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Are the New Republican Primary Rules a Problem for California in 2016?

The Republican National Committee recently enacted a number of changes to the rules governing its primary process. (Rules changes are a frequent occurrence, and the specific changes are generally a response to the received wisdom about what went wrong last time.) Frontloading HQ has a good round up of the changes.

The general thrust of the rule changes is to compress the primary calendar for the Republican Party. Instead of a process that lasts from January to July, as happened in 2012, the party is trying to get everyone to hold their nominating events between February and May. Here are the big changes in the rules:

  1. The RNC increased the penalties for states that schedule their nominating events before the primary window opens on March 1. (Iowa, New Hampshire, Nevada, and South Carolina will all still be allowed to have earlier events.) Last cycle, Florida, Michigan, Minnesota, and Arizona (among others) all scheduled their events in violation of party rules. This cycle, the penalties for doing so will be greater.
  2. States that hold their primaries in the first part of March will have to allocate their delegates on a proportional basis. (Although, that’s not too hard to do and it doesn’t change the results that much. Again, see Frontloading HQ.)
  3. The RNC plans to schedule its nominating convention in July rather than August. (The belief is that Romney was hurt in 2012 because he couldn’t spend general election money until after he was formally nominated.)
  4. The RNC now requires that states pick their delegates to the nominating convention at least 45 days before the convention begins.

It’s really these last two changes that matter for California. In 2012, our presidential primary took place on June 5. Although we like to pretend that we know the results the day after an election, the results for this election were not certified by the Secretary of State until July 13–38 days after the election. If the same 45-day rule had applied, the earliest the RNC convention could have been held and for California to be compliant would have been the end of August.

Assuming the same patterns and no changes in the date of California’s 2016 primary, California would be in compliance only if the convention were held in the middle of September. But the RNC wants to hold the convention in July. So something is going to have to give. Either California will have to move its presidential primary date earlier, or the RNC is going to have to let California designate its delegates late.

My guess? We move our primary forward. The last time neither party had an incumbent presidential nominee, 2000, California moved its primary forward to March 7. In 2004 and 2008, when the Democratic Party did not have an incumbent candidate, the primaries were respectively held on March 2 and February 5. Only in 2012, when Barack Obama was running for re-election did the state keep its presidential primary at the June date.

That said, we allocate our delegates on a winner-take-all basis. If you get more votes that the next person, you get all of the delegates. Assuming we move the primary to the first part of March as we have in the past, then the California Republican Party will have to change how it allocates delegates to the different candidates.

Update: Frontloading HQ indicates that there is an exception to the 45 certification requirement for states that are controlled by Democrats and therefore may not be inclined to move the primary just to abide by RNC rules (e.g., California). That said, I still expect California to move its primary to March in order to be influential in the Democratic primary process.

The Voting Wars Come to California

Rick Hasen calls this kind of thing voting wars, the extension of partisan conflict into the voting process. Last week, the California Secretary of State certified a ballot initiative for circulation (meaning its sponsors can begin to collect signatures) that would require every California polling-place voter to present a government-issued photo identification and every postal/absentee voter to include information from a government-issued identification (e.g., the last four digits of a Social Security number) in order for their vote to be counted. Never mind that the evidence for the kind voter fraud this requirement addresses is basically non-existent and that these kinds of requirements tend to discourage minorities, poor people, and the elderly from voting. Interestingly, this petition comes shortly after California enacted a new law (SB 360) that allows the state to experiment with new voting technologies (hello, internet voting!) in an effort to help more people to vote.

Here’s the official synopsis:

ELECTIONS. VOTER IDENTIFICATION REQUIREMENTS. INITIATIVE STATUTE. Prohibits citizen’s vote at the polls from being counted unless he or she presents government-issued photo-identification. Establishes provisional voting for citizens at the polls who fail to present government-issued photo-identification. Requires that provisional ballots and mail-in ballots be deemed invalid unless the accompanying envelope contains the citizen’s birthdate, and citizen’s identification number or last four digits of driver’s license, state identification card, or social security number. Requires that election officials verify this information prior to opening or counting ballot. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Increased local government elections costs and decreased state fee revenues, potentially in the range of tens of millions of dollars per year. Potentially increased state funding (about $100 million) to local governments, offset by an equal amount of decreased state funding to local governments in future years. (13-0039.)

Be sure to look for it at a supermarket or mall near you. Then, walk away without signing the petition.

The Future of California Politics?

The California Department of Finance released its new population projections for California counties through 2060. There are a whole bunch of goodies in the report, so I thought I would highlight a few of them here.

First, by 2050, Hispanics are projected to be the plurality ethnicity in California. Here’s the projected ethnic makeup (see p. 6) of California in 2010 and 2060:

PopProjectionsBy 2060, Hispanics will make up 48% of the population (up from 38%), Whites will be 30% of the population (down from 40%), Asian and Pacific Islanders will be 13% (same), African Americans will be 4% (down from 6%), and everyone else will be 5% of the population.

In terms of future voters, these changes have potentially significant implications for California politics. I am not one of the people who thinks that “demographics are destiny” in terms of party politics, at least over the long run, so I don’t think these changes mean that the Republican Party is looking at long term irrelevance in California. If the party keeps its current platform, sure, but there is no reason it has to. Both parties, though, are going to have to adapt to the changing electorate as the issue sets of Hispanic voters are different than the issue sets of white voters.

Second, California will remain relatively young relative to the rest of the country. Our economy (and our budget) will not be as heavily impacted by the Baby Boomers and Generation X moving into retirement. There will still be significant demand, and resources, for public education. The aging of the population will not be uniformly distributed across ethnicities, which will also have significant implications for politics. Whites will grow older faster than any other ethnic group. By 2030, there will be more whites over the age of 65 than under the age of 25 in California. In contrast, there will by almost three times as many Hispanics under the age of 25 as there are Hispanics over the age of 65.

Third, the population–and therefore power–will continue to move inland. Southern California (particularly Los Angeles County) will remain the 800-pound gorilla in California politics, but the Central Valley (Sacramento and San Joaquin valleys) and the Inland Empire (San Bernardino and Riverside) will see their relative populations grow with the rest of the state seeing their relative populations decline. The Central Valley will see its relative population grow 27% between 2010 and 2060. The Inland Empire will see relative growth of 28%. The Bay Area, in contrast, is projected to see the steepest decline in its relative population (down 10%). These changes mean that over time the Central Valley and Inland Empire will gain representatives in Sacramento and Washington DC while other areas see their representation decine.

Fourth, San Joaquin County will more than double in size between 2010 and 2060. San Joaquin will go from being the 15th largest county in California (with just under 700,000 residents) to the 12th largest county (with over 1.5 million residents). Hispanics will account for more than half of this growth.

 

Gay Marriage and the Supreme Court – How Will it Decide the Issue?

November 12, 2012 9 comments

In my last blog, I discussed the question of whether the Supreme Court is more likely to grant certiorari to the various DOMA petitions that raise same sex marriage issues in relation to the distribution of federal benefits or to grant review to the Prop. 8 case that raises the substantive question of whether gay marriage is protected under the Constitution. The Court will meet in conference to review the gay rights petitions on November 20, and the electoral victories for gay marriage laws in Maine and Maryland will only elevate the prominence of the issue for the justices (Liptak 2012). Assuming the Supreme Court does grant cert to California’s Prop. 8 case, a more compelling question, at least from my perspective, is how the Supreme Court might rule on the substantive issue of gay marriage. In a couple of articles, Denniston suggests that the Court may end up simply deciding the case on the same narrow grounds as the Ninth Circuit Court did, namely that a state cannot take away a Constitutional right of homosexuals to marry once the Supreme Court had already recognized that right under the state Constitution (Denniston 2012a, Denniston 2012b). Although this outcome may indeed occur, judicial scholars and court watchers would be far more interested in trying to predict how the Supreme Court Justices would resolve the substantive question at hand:  Do same sex couples have a Constitutional right to marry?

The attitudinal model of judicial behavior provides a method for answering this question. Over the past fifty years, the attitudinal model has dominated judicial scholarship in the United States as the leading explanation for how justices vote in specific cases. Indeed this model of judicial decision-making has gained such prominence, that in one of my articles I suggest that it has generated a “cottage industry of work assessing the validity of the attitudinal model across a wide range of … courts” (Wetstein and Ostberg 2005). Advocates of this theory, like Jeffrey Segal and Harold Spaeth (1993, 2002), argue that justices come to the Supreme Court with certain attitudes and values about various political, social, and economic issues. These attitudes and values, in turn, necessarily influence how they vote in specific cases across a wide spectrum of issues. These attitudes and values that the justice bring to the Court play the most important role in explaining judicial decision-making. Scholars, like Segal and Spaeth argue the values of a Supreme Court justice have a more pivotal role in determining how they vote than precedents, small group interaction, or whether they adhere to a philosophy of judicial activism or self-restraint. What this boils down to is that conservative justices vote conservatively and liberal justices vote liberally across a broad range of issues.

You might be saying to yourself — well of course this is true, but scholars are always looking for evidence to back up the theories they advocate. The Court’s ruling in Bush v. Gore, 531 U.S. 98 (2000), provides one of the best examples of attitudinal decision-making on the modern high Court, where the five most conservative justices ruled in favor of the Bush position on the recount of votes in Florida while the four most liberal justices sided with Gore’s position. Although they believe that attitudes play a role at all judicial levels, as Segal (2006) points out “it should be at its highest at the U.S. Supreme Court level.” Attitudinal arguments hold considerable weight in the realm of political science because these scholars have managed to show across hundreds of empirical studies the veracity of this claim.

If we apply this approach to the Prop. 8 issue, we find that the current Court is equally split 4 to 4 down liberal and conservative lines, with Justices Roberts, Alito, Scalia, and Thomas found at the conservative end of the liberal-conservative spectrum, and Justice Breyer, Ginsberg, Sotomayor, and Kagan anchoring the liberal end. Ironically, the justice who is found in the middle on many Constitutional issues that wind their way to the Roberts Court is Justice Kennedy, who taught at Pacific McGeorge for over thirty years. For example, in the first term of the Roberts Court, Justice Kennedy joined the majority in 24 cases decided by a 5-4 margin, the most of any justice (SCOTUSblog). As in many other Constitutional cases, judicial scholars and lawyers alike believe he holds the pivotal vote in the gay marriage debate. Indeed, his vote is considered so important, that Theodore Olson and David Boies, who started the Prop. 8 lawsuit, carefully constructed their arguments in the case with Justice Kennedy in mind in the event this case actually reached the Supreme Court (Socarides 2012).

To understand how Justice Kennedy might decide the Prop. 8 issue one might turn to the stances he has taken in his prior rulings in the gay rights area for some evidence, especially those at the Supreme Court level. In 1980, when Justice Kennedy was on the Ninth Circuit Court of Appeal, he joined the majority in upholding a policy that allowed the military to discharge homosexuals because of the additional security demands that must be maintained and enforced in the military context, but he acknowledged that in other situations such a policy might not be warranted (Beller v. Middendorf, 632 F.2d. 1388 (1980, 9th Cir.)). His stance on gay rights became more evident once he joined the Supreme Court, and is most readily found in his precedent setting ruling in Lawrence v. Texas (156 L. Ed. 2d. 508 (2003)). In that case, the Court struck down a Texas law criminalizing homosexual sodomy between consenting adults as a violation of their liberty interest under the Due Process Clause of the 14th Amendment. Justice Kennedy, writing for the majority claimed, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions” (Lawrence v. Texas, 156 L. Ed. 2d 508, at 562). This ruling overturned Bowers v. Hardwick, 478 U.S. 186 (1986), an earlier Rehnquist Court ruling which upheld a similar Georgia statute, and also underscored Justice Kennedy’s personal liberty and human dignity jurisprudence.

Justice Kennedy also demonstrated the ideals of personal and political liberty in his earlier majority opinion in Romer v. Evans, 517 U.S. 620 (1996), where the Court struck down a voter adopted amendment to the Colorado Constitution that prevented state and local government from creating ordinances and statutes that barred homosexual discrimination. According to Justice Kennedy, this amendment must be struck down because it identified, isolated, and treated one group of citizens differently from all other citizens, and thus violated the Equal Protection Clause of the 14th Amendment. At one point he stated, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but not others, specific legal protections from the injuries caused by discrimination, and it forbid reinstatement of these laws and policies” (Ducat 2009, 1316). Taken together, Justice Kennedy’s prior rulings indicate that if the Court were to agree to hear the Prop. 8 case during the 2012 term, and decide the issue on its merits, the Supreme Court would probably hand down a 5-4 ruling in favor of same sex marriage. Such a decision would place the Court and Justice Kennedy on the “right” side of history as public opinion shifts increasingly toward support for gay marriage. This shift in public opinion is evident in the voter sentiment last week supporting gay rights in Maine and Maryland.

Despite this prediction, one must keep in mind that it is not easy to predict how the middle justice on the Supreme Court, in this case Justice Kennedy, will vote in a given dispute or issue area. This points to one of the limitations of the attitudinal model. Although scholarship has found that it is easy to predict the judicial voting behavior of judicial ideologues, or those that are found at the extreme end of the liberal-conservative spectrum, it is much harder for attitudinalists to predict how more pragmatic, centrist justices will rule on a controversial constitutional issue. Despite this underlying flaw in the attitudinal approach, the model provides one of the most powerful explanations for judicial decision-making on the U.S. Supreme Court to date.

Works Cited
Beller v. Middendorf, 632 F.2d. 1388 (1980, 9th Cir.).

Bowers v. Hardwick, 478 U.S. 186 (1986).

Bush v. Gore, 531 U.S. 98 (2000).

Denniston, L. (2012a, August 22). Gay marriage cases: Now up to seven. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/gay-marriage-cases-now-up-to-seven.

Denniston, L. (2012b, August 10). Judge: No right to same-sex marriage. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/judge-blocks-same-sex-marriages.

Ducat, Craig R. 2012. Constitutional Interpretation, Ninth Edition. Boston: Wadsworth-Cengage.

Lawrence v. Texas, 156 L. Ed. 2d 508 (2003).

Liptak, Adam. 2012. States’ votes for gay marriage are timely, with justices ready to weigh cases. New York Times, November 8, 2012, P7.

Romer v. Evans, 517 U.S. 620 (1996).

SCOTUSblog. 2012. Statistics. Retrieved October 1, 2012 from SCOTUSblog: http://www.scotusblog.com/statistics.

Segal, Jeffrey A. 2006. The Attitudinal Model. Retrieved August 31, 2012, from Empirical Legal Studies Blog: http://www.elsblog.org/the_empirical_legal_studi/2006/07/the_attitudinal.html.

Segal, Jeffrey A., and Harold J. Spaeth. 1993. The Supreme Court and the Attitudinal Model. Cambridge: Cambridge University Press.

______. 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press.

Socarides, Richard. 2012. Gay Marriage Battle Heads for the Supreme Court. Retrieved September 3, 2012 from Newyorker.com: http://www.newyorker.com/online/blogs/newsdesk/2012/06/gay-marriage-battle-surpeme-court.

Wetstein, Matthew E., and C.L. Ostberg. 2005. “Strategic Leadership and Political change on the Canadian Supreme Court: Analyzing the Transition to Chief Justice.” Canadian Journal of Political Science 38 (3): 653-73.

The Vanishing California Republican Party?

November 7, 2012 4 comments

Buckle up California. The state Republican Party is flirting with complete irrelevancy this election. If the current returns hold, Democrats will control 2/3 of both the State Senate and the State Assembly, giving them complete freedom in Sacramento. The one lever that the Republican Party has held in California politics–especially after Prop. 25 (2010) lowered the threshold for passing a budget to a simple majority–is that a 2/3 vote is required to raise revenue. They may not have that lever any more.

There are 40 State Senators, and 27 votes (2/3*40=26.8) are required to pass a revenue increase. The Democrats already control 14 seats, and appear to be winning 14 more. There are no close contests here. Democrats should have the 2/3 supermajority required in the State Senate.

There are 80 Assembly members, and 54 votes (2/3*80=53.6) are required to pass a revenue increase. The Democrats appear to have won 54 seats. The two closest contests are AD-65 (Anaheim), where Sharon Quirk-Silva (D) leads Chris Norby (R) by just 1,004 votes, and AD-32 (Hanford), where Rudy Salas (D) leads Pedro Rios (R) by an even more minuscule 268 votes. Expect some lawsuits over the recount here, because right now 268 votes are all that stand between Republican relevance and Republican irrelevance.

Of course, all these numbers are provisional. That said, if the results hold after the various recounts, the Republican minority won’t even need to bother to show up in Sacramento. The Democrats won’t need them to do anything.

Update [11/8 at 5:00 PM]: Both Salas and Quirk Silva still lead. Salas’s margin is still at 268 votes. Quirk-Silva’s has gone up to 1,043 (up 39).

Update [11/13 at 11:30 AM]: Salas is now way ahead, having built a 2,500 vote lead. Given the low number of votes in the district, the difference is enough to move it off the Secretary of State’s “close contest” list. Quirk-Silva’s lead is now the smallest (at least in those contests where a Democrat is facing a Republican) at a little more than 2,200 votes.

Prop. 14 and California’s Minor Parties

October 24, 2012 2 comments

This op-ed appears in today’s LA Times. I’ve expanded it a little to document some of the claims from political science research.

When sample ballots started arriving this month, many California voters must have wondered where all the candidates went. Previously it was possible to vote for someone other than a Republican or Democrat; most voters will not have that option this year. Some won’t even get to choose between a Republican and Democrat. They’ll have to pick between two Democrats or two Republicans.

What happened to all the other candidates? Proposition 14 and the California Legislature happened. Neither was good for democracy.

One characteristic of democratic systems is that voters have freedom of choice; they get to cast their ballot for whomever they consider the best option. In American politics, that means if the Republican and Democratic candidates aren’t good enough, they can vote independent, Libertarian, Green or write in someone else. Even if the candidate doesn’t win, voters still get to make their preferences known.

Proposition 14 and the Legislature removed that possibility.

Proposition 14, passed in 2010, changed California elections from a system with partisan primaries followed by a general election to a two-stage run-off election. Before, political parties and their voters nominated candidates in separate primaries. Every qualified party was guaranteed a line on the November ballot, and voters were able to choose from among those candidates. Now, all the candidates for congressional, state legislative and statewide offices–regardless of party–appear together on the first ballot, and only the top two candidates–again, regardless of party–compete in the general election.

To be sure, there were good motives for changing the electoral system. The hope was that doing so would reduce the level of partisan dysfunction in Sacramento. Unfortunately, political science research finds that open primaries do not necessarily lead to less-partisan legislatures (see here, ungated; here, gated; and here, ungated version). In fact, they can lead to just the opposite.

The change did discourage minor party candidates from running. More important, as a minor party representative told me, it discouraged the recruitment of candidates. Why try to persuade people to put their time, energy and money into what is almost certainly a brief, losing effort? When most people identify and vote either Republican or Democratic, the odds of a Libertarian or Green Party candidate getting one of the top-two spots is incredibly small. In the old system, the candidates were guaranteed to appear on the November ballot. Now, they are almost guaranteed not to appear on the ballot.

A minor party candidate’s best chance to make the general election ballot is to run against an unopposed incumbent, but the Legislature made a change that discouraged them from even considering that. It made running for office much more expensive for minor party candidates. In order to appear on the ballot, all candidates have to either pay a fee ranging from about $1,000 to $2,000, depending on the office being sought, or gather signatures from registered voters in lieu of the fee. In February, the Legislature increased the number of signatures needed for minor party candidates from a maximum of 150 to between 1,500 and 10,000, depending on the office.

Unlike the major parties, minor parties and their candidates do not have the resources to gather the requisite signatures. There are also far fewer people who identify with the minor parties in each district. The change, then, was a de facto increase in the filing fee for minor party candidates.

Political science research shows that even minor increases in filing fee costs and signature requirements can decrease the number of candidates seeking office (see here and here). Moreover, the effect is larger for minor parties than for the major parties. Representatives from California’s minor parties told me that the new signature requirement had a chilling effect on their ability to recruit people to run for office. People who would have run in 2010 (and, in some cases, did) chose not to in 2012.

Is it any wonder, then, that 2012 saw the fewest minor party candidates in California in almost 50 years?

Elections in a democracy are supposed to be about choice. Proposition 14 and the Legislature reduced voters’ choice and made California elections less democratic.

Campaign Advertising Lies

September 27, 2012 2 comments

While reading Rough & Tumble (rtumble.com) this morning,* I came across a story in the Ventura County Star by Timm Herdt about a group, the California Senior Advocates League PAC (ID#1327236), which had released an ad in San Diego attacking Fran Pavley (D). Pavley is seeking reelection in State Senate District 27. The ad implies that as a member of the state government, Pavley has been enriching herself at the taxpayers’ expense. It doesn’t mention her opponent. So far, nothing new or unusual.

The add, though, contains a bald-faced lie. It says that Sen. Pavley earns $261,000 in tax-free salary each year. This statement is wrong on so many levels its incredible. First, the annual salary for a State Senator is $90,526 not $261,000. Second, like everyone else’s salary, hers is taxed by both the state and the federal governments. There are additional benefits that legislators receive, such as a per diem for travel expenses (she lives in Agoura Hills in SoCal but the legislature is in Sacramento), which might get you up to an annual “salary” of $261,000, but, again, she pays taxes on the money she makes.**

Then I checked yesterday’s pile of mail. In it was a campaign flyer from the California Senior Advocates League PAC attacking the Democratic candidate in my local State Senate district, Cathleen Galgiani. It has the same basic lie in bold print in multiple places. The lie is a little different because Galgiani is a member of the Assembly, so it says she makes $180,000 a year in tax-free salary. It’s a lie none the less.

So who is the California Senior Advocates League PAC? The name implies that it is a group looking out for the interests of seniors in California, right? Mr. Herdt tried to find out who they really were by calling their offices, but was rebuffed. Electiontrack.com shows all of the donors and amounts given to the League. The lion’s share of its money this cycle ($563,500 of $616,630) comes from the California Now Independent Expenditure Committee. (The California State Republican Party was a big contributor in the past, which should give you a clue about the organization and why it is targeting Democrats.) What is the California Now Independent Expenditure Committee? Mr. Herdt did the leg work here: It’s basically Chevron and Philip Morris by way of the California Chamber of Commerce.

So here we have at least two corporations seemingly funneling money through an ambiguously named organization to run ads that lie about candidates seeking office. Is it any wonder that most people hate the current campaign finance system? Wouldn’t it be better if Chevron and Philip Morris could spend the money directly–and we all knew about it–rather than having this byzantine labyrinth to navigate?

* Rough & Tumble aggregates California politics news stories from the major papers in California as well as some from out of state. If you at all care about California politics, Rough & Tumble should be on your morning reading list.

** There is a separate conversation to be had about the per diem that legislators receive. Personally, I think the legislature tends to abuse the per diem by gaming the system to continue receiving the benefit when it is clearly not in session. That would be a conversation worth having. The ad, though, conflates the two things in a way that is intentionally deceiving.

The Gay Marriage Issue and the Supreme Court Docket

September 23, 2012 14 comments

The Supreme CourtAs we approach October, it is clear that a critical Constitutional issue is likely to make its way onto the Supreme Court docket in the upcoming term: the issue of gay marriage. This is not surprising since questions surrounding this issue have been slowly winding their way to the Supreme Court for well over a decade. According to Lyle Denniston, by the middle of August there were as many as seven petitions filed with the Supreme Court pertaining to the gay marriage issue (Denniston, Gay marriage cases: Now up to seven 2012a). Denniston claims that these seven petitions can be subdivided into two distinct categories that would present disparate but related constitutional issues the Supreme Court might address. While six of the petitions deal with the constitutionality of critical portions of the Defense of Marriage Act (DOMA – a federal law which only allows heterosexual couples to receive certain federal benefits), the Proposition 8 petition addresses the constitutionality of a voter approved ban on same sex marriage that was passed in California in 2008. The high profile nature of these disputes has prompted a special symposium on SCOTUSblog dealing with gay marriage (see for example Carpenter 2012 and Duncan 2012). On the eve of the Supreme Court’s decision to either accept or reject these cases for oral argument, one might wonder what triggered the disputes in the first place.

Ever since Congress passed DOMA in 1996, stipulating that the federal government only recognized marriage as a union between a man and a women, gay and lesbian groups throughout the country have sought to have DOMA struck down in federal court as a violation of their Equal Protection and Due Process rights under the Constitution. Since another portion of DOMA only allows heterosexual couples to receive critical federal benefits, gays and lesbians have argued in court that they are not being treated equally under federal law. Denniston has pointed out that DOMA will have a profound impact on scores of other federal programs as well, including retirement benefits, social security, federal income tax, and medical leave provisions to name a few (Denniston 2012a). As a result, the stakes in the DOMA petitions could not be higher. If the Supreme Court were to grant review of the DOMA petitions, its ruling would have a wide-ranging impact on countless federal benefit programs.

At the same time, there has been a parallel dispute going on at the state level regarding whether marriage should be defined as a union between a man and a women. Over the past decade, legislatures and courts in the various states have grappled with this issue, and to date only six states recognize same sex marriages while 39 explicitly do not. In the upcoming election in November, the citizens of four more states, namely Maine, Maryland, Minnesota, and Washington, will be asked at the polls whether their respective state should recognize same sex marriage or not (Denniston 2012b). In California, the voters passed Prop. 8 in 2008 which defined marriage as between a man and a woman (it passed by a 52-48 margin). The proposition invalidated an earlier California Supreme Court ruling that determined that a state ban on same sex marriage violated the state Constitution (In re Marriage Cases, 43 Cal. 4th 757 (2008)). Gay and lesbian groups obviously challenged the law, and have won resounding victories in lower federal court.

Although all seven gay marriage petitions for review before the Supreme Court deal with laws that discriminate against homosexuals, according to Denniston only the Prop. 8 case raises the fundamental question of whether same sex couples should have the right to marry, because the homosexual couples that initiated the various discriminatory claims in the various DOMA petitions had already been legally married under state law (Denniston 2012a). What is unique about the California case is that there are gay couples who want to get married in California but have been denied the right to do so by Prop. 8. Some Court watchers believe it is unlikely that the Supreme Court would grant review to both the DOMA and Prop. 8 petitions. So, one burning question for journalists and legal scholars is speculating which of the cases is the Supreme Court more likely to hear during the 2012 judicial term?

Since the Supreme Court obtained almost complete discretion over its own docket in 1988, it has the power to decide almost all the cases it wants to hear in a given year. In order for a case to be heard at the Supreme Court level, scholars have noted that four justices must agree to hear the case, using what is called the “rule of four” for granting certiorari (Baum 2001). Ironically, only a minority of justices on the Court need to agree to review a lower court decision. Having said this, the Court receives thousands of petitions each year, so it can only select a fraction of the cases that are petitioned to it. Sometimes it is difficult to forecast which cases it will hear because scholarship has found that some justices use the cert decision process in a strategic manner in order to block cases from being selected for review by the Court. These defensive cert denials are triggered when a justice believes that either a lower court ruling is correct, or that the other members of the Supreme Court will not rule on the issue in the way they want. This strategic decision making process at the certiorari stage has been studied extensively by judicial scholars, and can throw a monkey wrench into the litigation and appellate plans of plaintiffs and defendants.

So when does the Court grant certiorari? Scholars have found that some of the traditional reasons for granting cert include whether the federal government is petitioning for review in the dispute, whether an important constitutional or federal issue is raised, and whether there are conflicting rulings in lower federal or state courts. In light of these factors, one could forcefully argue that the Court should hear the DOMA set of petitions because they raise important federal and constitutional questions that impact over a 1,000 federal laws or regulations and the federal government is clearly a party to the suit. On the other hand, since various states now have conflicting policies regarding gay marriage, it makes sense that the Court would address once and for all the underlying fundamental question of whether gay couples have a Constitutional right to marry. This implies that the Prop. 8 petition may outweigh the six DOMA ones during the cert stage in the minds of the justice. However, every court watcher knows that justices and judges often take the easiest path to resolve a dispute. The thinking is: why resolve a difficult substantive issue if you do not have to? So even if the Supreme Court agrees to hear the case, it may choose to duck the substantive issue in the case on the basis that the petitioners bringing the Prop. 8 appeal did not actually suffer any harm, and thus lacked standing to be participants in the litigation. Alternatively, the justices of the Supreme Court might only write a brief opinion that simply follows a 1972 summary judgment handed down by the Supreme Court in Baker v. Nelson, 409 US 810 (1972), where it ruled that a Minnesota law limiting marriage to heterosexual couples did not raise a substantial federal question. In August, a federal district judge in Hawaii took just this stance, where he concluded that the 1972 Baker ruling decided this issue and set precedent, stipulating that same sex couples do not have a right to marry (Denniston 2012b). Ultimately, I think the Supreme Court will grant review to the DOMA petitions, postponing the more complicated issue of gay marriage issue to another day. One thing is for certain: regardless of which set of cases the Supreme Court chooses to hear, the legal battle for marriage equality will continue for some time to come.

Works Cited
Baum, Lawrence. 2001. American Courts: Process and Policy. New York: Houghton Mifflin Company.

Baker v. Nelson, 409 US 810 (1972).

Carpenter, D. (2012, September 19). Same-sex marriage symposium: Justice Scalia’s case for gay marriage. Retrieved September 22, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/09/same-sex-marriage-symposium-justice-scalias-constitutional-case-for-gay-marriage/.

Denniston, L. (2012a, August 22). Gay marriage cases: Now up to seven. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/gay-marriage-cases-now-up-to-seven.

Denniston, L. (2012b, August 10). Judge: No right to same-sex marriage. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/judge-blocks-same-sex-marriages.

Duncan, W. (2012, September 19). Same-sex marriage symposium: Time for an answer – does the Constitution require same-sex marriage? Retrieved September 22, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/09/same-sex-marriage-symposium-time-for-an-answer-does-the-constitution-require-same-sex-marriage.

In re Marriage Cases, 43 Cal. 4th 757 (2008).

Institutionalism (and the Limits Thereof)

September 11, 2012 4 comments

One of main theoretical perspectives in political science is new institutionalism. Although this concept can take a number of forms (see here), the basic idea is that rules governing a particular kind of political behavior affect the final outcomes we see. So, for example, the fact that would-be presidential candidates have to campaign in a large number of state primaries early in the year (a phenomenon called frontloading) means that they spend a significant amount of time the year before working to gain the support of party elites.

One of the key insights of the new institutionalism is that the rules matter. The implication is that if you want to get a different result, perhaps you should try changing the rules. More than many state, California has long taken this insight to heart. In the last election we say two significant, institutional changes implemented in an effort to change the political culture in Sacramento.

The first change was the creation of the Citizens Redistricting Commission (CRC). The CRC was created by Prop. 11 (2008) to draw all state-level legislative districts, and its authority was expanded by Prop. 20 (2010) to include congressional districts. The hope was that by taking control over redistricting away from the state legislature, California would get better, more competitive districts, which would force candidates to moderate their partisanship.

The second change was the adoption of the top-two or majority runoff system of elections (Prop. 14). Instead of a series of partisan nominating contests–wherein registered partisans vote for a set of party nominees–followed by a general election contest among all the party nominees, California now has a a two-stage electoral process. In the first stage, all the candidates who filed for office compete for votes. Any registered voter can caste her ballot for any candidate, just as in the November election. The top two vote getters (and only the top two) in this first stage election then face each other in a run-off election in November. Here again, the goal was to reduce the influence of partisanship. In this case, the assumption was that by opening up the electorate, candidates would have to moderate their stances in order to be one of the top two.

One of the primary criticisms of the new institutionalism is that it focuses attention on the wrong place. Here, the hope is that by changing the way districts are drawn and who gets to vote for what candidates, candidates will change their behavior. But what if neither really makes a difference? What if the source of partisanship behavior–and the perceived disfunction in Sacramento–doesn’t stem from the rules but other actors? Most of the research on the effects of redistricting (see here, here, and here) and electoral systems (see here, here, and here) on partisanship indicate that it comes from (a) party actors who screen candidates, (b) the kinds of candidates who seek office, and (c) the preferences of voters (though, importantly, not the difference between primary and general election voters). The electoral rules don’t affect these factors.

So does this mean the new institutionalism is wrong to focus on the importance of the rules? No. It just means you have to target the reform at the right source. So far

The California State Capitol building in Sacra...

The California State Capitol building in Sacramento. (Photo credit: Wikipedia)

, Californians haven’t done that.

League of Women Voter’s Candidate Forums

August 30, 2012 1 comment
University of the Pacific (United States)

University of the Pacific (United States) (Photo credit: Wikipedia)

I am pleased to announce that, working with the League of Women Voters, the University of the Pacific will host two candidate forums on October 15. The first will be for the two candidates contesting Assembly District 13: K. “Jeffrey” Jafri (R) and Susan Eggman (D). The second will be for the two candidates contesting Congressional District 9: Ricky Gill (R) and Jerry McNerney (D).

The event will will be open to the public. Watch this space for more information.

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