ACSBlog

  • December 16, 2016
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Illinois Institute of Technology Chicago-Kent College of Law

    On Monday, Dec. 19, 2016, the 538 members of the Electoral College will gather in their states to cast their votes for president. The expected outcome is that they will elect Donald Trump. But this year there has been a surprising amount of discussion of a different result, thanks to efforts of some electors themselves and a variety of academics, writers and advocates.

    Article II, section 1 and the Twelfth Amendment of the Constitution provide the framework for the Electoral College. Every state has a number of electors equal to their congressional representation – two Senators plus the state’s House delegation. (Under the Twenty-third Amendment, the District of Columbia also has three electors.) The state legislatures have the authority to determine how the electors are selected and there is no requirement that the selection be by popular vote. Nor is there a requirement that the states assign their electors on a winner-take-all basis, as almost all do. (Maine and Nebraska are the exceptions.)

    Once the electors are selected, they meet in their states and cast their ballots. They certify the votes and send them to Congress, which will meet in early January to count the votes. To become president, a candidate must receive a majority – at least 270 – of the electoral votes. If no candidate receives 270 votes, then the House of Representatives, voting in state delegations with each state receiving one vote, must choose between the top three electoral-college vote-getters.

    This system is an odd way to run an election in the 21st century. Its roots are in compromises made at the Founding to protect slavery and (arguably) to ensure the influence of smaller states. Some argue that there was no expectation that the electors would exercise independent judgment. But as Alexander Hamilton explained in Federalist 68, the Framers were concerned that the people might be taken in by an unqualified candidate and they wanted to ensure that “[t]alents for low intrigue, and the little arts of popularity” would not displace the “requisite qualifications” for the presidency. And, he added, “every practicable obstacle should be opposed to cabal, intrigue, and corruption.”  Finally, he argued that the electoral college would protect the country against “the desire in foreign powers to gain an improper ascendant in our councils.” It is hard to read this explanation for the Electoral College without wondering if Hamilton was prescient.

  • December 16, 2016
    Guest Post

    by Andrew W. Robertson, Acting Executive Officer of the History PhD Program, CUNY Graduate Center.  His newest forthcoming publication is The Oxford Handbook of Revolutionary Elections in the Americas, 1800-1910 (New York: Oxford University Press, 2018), ed. by Andrew W. Robertson and Eduardo Posada Carbó.  His current work in progress is Democracy in the Early Republic: America’s Other ‘Peculiar Institution’ and John L. Brooke, Distinguished Humanities Professor of American History at The Ohio State University. His current project are State Formations: Histories and Cultures of Statehood, co-edited with Julia Strauss and Greg Anderson, and Forging the Civil War North: Political Crisis, Fugitive Slaves, and Liminal Rupture in Antebellum America, 1850-1856.

    On Nov. 8, Donald Trump was elected president of the United States, winning a projected 306 Electoral College votes to Hillary Clinton’s 232. The election outcome surprised many veteran campaigners, politicians, pollsters, columnists and members of the public. The election result is an extreme outlier in the history of the republic – it is one of four out of 57 presidential contests since 1789 in which the Electoral College victor has not also won the even a plurality of the vote and one of eight in which the margin was two percent or less. The Electoral College will appoint a president, on its constitutional authority as directed by the states. Now, as in 1876, 1888 and 2000, the nation should carefully consult the documents that record its governing mandate, particularly in light of other more pressing clear and present dangers. 

    Perhaps the outcome of the election even surprised President-elect Trump. It is the surprises that have followed the election, however, that have pushed the U.S. to the brink of a constitutional crisis. Trump has refused to sell off his many properties around the globe or to place them in a blind trust, a situation that could place him in the position of receiving foreign emoluments.  While he initially announced that he would address potential conflicts of interest at a press conference on Dec. 15, he has now deferred any such discussion to January. Our situation is all the more complicated since Trump expressed his admiration of Vladimir Putin, the ruler of a country which for almost a century has been our country’s leading adversary. Trump has nominated for Secretary of State Rex Tillerson, the corporate chair of ExxonMobil, a company with billions of dollars at stake in the future of sanctions on Russia voted by the United States Senate. More ominously, this week the Central Intelligence Agency released its formal determination that Russian operatives had deliberately interfered in the presidential election to tilt the outcome towards Mr. Trump. The election process may have been so thoroughly compromised that public officials will need to consider whether it has been conducted fairly.  Russian interference would undermine the very legitimacy of the democratic process and could have grave and long-lasting consequences. In the words of Michael Morell, the former acting director of the CIA, this information is the “political equivalent of 9/11,” and “an existential threat to our way of life.”

    There has never been such a set of circumstances surrounding a presidential election in the history of the American republic. While Congressional leaders are considering an investigation of these charges, any such inquiry would require weeks to complete. These issues raise serious questions about whether Mr. Trump is constitutionally qualified to be president. None are likely to be resolved before the Electoral College meets to vote on Dec. 19.

  • December 15, 2016
    Guest Post

    by Kyle Barry, Policy Counsel at the NAACP Legal Defense Fund

    A memo released yesterday by a number of organizations, including the NAACP Legal Defense Fund (LDF), revealed gaping holes in Attorney General nominee Jeff Sessions’s response to his Senate Judiciary Questionnaire (SJQ) that preclude the Judiciary Committee from holding a thorough and complete hearing on his nomination. This finding also revealed that, as a nominee, Sessions apparently takes the SJQ far less seriously than he does as a Senator tasked with assessing nominees and that he is unwilling to hold himself to the same standard to which he holds other nominees who appear before the Committee.

    In 2010, when a judicial nominee failed to submit certain materials required by the SJQ, Sen. Sessions described a sacred role for the questionnaire in the confirmation process. In a letter, Sessions said that the failure to report a full list of speeches, panel discussions and publications showed “extraordinary disregard for the Committee’s constitutional role,” and an “unwillingness to take seriously [the] obligation to complete these basic forms” that “is potentially disqualifying.” Sessions argued that the Committee should postpone the nominee’s hearing to “maintain[] the integrity of the Committee’s constitutional advice and consent responsibilities[.]”

    In Sen. Sessions’s view, the obligation to provide full and accurate SJQ responses should be well-known to nominees appearing before the Committee. “[P]racticing lawyers and judges who are asked to fill out the questionnaire know how important full disclosure is,” he said. “They take an oath to accurately and completely respond to the questionnaire we submit to them.”

  • December 12, 2016
    Guest Post

    *This piece originally appeared on The Legal Examiner.

    by Arthur Bryant, Chairman of Public Justice

    The federal government says that court secrecy is preventing it from protecting consumers. To stop that, the U.S. Consumer Product Safety Commission just adopted a formal Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation, published in the Federal Register on Dec. 2, 2016. The Guidance urges all judges, plaintiffs, defendants and lawyers, as well as parties wishing to submit amicus briefs, to ensure that every protective and secrecy order and agreement “specifically allows for disclosure” to the “CPSC and other government public health and safety agencies.”

    The CPSC Guidance is an enormously important step forward for consumer protection that could reduce injuries and save lives nationwide. Judges need to make sure all protective and secrecy orders and agreements comply with it. Everyone should follow it. As the deadly, growing series of examples—from Remington rifles to Takata airbags to GM ignition switches—proves, court secrecy injures and kills.

    The danger is real—and avoidable. The Guidance specifically notes that “safety information related to dangerous playground equipment, collapsible cribs, and all-terrain vehicle defects was kept from the CPSC by protective orders in private litigation.” It cites protective orders in current cases involving allegedly defective propane heaters, wheelbarrows, markers, multimeter devices, office chairs and gas cans that prevent the CPSC from learning the truth. There are undoubtedly many more.

    Recognizing that fact, the CPSC advises parties currently negotiating “or already subject to” confidentiality provisions  to “use this Litigation Guidance and the CPSC’s standing as a public-health authority” to create an exception to them ensuring that information can be reported to the CPSC and other relevant agencies. It even provides draft language that could be used.

  • December 12, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    Jeff Sessions should be denied confirmation as Attorney General of the United States.  Sessions is at the far right of the political spectrum and should not be put in charge of federal civil rights and federal environmental enforcement. Although it would take political courage to stand up to the newly elected President, pressure should be placed on moderate Republicans to join Democratic Senators in denying confirmation to Sessions.

    The Civil Rights Division of the United States Department of Justice is responsible for enforcing laws prohibiting race discrimination in voting, employment, housing and policing.  Nothing in Sessions’ career offers hope that he would be other than a disaster in doing so.

    In 1986, Sessions was nominated to be a federal district court judge. He was denied confirmation by the Senate, with even a Senator from his home state of Alabama, Howell Heflin, voting against Sessions. An Assistant U.S. attorney who worked for Sessions, Thomas Figures, testified that he was repeatedly called “boy” by Sessions and was instructed by the Sessions to “be careful what you say to white folks” after Figures spoke assertively to a co-worker. Sessions has said that the NAACP and the ACLU are “un-American” and “communist-inspired” for “trying to force civil rights down the throats of people.”

    As a United States Attorney in Alabama, Sessions did nothing to enforce federal civil rights law, but he did prosecute three black activists for voter fraud, including a former aide to Martin Luther King Jr., Albert Turner. Turner had led marchers across the Edmund Pettus Bridge during the famous “Bloody Sunday” march in Selma, Alabama, on March 7, 1965. Turner and the other defendants were acquitted, but prosecutions like this one likely had a chilling effect on efforts to facilitate voting by racial minorities.