Election law, voting rights, legal education, and miscellany written by Derek T. Muller, Professor of Law, University of Notre Dame Law School
I’m honored that Professor Rick Hasen has invited me, along with an all-star cast of election law scholars, to join as a contributor to the Election Law Blog. I’ll continue to blog here, of course, especially on legal education and federal courts issues, but I’ll also occasionally cross-post more in-depth content on election law issues.
From Professor Rick Hasen, the House Oversight Committee has documents showing the pressure that Mark Meadows and others in the White House had on the Department of Justice to investigate allegations of fraud. Principal officers in the Department of Justice, from my reading, ever flinched. Several resigned in the aftermath of the 2020 presidential election. But two emails struck me.
First was an email January 1 from Mr. Meadows to Acting Attorney General Jeffrey Rosen. Mr. Meadows alleged “signature match anomalies in Fulton county, Ga.” Mr. Rosen forwarded the email to another, “Can you believe this? I am not going to respond to the message below.”
Second was an email forwarded by Mr. Meadows to Mr. Rosen, with the title—I can’t make it up—”Brad Johnson: Rome, Satellites, Servers: an Update - YouTube.” Richard Donaghue at the Department of Justice emailed Mr. Rose, “Pure insanity.” Mr. Rosen responded about why these conspiracy theorists never brought evidence to the FBI, and about why he would not discuss these matters with Rudy Giuliani.
In short, the conspiracy theories surrounding the 2020 presidential election never got off the ground within any faction of the officials in the Department of Justice.
The Ninth Circuit’s reputation as the most-reversed circuit has improved in the last decade, but days like today suggest that it still tends to buck Supreme Court precedent and is reluctant to correct errors en banc. Two unanimous reversals from the Supreme Court highlight that today.
The first is Garland v. Ming Dai, unanimously reversing a decision of the late Judge Stephen Reinhardt. Ming Dai earned a “dissental” from rehearing en banc from 10 active judges (Callahan, Bybee, Bea, M. Smith, Ikuta, Bennett, R. Nelson, Bade, Collins, and Lee) (joined by two senior judges, O'Scannlain and Trott), and Justice Neil Gorsuch repeatedly mentioned in his opinion that the Ninth Circuit’s decision was rendered over the dissenting views of at least 12 members of that court.
The second is United States v. Cooley, unanimously reversing a decision by Judge Marsha Berzon. A dissental by Judge Daniel Collins (joined by Bea, Bennett, and Bress) from rehearing en banc did, however, earn this particular meta-critique by Judge Berzon (joined by Hurwitz):
Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing (“dissent”) is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion. . . .
This case involves an unusual factual scenario and a technical issue of Indian tribal authority. It certainly does not present a “question of exceptional importance” meriting en banc consideration. Fed. R. App. P. 35(a)(2). There is no conflict among the circuits regarding the question presented here, the opinion is not in conflict with a Supreme Court decision, and the practical implications are limited. . . .
But the Supreme Court’s decision to grant certiorari and then reverse suggests that it was “important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”
Less than a month after the Cooley decision, the Los Angeles Times ran a story about the “strain” on the Ninth Circuit from new judges, particularly Judge Collins, and specifically on his dissental in Cooley:
Among those who have caused the most consternation is Judge Daniel P. Collins, a former federal prosecutor and partner of a prestigious law firm.
Some judges say that, in the early months of his tenure, Collins has appeared oblivious to court tradition. He has sent memos at all times of the night in violation of a court rule and objected to other judges’ rulings in language that some colleagues found combative, they said.
Collins also moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel, judges said.
Active judges vote on the calls behind the scenes, and the public becomes aware of a failed effort only when dissents are later filed by the judges who favored reconsideration. Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time. The court has so far rejected most of Collins’ calls.
“Collins has definitely bulldozed his way around here already in a short time,” one 9th Circuit judge said. “Either he doesn’t care or doesn’t realize that he has offended half the court already.”
. . .The behind-the-scenes tensions over Collins spilled into public last month in an order rejecting a call, presumably made by Collins, to reconsider a panel’s decision. The panel had upheld a lower court’s ruling in favor of suppressing evidence from a tribal officer’s search of a vehicle on a public highway. The highway ran through tribal land.
Collins, dissenting from the court’s refusal to reconsider, was joined by three judges, two Trump appointees and one appointed by President George W. Bush.
Collins called the panel’s decision “deeply flawed,” “plagued” by legal error and marked by “confused analysis.”
Two Democratic appointees whose ruling Collins wanted reversed wrote that, even in the genre of such dissents, Collins’ was an “outlier.”
“It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion,” wrote Judge Marsha S. Berzon, a Clinton appointee, and Judge Andrew D. Hurwitz, an Obama appointee.
“This case involves an unusual factual scenario and a technical issue of Indian tribal authority,” they said. “It certainly does not present a ‘question of exceptional importance’ meriting en banc consideration.”
While the Ninth Circuit may have “so far rejected most of Collins’ calls,” the Supreme Court is a different matter.
On the news that Kim Kardashian failed the “baby bar” exam in California, an interview clip relayed the following assessment: “This one actually is harder, I hear, than the official bar.”
One reason this mythology persists is to look at the pass rates. On the June 2020 “baby bar,” 145 first-time test-takers had a 27.6% pass rate, and 134 first-time test-takers in November 2020 (where Ms. Kardashian likely took the exam) had a 29.1% pass rate. Compare that, say, to the October 2020 bar exam, which had a first-time pass rate of 73.3% (after California lowered the cut score), or a 63.7% first-time pass rate in July 2019.
On the raw passage statistics alone, it would appear that the baby bar is tougher.
But the quality of test-takers differs dramatically. Recall that every “official” test-taker from a California unaccredited school, or a correspondence course, or a distance learning course, of a fixed-facility course, is required to pass the “baby bar” as a condition of continuing their legal studies. That means 100% of “official” test-takers from these institutions passed the baby bar. That means, if the baby bar is harder than the “official” bar, we would expect pass rates among this cohort to be at or near 100%.
And that’s far from the case. The first-time pass rate in July 2019 among California unaccredited law school graduates was 24.6%—recall, 100% of these test-takers (ultimately) passed the baby bar. In October 2020, it was 37.9%—again, 100% of these test-takers passed the baby bar. Compare that to the 82.4% pass rate among ABA-accredited law school graduates.
Some additional notes from the interview:
She is then shown being told by Jessica Jackson, a human rights attorney and co-founder of #cut50, where Kardashian is interning, that she needed a score of 560, but got a 474.
"That's extremely close on a test that most people are not taking in the middle of a pandemic," Jackson tells Kardashian.
It’s not accurate that “most people” are not taking the “baby bar” during the pandemic. There were 146 first-time test-takers in October 2019, compared with 134 in November 2020. It’s a typically small group. (First-time test-takers at “law offices/judges chambers programs” actually rose from 11 in October 2019 to 13 in November 2020.)
As to whether it’s “extremely close,” scores of at least 540 are close enough for reappraisal to determine whether it merits pass or fail. Ms. Kardashian may, however, pass the next time around.
I’ve blogged for a couple of years about voting rights problems with District of Columbia statehood proposals, and my recent piece at RealClearPolicy discusses some of them. I thought I’d give a little detail on one item I mentioned: double voting.
Supporters of D.C. statehood suggest that instead of repealing the Twenty-third Amendment, Congress could choose the electors. The Constitution gives Congress the power to direct the manner of appointing presidential electors, which it has done by allowing D.C. residents to hold a popular vote to choose electors, like all other states. For the first time, Congress would have a direct say over presidential elections.
But if Congress did try to pick its own electors, that would introduce another problem. The Voting Rights Act prohibits individuals from voting twice in the same election. If Congress selects its own presidential electors, then every member of Congress who votes back home would violate the Voting Rights Act. Many states also have rules in place prohibiting voting more than once on Election Day, too.
Amendments to the Voting Rights Act, as classified at 52 U.S.C. § 10307(e), provide:
(e) Voting more than once
(1) Whoever votes more than once in an election referred to in paragraph (2) shall be fined not more than $10,000 or imprisoned not more than five years, or both.
(2) The prohibition of this subsection applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico.
(3) As used in this subsection, the term “votes more than once” does not include the casting of an additional ballot if all prior ballots of that voter were invalidated, nor does it include the voting in two jurisdictions under section 10502 of this title, to the extent two ballots are not cast for an election to the same candidacy or office.
The legislative context in which this provision arose in 1975 focused on dilution of the vote, including in an interstate context. As one legislator put it:
Section 11 of the Voting Rights Act of 1965 currently regulates voter fraud and conspiracy in Federal elections. Severe criminal penalties are provided to punish anyone who knowingly gives false information for the purpose of establishing his eligibility to register or vote. But, no criminal law prohibits anyone from voting twice--and this can occur in at least seven States which have no law prohibiting voting in more than one location. Thus, a person voting in Wyoming could move to Arkansas and register, where he could register within 30 days without having to give up his Wyoming registration. If such a person were to vote twice in a subsequent Federal election, no law would be violated because each registration was procured with true information.
This amendment which I will propose remedies this gap in Federal law by prohibiting, in a new subsection, 11(e), voting more than once in the same Federal election.
I confess, the statute is not a model of clarity. Is it “vot[ing] more than once in an election,” specifically, “any general . . . election held solely or in part for the purpose of selecting or electing any candidate for the office of . . . presidential elector,” if one is voting in both the District of Columbia presidential elector election and, say, the Arizona presidential elector election? Those electors, after all, are two different elections, in theory. But it is one general election, held on the first Tuesday after the first Monday in November. The context weighs in favor of the latter interpretation.
Double voting rules vary by state, too. A clear prohibition on this type of double voting is Arizona:
3. Knowingly votes in two or more jurisdictions in this state for which residency is required for lawful voting and the person is not a resident of all jurisdictions in which the person voted. For the purposes of this paragraph, a person has only one residence for the purpose of voting.
4. Knowingly votes in this state in an election in which a federal office appears on the ballot and votes in another state in an election in which a federal office appears on the ballot and the election day for both states is the same date.
Congress could, of course, alter the dates of elections to give itself the power to choose electors on a different day for the District of Columbia than the rest of the United States. That, I think, seems mischievous, and a reason why Congress created a uniform date for the selection of presidential electors in the early nineteenth century. It’s also not clear that changing the date would evade the Voting Rights Act problem if it is construed as the single “general” election, simply on different dates.
Finally, it’s not clear to me that Congress would be functioning in some legislative or special capacity to exempt itself from these rules. Congress may direct the “manner” of appointing electors. If it directs the manner of congressional appointment, that’s little different, in my judgment, than a rule directing popular appointment, or other such mechanisms of defined appointment.
Over at RealClearPolicy, I have this piece, "The DC Statehood Proposal Could Give a Handful of People Three Electoral Votes.” It begins:
Proponents of District of Columbia statehood believe this is their moment. The House of Representatives has approved H.R. 51, and the Senate might bypass the filibuster to send the proposal to President Joe Biden for his signature. But election questions plague the bill.
I wrote a brief piece for the Boston University Law Review Online, Governing Elections Without Law, reflecting in late 2020 on Professor Rick Hasen’s book Election Meltdown. I opened, “I want to focus on those nonlegal reforms that work alongside the law—places where the law simply runs out, where legislation is worse than the existing problem, or where superior longer-term solutions reside.”
The Facebook Oversight Board released a decision regarding Facbeook’s decision to bar former President Donald Trump from Facebook after the January 6, 2021 riot at the Capitol during the counting of electoral votes. It is precisely this type of private regulation that has become all the more crucial—but private regulation that looks very public in nature.
The framework is an interesting set-up, in my judgment:
The Board’s decisions do not concern the human rights obligations of states or application of national laws, but focus on Facebook’s content policies, its values and its human rights responsibilities as a business. The UN Guiding Principles on Business and Human Rights, which Facebook has endorsed (See Section 4), establish what businesses should do on a voluntary basis to meet these responsibilities. This includes avoiding causing or contributing to human rights harms, in part through identifying possible and actual harms and working to prevent or address them (UNGP Principles 11, 13, 15, 18). These responsibilities extend to harms caused by third parties (UNGP Principle 19).
Facebook has become a virtually indispensable medium for political discourse, and especially so in election periods. It has a responsibility both to allow political expression and to avoid serious risks to other human rights. Facebook, like other digital platforms and media companies, has been heavily criticized for distributing misinformation and amplifying controversial and inflammatory material. Facebook’s human rights responsibilities must be understood in the light of those sometimes competing considerations.The Board analyzes Facebook’s human rights responsibilities through international standards on freedom of expression and the rights to life, security, and political participation. Article 19 of the ICCPR sets out the right to freedom of expression. Article 19 states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The Board does not apply the First Amendment of the U.S. Constitution, which does not govern the conduct of private companies. However, the Board notes that in many relevant respects the principles of freedom of expression reflected in the First Amendment are similar or analogous to the principles of freedom of expression in ICCPR Article 19.
Political speech receives high protection under human rights law because of its importance to democratic debate. The UN Human Rights Committee provided authoritative guidance on Article 19 ICCPR in General Comment No. 34, in which it states that “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential” (para. 20).
Facebook’s decision to suspend Mr. Trump’s Facebook page and Instagram account has freedom of expression implications not only for Mr. Trump but also for the rights of people to hear from political leaders, whether they support them or not. Although political figures do not have a greater right to freedom of expression than other people, restricting their speech can harm the rights of other people to be informed and participate in political affairs. However, international human rights standards expect state actors to condemn violence (Rabat Plan of Action), and to provide accurate information to the public on matters of public interest, while also correcting misinformation (2020 Joint Statement of international freedom of expression monitors on COVID-19).
International law allows for expression to be limited when certain conditions are met. Any restrictions must meet three requirements – rules must be clear and accessible, they must be designed for a legitimate aim, and they must be necessary and proportionate to the risk of harm. The Board uses this three-part test to analyze Facebook’s actions when it restricts content or accounts. First Amendment principles under U.S. law also insist that restrictions on freedom of speech imposed through state action may not be vague, must be for important governmental reasons and must be narrowly tailored to the risk of harm.
The Oversight Board is entirely right, of course, that the First Amendment “does not govern the conduct of private companies.” But neither do “international standards of freedom of expression” as set forth in the International Covenant on Civil and Political Rights, a treaty that binds nation-states and not private companies.
Instead, it is because earlier this year—but after it suspended Mr. Trump—Facebook announced that its corporate human rights policy will be committed to the the United Nation’s Guiding Principles on Business and Human Rights:
On March 16, 2021, Facebook announced its corporate human rights policy, where it commemorated its commitment to respecting rights in accordance with the UN Guiding Principles on Business and Human Rights (UNGPs). The UNGPs, endorsed by the UN Human Rights Council in 2011, establish a voluntary framework for the human rights responsibilities of private businesses. As a global corporation committed to the UNGPs, Facebook must respect international human rights standards wherever it operates. The Oversight Board is called to evaluate Facebook’s decision in view of international human rights standards as applicable to Facebook.
The Board analyzed Facebook’s human rights responsibilities in this case by considering human rights standards including:
-The right to freedom of expression: International Covenant on Civil and Political Rights ( ICCPR), Articles 19 and 20; as interpreted in General Comment No. 34, Human Rights Committee (2011) ( General Comment 34); the Rabat Plan of Action, OHCHR, (2012); UN Special Rapporteur on freedom of opinion and expression report A/HRC/38/35 (2018); Joint Statement of international freedom of expression monitors on COVID-19 (March, 2020).
-The right to life: ICCPR Article 6.
-The right to security of person: ICCPR Article 9, para. 1.
-The right to non-discrimination: ICCPR Articles 2 and 26; International Convention on the Elimination of All Forms of Racial Discrimination ( ICERD), Articles 1 and 4.
-Participation in public affairs and the right to vote: ICCPR Article 25.
-The right to remedy: ICCPR Article 2; General Comment No. 31, Human Rights Committee (2004) ( General Comment 31); UNGPs, Principle 22.
It is, of course, entirely within the rights of Facebook to choose whether the First Amendment, international law, or some other standard will govern how it operates. Perhaps there is little daylight between a strict First Amendment approach and this one. But it’s worth noting that while the First Amendment requires an “important” (or sometimes described as “compelling”) reason to restrict speech, the test here is a “legitimate” aim, described as:
The requirement of legitimate aim means that any measure restricting expression must be for a purpose listed in Article 19, para. 3 of the ICCPR, and this list of aims is exhaustive. Legitimate aims include the protection of public order, as well as respect for the rights of others, including the rights to life, security, and to participate in elections and to have the outcome respected and implemented. An aim would not be legitimate where used as a pretext for suppressing expression, for example, to cite the aims of protecting security or the rights of others to censor speech simply because it is disagreeable or offensive (General Comment No. 34, paras. 11, 30, 46, 48). Facebook’s policy on praising and supporting individuals involved in “violating events,” violence or criminal activity was in accordance with the aims above.
“Legitimate,” then, is a term of art with an “exhaustive” fixed list of reasons. But it does appear to sweep more broadly and would allow regulation of more speech than the First Amendment.
There was also some dispute within the Board about how to assess Facebook’s human rights responsibilities:
A minority believes that it is important to outline some minimum criteria that reflect the Board’s assessment of Facebook’s human rights responsibilities. The majority prefers instead to provide this guidance as a policy recommendation. The minority explicitly notes that Facebook’s responsibilities to respect human rights include facilitating the remediation of adverse human rights impacts it has contributed to (UNGPs, Principle 22). Remedy is a fundamental component of the UNGP ‘Protect, Respect, Remedy’ framework, reflecting international human rights law more broadly (Article 2, para. 1, ICCPR, as interpreted by the Human Rights Committee in General Comment No. 31, paras. 15 - 18). To fulfil its responsibility to guarantee that the adverse impacts are not repeated, Facebook must assess whether reinstating Mr. Trump’s accounts would pose a serious risk of inciting imminent discrimination, violence or other lawless action. This assessment of risk should be based on the considerations the Board detailed in the analysis of necessity and proportionality in Section 8.3.III above, including context and conditions on and off Facebook and Instagram. Facebook should, for example, be satisfied that Mr. Trump has ceased making unfounded claims about election fraud in the manner that justified suspension on January 6. Facebook’s enforcement procedures aim to be rehabilitative, and the minority believes that this aim accords well with the principle of satisfaction in human rights law. A minority of the Board emphasizes that Facebook’s rules should ensure that users who seek reinstatement after suspension recognize their wrongdoing and commit to observing the rules in the future. In this case, the minority suggests that, before Mr. Trump’s account can be restored, Facebook must also aim to ensure the withdrawal of praise or support for those involved in the riots.
I don’t have strong thoughts on the moment on the overall framework or how Facebook ought to behave. The Board recognizes that Facebook’s actions have a significant role in democratic discourse and voting. Providing clear ex ante standards is important. And how it applies in future disputes remains to be seen.
