Legalish the election edition: the electoral college time warp, court expansion, copyright law and a bunch of penis jokes.
It is October 29th and there is less than a week before the United States selects a President. Or the world could burn to the ground. But before the world burning happens remember to hit the subscribe button! Also, please vote.
In this edition of Legalish we're going to talk about the weird way we select the President and why we shouldn't do it that way because it's nuts. And then we're going to tackle court expansion. And if you all read through that you can give your brain a rest and read a bunch of dick jokes about the fair use of Jon Hamm's Hammer.
The Electoral College Time Warp.
We're less than a week till the election and a metric ton of early voting has already happened. And everyone is well aware we don't select the President through direct democracy. Instead, we use this weird system of winner take all electors allocated to each state based on population called the Electoral College. And in 2000 and 2016 the winner of the popular vote didn't take the Electoral College vote. And while both those elections cut against one party and not the other I posit that both parties will want to jettison it to the ash heap of history in the near future. But to get to that point we need to hop in a time machine.
Everyone get in the time machine. Remember—don't touch anything in the past. This is a newsletter about legalish stuff and I don't have the background to solve a time paradox. I'm a lawyer, not a scientist.
Let's go back to the Constitutional Convention of 1787. The United States won the Revolutionary War and pieced together Articles of Confederation that didn't amount to a super functional government. It's important not to think of the founders as a collective of the smartest guys ever (although a lot of them were very sharp) and more of a group of people with competing interests trying to make a functional government. And the new government they set up is the foundation for the modern United States but it's also riddled with bad ideas. One of those ideas is the Electoral College.
The Southern slave states figured out from the jump that their representation would be bad if they didn't count their slaves for voting purposes and their taxes would be rough if they counted every single slave in the tax system based on population. But it's not like, from their perspective, they could enfranchise slaves and God forbid they pay taxes, so they struck the 3/5ths Compromise where each slave would count as 3/5th of a person and that would count toward their voter representation in the House and in a winner take all system in the Electoral College. Now slaves don't vote, the South pays less in taxes than if every slave was counted as a person, and the landowning white people have votes that count more than they otherwise would through the Electoral College. The foundation for the Electoral College is anti-democratic and pretty racist to boot.
This system is a structure that keeps the morally reprehensible economic system the South had in place until it's finally dealt with in the Civil War. The founders might have had a lot of good ideas for a new country but they included in a lot of bad ideas because some of them decided that slavery wouldn't be ripped from them unless it was at the point of a gun. And that's exactly what they got.
Even though the South lost the Civil War and the 14th and 13th Amendment stripped out the 3/5ths Compromise, the Electoral College, an anti-Democratic system for picking the President, remained in place. It's just anti-democratic in a different way now. In the original version with slavery, white voters in the south were basically super voters thanks to the 3/5ths Compromise in the Electoral College. After slavery is ended freed slaves are counted as enfranchised voters in the South which means more electors in the Electoral College but it's still anti-Democratic and to explore why let's time travel to 1968.
Shortly after the 1968 election, both major parties decided they wanted to take the Electoral College out behind the woodshed. 1968 was a major party realignment moment. Nixon executed the Southern Strategy to win Southern whites. Southern whites typically supported Democrats, but didn't like the Civil Rights movement and Humphrey, the Democratic nominee vowed to keep Johnson's war on poverty and civil rights agenda alive. But Nixon didn't win all the southern states.
During this major party realignment, the Independent Party was born to try and scoop up Southern segregationists. A third independent candidate, George Wallace, the former Governor of Alabama, ran on a platform of segregation with World War 2 legend Curtis LeMay. (Curtis LeMay firebombed pretty much all of Japan with napalm, a curious deviation from his obsession with precision bombing. Learn more about his World War 2 endeavors in Revisionist History.)
George Wallace had no hope of winning the popular or electoral college vote. But that was never the goal of his campaign. He wanted to scoop up electors and then put his thumb on the scale. If no candidate hits 270 in the Electoral College the House of Representatives would pick a winner where Wallace's allies in the House could do some serious horse-trading on topics like segregation and play kingmaker.
The results of the election were kind of a mess. Nixon and Humphrey were within a percentage point of each other in the popular vote but Nixon had 301 electors to Humprey's 191 and Wallace, who ultimately only received 46 electors, posed a serious threat at upending the whole thing by exploiting the winner take all Electoral College system to take both candidates hostage.
Both Republicans and Democrats realized this system posed a problem and introduced a Constitutional Amendment to fix it. The Amendment passed with massive bipartisan support in the House in 1969. President Nixon endorsed and signaled he'd gladly sign it. But the Amendment was quickly killed by another anti-democratic tool born out of accident in the Senate: the filibuster. (Go read the last edition of Legalish for why the Senate filibuster shouldn't exist!)
Southern Senators filibustered it. Why? Because the Electoral College means that minorities in their states are basically invisible in national elections. And Nixon didn't fight the issue that hard. After all, it's once in a blue moon that the system goes off the rails.
Alright - everyone back in the time machine. No one touched anything, right? Good. Back in our own time of 2020 and everyone at least knows what happened in 2000 and 2016. And we're going to do some speculation about how the Electoral College system finally dies. Because, in my opinion, it'll die in our lifetime.
In 2000 and 2016 Democrats won the popular vote and lost the Electoral College. What was once a bipartisan issue now looks like a partisan one because Democrats keep taking the lumps on the head. And if Republicans are more likely to win the Electoral College than they are to win the national popular vote then why would they vote to get rid of it?
The answer is shifting demographics and no one likes being disenfranchised. Texas is in the process of shifting blue whether it's this cycle or in the next. That means Presidential elections become pretty hard to win for Republicans in the near future. In 2016, 4.6 million votes favored the Republican presidential candidate in Texas. In 2016, 4.4 million voted for the Republican presidential candidate in California. There are 4.4 million voters that had their votes not count for anything in California in the winner take all system. There's about to be another 4.6 million or more that won't count for anything in the Electoral College winner take all system in Texas. And no one likes having their vote not count.
So, my prediction is that Democrats have been on the receiving end of that Electoral College loss and popular vote win twice in recent history will probably push for a straight popular vote system and Republicans should push for the same system because the biggest cohorts of their vote share risk not being counted for anything in the winner take all Electoral College system. And much like the filibuster, it's an anti-democratic system in a democracy that should be shot into the sun. We already have enough checks on "mob rule." The Electoral College is a bad idea from a bygone era that was never designed to check such a thing anyway.
Feel free to blow me up in the comments. Or maybe throw me in the time machine and push me physically into my past self and tell me to write my way out of it.
Court Expansion
There's a weird notion that gets drilled into people that the current composition of the Supreme Court is somehow sacrosanct. That the people that are appointed to it are the best jurists of their era and their work is an unquestionable peak of prose, logic, and even-handedness.
Judge Posner had an interesting interview on Radiolab's More Perfect a few years ago where he commented briefly on the Supreme Court. He points out that Supreme Court Justices aren't picked out because they're big brains or big stars or fantastic lawyers. It's fortunate coincidence when they happen to be those things. But it's not the primary driver of their selection. They simply exist as a reflection of what the Senate and the President think would be in their best interests. Sometimes those interests include trying to pick out some sort of consummate jurist. But thinking of the Supreme Court as anything other than a reflection of the interactions of people in the Senate and the Presidency is the wrong approach to thinking about its composition.
Don't get me wrong. The United States has an amazing court system that's the envy of the world and the reason I have a job at all. The men and women who serve as judges I believe, on the whole, generally try and get things right. But when you're talking about court expansion it's incorrect to think of it as an untouchable topic and that the number 9 is somehow imbued with magic powers.
I promise not to push you into another time machine but the Supreme Court didn't always have 9 Justices. When the United States expanded westward and brought more states into the union it created more circuits. A new justice from each circuit was added. We currently have 13 circuits. And I'm not saying that's reason alone to expand the court, I'm just saying the historical justification is there.
The real limiting factor on the Court's composition is deal-making in Congress and the Presidency. Adding justices is very easy to do via simple majority in the Senate and the approval of the President. We've seen one Supreme Court nomination get blocked due to occurring in an election year (we'll just take that at face value) only to have the party that blocked on that reasoning appoint a justice then go on to appoint two more Supreme Court Justices, one in an election year, and nearly entirely on party lines.
The crux of my argument here is that we're in a new era of Supreme Court appointments. As Congress has become more polarized and political gamesmanship has become more important than working with the minority party we'll simply see more of that in years to come. And that's because the Supreme Court isn't some big-brained thing. It's the outcome of political horse-trading. If court expansion is a favored tool by the President-elect and the Senate then that's what happens.
Fair use of Jon Hamm's Hammer
So now you've come this far and I'm sure you're sick of election news, speculation, and supreme court drama so here's a rock hard segment about copyright and Jon Hamm's Hammer.
For those unfamiliar, Jon Hamm is a prolific actor who starred in the show Mad Men and appeared shows like 30 Rock. He's somewhat of an icon and from what I can tell seems like a nice enough guy. He's one of those people that seems to have it all. And in 2013 a paparazzi snapped a shot of him walking down the street and through his pants you can see the silhouette of something that you would think belonged hanging from the ceiling in an Italian deli.
This picture became the subject of a fair use dispute. Huffington Post used the image with the glorious aspect obfuscated for an article with a little image loading graphic. Huffington Post refused to pay any kind of fee to the original photographer. So, naturally, the photographer sued for copyright infringement. Huffington Post retorted that what they did was fair use! After all, they're a stiff news organization and the people need to know about Jon Hamm's impressive ham.
I enjoy this particular dispute not just because it's low hanging fruit with jokes and puns about who has fair use of Hamm's hammer but because it demonstrates how squishy fair use is as a question. When someone is trying to erect a fair use defense it's not something you can resolve without a determination from a court. When someone says their use is fair the other party often says "we'll just see about that."
Some of you might be thinking, "why isn't Jon Hamm entitled to any say in what's happening with an image of his baloney pony?" Well, the owner of a copyright is the person who creates a fixed work in a tangible medium. In this case, that's a paparazzi that snapped a picture of Jon Hamm in public. So the next question is whether Huffington Post can rely on fair use which looks at a few factors:
the purpose and character of the use (whether the use is transformative)
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market
The court goes through all four of these factors and the key takeaways are that they found that the cropping of the image and the loading box supported a transformative use and that because the loading box obscures what everyone's so hot and bothered by there's no commercial impact on the original photographer.
It also doesn't help that the plaintiff is remarkably unsympathetic. Judges are also human and rehabilitating someone's reputation who makes a living off creepshots of famous peoples' bulges is a hard sell. It probably also didn't help that the attorney representing the paparazzi, in this case, is Richard Leibowitz, a notorious copyright troll. Losing on an early motion to dismiss for fair use isn't unusual but it's also not something that happens often. And I kind of can't help but think that this case could have been presented better by someone who hasn't been bench slapped in a 61-page document chronicling gross attorney misconduct.
So here's where I'll stick my neck out a bit and give my own thoughts. There's a piece in the Court's analysis that I don't particularly agree with.
The Court agrees with [Huffington Post] that the Photograph is more factual in nature than creative. The Photograph is a standard paparazzi-style photograph of a celebrity walking in public...
The Courts are typically reserved for resolving questions of law. A jury is usually brought in to resolve questions of fact. What the Court is doing here is basically saying that the photographer's picture lacks any kind of creative merit which should be something for a jury to decide. In Copyright cases, the courts seem to be trending toward early dismissal by becoming the finder of fact. I'm not sure it's entirely appropriate for courts to make rulings on the question of "what is art?"
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