Choosing the President at Random?

Earlier this month, I became aware via the Legal History Blog that The Amendments Project at Harvard University had released a searchable archive of nearly all amendments that have been proposed to the US Constitution. Jill Lepore and David Woods Kemper are to thank for this incredible undertaking. The archive is available here.

From the announcement:

In total, the Amendments Project has compiled over 20,000 proposed amendments, including 11,000 officially introduced in Congress and 9,000 more put forward through petition. Compiling data from congressional records, the Congressional Petitions Database, and online petitions, the fully searchable database is the most comprehensive archive of attempted constitutional amendments to date. The search feature allows anyone to sort amendments by topic, date, sponsor, party affiliation, and type (e.g., petition, bill, etc.).

Naturally, I decided to poke around in the database to see what odd an interesting proposed amendments I could find. One of my favorites was proposed in a December 17, 1844 bill introduced by Ohio Representative Samuel Finley Vinton. Here's how it starts:

From and after the year one thousand eight hundred and sixty, the people in each State, entitled to vote for members of the House of Representatives of the United States, shall elect from among its citizens a candidate for the presidency of the United States; in which election a majority of all the votes given shall be necessary to a choice. If, upon the first vote in any State, no one person shall have a majority of all the votes given, another vote shall be had, which shall be confined to the two persons having the greatest number of votes at the former voting; and if, upon such second vote, the two persons voted for shall have an equal number of votes, the choice between them shall be determined by lot.

At first glance, this seemed straightforward. But the amendment's requirement that each state must elect "from among its citizens" a presidential candidate means that each state will be voting for a different candidate (assuming that one person cannot be a citizen of multiple states). As a result, each state will end up electing a different person to proceed to the next stage of the election process, where things get even more bizarre: 

The election of candidates in each State shall be certified to the Congress of the United States; and after the certificates of election in all of the States shall have been transmitted to Congress, uniform balls, equal in number to the whole number of members of the Senate and House of Representatives, shall be deposited in a box; and before depositing thereof, the name of each State in the United States shall be inscribed on as many of said balls as shall be equal to the whole number of its members in both branches of Congress. And in the presence of both houses of Congress a ball shall be drawn out by lot, and the candidate elected by the State the name of which is upon the ball drawn out shall be the President. All of the remaining balls having upon them the name of that State shall then be withdrawn from the box; when, from those still remaining, another ball shall be immediately drawn out, in like manner as the first, and the candidate elected by the State the name of which is on that ball shall be the Vice President.

The following paragraph of the proposed amendment goes on to note that Congress shall pass laws governing the specifics of the process. It further states that "[t]he second and fourth sections of the second article of the constitution of the United States, and the twelfth article of the amendment thereto, shall become null and void on the taking effect of this amendment." It is unclear why Sections Two and Four are targeted for nullification, as they concerns the power of the president and process of impeachment--while Section One concerns the manner of presidential elections. Perhaps a secondary goal of the proposed amendment is to negate the powers of the executive.

One can see that the process isn't entirely random. A candidate who wins the vote in more populous states will end up with more balls in the drawing box, increasing the probability of that candidate's eventual selection. But because each state elects one of its own citizens for the eventual drawing, the ultimate drawing remains largely randomized--as even the most populous states will have a small minority of overall balls in the drawing box.

It is unclear what compelled Vinton to introduce such a proposal. His daughter, Madeline Vinton Dahlgren, wrote a glowing appraisal of his life and career in the Ohio History Journal, which briefly mentions the amendment, giving it a bland description of "regulating the mode of election of the President and the Vice President." But there's no other discussion of the proposal beyond this brief point. Still, Vinton had a fairly accomplished legal career, and had previously been elected to Congress for seven terms before returning to the practice of law. He eventually decided to re-enter politics, and introduced the proposal during this second phase of his political career. He was considered for a number of high-level posts, but declined them. Overall, this doesn't give off the impression of a politician who is an erratic weirdo, likely to fire off extreme legislation and proposed amendments.

A possible explanation is that the amendment was meant to highlight problems with the existing system of presidential elections. Abolishing or reforming the electoral college has long been a subject of proposed amendments (as one will soon learn by perusing the database), and this proposal of a random ball drawing may have been meant as a parody of the existing system. The problematic nature of the vice presidential selection process may also reflect dissatisfaction with the office of the vice president in general, as Vinton, a Whig, was enduring the presidency of John Tyler, who became president after William Henry Harrison died after only 31 days in office. Tyler ended up acting at odds with the Whig Party's agenda, leading to his eventual expulsion from the party in 1841. Vinton, a Whig, likely shared his party's dissatisfaction with their former vice presidential candidate (a possibility bolstered by the tone with which Dahlgren discusses Tyler in her article).

This approach of proposing an amendment as a satirical message wasn't unprecedented at the time. Indeed, only five days earlier, another Ohio Representative, Joshua Reed Giddings, had introduced a petition of Ohio citizens seeking an amendment to the Constitution to condition representation in the legislature by reference to "free inhabitants" only--a change that would reduce the political power of southern states with substantial populations of enslaved people. Many similar petitions and proposals were introduced in Congress around this time, but this one included a noteworthy addition, stating that if apportionment based on free inhabitants was "impracticable," then "the animal property of the free States be represented, as well as the slave property of the slave-holding States." A few moments of thought over how to interpret or implement this last provision reveals it to be a nightmare--does it refer to domesticated animals? Animals in general? What sort of animals? Cows? Chickens? Fish? As it turns out, none of this matters. This language does not appear to be a serious proposal to amend the Constitution to give animals political power--rather it's a political statement against the level of political representation enjoyed by states permitting slavery (albeit by means of drawing an unfortunate parallel between enslaved people and livestock).

Whether Vinton's proposed amendment was similarly meant as more of a political statement than a concrete policy proposal remains unclear. I'll continue digging, and may end up writing more on this and other strange amendment in the near future.

In the meantime, I strongly urge you to check out the proposed amendment database! It's fairly easy to navigate, and, as noted in the announcement quoted above, searches can be tailored in many ways, including by year, party, sponsor, and issue. Jill Lepore and David Kemper are owed a great deal of thanks for this accomplishment.

[UPDATE: August 19, 2023: I've added revisions accounting for the requirement that each state must vote for one of its own citizens, which adds a further level of chaos to the process, but solves a previously-flagged problem of the same person winning both the presidency and vice presidency.]

How Many Times Can a Complaint Be Amended?

This post aims to answer a simple question: what is the highest number of amendments to a complaint that has ever been allowed by a court in the United States?

A bit of background first. This post concerns civil litigation, where plaintiffs typically file a complaint setting forth various causes of action against defendants who have allegedly wronged them. These complaints are often amended. Sometimes plaintiffs add or remove parties. Plaintiffs may also add or remove causes of action or factual allegations in support of their causes of action. A defendant may move to dismiss a complaint, and if they succeed, the court may grant the plaintiff leave to file an amended complaint. Granting leave to amend at least once is common--unless a defendant has clearly demonstrated that a plaintiff's case is completely futile, a court will likely give the plaintiff another shot.

While many cases I've litigated have involved amended, second amended, or even fourth amended complaints, I was curious about the maximum number of amendments courts have allowed. A first amended complaint isn't too hard for a plaintiff to get. But when a court is confronted with a complaint that has been drafted and redrafted multiple times, the probability that the court will give a plaintiff yet another chance decreases.

From my exhaustive research (searching for "tenth amended complaint" and increasing the numbers until I could find no further results), it appears that the most amended complaint on record was amended twenty-two times.  The case is Mirarchi v. Boockvar, and it's a recent one--with the original complaint filed on January 12, 2021 in the US District Court for the Eastern District of Pennsylvania (case no. 5:21-CV-00126). A publicly-accessible link to the docket is here.

I've answered the question I set out to investigate, but I dug into the case itself, as I was curious about what would give rise to so many amendments. For those of you brave enough to dive into that nonsense, read on:

Wall Street Journal Praises Judicial Ignorance of Statistical Methods

From yesterday's Wall Street Journal editorial page covering yesterday's oral arguments in Gill v. Whitford, a case that involved a challenge to alleged gerrymandering:

[Chief Justice John Roberts] zeroed in on risks for the credibility of the judiciary if the Supreme Court invalidates a state electoral map on purely political grounds for the first time. His reference to EG is to a political science standard offered by the plaintiffs as a test of when an electoral map is too partisan.

. . .

Chief Justice: “It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7%. That doesn’t sound like language in the Constitution.” . . .

[Plaintiffs' Attorney, Paul] Smith: “If you let this go, if you say this is—we’re not going to have a judicial remedy for this problem, in 2020, you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.

And it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like—everywhere are going to be like the voters in Wisconsin and, no, it really doesn’t matter whether I vote.”

Chief Justice: “No, but you’re going to take this—the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”

Gerrymanders are unsightly, but worse would be the sight of federal judges becoming political arbiters of every electoral map based on evidence that voters are likely to conclude is itself partisan.

An eye-opening Twitter thread by Steven Mazie illustrating how Chief Justice Roberts and Justice Gorsuch appeared to lack knowledge of the statistical methodology involved paints Chief Justice Roberts' comment as more disturbing than the quippy Editorial Board lets on. While "gobbledygook" is a fun word, reminiscent of "argle bargle" and "pure applesauce" of old, the implications of the comment are that the Court -- the last resort for challenging (often-complex) gerrymandering schemes -- should decline to do so because the methods involved are too complicated and potentially subject to partisan manipulation. Jesse Wegman at the New York Times' editorial page covers Smith's response, which summarizes this problem:

“The problem in this area is if you don’t do it, it is locked up,” Mr. Smith said. “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.”

Gerrymanders are more than "unsightly" as the Journal describes. The contorted and bizarre-looking voting districts that gerrymandering creates may result in disenfranchisement of voters along party and racial lines. They threaten representative democracy. The Journal's and Chief Justice's implication that a lack of understanding of statistical methods is enough of a barrier to let this threat go unchallenged is concerning.

Charged With a Crime? Don't Accept Interview Requests

The Des Moines Register reports:

A Des Moines woman has been arrested on suspicion of voting twice this month in the general election, police and court records show. 

Terri Lynn Rote, 55, was booked into the Polk County Jail about 3:40 p.m. Thursday on a first-degree election misconduct charge, which is a Class D felony. 

Rote, a registered Republican, reportedly cast an early voting ballot at the Polk County Election Office, 120 Second Ave., and another ballot at a county satellite voting location in Des Moines, according to a Des Moines police report.

Rote chose not to exercise her right to remain silent. From Iowa Public Radio:

"I wasn't planning on doing it twice, it was spur of the moment," says Rote. "The polls are rigged."

It appears that Rote made this comment after she was charged and released, as the Iowa Public Radio story indicates that it was updated to include Rote's statement. The report goes on to quote Polk County Attorney John Sarcone who confirms that cases of voter fraud are "very rare."

KCCI Des Moines reports that police were able to determine that Rote had voted twice by comparing signatures on election ballots. Rote's admission to media outlets that she voted twice will probably prove helpful to the prosecution's case against her as well.

Iowa Senate Candidate Bob Quast Promises to Raffle Off Car to Voters

Iowa politics have been interesting this year. Democratic Senator Tom Harkin will not be running for a sixth term this midterm, and candidates are already vying for his vacant seat. Bruce Braley, who is currently a U.S. representative for Iowa's First District, is running as the Democratic candidate. But things are a bit more amusing on the Republican side of the race. First, there was the "Squeal" ad from Joni Ernst, who promised she was qualified "cut pork" in Washington based on her experience castrating hogs on an Iowa farm.

Then there was the #GotBalls ad from Bob Quast, who promised to vote for term limits, and to shoot the testicles off of the man who murdered his sister if that man ever bothered Quast's family. Quast seems to be running as a write-on candidate, and it is not clear what party he is affiliated with -- although his strong Second Amendment stance and ridicule of "Braleycare" seems to put him closer to the Republican side of the aisle.

Wanting to know more about Quast, I visited his website, where I was confronted with this video which began playing automatically:



While not as shocking as Quast's first ad, I was taken aback by Quast's promise to give away a car to voters. I looked further into Quast's website and found a list of questions and answers where he went into more detail on the car giveaway:

Q2: Is Bob really serious about giving away his 2014 Chevy Spark campaign car?
A2: As a heart attack, so long as doing so doesn't violate any existing law, rule, regulation, or other work of the nation's busy attorneys and lawmakers. If Mr. Braley or his attorney friends/financial donors pass a new law prohibiting Bob from making a campaign promise that he intends to make real (giving away his campaign car on Nov. 5, 2014, if Bob wins the general election for US Senate), then there can be no free car, as Bob doesn't want to occupy the prison cell vacated by his sister's killer.

Q3: Who is eligible to win Bob's 2014 Chevy Spark?
A3: Any Iowan who is registered to vote by Nov. 4, 2014, who goes to www.BobQ2014.com and submits the requested personal info (like your email so we may annoy you with more funny videos and occasional requests for $6 or $10 investments to pay for even more funny stuff that also educates you on all of Bob's serious platform issues). You see, Bob thinks differently and doesn't plan to ever raise the multi-millions of legal bribes going to other "professional" career politicians. When Bob goes to Washington, DC, he shall owe no favors to any big donors nor the senior management of either party. Bob plans to spend six years working hard, solving problems others created, reporting directly to the awesome Iowans who elected him, and then coming home at age 50 to his family and friends. There's also this little cause called the Lynnette Quast Craft Charity he'd like to run for the rest of his life. Sadly, there are a limitless number of "clients" who need Bob's help!

The Daily Beast reports on Quast's promise here, noting that while buying votes is illegal, it is a surprisingly common practice for politicians to raffle off prizes in exchange for website signups. The Daily Beast links to this New York Times article on how gun raffles are an increasingly popular tool among republican candidates.

At the Election Law Blog, Rick Hasen remarks that Quast'spromise is probably legal, since there is "no payment for turnout or voting." I am certainly no expert on the subject, so I'll take Hasen's word for it. Whatever the case may be, Iowa's midterm election is shaping up to be chaotic and humorous, and I look forward to seeing how the race unfolds.