California's Wacky Electoral College Proposal

I heard about this on NPR the other day and found it intriguing. It's a proposal by the California legislature that would allocate all of California's Electoral College votes to the winner of the national popular vote (as opposed to the California popular vote, which is the current system). The article states that the legislation would become effective only if states with a combined vote count of 270 electoral votes did the same thing. Apparently Colorado, Illinois, Louisiana, and Missouri are considering similar legislation. If this eventually worked out, the winner of the national popular vote would be elected President and the Electoral College would essentially be eliminated apart from its formalisms.

This is obviously spurred by the 2000 election, when the debate over the legitimacy of the Electoral College gripped the nation mainly along partisan lines. Without the Electoral College, close presidential elections would largely be in the hands of the most populous states -- California, New York, and Texas. With the Electoral College, close elections are still largely in the hands of a few swing states. Either way, a handful of states wield disproportionate power in deciding who gets to be President. As a practical matter I think a system that chooses important states based on population is better than a system that chooses them based on purpleness (this coming, of course, from a life-long and committed resident of the great state of California).

But policy aside, is it constitutional? I've never studied Election Law, so I asked a colleague who had taken the course in law school. He said that he didn't study this sort of thing in Election Law, but did provide some valuable insights. He pointed out that states can't mandate how their Electors vote; state legislatures can only choose which Electors go to Washington. But he also pointed out that states currently choose the Democratic or Republican slate of Electors assuming they'll vote a certain way without forcing them to, so the statute could be workable on those grounds. He was also baffled at why any state other than California, New York, or Texas would go along with something like this. Finally, he made the observation that if the legislation is contingent upon a consortium of states with 270 votes, it would have to change after each census.

But this statute goes beyond changing the way electors are chosen and behave. It essentially eliminates the Electoral College system by allowing a consortium of do-gooder states to impose direct democracy by choosing the President based on the national popular vote. Could something like this happen without an actual Constitutional amendment? The reply was that we've already monkeyed around with the Electoral College without benefit of Constitutional amendments. The Electoral College as we know it today -- where electors are chosen based on statewide popular voting -- is a great deal different from the way it looked at the end of the eighteenth century. The fact that a change would have the substantive effect of removing all of the operative effects of the Electoral College shouldn't change that.

Okay, so it's constitutional. Back to policy. Is it a good idea? Armchair Justice says: YES!. The Electoral College strikes me as one of a number of compromises that was necessary to bring a series of would-be independent nation-states into a united federalist system (see the last clause of Article V of the U.S. Constitution for what is perhaps the most important compromise). It was a way of allowing smaller states to have more influence in the national election. That may have been a good idea back in the formative years of Our Nation, but it doesn't make a lot of sense today. There's no good reason for the President to be selected by other than a national popular vote.

But wouldn't this decrease the power of smaller states? Perhaps. If so, that's not a bad thing. A vote in California shouldn't be worth less than a vote in Wyoming simply because more people choose to live in California. Besides, as it stands now any state -- big or small -- only gets disproportionate influence in the Presidential election if it's a swing state. If California weren't reliably blue or reliably red, candidates would spend half their campaigns in the few hundred miles between San Diego and San Francisco.

I'd like to see this legislation come into effect, but it doesn't seem very likely.

The Priest and the Parking Ticket

A Catholic Priest was ticketed for parking in a hospital ambulance zone, and is now fighting the ticket. He parked there to deliver Last Rites to a dying patient after responding to an emergency call from a family member.

A generally applicable law that has an incidental effect of interfering with a particular religious practice doesn't run afoul of the Free Exercise Clause, and that seems to be the situation here. The priest doesn't seem to be proceeding on First Amendment grounds, however, but on "humanitarian grounds." He may have a point, but all things considered $115 doesn't seem like an unreasonable price to pay to ensure someone's passage into Heaven. It might be time for the patient's family to make a donation in that amount to the church.

Hooray Exclusionary Rule

The recent ruling regarding the NSA's warrantless wiretapping has led to a lot of discussion about the warrant requirement in the Fourth Amendment, including a debate over at the Volokh Conspiracy about the originalist interpretations of the amendment. I'm not a big fan of originalism, since I subscribe to the idiotic belief that individual rights were not frozen in time in 1791, but this post by Randy Barnett raises some interesting issue. The post is a synopsis/commentary regarding Akhil Amar's originalist interpretation (which Orin Kerr refutes via Thomas Davies in this post). Although the Conspirators seem to be discussing the warrant requirement itself, I'm more interested in the exclusionary rule, which is the rule that evidence obtained by law enforcement in violation of the Fourth and/or Fifth Amendments is inadmissible against the person whose rights have been violated (which means, by the way, that if the police violate someone else's constitutional rights and find evidence that inculpates you, they can use it against you).

The exclusionary rule is a judge-made doctrine, which leaves it open to criticism of this sort. And with the Supreme Court having recently ruled, in Hudson v. Michigan, that the exclusionary rule does not apply to a police officer's failure to "knock and announce" before executing a warrant, some are saying that the exclusionary rule may soon be a thing of the past. This would be very bad. A rule is only as effective as its consequences -- and excluding key evidence that was obtained illegally is quite a consequence. Not having an exclusionary rule may have made sense in colonial times when, according to Amar, law enforcement officials could be sued for trespass for violating the Fourth Amendment. However, since the advent of sovereign immunity interpretation of the Eleventh Amendment (another Supreme Court-made doctrine, despite the fact that we fought a whole revolutionary war to rid ourselves of this kind of monarchistic nonsense), such civil suits are no longer available as a remedy. The only realistic way to give the protections of the Fourth and Fifth Amendments any teeth at all is to invalidate the illegal investigative conduct by barring the illegally obtained evidence.

The Supreme Court dug a hole for itself by reading the Eleventh Amendment to say that "The King State can do no wrong." Eliminating the exlusionary rule would mean that the Eleventh Amendment repealed the Fourth and Fifth.

As for the warrant requirement itself, it seems clear to me that the warrant clause and the unreasonable search and seizure clause are two different things. The Court has mashed them together by holding that a warrantless search is per se unreasonable (unless it falls into one of a number of clearly defined exceptions). A better rule might be that a search supported by a warrant is per se reasonable, while a warrantless search is subject to some sort of reasonableness inquiry by the court. I'm not afraid of a little judicial discretion here and there, so that kind of rule would be fine by me.

First Amendment Victory for Philadelphia Strip Club

The Third Circuit has struck down a lewdness statute as overbroad under the First Amendment, allowing the topless bar that challenged the suit to proceed with its alcoholic breast-exposing activities. The case sort of goes into what a lewdness statute can cover without being unconstitutional -- naked ballet, naked concerts, and naked "ordinary theater" must be exempted, apparently.

More interesting, from my own law geek perspective, is the song-and-dance about distinguishing the case from an earlier Third Circuit case that held a similar New Jersey statute constitutional. The government argued in the current case that the statute was fine because it was only enforced against strip clubs, and thus didn't supress legitimate expressions of nakedness. The court disagreed, saying that the statute, as written, could be enforced against too many different types of entertainment. What saved the New Jersey statute in the previous case was the fact that a New Jersey state court had interpreted the statute as applying only to purely sexual establishments, and with that gloss by the court the statute was not overbroad. The Pennsylvania courts haven't applied a similar interpretation to the statute at issue here.

The case is Conchatta Inc. v. Miller.

Supreme Court November Oral Argument Schedule

SCOTUSblog has the day-by-day schedule of the first round of oral arguments for the upcoming term. Since the Supreme Court only exists to decide abortion cases, mark November 8 on your calendar.

Fantasy Baseball and the Non-Copyrightability of Facts

Continuing the tradition of stupid baseball-related lawsuits (the best to date being the imbroglio over the Los Angeles Angels of Aneheim), MLB teams and the players union sued a fantasy league operator for running the league without the express written consent of Major League Baseball. A judge has tossed the lawsuit, holding that player statistics are historical facts and therefore not copyrightable.

The players are expected to appeal, and the suit may go forward on right of publicity/misappropriation grounds. These are basically state law claims that people turn to when they can't get what they want out of copyright law (Supremacy Clause be damned). There was at least one case in California where a right of publicity claim succeeded where a copyright license failed -- a celebrity successfully sued for misappropriation where an advertiser (or maybe a pinball machine designer, I may be getting my cases confused) had licensed a copyrighted image from the movie studio. Kozinski didn't like that one bit.

Who Says the Commerce Clause is Boring?

It's fitting that my first post here would be about a Commerce Clause case, since I'm a long-time devotee of the increasingly powerful grant of Congressional authority. One of the few Constitutional provisions that grants Congress the power to regulate day-to-day private activities (by granting authority to regulate interstate commerce), it has been used by Congress, with varying degrees of success, to regulate things like violence against women (struck down), handguns near schools (also struck down), and marijuana cultivation (upheld!). The fact that none of these things have any realistic association with interstate commerce illustrates the fact that Congress has necessarily stretched the limits of the Commerce Clause in order to satisfy its yearning for plenary police power over private activity.

And the Supreme Court has reacted to this envelope-pushing with varying degrees of tolerance. The conventional wisdom is that the "conservative" justices favor limited commerce power, promoting the federalist principle that the regulation of private activity should be left to the states. "Liberal" justices, meanwhile, favor federal regulations and are therefore willing to stretch the definition of "interstate commerce."

The pro-federal regulation camp won a major victory last year in Gonzales v. Raich, where the Court held that the private, purely intrastate cultivation of marijuana could legitimately be regulated by Congress under the Commerce Clause. The "liberals" on the Court carried the day. This was a head-scratcher to a lot of non-law geeks who figured the liberal justices would side with the pot smokers.

So, what could be more exciting than a Commerce Clause case about marijuana? How about a Commerce Clause case about child pornography? That's right, the Eleventh Circuit, applying Raich, has held that a federal statute criminalizing child pornography is constitutional where the film and paper used to create the offending materials traveled in interstate commerce. In U.S. v. Smith, the Eleventh Circuit read Raich as standing for the premise that "Congress may regulate purely intrastate activity, whether economic or not, that could be rationally considered incident to Congress’s comprehensive regulation of interstate economic activity." (Emphasis added.)

This basically means that Congress can regulate anything as long as it involves somebody buying something. Or, not buying something that they might otherwise have bought if they weren't doing the thing. If that isn't plenary federal police power I don't know what is.

About this Blog

Armchair Justice is the anonymous blog of an attorney (known to us only as "AJ") who would like his professional career to advance unfettered by his public legal ramblings.

Most of the posts on this blog will relate to recent or pending legal decisions or legal issues. The cases and issues will be selected for commentary based on their high-profile nature and/or overall law geekiness. Decisions which AJ regards as particularly ass-headed will receive special attention, since a lawyer is never more entertaining than he is when in dissent.

AJ is a graduate of a fancy-pants law school living in San Francisco. He's a legend in his own mind. He likes to write about himself in the third person, just like he's doing right now.

Introduction

Welcome to Armchair Justice.

More to come!

(Seriously.)