The Volokh Conspiracy

Using the the Covid pandemic as an excuse, the Left in 2020 massively changed the way presidential elections are held in this country. Whereas previously the secret ballot and same day voting was the norm, and one needed an excuse to get an absentee ballot, suddenly the Left declared it was essential to switch to mail in voting, for any reason at all, over a period of many weeks.

Swarms of Democratic vote canvassers knocked on the doors of thousands of people who had not yet voted "by mail" and offered to "help" them "make their vote count". Ballots were filled in by voters at home. possibly with canvassers or family members, "observing" how each person voted. Canvassers then "offered" to deliver the "harvested ballots" to "drop boxes" saving voters the trouble of turning them in themselves. The net result was that Donald Trump got more votes in Pennsylvania in 2020 than Barack Obama had in either 2008 or in 2012, but he still fell 80,555 votes short of Joe Biden because "mail-in" voting with no secret ballot and canvassers conveying your ballot for you to the polls or a drop box was such a hit.

In 2008, Barack Obama got 3,276,363 votes for President in Pennsylvania. In 2012, Barack Obama got 2,990,274 votes for President in Pennsylvania. In 2020, Donald Trump topped both of Obama's vote numbers in 2008 and in 2012 by getting 3,377,674 votes for President in Pennsylvania. Donald Trump exceeded Barack Obama's 2008 vote total in Pennsylvania by 101,311 votes.  Trump "lost" the "counted vote" in Pennsylvania in 2020 by 80,555 because Joe Biden got an "astonishing" 3,458,229 votes in Pennsylvania in 2020.

I do not myself believe that there was fraud in the counting of ballots or voting machine malfunctions. I do believe, however, that the unprecedented use of mail in voting over a period of many weeks, with the loss of the secret ballot, and drop boxes, produced a fundamentally illegitimate Biden victory in 2020 in Pennsylvania and elsewhere. I simply do not believe that in an honestly held traditionally run presidential election that Joe Biden would get 181,866 more votes for President in 2020 in Pennsylvania than Barack Obama got in 2008.

As a result, many Republicans, myself included, thought that the 2020 presidential election was probably stolen, even though that fact could not be proved in a court of law. President Trump himself did not claim right after the election that mail in voting and the loss of the secret ballot had altered the vote count in the 2020 election. He waited for two weeks and asked for hopeless recounts instead. No recount in Pennsylvania was ever going to erase an 80,555 Biden lead in votes counted at the polls. The margins Trump lost by in Pennsylvania, Wisconsin, Nevada, and Arizona were simply too big to change after endless recounts. Some Republicans, including me, therefore acquiesced in Joe Biden taking office because we thought we had to do that to preserve a facade of democracy absent concrete proof of vote fraud.  But deep down in our guts we thought that Joe Biden's campaign had probably won with dirty tricks, although that could not proved in a court of law.

We did not side with President Trump on January 6, 2021 because we did not want the GOP controlled state legislatures of Pennsylvania, Georgia, Wisconsin, and Arizona to declare Trump re-elected given the returns at the polls. The question was what outcome was worse for our democracy? Going by the vote count on Election Day or letting state legislators pick the President, which had never before been done in American history. Reluctantly, we went along with allowing Joe Biden to be crowned the winner based on the vote count on election day, but we felt then and will always feel that Biden may well have been an illegitimate President.

We disapproved of Trump's behavior on January 6, 2021, not because his claim of election fraud was wrong, but because he as President did not articulate this claim in anything remotely resembling  a compelling way nor did he call on his supporters to forgo violence in the way of a Martin Luther King or a Mahatma Gandhi, and as a result five people died in a riot. The election fraud that wrongly cost Trump his victory in 2020 was caused by mail in voting, drop boxes for ballots, and the loss of the secret ballot. President Trump's mistake was in not complaining much more loudly before the vote was counted that the rules of the game had been rigged against him to produce an undemocratic outcome.

Biden said as a candidate in 2020 that he was a moderate liberal, but he proceeded to govern like Bernie Sanders or Elizabeth Warren except for the refusal of two brave Democrats, Joe Manchin and Kyrsten Sinema, to go along with that nonsense. Manchin and Sinema will both be booted out of the Senate come January 3, 2025, as a result. Biden said as a candidate that he would depoliticize the criminal justice process. Instead, his Department of Justice has used an unconstitutionally appointed Special Prosecutor to indict former President Donald Trump -- the first time in history that a former President has been indicted. Hillary Clinton was given a pass on the misuse of classified documents, but not so Donald Trump. Biden's Democrats even got Trump unconstitutionally convicted for altering business records to conceal the Trump Organization's involvement in First Amendment protected speech in a New York State trial that was truly a charade.

We are now about to choose again between Donald Trump and Joe Biden in a presidential election year - 2024 - which is totally free of the fears of infection in public places caused by Covid. Here are three things we should insist on: 1) a return to truly secret ballots cast in polling booths with the curtain shut behind the voter; 2) no use of drop boxes, and 3) that everyone votes on the same day, with the same headlines in mind, and not over the period of a month.

The loss of the secret ballot, the use of drop boxes, and of same day voting is a huge change in our democracy, which ought to be abandoned now that Covid is gone. You cannot fill out a ballot at home in most cases without your family members knowing how you voted and that means the sudden loss of the secret ballot. Partisan canvassers may also observe how people vote, intimidating them and undermining their independence.

The secret ballot is of central importance in elections, especially when candidates generate the passionate feelings of hatred that are generated by Donald Trump and Joe Biden. This is a hatred that pits family members and even long-time friends against one another sometimes ruining long-cherished relationships. If ever, there was to be a presidential election for which the secret ballot was essential, it is this year's rematch between President Trump and Joe Biden.

It is equally important that all Americans vote on the same day, after the same news cycle, with the same information before them. Ballots arriving by mail day after day, after Election Day, discourages confidence that an election has been fair. If you are in the military or have some other good reason for needing an absentee ballot, you should be allowed to have one. But, if we want elections the outcomes of which people have confidence in, we simply have to return to our traditional system of the secret ballot, no use of drop boxes, and same day voting. Otherwise, our democracy is doomed.

[UPDATE 6/8/24 19:25 pm: This post was corrected, to further make clear that the concern is about influence on voters rather than fraud in the counting of votes or vote machine error; see the post above.]

One of my proposals for bilateral judicial reform would be to cap advances on book royalties for the Justices. I've written at length about the $1.2 million book advance for Justice Barrett in 2021 (here, here, and here). Now, the annual disclosures reveal the book deals for other Justices in 2023.

Yesterday, Axios reported that Justice Kavanaugh is writing a memoir. This was a well-timed scoop, given that today, Kavanaugh disclosed that his advance is $340,000. About a third of what ACB earned. Yikes. But still more than the other Trump nominee. Justice Gorsuch received an advance of $250,000 for his latest book with Janie Nitze, Over Ruled.

Justice Jackson, whose book deal was announced a few months ago, disclosed an advance of $893,750. I don't know if this is the full amount, or part of the advance. In any event, still a drop from Barrett peak in 2021. Maybe the market dried up for books about Justices?

For what it's worth, Justice Jackson received free tickets from Beyonce, but Justice Kavanaugh had to pay for his own Taylor Swift tickets.

Each year, Gorsuch receives a few hundred dollars in royalties from Princeton University Press for his 2006 book on assisted suicide and euthanasia. But as best as I can tell, Gorsuch has not received any royalties from his first book, A Republic, beyond the $250,000 advance. It's possible that all future royalties are assigned to his co-authors. Or, I think it is more likely that he hasn't earned back the $250,000 advance from 2021. In any event, Harper Collins has given Justice Gorsuch another $250,000 advance, which he may not earn back. People and groups are unlikely to buy his old book when the new book is on the market.

As I wrote in Bilateral Judicial Reform, I am skeptical any of these Justices will earn back these prodigious advances. These are interest free loans that are perfectly valid under the rules.

There are many headlines about Justice Thomas receiving valuable gifts. The insinuation is that he is profiting off his position. Much the same can be said about a Justice who writes a book. These are not normal business decisions. The Justices will only be able to make back these advances if they hold many events, where groups will feel at least some pressure to buy the books. And there are all sorts of conflicts there. I think the publishers are unlikely to ever get back the advance, but see some prestige by having a Justice on their label, which helps with other aspects of business.

I have an op-ed in the Washington Free Beacon about an ongoing controversy involving the Columbia Law Review. It begins:

Law reviews are typically sleepy, student-edited journals that publish turgid scholarship. The articles may be read by specialists, and they are often read by no one beyond the author and editors. But Columbia University law school's law review has received a rare burst of public attention this week.

According to various media outlets, the law review's board of directors, composed of faculty and alumni, tried to censor an article critical of Israel. Except that's not what happened at all. The true story involves a faction of the law review secretly breaking all procedural rules and customs to publish a piece of ideologically driven claptrap.

I explain the relevant chain of events in detail at the Beacon link.

My forthcoming article, Three Bad Ideas about Race in America, has been posted on SSRN.

Here is the abstract:

In this Essay, prepared for a symposium honoring Brown v. Board of Education's seventieth anniversary, I examine and critique three influential propositions regarding race promoted by some academic theorists and pundits.

Part I discusses and rejects the notion that differences in socioeconomic status among different American subgroups are best explained by the power relationships groups have with the dominant white majority.

Part II considers the claim that racial categories define collective actors who inevitably have common interests and outlooks. This Part concludes that this idea is flawed and perhaps incoherent.

Part III addresses the proposition that white Americans should be encouraged to cultivate a "white racial consciousness" so that whites will recognize their privilege and become "antiracists." Part III concludes that such encouragement is both wrongheaded and dangerous.

Those who promote the ideas discussed and critiqued in this essay share several premises: pessimism about the US overcoming its racist history; what I consider a naïve belief in an identitarianism shaped by antiracist ideology as the best way to mitigate racism; and a concomitant belief that preserving the salience of existing socially (and legally) constructed racial categories is both inevitable and mostly desirable.

These premises, in turn, are ultimately based on a skepticism of or hostility to the ability of liberalism to overcome racism. In other words, they represent a rejection of the optimistic racial liberalism prevalent among civil rights activists when Brown was decided.

And here is an excerpt:

One explanation provided for the success of some nonwhite minority groups is that these groups became "white adjacent," or "honorary whites" via social evolution. This permits them to succeed in a white supremacist society. This theory lacks explanatory power. For example, it cannot explain why Chinese Americans but not Cambodian Americans are "white adjacent," unless white-adjacentness is a tautology—the more successful members of a minority group are, the more the group is "white adjacent."

Sociologist Eduardo Bonilla-Silva argues that skin color rather than race itself explains these differences. Thus, within the Asian American group, Chinese, Filipinos, Korean, and Japanese, whom he says have relatively fair complexions, qualify as honorary whites. Darker-complexioned Southeast Asians, such as, Vietnamese, Cambodians, and Laotians, however, are relegated to being part of the "collective black," and thus are doomed to lower socioeconomic status.

Granting arguendo that the color line Bonilla-Silva draws makes sense, there are still empirical gaps his theory cannot explain. For example, why were Filipino Americans among the poorest ethnic groups in the US in the late 1960s, but now have higher average incomes than Japanese or Chinese Americans, who in turn are wealthier on average than are white Americans? What do we make of Asian Indian Americans, who often have dark complexions yet have the highest income of any national-origin group? If their Caucasian physiognomy gives them an advantage, why don't other South Asian Americans, such as Pakistani, Bangladeshis, and Nepalese, have the same advantage? Why are Appalachian whites, despite being of white Protestant origin and resident in the US for centuries, at the bottom of the socioeconomic indicators pile? Why are Ethiopian and Somali Americans, whose physiognomy is relatively close to Europeans, less economically successful than are Nigerian Americans, who have a more distinctively African appearance?