot counts as one vote for its highest-ranked continuing candidate for that round. Exhausted ballots are not counted for any continuing candidate. The round then ends with one of the following 2 potential outcomes.

A. If there are 2 or fewer continuing candidates, the candidate with the most votes is declared the winner of the election.

B. If there are more than 2 continuing candidates, the last-place candidate is defeated and a new round begins.

Whew. What that means is, candidates are ranked. The top-ranked candidates on each ballot are tallied. The candidate with the fewest top-ranked votes is eliminated. The ballots are retallied, this time as if that eliminate candidate weren’t there, and voters who’d cast their first-place votes for that eliminated candidate now have their second choice counted as the first choice. This proceeds in rounds until there are 2 candidates, and the candidate with the higher vote is the winner.

All well and good for the State of Maine, which may “appoint” presidential electors in the “manner” that the legislature may “direct,” and RCV certainly falls within that.

But how might this interact with a national tally of the popular vote for presidential elections—and, specifically, the National Popular Vote Compact (“NPV”)?

While Maine is not (yet?) a member to the NPV, many states are, and in the event 270 electoral votes’ worth of states join, it takes effect. And it would compile the votes of all states, including Maine, in the national popular vote total.

Here’s the relevant text of typical common language from the NPV:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each state of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.

…

The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.

(One important caveat from reading this text: in the event a state chooses not to hold a popular election for president—say, as Colorado did in 1876, when the legislature simply chose presidential electors—those states would not be included in a national popular vote total.)

So, what happens in Maine if RCV takes place? How would Maine’s vote be totaled in the national popular vote?

If there are, say, five candidates on the ballot, the popular vote total couldn’t really be the votes for those five candidates. RCV suggests paring them down until you get to two, then you name the winner. And voters cast votes understanding that their choices will be eliminated if they fail to advance in the next round. An advantage of RCV for independent or minor party candidates is that voters can vote for them without “wasting” a vote.

So RCV would then narrow down the votes of Mainers to two candidates. Those two candidates would then appear to be the only “votes” for a “presidential slate” in the State of Maine—that is, the tally after the final round of RCV. It would empower Maine voters over national voters—after all, the people of Maine would typically have all of their votes allocated to a Republican candidate or a Democratic candidate, as opposed to voters in other states that may scatter some number of voters among independent or minor party candidates.

But it could produce an alternative wrinkle. In 1992, Ross Perot received slightly more votes than George H.W. Bush to place second in the statewide vote. It’s not clear how RCV would have played out. But suppose that in the penultimate round of RCV Mr. Bush was eliminated, and the final round of RCV voting included just Bill Clinton and Mr. Perot. In the national popular vote total, the Republican candidate would receive zero votes from Maine—a small state, sure, but a significant cost to a major party candidate.

In short, I think inserting RCV in Maine is fine for Maine if it’s what Maine wants to do. But it’s precisely a reason why we cannot think of a “national popular vote” total by adding up the aggregate votes cast in 51 jurisdiction. This “invisible federalism” typically operates in a way we don’t notice—we might simply look at each state’s votes and assume we can add them together for a single popular vote total. But the decisions of individual states, like a potential RCV in Maine, could have unforeseen consequences that undermine how we think about a national popular vote total. It’s a reason why Electoral College reform to make the presidential election truly national must occur at the federal level and not at the state level.

Useless information about the 2020 presidential election

Baseball writer Jayson Stark regularly writes articles from the “Useless Information Department,” filled with interesting, odd, bizarre, coincidental, or just plain silly statistics or factoids from the world of baseball. With a 120-year-plus history, a 162-game season, 250-plus pitches per game, and a lot more, there’s always some interesting connections to make.

I’ve occasionally tweeted out some of my own useless information from the 2020 presidential campaign, and I thought I’d turn that into a long form blog post. Hang on…

* * *

Joe Biden ran—and won—as a vice presidential candidate in 2008 and 2012. But he opted not to run for president in 2016, choosing instead to run in 2020. Typically, a vice president who runs for president (and wasn’t elevated to the office of president due to a vacancy) runs either after his president stops running (e.g., Al Gore in 2000) or runs for the term immediately after losing an election seeking the office of vice president (e.g., Walter Mondale in 1984, who lost on the VP ticket in 1980).

Just four vice presidents have won a presidential election while serving as vice president—John Adams in 1796, Thomas Jefferson in 1800, Martin Van Buren in 1836, and George H.W. Bush in 1988.

So have any vice presidents skipped at least one term, then become president? Just one—Richard Nixon. Nixon was Eisenhower’s vice president and won the 1952 and 1956 elections. He ran for president in 1960 and lost. He then took 1964 off before running (and winning) in 1968. But Nixon’s case also differs, because he did try in 1960 immediately after serving eight years as Dwight Eisenhower’s vice president—but Nixon lost in 1960 and tried again later in 1968. Nonetheless, Nixon is the only vice president to later serve as a president, who was not serving as vice president when he won.

If Biden wins the 2020 presidential election, then, he’d be just the second vice president since Nixon to win a presidential election while not serving as vice president. And unlike Nixon, it’d be his first attempt to run for president after serving as vice president.

* * *

Websites like FiveThirtyEight and 270toWin remind us that presidential candidates must secure a majority of votes in the Electoral College to win the presidential election. Obviously, Donald Trump won a bunch of electoral votes in 2016 (304 of them, to be exact). Joe Biden also won a bunch of electoral votes, 365 in 2008 and 332 in 2012, both vice presidential votes. But they’re not alone.

Elizabeth Warren received two vice presidential electoral votes in 2016, one in Hawaii and one in Washington. And Bernie Sanders received one presidential electoral vote in 2016, in Hawaii. Both came from “faithless” electors, presidential electors ostensibly committed to support Hillary Clinton when the Electoral College convened in December 2016 but who ultimately cast votes for these candidates.

* * *

The last Democratic presidential nominee who attended neither Yale nor Harvard was Walter Mondale in 1984. (Yes, that means Michael Dukakis, Bill Clinton, Al Gore, John Kerry, Barack Obama, and Hillary Clinton all have ties to this sliver of the Ivy League.)

But none of the Democratic presidential frontrunners attended either. Joe Biden went to Delaware and Syracuse Law; Bernie Sanders went to Brooklyn College and Chicago. Dipping a little deeper into the candidates, Elizabeth Warren attended George Washington University, Houston, and Rutgers Law (although she did teach at Harvard Law). Kamala Harris went to Howard before attending Hastings Law. Of course, there’s a chance a candidate like Pete Buttigieg (Harvard/Oxford) or Cory Booker (Stanford/Oxford/Yale) pulls through and keeps the Harvard-Yale streak alive.

* * *

Democrats may also keep another education streak alive. Since 1984, every Democratic presidential and vice presidential nominee has attended law school—Walter Mondale, Geraldine Ferraro, Michael Dukakis, Lloyd Bentsen, Bill Clinton, Al Gore, Joe Lieberman, John Kerry, John Edwards, Barack Obama, Joe Biden, Hillary Clinton, and Tim Kaine.

Attended—all but one received a law degree, the exception being Gore, who dropped out of Vanderbilt Law School before completing his Juris Doctor.

The frontrunners are a mixture of lawyers (Biden, Elizabeth Warren, Kamala Harris, Cory Booker, Amy Klobuchar) and non-lawyers (Bernie Sanders, Pete Buttigieg, Beto O’Rourke)—but the safe money may be on the lawyers, and it may rest with a vice presidential nominee to break the streak.*

* * *

Before Trump, Ronald Reagan was the only 70-something to win a presidential election. That took place in his second term, and he was 73 when sworn in. Trump became the first 70-something to win a first term.

But we’re seeing a surge of septuagenarian candidates and may see that age record fall. The age of some candidates as of the next inauguration day, January 20, 2021: Bernie Sanders, 79; Joe Biden, 78; Donald Trump, 74; Elizabeth Warren 71.

For the record, Reagan was 77 years, 349 days when leaving office. The next-oldest president upon leaving office stands to be Trump—but if he completes a second term, he’d be 78 years, 221 days to edge out Reagan. And the only other 70-something to ever serve in office was Dwight Eisenhower, who left office at 70 years, 98 days.

The election of either Sanders (79 years, 134 days as of January 20, 2021) or Biden (78 years, 61 days) would immediately make that candidate the oldest person to ever serve in as president. Both are older than each of the last five Democratic presidential candidates—older than Hillary Clinton, Barack Obama, John Kerry, Al Gore, and Bill Clinton. (But younger than 1988 Democratic nominee Michael Dukakis.)

Compared to recent presidential candidates popularly considered “old”? John McCain would have been 72 years, 144 days on January 20, 2009; Bob Dole would have been 73 years, 182 days on January 20, 1997.

And the combined Election Day ages of Trump-Sanders (153), Trump-Biden (152—Biden turns 78 after Election Day), or Trump-Warren (145) easily make them the oldest major party opponents in history. Reagan-Mondale, 1984 (129); Van Buren-Harrison, 1840 (124); and Dole-Clinton, 1996 (123) are among the oldest pairs of major party opponents.

* * *

But Democrats are on pace to help break a different record. Three of the last four presidents were each born in the same year, 1946. That’s right, Bill Clinton, George W. Bush, and Donald Trump were all born in 1946, in that first year of the “Baby Boom” after World War II. Sanders (1941), Biden (1942), and Warren (1949) all missed that birth year. So did Hillary Clinton, narrowly (1947).

Of course, there have been other 1946 presidential candidates. To name a few: 2000 Republican candidate Gary Bauer, 2004 and 2008 Democratic candidate Dennis Kucinich, 2012 Constitution Party presidential nominee Virgil Goode, and 2016 Democratic candidate Jim Webb.

* * *

There are a number of Democratic candidates vying for the title of the youngest president. That’s currently held by Teddy Roosevelt (42 years, 322 days when he took office). Roosevelt became president after William McKinley died. For the youngest elected candidate, that goes to John F. Kennedy (43 years, 236 days).

Several candidates, including Pete Buttigieg (39 as of January 20, 2021), Tulsi Gabbard (39), Seth Moulton (42), and Eric Swalwell (40), could eclipse these marks. But they’d hardly be the youngest major party candidates in history. That belongs to Wiliam Jennings Bryan, who was just 36 when he secured the Democratic Party nomination in 1896.

Not only that, but one of these candidates might eclipse the age gap between major party opponents set by 72-year-old John McCain and 47-year-old Barack Obama in 2008, a 25-year gap. Trump will be 74 on Election Day, so anyone under 49 would set the record.

* * *

Alexandria Ocasio-Cortez is a useful foil for age comparisons. Elected to the House of Representatives in 2018, she was born October 13, 1989 and is just 29 years old—but she has an outsized influence on social media and in the Democratic Party.

This is Joe Biden's third presidential run after failed campaigns for the 1988 and 2008 Democratic Party nominations. Biden’s first run ended in September 1987... more than two years before Ocasio-Cortez was even born.

Bernie Sanders was born 24 years after John F. Kennedy. He was also born 48 years before Ocasio-Cortez.

* * *

By my count, 88 members of the Senate of the 93rd Congress as of January 3, 1973 have died. Of the 12 remaining, two are former presidential candidates (Walter Mondale and Bob Dole), & two are running this year (Joe Biden and Mike Gravel).

* * *

I know, the post has focused a lot on age. But there’s so much to do with it! And maybe it’s only fitting that the oldest living former president ever is still with us (Jimmy Carter, who turns 95 in October 2019), and the one who’s lived the longest after leaving office (39 years and counting).

 * * *

*Special thanks to Brian Kalt for this detail.
Please notify me if you find any errors I ought to correct or ambiguities I ought to clarify.

Significant one-year peer USNWR survey score drops, their apparent causes, and their longevity

The peer score from USNWR’s annual law school rankings consists of the results of a survey it sends out to around 800 voters. Those voters are the dean, the associate dean for academics, the chair of the hiring committee, and the most recently tenured faculty member at each law school. Response rates tend to be fairly high, usually around 70%. Voters are asked to evaluate schools on a scale of 1 (marginal) to 5 (outstanding), or N/A if a voter doesn’t have enough information. Those results are averaged into each school’s “peer score.”

These results have been remarkably stagnant for decades for most schools.

Of course, I can only guess as to why there were these drops, but, for most schools, we have pretty good contemporaneous evidence of (negative) newsworthy events that likely prompted the drop.

(Please note, I use the year the ranking is published. USNWR calls the rankings published in 2019 as the “2020 rankings,” but I use the date 2019 instead. The survey is sent out in the fall of the year before, so a survey for 2019 is sent out around November 1, 2018.)

Rutgers-Camden, 2002, 2.8 to 2.5. This may be the only truly fluctuation due (mis)fortune or chance. In the three previous surveys, Rutgers-Camden had a 2.7, 2.6, and 2.6 score. In 2001, it rose to 2.8. In 2002, it dropped to 2.5, where it remained in the 2.5 to 2.6 range for the next decade, settling later at 2.4.

There’s no particular scandal or controversy that arose. Instead, the 2.8 just might’ve been the fortune of one year, and the following 2.5 the misfortune of another. (Rutgers-Camden later merged with Rutgers-Newark.)

Loyola Law School, 2009, 2.6 to 2.3. By far the most inexplicable drop turned out to be attributable to a USNWR error. Loyola had long held a 2.5 to 2.6 peer score in the decade before 2009. But in 2009, its peer score abruptly plummeted 0.3 to 2.3. The reason? USNWR renamed Loyola as “Loyola Marymount University” in the poll. While long affiliated with LMU, the law school’s brand had developed around a different name, which suddenly changed for one year.

The following year, Loyola’s name returned “Loyola Law School,” its peer score rebounded to 2.6, and it’s remained around there ever since. (It’s also the only time a school has risen 0.3, or higher, in a single year in the entire history of USNWR’s peer surveys.)

Illinois, 2012, 3.5 to 3.1. Illinois consistently held a peer score for 3.4 to 3.6 for a decade. In 2011, a story broke that an admissions dean single-handedly inflated median LSAT scores at Illinois in six of the previous 10 years. Illinois was fined $250,000 and censured. In the 2012 rankings, Illinois’s peer score plunged from 3.5 to 3.1.

The Illinois drop was significant because of how high Illinois used to be. And it’s significant because it makes it that much harder to climb back. Illinois rose to a 3.3 one year but hasn’t gotten past that, at 3.2 in the most recent survey. The residual impact from an event a decade ago remains (in my view, an unjustifiable result).

Villanova, 2012, 2.6 to 2.2. For a decade, Villanova’s scores hovered between 2.5 and 2.7. But in a different scandal in 2011, the news broke that Villanova “knowingly” reported inaccurate LSAT & UGPA data. It was censured by the ABA.

Villanova has mostly recovered, steadily rising back to a 2.5, but it has yet to return to 2.6. Like Illinois, the impact in the peer score has far outlasted any formal ABA sanction.

St. Louis University, 2013, 2.4 to 2.0. One of the more notorious drops in peer score arose after a series of controversies—the law school dean resigned in protest in August 2012, with noted disputes about university leadership prominent that fall. It’s one of just 3 times that a school has dropped 0.4 in the peer score, assuredly in part because the news remained fresh close in time to circulation of the survey.

St. Louis has never returned to a 2.4, but it has slowly improved since the drop and has stood at a 2.3 for the last few surveys.

Albany, 2015, 2.0 to 1.7. For years, Albany had held a 2.1 or 2.2 peer score. In 2013, that score settled to a 2.0 and remained there in 2014. That isn’t remarkable, because [scores lower]. But in 2015, the score dropped 0.3 to 1.7. In early 2014, the school made headlines for buyout proposals amidst financial exigency and faculty backlash. These were some of the first public signs of financial strain at U.S. law schools after the economic downturn—recall that enrollment jumped for the Class of 2012 dropped ever since. While many schools felt financial strains, few made it public—today, of course, many more have had their financial struggles made public.

The impact didn’t last long. By 2016 the school returned to a 1.9, and in 2017 a 2.0 again, which is its score this year, too.

Vermont Law School, 2.2 to 1.9, 2019. The most recent drop took place in the most recent rankings. In the summer of 2018, Vermont announced that 14 of its 19 tenured professors would lose tenure, an announcement just a few months before ballots went out. Time will tell what happens next year, but we should expect a small bounce back up.

---

This post isn’t really to shame any particular school or approve of how the peer rankings have reacted to scandals. It’s simply to note that some strong reactions do exist.

It also highlights the stickiness of the rankings. The cohort of voters can change fairly frequently. Voters include the dean, the associate dean of academics, the chair of faculty appointments, and the most recently tenured faculty member. Those positions change with some frequency—the typical dean’s tenure is 3 years, new faculty hires mean a steady stream of tenure grants, different appointment chairs as service commitments rotate, and so on. Nevertheless, the peer score remains tough to move. Smaller controversies, a USNWR mistake, or apparent randomness appear to have little staying power. But bigger scandals have prevented scores from ever returning to where they were before the scandal—even if the school has faced appropriate sanction and all the people involved have moved on. Whether it’s inertia or long punitive (and vindictive?) memories, the peer scores can remain depressed.

Importantly, I hope some law professors might reconsider why they may be voting the way they are. Are they voting because of the present state of the law school—its student body quality, its student outcomes, its faculty quality, its administrators, etc.—or because of some past act of the law school? By reflecting on why voters vote the way they do, we may see less (arguably) punitive voting.