[EL] Michigan

Tue Jul 5 10:25:13 PDT 2011

Hello all –

Living constitutionalism does not necessarily suggest that text ought to be ignored.  The mere assertion that text matters does not necessarily make one a committed textualist.

-Hank

Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Tuesday, July 05, 2011 1:02 PM
To: rhasen at law.uci.edu
Cc: law-election at uci.edu
Subject: Re: [EL] Michigan

    Before you get too excited, Rick, I do think that the judicial philosophy most associated with Democratic judges justifies judicial activism, resulting in more of it from Democrat judges and more partisan decisions by them.

    The idea of a living constitution -- that there is little practical meaning is constitutions, and statutes, and that their meaning should changed based on changing circumstances, more enlightened understandings, etc -- liberates judges from the restrains of the text of the constitution and allows them nearly free reign to impose their own views of the social good.  Since they also are often, though not always, Democrats, this lends itself to partisan decisions favoring Democrats. See Florida Supreme Court in Bush v. Gore, NJ Supreme Court in Torricelli Senate resignation.  If one is restrained by the text and intent of constitutions and statutes, then a judge is just not free to impose his or her own will.  Most Republican judges do see themselves so constrained and thus are less prone to partisan decisions.

    Of course there are plenty of exception, most recently the unanimous decision of the Indiana Recount Commission in the Secretary of State Charlie White case, but the Democrat Commissioner's concurrence revealed a conservative judicial philosophy, not of the "living constitution" variety  Jim Bopp

In a message dated 7/5/2011 12:29:22 P.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
They were serious questions, Jim.  I am very happy to hear your response.

On 7/5/2011 9:26 AM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
Surely these were not serious questions, Rick, but just in case they are, of course not.

But my point was that the first step in determining whether a judge is doing so is to look at the merit of the argument, not the changes in the court.  All you commented on was the change in the court and I, appropriately in my view, looked first to the merits of the argument. I do think, in this case, that the original result was so obviously wrong that it is an example of Democrat partisan judicial decisionmaking.  Jim Bopp

In a message dated 7/5/2011 11:09:06 A.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
Jim,
Do you believe only Democrats elected as judges engage in partisan judging?  Do you believe Democrats elected as judges always engage in partisan judging?
I can tell you my answers are no and no.  Let's see if there is something we can agree upon.
Rick

On 7/5/2011 6:20 AM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
    In the following post, Rick focuses on the reversal of the Michigan Supreme Court and the intervening election.  If one focuses on the merits of the claim, there is no doubt that, in the second opinion, the Michigan Supreme Court got it right. So this is another example of the benefits of judicial elections, correcting judicial activism and Democrat-partisan judging. Jim Bopp

What a Difference (a Supreme Court) Election Makes: Michigan Edition<http://electionlawblog.org/?p=20019>
Posted on July 4, 2011<http://electionlawblog.org/?p=20019> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://www.chicagotribune.com/news/local/chi-ap-mi-michiganteachers-,0,5020198.story>: “Public school districts cannot help unions by deducting political contributions from the paychecks of teachers, the Michigan Supreme Court said Thursday as conservatives reversed a six-month-old ruling by liberal justices….The Supreme Court issued a completely different opinion in late December, just before Democrats lost their 4-3 majority. Republicans agreed to reconsider the case when they took control of the court.’”Instead of preserving precedent, this newly comprised majority reverses this court’s previously issued opinion and issues its own opinion for no reason other than that it disagrees with the outcome of the prior opinion,’ said Justice Diane Hathaway in a dissent.”

You can read the opinion here<http://courts.michigan.gov/supremecourt/Clerk/10-11-Term-Opinions/137451-6-30-11.pdf>. From footnote 1 of the majority opinion: “The Chief Justice casts his vote in this case as justices have traditionally done, in accordance with their original vote in the underlying case, and our new justices, Justices MARY BETH KELLY and ZAHRA, also cast their vote as new justices have traditionally done, in accordance with their best understanding of the law. See, e.g., USF&G, in which Justice HATHAWAY herself cast a vote in this manner, and Duncan v Michigan, 488 Mich 957 (2010) (DAVIS, J., concurring), in which the fourth justice in support of the former majority opinion in this case also cast his vote in this manner. Justice HATHAWAY would apparently require the majority justices in this case to abide by an entirely different set of legal rules.”

In a message dated 7/5/2011 1:26:53 A.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
“New breed of ‘super PACs,’ other independent groups could define 2012 campaign”<http://electionlawblog.org/?p=20047>
Posted on July 4, 2011<http://electionlawblog.org/?p=20047> by Rick Hasen<http://electionlawblog.org/?author=3>

Don’t miss this WaPo report<http://www.washingtonpost.com/politics/new-breed-of-super-pacs-other-independent-groups-could-define-2012-campaign/2011/06/29/gHQAo47FyH_story.html?hpid=z2>.
[cid:X.MA1.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20047&title=%E2%80%9CNew%20breed%20of%20%E2%80%98super%20PACs%2C%E2%80%99%20other%20independent%20groups%20could%20define%202012%20campaign%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
Two on Campaign Finance from the LA Times<http://electionlawblog.org/?p=20045>
Posted on July 4, 2011<http://electionlawblog.org/?p=20045> by Rick Hasen<http://electionlawblog.org/?author=3>

One on Colbert<http://articles.latimes.com/2011/jul/01/nation/la-na-colbert-fec-20110701> and one on Majority PAC<http://articles.latimes.com/2011/jun/30/news/la-pn-fec-superpacs-20110630>.  For more on the Majority PAC, see NYT’s “The Caucus<http://thecaucus.blogs.nytimes.com/2011/06/30/federal-officials-cant-raise-unlimited-funds-f-e-c-says/>.”  NPR also offers There’s Nothing Funny About Colbert’s Super-PAC.<http://www.npr.org/2011/06/30/137527309/theres-nothing-funny-about-colberts-superpac>
[cid:X.MA2.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20045&title=Two%20on%20Campaign%20Finance%20from%20the%20LA%20Times&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“New Head Of Rockland Independence Party Indicted On Perjury Charges”<http://electionlawblog.org/?p=20042>
Posted on July 4, 2011<http://electionlawblog.org/?p=20042> by Rick Hasen<http://electionlawblog.org/?author=3>

The case<http://newcity.patch.com/articles/new-head-of-rockland-independence-party-indicted-on-perjury-charges> arose out of a lawsuit concerning election petition signatures.
[cid:X.MA3.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20042&title=%E2%80%9CNew%20Head%20Of%20Rockland%20Independence%20Party%20Indicted%20On%20Perjury%20Charges%E2%80%9D&description=>
Posted in chicanery<http://electionlawblog.org/?cat=12> | Comments Off
More Jim Sleeper on the Brooklyn Grand Jury Report and Voter Fraud<http://electionlawblog.org/?p=20039>
Posted on July 4, 2011<http://electionlawblog.org/?p=20039> by Rick Hasen<http://electionlawblog.org/?author=3>

Following up on these<http://electionlawblog.org/?p=19560> posts<http://electionlawblog.org/?p=19584>, read this new Jim Sleeper<http://www.jimsleeper.com/?page_id=212> post: “Where serious journalism begins. I was tickled recently to notice that election law expert Rick Hasen,<http://electionlawblog.org/?p=19584> tracking Brooklyn voter fraud cases from the 1970s and ’80s, resurrected my reporting on it from that time, in the Village Voice. Rick was able to do it thanks to my preserving those stories in pdfs right here, in my “Scoops and Revelations” section. As I explain briefly in the introduction to that section<http://www.jimsleeper.com/wp-content/uploads/2010/03/scoops-and-other-revelations.pdf>, I was able to break this important case and to embolden the wronged party to take it to court, because I’d been immersed in the community long enough, as a journalist, to have the context and the contacts necessary to catch sleights of hand at the Board of Elections that otherwise wouldn’t have been caught, let alone written about. This was my own introduction to journalism’s indispensability to a healthy public sphere. I say a bit more about this right here.<http://www.jimsleeper.com/wp-content/uploads/2010/03/scoops-and-other-revelations.pdf>

Here’s more <http://www.jimsleeper.com/wp-content/uploads/2010/03/scoops-and-other-revelations.pdf> from Sleeper on the topic, below the fold, showing how little of this scandal involved voter impersonation fraud.  Continue reading →<http://electionlawblog.org/?p=20039>
[cid:X.MA4.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20039&title=More%20Jim%20Sleeper%20on%20the%20Brooklyn%20Grand%20Jury%20Report%20and%20Voter%20Fraud&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
“Redistricting and Polarization: Who Draws the Lines in California?”<http://electionlawblog.org/?p=20037>
Posted on July 4, 2011<http://electionlawblog.org/?p=20037> by Rick Hasen<http://electionlawblog.org/?author=3>

Corbett Grainger has written this article<http://www.jstor.org/pss/10.1086/605724> for the Journal of Law and Economics.
[cid:X.MA5.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20037&title=%E2%80%9CRedistricting%20and%20Polarization%3A%20Who%20Draws%20the%20Lines%20in%20California%3F%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
“Republican Super-PAC Gets FEC Go-Ahead”<http://electionlawblog.org/?p=20034>
Posted on July 4, 2011<http://electionlawblog.org/?p=20034> by Rick Hasen<http://electionlawblog.org/?author=3>

The Washington Times reports<http://www.washingtontimes.com/news/2011/jun/30/republican-super-pac-gets-fec-go-ahead/?page=all#pagebreak>.
[cid:X.MA6.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20034&title=%E2%80%9CRepublican%20Super-PAC%20Gets%20FEC%20Go-Ahead%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“North Carolina GOP targets four Democrats in redistricting proposal”<http://electionlawblog.org/?p=20032>
Posted on July 4, 2011<http://electionlawblog.org/?p=20032> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports<http://www.washingtonpost.com/blogs/the-fix/post/north-carolina-gop-targets-four-democrats-in-redistricting-proposal/2011/07/01/AGWfY0tH_blog.html>.
[cid:X.MA7.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20032&title=%E2%80%9CNorth%20Carolina%20GOP%20targets%20four%20Democrats%20in%20redistricting%20proposal%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
“From Registration to Recounts Revisited: Developments in the Election Ecosystems of Five Midwestern States Released!”<http://electionlawblog.org/?p=20030>
Posted on July 4, 2011<http://electionlawblog.org/?p=20030> by Rick Hasen<http://electionlawblog.org/?author=3>

EL at M<http://moritzlaw.osu.edu/electionlaw/analysis/index.php?ID=8449>: “We invite you to read From Registration to Recounts Revisited: Developments in the Election Ecosystems of Five Midwestern States<http://moritzlaw.osu.edu/electionlaw/projects/registration-to-recounts/2011edition.pdf>, a retrospective review primarily of the 2008 elections in five key Midwestern states – Illinois, Michigan, Minnesota, Ohio, and Wisconsin. This study is a sequel to From Registration to Recounts<http://moritzlaw.osu.edu/electionlaw/projects/registration-to-recounts/index.php>, the widely-acclaimed comprehensive study of the election systems of these states, in which the authors set out to study how five key Midwestern states had responded to the Help America Vote Act of 2002, and to the increased attention that matters of election administration had received in the wake of the 2000 disputed presidential election. This retrospective study, like the original, makes clear that election reform remains an uncompleted task more than two full presidential election cycles after Bush v. Gore.”

Timely and important.
[cid:X.MA8.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20030&title=%E2%80%9CFrom%20Registration%20to%20Recounts%20Revisited%3A%20Developments%20in%20the%20Election%20Ecosystems%20of%20Five%20Midwestern%20States%20Released%21%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18> | Comments Off
“Speech is Free Only to Those Who Can Afford It”<http://electionlawblog.org/?p=20027>
Posted on July 4, 2011<http://electionlawblog.org/?p=20027> by Rick Hasen<http://electionlawblog.org/?author=3>

Frank Askin has written this commentary<http://blog.nj.com/njv_guest_blog/2011/07/speech_is_free_only_to_those_w.html> on the Arizona Free Enterprise case for the Newark Star-Ledger.
[cid:X.MA9.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20027&title=%E2%80%9CSpeech%20is%20Free%20Only%20to%20Those%20Who%20Can%20Afford%20It%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Stephen Colbert, Karl Rove and the mockery of campaign finance”<http://electionlawblog.org/?p=20024>
Posted on July 4, 2011<http://electionlawblog.org/?p=20024> by Rick Hasen<http://electionlawblog.org/?author=3>

Dana Milbank has written this column<http://www.washingtonpost.com/opinions/stephen-colbert-cant-compete-with-karl-rove/2011/06/30/AGnrkksH_story.html> for the Washington Post.
[cid:X.MA10.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20024&title=%E2%80%9CStephen%20Colbert%2C%20Karl%20Rove%20and%20the%20mockery%20of%20campaign%20finance%E2%80%9D&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
What a Difference (a Supreme Court) Election Makes: Michigan Edition<http://electionlawblog.org/?p=20019>
Posted on July 4, 2011<http://electionlawblog.org/?p=20019> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://www.chicagotribune.com/news/local/chi-ap-mi-michiganteachers-,0,5020198.story>: “Public school districts cannot help unions by deducting political contributions from the paychecks of teachers, the Michigan Supreme Court said Thursday as conservatives reversed a six-month-old ruling by liberal justices….The Supreme Court issued a completely different opinion in late December, just before Democrats lost their 4-3 majority. Republicans agreed to reconsider the case when they took control of the court.’”Instead of preserving precedent, this newly comprised majority reverses this court’s previously issued opinion and issues its own opinion for no reason other than that it disagrees with the outcome of the prior opinion,’ said Justice Diane Hathaway in a dissent.”

You can read the opinion here<http://courts.michigan.gov/supremecourt/Clerk/10-11-Term-Opinions/137451-6-30-11.pdf>.  From footnote 1 of the majority opinion: “The Chief Justice casts his vote in this case as justices have traditionally done, in accordance with their original vote in the underlying case, and our new justices, Justices MARY BETH KELLY and ZAHRA, also cast their vote as new justices have traditionally done, in accordance with their best understanding of the law. See, e.g., USF&G, in which Justice HATHAWAY herself cast a vote in this manner, and Duncan v Michigan, 488 Mich 957 (2010) (DAVIS, J., concurring), in which the fourth justice in support of the former majority opinion in this case also cast his vote in this manner. Justice HATHAWAY would apparently require the majority justices in this case to abide by an entirely different set of legal rules.”
[cid:X.MA11.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20019&title=What%20a%20Difference%20%28a%20Supreme%20Court%29%20Election%20Makes%3A%20Michigan%20Edition&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19> | Comments Off
“South Carolina Republicans struggle to draw new GOP seat”<http://electionlawblog.org/?p=20014>
Posted on July 4, 2011<http://electionlawblog.org/?p=20014> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports<http://www.washingtonpost.com/blogs/the-fix/post/south-carolina-republicans-struggle-to-draw-new-gop-seat/2011/06/30/AGK10VsH_blog.html>.
[cid:X.MA12.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20014&title=%E2%80%9CSouth%20Carolina%20Republicans%20struggle%20to%20draw%20new%20GOP%20seat%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
“Director’s Note: Several hundred words from a grateful election geek”<http://electionlawblog.org/?p=20012>
Posted on July 4, 2011<http://electionlawblog.org/?p=20012> by Rick Hasen<http://electionlawblog.org/?author=3>

Doug Chapin’s final Electionline Weekly<http://electionline.pmailus.com/pmailweb/ct?d=RakA3QJqAAEAAAMYAAUyEA> “Director’s Note.”
[cid:X.MA13.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20012&title=%E2%80%9CDirector%E2%80%99s%20Note%3A%20Several%20hundred%20words%20from%20a%20grateful%20election%20geek%E2%80%9D&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
Christopher Malone Reviews Ansolabehere and Snyder’s “The End of Inequality”<http://electionlawblog.org/?p=20010>
Posted on July 4, 2011<http://electionlawblog.org/?p=20010> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/ansolabehere-snyder0611.htm>, at the Law and Politics Book Review.
[cid:X.MA14.1309872046 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20010&title=Christopher%20Malone%20Reviews%20Ansolabehere%20and%20Snyder%E2%80%99s%20%E2%80%9CThe%20End%20of%20Inequality%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off
--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org<http://electionlawblog.org/>

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--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org<http://electionlawblog.org/>
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