The Origins of the Term Gerrymander

Recently I have started discussing the topic of gerrymandering in my Constitutional Law courses. The term itself must sound funny to a non-native speaker. What on earth is a "gerrymander?" I suspect most native speakers also do not know the origin of this term and simply throw it around without ever wondering about this. A recent post by the National Constitutional Center explains that the "gerry" part of the term is linked to founding father and former Governor of Massachusetts Elbridge Gerry. Gov. Gerry notoriously pushed a plan to redraw the lines of the political districts within the state. Critics of the plan were quick to point out that one of the districts looked like a salamander, and a political cartoon (see above) coined his plan as "gerrymandering." The term has stuck ever since.  

Breaking Presidential Ties

Here is a nice review for students in my Fundamentals of U.S. Constitutional Law and Introduction to U.S. Law courses. It touches on what happens when no one gets a majority of the votes in the Electoral College. If students understand the prior sentence, they are in good shape for the exam!

The "Did Not Vote" Won

I came across this interesting map on Twitter a few days ago that really drives home the point about how pathetic voter participation is in the United States. The map looks at how many eligible voters there are in each state and then sorts the vote by people who voted for the various candidates and those who did not vote. In all but only handful of states the people who did not vote for President outnumber those who voted for a particular candidate. The map then awards the Electoral College votes to the "did not vote" category in each state where they outnumbered a particular candidate and comes out with a landslide victory for "Did Not Vote" in the Electoral College.

$19 Million Spent By Outside Groups on Judicial Elections

How we select our judges in the United States is perhaps one of the things that surprises students in my introduction courses the most. Almost three quarters of the states in the United States place the names of judges on election ballots, and let the voters decide whether they should remain on the bench. Some do this using a process called retention, while others allow for open, competitive elections, just like any other elected office.

As is the norm in the United States, most people obtain their information about candidates for elected office via television commercials. These commercials are usually sponsored by the candidates themselves, but increasingly outside political action groups are funding commercials for the candidate of their choice. The same holds true for judicial elections. According to the Marshall Project, political action groups not directly affiliated with a political party or a candidate spent over $19 million on judicial elections this past election cycle.  The article goes on to note that this spending for the most part failed to unseat their intended targets. This, however, will likely not dissuade people from contributing to these efforts in the future.

Those interested in a amusing take on the idea of electing judges should watch the John Oliver piece above. Be warned, this is HBO, so the language might be a little rough.

Another Candidate Loses After Winning

Unless you have been in a cave for the past week, you are aware that Donald Trump won the election for U.S. President this past Tuesday. What you might not be aware of is the fact that Hilary Clinton actually received more votes. This is the fifth time in the nation's history that the person with most votes lost the election. As all of my students know (or at least should know), this anomaly is caused by the Electoral College system we use to select our President. The fine folks over at the National Constitution Center break down the ways this system might be changed, but more importantly, summarize the reasons why this system was adopted in the first place. If you have asked yourself over the past week why those crazy Americans use this system, you can find no better answer than the one provided in this post. 

Electing Judges

Just wanted to call attention to an interesting (and short!) podcast from National Public Radio about how state judicial elections in the United States are becoming increasingly political. It sounds obvious that an election would be political, but some elections (called retention votes) traditionally were not mired in ideological battles. But this has slowly been changing, as the podcast nicely points out.

Natural Born Citizen Reloaded

Back in January I wrote about the controversy over whether Texas Senator Ted Cruz is eligible to be President. The issue centers around the meaning of the phrase "natural born citizen," which according to Article II of the U.S. Constitution is what one must be in order to qualify to be President. At least three lawsuits have been filed seeking to get the court to clarify the meaning of this phrase, and as the blog Constitution Daily recently reported, all have failed. As the blog post points out:

Legislative attorney Jack Maskell, writing for the Congressional Research Service in 2011, found that “the weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicates that the term ‘natural born citizen’ would most likely include, as well as native born citizens, those born abroad to U.S. citizen-parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.”

Anyone interested in learning more about the arguments concerning this phrase should really give Maskell's memo a quick read.

Directly Electing the Senate

Students of American Constitutional Law know that members of the United States Senate were originally selected by the individual state legislatures. In class, I usually present this selection system as part of a compromise between large and small states. However, over at the blog Constitution Daily a slightly different take on this is offered:

"At the Constitutional Convention in 1787, the Founders were guided by, among other powerful ideas, the fear of the potentially tyrannical, harmful powers of a democratic majority. The proposal that United States Senators should be elected by state legislatures, rather than democratic majorities, was inspired by this fear. . . ."

To understand why the U.S. Senate was originally select by state legislatures and why this changed with the passage of the 17th Amendment, you cannot go wrong reading the rest of the blog post.

Judicial Elections Back in the News

Two recent news items caught my attention as they show the difficulty states have with keeping their elected judges independent. In an en banc decision the U.S. Court of Appeals for the Ninth Circuit upheld an Arizona law that regulates the fundraising activities of judges. According to the Arizona Courthouse News Service:

Saying free-speech rights cannot outweigh the need to preserve judicial integrity, the en banc Ninth Circuit on Wednesday upheld an Arizona law banning judges from soliciting donations or stumping for colleagues. The 21-page lead opinion affirms five provisions in Arizona judicial code, which restrict judicial candidates from in-person solicitation or endorsing and campaigning for other candidates publicly, under the First Amendment.

The goal here is to keep judges out of the normal give and take political campaigning process in order to keep them independent.

In Wisconsin court watchers are concerned that the upcoming Wisconsin Supreme Court race will be overly partisan. This illustrates yet another difficulty with judicial elections. Can judges be said to be truly independent when they run on a partisan platform? 

Natural Born Citizen and the Presidency

The natural born citizen question is currently front and center in the Republican primary contest for President of the United States. Students in my U.S. Constitutional Law course will know that a requirement to be President is being a "natural born citizen" of the United States. As I said in class, clearly this disqualifies someone who became a naturalized American citizen, for instance Arnold Schwarzenegger. But what about an American born overseas to American parents? Are they natural born citizen? Or must the person be born in the United States? The issues is being discussed (again) in the United States because Texas Senator Ted Cruz, who is running for President, was born in Canada to an American mother and Cuban father. He has his American citizenship through his mother, of course, but does being born in Canada disqualify him from running for the Presidency? Donald Trump thinks so. So do some legal scholars. The National Constitution Center's blog "Constitution Daily" has more.

Judicial Elections

Today is election day in the United States, and while there are no federal elections taking place, several states have candidates as well as issues on their ballots. As students in most of my courses become aware, many states in the United States select their judges via an open, competitive elections. The wisdom of such elections is always a matter of debate, and the recent campaign for the Pennsylvania Supreme Court has shined the light once again on some of the more troubling aspects of judicial elections: the influence of campaign contributions and outside spending by issue advocacy groups. In a piece entitled "Mystery donor group fuels attack ads in PA Supreme Court race" Eric Holmberg reports on how these advocacy groups are attempting to influence voters while at the same time hiding their identity. Reports like these have led some to question whether it is time to do away with judicial elections in the Keystone State. 

Gone

A few days ago I wrote about the effort in Iowa to remove three judges through the retention process because they voted to recognize gay marriage. My point was that usually judges are not removed through this process of retention . . . unless they make a controversial decision. Iowa provides us with yet another example. All three Iowa Supreme Court Justices who were up for retention and voted in favor of gay marriage were removed by voters on Tuesday. My question is, does this prove that supporters of judicial elections are right? Shouldn't judges reflect the majority view of society, and when they don't, they should be removed? Or do we want a system where judges can make rulings that do not reflect the so-called "will of the people?" Does an election like this actually help us truly determine what the will of the people is?

The Minnesota Senate Race Recount

Students who have been paying attention to the aftermath of the recent election in the United States probably know that some races for the U.S. Senate and House of Representatives are still not decided. The Senate race in Minnesota is particularly interesting, as both candidates are challenging the validity of ballots cast by voters. How can this be, you might ask. Well, the Minnesota Public Radio website (this link will take you the pictures) has pictures of some of the ballots that are being challenged. It is fascinating. I encourage you to take a look.