Derek T . Muller
Professor of Law, University of Notre Dame Law School.
Previously Ben V. Willie Professor in Excellence and Professor of Law, University of Iowa College of Law; Professor of Law, Pepperdine University School of Law; Visiting Assistant Professor of Law & Shughart Scholar, Penn State Law.
Phone: 5746315864
Address: 1116 Eck Hall of Law, Notre Dame Law School, Notre Dame, IN 46556
Previously Ben V. Willie Professor in Excellence and Professor of Law, University of Iowa College of Law; Professor of Law, Pepperdine University School of Law; Visiting Assistant Professor of Law & Shughart Scholar, Penn State Law.
Phone: 5746315864
Address: 1116 Eck Hall of Law, Notre Dame Law School, Notre Dame, IN 46556
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This story, of course, is also the story of the voter registration debates in late nineteenth century America.
This Article sketches that history and offers some general reasons why voter registration laws moved from controversial to generally-accepted. It then offers some comparisons to current controversies over voter identification laws. It concludes with potential lessons for the future administration of such laws and possible means of resolving seemingly intractable disputes.
This Article traces a series of legal quandaries that arose from the special election, some of which remain open questions for future Alabama elections, and for United States Senate elections more generally. Part I examines the scope of the Alabama Governor’s power to call for a special election under the Seventeenth Amendment and state law. Part II scrutinizes the complications for replacing a late-withdrawing candidate and for counting votes cast for a candidate who resigns. Part III identifies proposed gambits, from postponing the election to write-in campaigns, that never came to fruition. Part IV examines the timing surrounding certification of election results in Alabama. Part V looks at gaps in Alabama’s recount and election contest procedures. Finally, Part VI identifies the most significant opportunities to clarify Alabama law and to properly interpret the Seventeenth Amendment to avoid uncertainty in future elections.
But lowering the score may have significant costs. The bar exam is designed to be a test of minimum competence. Lowering the cut score means students who performed worse on the bar exam practice law. That may result in lower quality attorneys practicing in California. The California deans are skeptical that the higher cut score has a meaningful consumer protection role. The deans argue that the bar exam does not adequately measure professional competence and that the high California passing score is not necessary to ensure adequate professional responsibility and minimum competence in the practice of law.
In this Essay, we present data suggesting that lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers. Our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career. We investigate these claims by collecting data on disciplinary actions and disbarments among California-licensed attorneys. We find support for the assertion that attorneys with lower bar examination performance are more likely to be disciplined and disbarred than those with higher performance.
Although our measures of bar performance only have modest predictive power of subsequent discipline, we project that lowering the cut score would result in the admission of attorneys with a substantially higher probability of State Bar discipline over the course of their careers. But we admit that our analysis is limited due to the imperfect data available to the public. For a precise calculation, we call on the California State Bar to use its internal records on bar scores and discipline outcomes to determine the likely impact of changes to the passing score.
First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.
Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.
Judicial opinions and academic commentary typically examine ballot speech not as speech, but principally as the incidental by-product of election administration, subject to regulation in a balancing of interests. This Article suggests that ballot speech merits a different, more robust defense from the whims of election administrators and the deference of courts. Ballot speech should receive protection as speech under the First Amendment, rather than merely one element of the free association that candidates and voters share at the ballot box. The ballot more closely resembles a nonpublic forum. And state laws that unreasonably stifle the expression of candidates and voters, that enhance some candidates at the expense of others, or that attempt to put a thumb on the scale of the outcome of an election, cannot stand. It is time to recognize this new definition of ballot speech, and to provide an appropriate legal framework to protect it.
The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.
This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.
This Article examines an under-discussed element of the reapportionment cases - the extent to which the parties themselves and the clerks to the Supreme Court justices resisted advancing the kind of sweeping claims that the Supreme Court ultimately embraced. The Court’s errors in the redistricting cases arose in spite of repeated guidance from the litigants before the Court and the justices’ own clerks to decide the cases in a narrower fashion, or pursuant to existing constitutional standards. Through archival research, this Article demonstrates that all parties were reluctant to redefine all state legislatures under a single (and undertheorized) political definition. The Court took little heed of such modest proposals and instituted sweeping claims about how state legislatures ought to look. The Article then identifies the circumstances in which the Court finally embraced restraint - it permitted States to choose an appropriate population basis for drawing legislative districts, leaving the matter to the sound discretion of the several States. The Article identifies a lost footnote in an early draft of Burns v. Richardson, which would have articulated the most lucid basis for deferring to the States when they selected the appropriate redistricting population. The Article then reflects on the proposed expansion of these sweeping claims in Evenwel v. Abbott, an attempt to return to the judicial nationalization of state legislatures articulated in Baker and its progeny. The Article calls for an end to these redistricting errors and for greater deference to the States.
Such barriers to reform are both theoretical and practical. Theoretical because the Constitution is committed to a government in which the president represents all citizens of the States, voters and non-voters alike — and the maxim “one person, one vote” reinforces the notion that the president represents voters and non-voters. And the United States is not a single constituency in which one ignores States borders, but a number of smaller constituencies administering elections and determining voter eligibility. Practical because State decisions to enfranchise or disenfranchise a group of voters would no longer affect just that State, but would affect the national total — and States would have an incentive to manipulate voter eligibility laws to affect interstate vote totals. States would lower the voting age, disenfranchise felons, or redefine mental illness in order to add or subtract votes from a national vote tally. And any efforts to create a uniform federal standard for voting would stifle potential expansion of enfranchisement and inevitably disenfranchise some citizens who, today, have the right to vote. Presidential elections need States to continue to decide who votes, which precludes Electoral College reform. "
This Article does not attempt to address the merits or drawbacks of the system as a matter of policy. Instead, Part I begins with a brief history of the Electoral College, how the Compact works, and the current state of affairs regarding the Interstate Compact. In Part II, the Article analyzes the Compact Clause in Article I section 10 clause 3 of the United States Constitution. It first explores the history of the Clause, with roots that can be found in the Articles of Confederation. It then looks to three different theories of interpretation of the Clause: the Boundary Compact Clause, the Non-Political Compact Clause, and the Political Consent Compact Clause, which are progressively more permissive and have been adopted sequentially in some fashion by the Court, most recently accepting the most expansive interpretation. In adopting the Political Consent Compact Clause theory, the Supreme Court has acknowledged that Congress must consent to a Compact that increases State political power at the expense of federal supremacy, but the Court and commentators have been less forthright when addressing the need for consent when a compact implicates the interests of non-compacting sister States. This Article concludes that non-compacting States are a fundamental concern of the Compact Clause alongside concerns of federal supremacy.
In Part III, the National Popular Vote Interstate Compact is examined and found constitutionally deficient. The Compact is actually a compact under the Compact Clause of the Constitution, because the Court has broadly construed what makes a compact. In particular, because the Compact is not effective until a critical mass of States have enacted it, and because States are constrained from withdrawing from the Compact too close to a presidential election, the Compact falls under constitutional scrutiny. Additionally, the Compact addresses a political matter that affects the interests of non-compacting sister States, and the compacting States enhance their political power at the expense of other States. The Article examines the various defenses of the Compact but finds that none of them overcome the political interests of sister States. Therefore, barring congressional consent, the Interstate Compact would fail.
This story, of course, is also the story of the voter registration debates in late nineteenth century America.
This Article sketches that history and offers some general reasons why voter registration laws moved from controversial to generally-accepted. It then offers some comparisons to current controversies over voter identification laws. It concludes with potential lessons for the future administration of such laws and possible means of resolving seemingly intractable disputes.
This Article traces a series of legal quandaries that arose from the special election, some of which remain open questions for future Alabama elections, and for United States Senate elections more generally. Part I examines the scope of the Alabama Governor’s power to call for a special election under the Seventeenth Amendment and state law. Part II scrutinizes the complications for replacing a late-withdrawing candidate and for counting votes cast for a candidate who resigns. Part III identifies proposed gambits, from postponing the election to write-in campaigns, that never came to fruition. Part IV examines the timing surrounding certification of election results in Alabama. Part V looks at gaps in Alabama’s recount and election contest procedures. Finally, Part VI identifies the most significant opportunities to clarify Alabama law and to properly interpret the Seventeenth Amendment to avoid uncertainty in future elections.
But lowering the score may have significant costs. The bar exam is designed to be a test of minimum competence. Lowering the cut score means students who performed worse on the bar exam practice law. That may result in lower quality attorneys practicing in California. The California deans are skeptical that the higher cut score has a meaningful consumer protection role. The deans argue that the bar exam does not adequately measure professional competence and that the high California passing score is not necessary to ensure adequate professional responsibility and minimum competence in the practice of law.
In this Essay, we present data suggesting that lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers. Our analysis shows that bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career. We investigate these claims by collecting data on disciplinary actions and disbarments among California-licensed attorneys. We find support for the assertion that attorneys with lower bar examination performance are more likely to be disciplined and disbarred than those with higher performance.
Although our measures of bar performance only have modest predictive power of subsequent discipline, we project that lowering the cut score would result in the admission of attorneys with a substantially higher probability of State Bar discipline over the course of their careers. But we admit that our analysis is limited due to the imperfect data available to the public. For a precise calculation, we call on the California State Bar to use its internal records on bar scores and discipline outcomes to determine the likely impact of changes to the passing score.
First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.
Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.
Judicial opinions and academic commentary typically examine ballot speech not as speech, but principally as the incidental by-product of election administration, subject to regulation in a balancing of interests. This Article suggests that ballot speech merits a different, more robust defense from the whims of election administrators and the deference of courts. Ballot speech should receive protection as speech under the First Amendment, rather than merely one element of the free association that candidates and voters share at the ballot box. The ballot more closely resembles a nonpublic forum. And state laws that unreasonably stifle the expression of candidates and voters, that enhance some candidates at the expense of others, or that attempt to put a thumb on the scale of the outcome of an election, cannot stand. It is time to recognize this new definition of ballot speech, and to provide an appropriate legal framework to protect it.
The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.
This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.
This Article examines an under-discussed element of the reapportionment cases - the extent to which the parties themselves and the clerks to the Supreme Court justices resisted advancing the kind of sweeping claims that the Supreme Court ultimately embraced. The Court’s errors in the redistricting cases arose in spite of repeated guidance from the litigants before the Court and the justices’ own clerks to decide the cases in a narrower fashion, or pursuant to existing constitutional standards. Through archival research, this Article demonstrates that all parties were reluctant to redefine all state legislatures under a single (and undertheorized) political definition. The Court took little heed of such modest proposals and instituted sweeping claims about how state legislatures ought to look. The Article then identifies the circumstances in which the Court finally embraced restraint - it permitted States to choose an appropriate population basis for drawing legislative districts, leaving the matter to the sound discretion of the several States. The Article identifies a lost footnote in an early draft of Burns v. Richardson, which would have articulated the most lucid basis for deferring to the States when they selected the appropriate redistricting population. The Article then reflects on the proposed expansion of these sweeping claims in Evenwel v. Abbott, an attempt to return to the judicial nationalization of state legislatures articulated in Baker and its progeny. The Article calls for an end to these redistricting errors and for greater deference to the States.
Such barriers to reform are both theoretical and practical. Theoretical because the Constitution is committed to a government in which the president represents all citizens of the States, voters and non-voters alike — and the maxim “one person, one vote” reinforces the notion that the president represents voters and non-voters. And the United States is not a single constituency in which one ignores States borders, but a number of smaller constituencies administering elections and determining voter eligibility. Practical because State decisions to enfranchise or disenfranchise a group of voters would no longer affect just that State, but would affect the national total — and States would have an incentive to manipulate voter eligibility laws to affect interstate vote totals. States would lower the voting age, disenfranchise felons, or redefine mental illness in order to add or subtract votes from a national vote tally. And any efforts to create a uniform federal standard for voting would stifle potential expansion of enfranchisement and inevitably disenfranchise some citizens who, today, have the right to vote. Presidential elections need States to continue to decide who votes, which precludes Electoral College reform. "
This Article does not attempt to address the merits or drawbacks of the system as a matter of policy. Instead, Part I begins with a brief history of the Electoral College, how the Compact works, and the current state of affairs regarding the Interstate Compact. In Part II, the Article analyzes the Compact Clause in Article I section 10 clause 3 of the United States Constitution. It first explores the history of the Clause, with roots that can be found in the Articles of Confederation. It then looks to three different theories of interpretation of the Clause: the Boundary Compact Clause, the Non-Political Compact Clause, and the Political Consent Compact Clause, which are progressively more permissive and have been adopted sequentially in some fashion by the Court, most recently accepting the most expansive interpretation. In adopting the Political Consent Compact Clause theory, the Supreme Court has acknowledged that Congress must consent to a Compact that increases State political power at the expense of federal supremacy, but the Court and commentators have been less forthright when addressing the need for consent when a compact implicates the interests of non-compacting sister States. This Article concludes that non-compacting States are a fundamental concern of the Compact Clause alongside concerns of federal supremacy.
In Part III, the National Popular Vote Interstate Compact is examined and found constitutionally deficient. The Compact is actually a compact under the Compact Clause of the Constitution, because the Court has broadly construed what makes a compact. In particular, because the Compact is not effective until a critical mass of States have enacted it, and because States are constrained from withdrawing from the Compact too close to a presidential election, the Compact falls under constitutional scrutiny. Additionally, the Compact addresses a political matter that affects the interests of non-compacting sister States, and the compacting States enhance their political power at the expense of other States. The Article examines the various defenses of the Compact but finds that none of them overcome the political interests of sister States. Therefore, barring congressional consent, the Interstate Compact would fail.