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.

Thoughts on a "better bar exam"

The ABA Journal has a long piece by Stephanie Francis Ward on the bar exam. It includes a few quotations from me that I thought I’d dive into.

“I think people really want to solve this one major problem, and that’s, ‘Is there a body of students out there who would be good lawyers, but are failing the bar? Is there some way of getting them through the bar?’ ” asks Derek Muller, a law professor at Pepperdine University, who writes at the website Excess of Democracy.

He also wonders if changing the bar exam would solve any problems, including a decreasing national pass rate. The overall pass rate was 54% in 2018; and in 2008 it was 71%, according to NCBE data.

“If lawyers are saying, ‘I did it this way, kids need to do it this way, too,’ that’s not productive. At the same time, if schools are saying, ‘We need to change the bar in whatever way we can to get kids to pass,’ that’s not productive either,’ ” Muller says.

He’s not sure that changing the format would make much of a pass rate difference, and he wonders how some ideas, like giving a partial bar exam after students finish their first year of law school, would actually play out.

“I think that would put extraordinary pressure on the first year of law school in a different way. For a lot of students, it’s a steep learning curve the first year, and to add another exam, I think that would be a step backward,” Muller says.

There are really three major concerns that Ms. Ward helpfully drew from our conversation.

First, what exactly is the problem we’re trying to solve? There are so many competing debates, in my view, that it helps to parse them out. The most material concern, in my view, is a Type I/II error problem—is the bar letting the wrong people in to practice law, or is it preventing the wrong people from practicing law? Few, I think, believe the bar admits too many. So if it’s admitting too few, what system do we want to help figure out which “good” attorneys are out there who are passing the present bar exam. A lot of reform efforts, in my view, don’t adequately start with this precise formulation of the problem.

Second, the “kids” (a pejorative I use only in scare quotations!) often face two competing arguments. Either new bar admittees need to take the bar exam “the old fashioned way,” which is essentially a traditionalist argument that holds little weight in the face of material criticism. Or new bar admittees should face as few barriers to practice as possible, essentially an argument raised primarily by law school deans who have seen demand drop in recent years, admissions standards declines, and bar passage rates decline along with them. There’s assuredly merit in both—but both are also too easily wrapped up in self-interest and merit deeper reflection.

Third, some reform proposals, in my view, are worse than the existing problem. Take the one suggested, a “baby bar” after the first year. That’s a proposal that exists in California among non-ABA-accredited schools to ensure that admissions standards are acceptable and that retaining the students in their legal education is worthwhile. For the vast majority of law students at ABA law schools, this is not a problem. It would place extraordinary pressure on preparing for this exam in the summer, curtailing summer working opportunities and changing the first-year curricular emphasis. And it would effectively create a second bar exam when people are already complaining about the first!

All this is to say, reform efforts (and there are thoughtful ones out there!) must make careful evaluations—evidence-based, out of public interest rather than law school interests or anticompetitive guild interests. We’ve seen fairly little change in the last decade, I think, in part because the interests have not often been public oriented, and, when they are, the proposed changes do little to address the primary concerns.

Professor Deborah Jones Merritt’s proposals are the right kind—thinking about breaking up the bar exam into components to make testing easier (think how the MPRE is already a separate component), or providing more time flexibility (to address accommodation concerns and to ensure deeper thinking on legal issues). We’ll see if these, or others, make their way into the bar in the decade to come.

Yes, Donald Trump Jr. & Ivanka Trump are (likely) "natural born citizens"

A recent survey from Axios revealed that Donald Trump Jr. and Ivanka Trump, two of President Donald Trump’s children, are among the leading candidates among Republican voters for president in 2024.

Sure, a silly survey so early and likely reflects more about name and brand recognition than anything else. But it also got me to think about an under-examined question: are they eligible to serve as President of the United States?

Don Jr. was born in 1977 in New York, and Ivanka in 1981. Their dad is, obviously, a citizen.

But their mother is Ivana Trump, a Czech immigrant to the United States who did not become an American citizen until 1988.

Most would argue that Don Jr. and Ivanka are still eligible even if their mother was not a citizen at the time of birth—birth on American soil would be sufficient, as would birth to a citizen parent. That said, there has been litigation challenging even such statuses (wrongheaded as, I think, it might be), but a cool-down in the most recent election cycle. And there are some who question “birthright citizenship” more broadly (but more who do not question it).

I am far from an expert on the Natural Born Citizen Clause—I have my inclinations and a rough understanding of the legal arguments surrounding it. I’ve been much more interested in whether the political process or the judiciary is the better place to resolve these disputes—for me, the political process is far more preferable to sort out these difficulties.

That said, it may be interesting to see whether legal challenge arise in the event one or both chooses to run for president in the future, in 2024 or beyond. And it may be a good reason to amend the Constitution to simplify the inquiry—instead of “natural born citizen,” perhaps we simply want a citizen who’s been one for a long period of time.

2020 proving a quiet year (so far) for "natural born citizen" legal challenges

On the heels of conspiracy theory-driven questions about the birthplace of Barack Obama and legal questions about the birthplace of John McCain in the 2008 (and, for Mr. Obama, the 2012) election, there was a surge in “natural born citizen” litigation in the 2016 presidential election. I’ve advocated for amending the Constitution to simplify these inquiries, a tall order but one consistent, I think, with the often-marginal claims advanced and deep confusion concerning the constitutional phrase.

I thought we might see another surge of litigation in 2020. Some of the Democratic candidates whose qualifications might be challenged have dropped out, but no challenges were ever raised (that I saw). And one candidate, Tulsi Gabbard, born in American Samoa to citizen parents, has seen no challenges (again, that I’ve seen) raised. (I think Ms. Gabbard is likely eligible to serve as President, largely for reasons I think Mr. McCain was.)

Challenges sometimes happen in state administrative proceedings to ascertain whether ballot access is appropriate; it may also happen in state or federal court. But I haven’t seen any such challenges.

It may be that Ms. Gabbard hasn’t attracted the attention of the “birther” movement that kept its momentum from 2012 into 2016. Maybe her eligibility is less a target than someone like Ted Cruz in 2016, born in Canada to a citizen parent and a non-citizen parent; or maybe her rather marginal polling has kept her from litigation.

Regardless, I thought it was worth noting that despite my worries that we’d continue to see a rash of "natural born citizen-related litigation, this cycle has been fairly quiet (so far!). Instead, it’s simply left to the electoral process to sort it out—which is my preference, anyway.

A small but rising cohort of GRE law school admissions

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In 2018, I looked at the “tiny impact (so far)” of GRE law school admissions. Law students admitted without an LSAT score rose from 81 in 2017 to 168 in 2018 (among ABA-accredited law schools, excluding those in Puerto Rico). But some law students could always be admitted without an LSAT score under limited circumstances. Still, it appeared that the bulk of these admissions were those with GRE scores. But given about 37,000 matriculants to law school, it was a very small percentage.

USNWR has begun collecting data about GRE admissions at law schools. That information (not publicly available, sadly!) confirms that the bulk of these no-LSAT admissions at law schools are those with GRE scores.

In 2019, no-LSAT admissions rose from 168 to 384—more than doubling from the previous year, which more than doubled the year before. Undoubtedly, on the rise.

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Whoa, cowboy! That’s a data spike! But… not really. In fact, my first chart is probably pretty deceptive.

You see, 384 admissions among 37,873 matriculants represents just 1% of all law school admissions. Still a small number—but rising. Let’s situate that number among all admitted students, with a better sense of perspective in a new chart.

Even though GRE admissions still represent a very small percentage of overall admissions, only a few dozen law schools accept the GRE. That means GRE admissions are disproportionately concentrated at a few law schools. Last year, I noted that Arizona had about 15% of its class as GRE admissions, and Harvard and Georgetown around 2% or 3% of the class. Several classes are above 5% this year: Alabama (8 non-LSAT admissions), Arizona (17), BYU (16), Kent (12), Georgetown (48!), Georgia (19), Harvard (43!), Hawaii (12), Northwestern (27), St. John’s (13), and Buffalo (8). Indeed, these 11 schools are more than half of all non-LSAT admissions.

So while the number rises and remains very small overall, a few schools have admitted substantial cohorts of GRE students. We’ll see what happens to these cohorts in the years ahead—if bar passage rates or employment rates materially differ, for instance. And we should expect this trend to continue next year.

Which sitting Supreme Court justices are most likely to have a law school named after them one day?

I recently took a light survey on Twitter to see which sitting Supreme Court justices might one day have law schools named after them. Given the apparent rise of celebrity culture around Supreme Court justices, coupled with the sizeable gift to George Mason to rename the law school after the late Justice Antonin Scalia, I wondered whether this might be a new trend.

A helpful commenter identified ABA-accredited law schools currently named after former Supreme Court justices: John Marshall (one at University of Illinois-Chicago, and one in Atlanta); Thurgood Marshall; Salmon P. Chase (Northern Kentucky); Louis Brandeis (Louisville); Benjamin Cardozo (Yeshiva); Sandra Day O’Connor (Arizona State); and Antonin Scalia (George Mason). And there are plenty of “centers” (like the Rehnquist Center at the University of Arizona) or federal courthouses (like the Byron White Courthouse in Denver) named after Supreme Court justices.

From the readers’ most likely to least likely candidates—which largely comport with my best guesses. Only three were voted more likely than not to have law schools named after them within a decade of their death.

Ruth Bader Ginsburg. Naturally, the most celebrity-styled justice and the second woman to serve on the Supreme Court received the most votes, nearly unanimous. Whether Columbia would change its name (everyone has a price), or some other law school (New York, DC, or elsewhere) remains to be seen.

Sonia Sotomayor. The first Latina to serve on the Supreme Court, with a small celebrity following of her own—and, I think, a likelihood that a New York law school must be preparing to pitch donors on a package to rename the law school after her one day.

Clarence Thomas. The second African-American to serve on the Supreme Court with a lengthy term of service, a particular originalist methodology, and a small but vocal celebrity following of his own, the right (in more than one sense of the word!) school would have to come along.

John Roberts. Here the voters start to say that it’s more likely that the justice would not have a school named after him than would. And here, the “centrist” or “unanimity-maker” justice may lack the celebrity, despite his role as Chief Justice.

Elena Kagan. I admit, I was surprised to see voters to pessimistic about her. Kagan is a sharp writer and a good public presence in interviews. Perhaps her fate changes in the decades to come—or perhaps she’s simply not the “celebrity” of others.

Neil Gorsuch, Stephen Breyer, Samuel Alito, and Brett Kavanaugh, in that order, were voted overwhelmingly unlikely to have law schools named after them.

In any event, it’s a fairly meaningless survey—but an interesting popular observation about which Supreme Court justices are likely to have the weight to have law schools named after them. Assuredly, much can change in the decades to come!