[EL] ELB News and Commentary 3/27/17

[Rick Hasen]

Rewriting the Rules of Presidential Succession"<http://electionlawblog.org/?p=91804>
Posted on March 27, 2017 7:25 am<http://electionlawblog.org/?p=91804> by Rick Hasen<http://electionlawblog.org/?author=3>

Norm Ornstein<https://www.theatlantic.com/politics/archive/2017/03/rewriting-the-rules-of-presidential-succession/520860/> in the Atlantic:

The Constitution leaves a lot of leeway for Congress. So it is time to consider a new law, one that cleans up the issues and discrepancies in the existing succession act but does more. It should allow for a special election for president and vice president under extraordinary circumstances. Those could include a terrorist attack or an attack by a foreign power or others on Election Day or on the election system or process that destroys or distorts the results. It can also include foreign interference in the election combined with a winning party's involvement in or reinforcement of the interference. Such a provision would have to be carefully drawn and set a high bar, to avoid any chicanery to call an election for the wrong reasons. It would probably have to require a two-thirds vote in both houses of Congress.
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Posted in campaigns<http://electionlawblog.org/?cat=59>


"The Legislators Working to Thwart the Will of Voters"<http://electionlawblog.org/?p=91802>
Posted on March 27, 2017 7:21 am<http://electionlawblog.org/?p=91802> by Rick Hasen<http://electionlawblog.org/?author=3>

David Graham for the Atlantic:<https://www.theatlantic.com/politics/archive/2017/03/state-legislatures-overturn-ballot-initiatives/519591/?utm_source=twb>

"This isn't how democracy works," said Justine Sarver, executive director of the Ballot Initiative Strategy Center, a nonprofit that works with progressive ballot campaigns. "You don't get to pick and choose when you like a process and when you don't."

Sarver sees a trend of legislatures trying to restrict voters' ability to make laws and amend state constitutions around the country. The popularity of initiatives has ebbed and flowed across the years, and the roles of defender and critic have been fluid. But there are a few factors that make the present moment especially ripe for such conflicts. First, Republicans dominate state legislatures around the country<https://www.theatlantic.com/magazine/archive/2017/03/red-state-blue-city/513857/>, thanks to favorable redistricting maps drawn after the 2010 Census, even in states with sizable Democratic-leaning voter bases that want more progressive policies. Second, while ballots sometimes function to deal with purely state-level concerns, policy fights are increasingly nationalized. Groups like BISC and the Fairness Project<https://www.thefairnessproject.org/about/> are working to coordinate state-level pushes around the country on liberal reforms like paid sick leave, minimum-wage hikes, or recreational marijuana. Their opponents are working at the national level too. In November, ProPublica and The New York Times reported<https://www.propublica.org/article/clay-pigeons-how-lobbyists-secretly-woo-top-election-officials> on how major corporate lobbies, some convened under the auspices of the Koch brothers' political network, have sought to push back on ballot measures.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>


"Judging Ordinary Meaning"<http://electionlawblog.org/?p=91800>
Posted on March 27, 2017 7:19 am<http://electionlawblog.org/?p=91800> by Rick Hasen<http://electionlawblog.org/?author=3>

Justice Thomas Lee (Utah Supreme Court) and Stephen Mouritsen have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2937468> on SSRN. Here is the abstract:

Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there - out of respect for the notice function of the law or deference to the presumed intent of the lawmaker.

Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation.

We agree with the diagnosis of important scholars in this field - from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs - but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language - linguistics.

We identify theoretical and operational deficiencies in our law's attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning - from the famous "no vehicles in the park" hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law's conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.

When we speak of ordinary meaning we are asking an empirical question - about the sense of a word of phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.
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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>


Political Fragmentation and the Demise of the Health Care Act<http://electionlawblog.org/?p=91795>
Posted on March 26, 2017 11:38 am<http://electionlawblog.org/?p=91795> by Richard Pildes<http://electionlawblog.org/?author=7>

Over at the Washington Post's Monkey Cage blog, I have a piece today<https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/26/the-gops-health-care-failure-is-no-one-off-event-welcome-to-our-fragmented-politics/?utm_term=.d747368d54a3> that puts into a larger context the remarkable inability of the Republican Party to get the AHCA through the House.  Here is the opening:

The failure of the American Health Care Act is a stunning moment. Its failure was not just a one-off event that can be blamed on Donald Trump, Paul Ryan, or any specific politician. It is the culminating event in a broader process of "political fragmentation" that I have been<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2546042> writing<https://www.washingtonpost.com/news/monkey-cage/wp/2014/02/06/how-to-fix-our-polarized-politics-strengthen-political-parties/?utm_term=.8119f9c92af8> about for  the last several years.

By political fragmentation, I mean two things. One is how power within Congress has shifted from the party leaders to individual members of Congress, who are now far more capable of acting independently than in the past. The second is the shift in power from the political parties themselves to outside groups and actors.

The piece then highlights three structural changes that contribute to the inability of party leaders to bring along rank-and-file members for the party's signature legislative effort:

First, many members of Congress now depend less on the party's financial and other support. This was manifest in the highly public pledge<http://www.cnn.com/2017/03/22/politics/kochs-reserve-fund-health-care/> of the Koch Brothers network to support Republicans who bucked the party leadership. But it is not just these big funders that have changed the landscape. The communications revolution has enabled individual members of Congress to connect effectively with small donors throughout the country. Small donors (like other individual donors) tend to be the most ideologically polarized source of money in politics, and they further empower the extreme wings of the parties to stand up against more centrist leadership.

Second, committee assignments seem to matter less than at some points in the past, which also diminishes the leverage of party leaders. Committee assignments are less necessary for name recognition and fundraising. Committees are less important as centers of policymaking, as was obviously the case with the AHCA. Because committees were not particularly important designers of that bill, individual members had no significant role in shaping it.

Third, the end of earmarks has taken away a tool that party leaders can use to entice members to support legislation that party leaders view as a priority. Mark Schmitt has argued<http://www.vox.com/2015/7/15/8959731/earmarks-congress> that the loss of earmarks doesn't matter because many members are so philosophically opposed to earmarks they wouldn't accept them even if offered. That might be true of some, or even all, members of the House Freedom Caucus. But if this story<https://www.nytimes.com/interactive/2017/03/24/us/politics/republicans-opposed-health-care-bill.html> is accurate, only 15 of the 33 Republican AHCA opponents were part of the Freedom Caucus. Other Republican dissenters may have been more persuadable.

Because the forces driving the fragmentation of the parties are not confined only to the Republican Party, I think these phenomena will be reflected in the Democratic Party as well:

The Democratic Party is not immune to the forces driving political fragmentation. While tensions between the Sanders and Clinton wings of the party can be suppressed in the service of forging a united opposition, those tensions will surface when the party returns to a governing role.

On top of the political polarization between the parties, political fragmentation makes the political process even more unwieldy, even during unified government, and even less able to address many of the major issues of the day.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


"S.F. political scientist spots bias in rigged U.S. elections"<http://electionlawblog.org/?p=91792>
Posted on March 25, 2017 11:49 am<http://electionlawblog.org/?p=91792> by Rick Hasen<http://electionlawblog.org/?author=3>

James Matson oped<http://www.sfchronicle.com/opinion/article/SF-political-scientist-crafts-tool-to-spot-rigged-11024527.php> in the SF Chronicle:

A much-anticipated U.S. Supreme Court showdown soon will decide whether America's major political parties can continue to rig American elections without violating the Constitution.

The case of Whitford vs. Gill<https://www.brennancenter.org/analysis/ongoing-partisan-gerrymandering-cases> will test the court's willingness to finally set constitutional limits on that long-standing, pervasive form of election rigging known as partisan gerrymandering.

Taking center stage in Whitford, and playing a pivotal role, will be the innovative idea of a San Francisco political scientist.

Eric McGhee's<http://www.ppic.org/main/bio.asp?i=378> "efficiency gap" model may prove to be the elusive standard the court has been seeking to enable the justices to identify and rein in excessively partisan gerrymanders.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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