[EL] more Arizona: Why is no evidence needed

[Joe La Rue]

Edward,

The Court's statement regarding evidence cannot be a result of strict
scrutiny review, for the burden is on the state to justify its law under
"closely drawn" scrutiny as well. *See Nixon v. Shrink Mo. Gov’t. PAC*, 528
U.S. 377, 387-88 (2000) (ruling that contribution limits may only be
sustained “if the Government demonstrated” they were "closely drawn" to a
"sufficiently important interest"). Thus, in the First Amendment, political
speech and association context, the burden is *always *on the government to
justify its laws.

It seems to me that the Court recognized that laws that reward one's
political opponent whenever one engages in political speech of necessity
burden political speech. They force one to remain silent or else cause
benefit to accrue to his or her opponent. It seems the Court was saying that
the First Amendment cannot tolerate that result. The plaintiffs therefore
did not need to offer evidence to prove "burden" -- the law itself was all
the evidence needed.

Joe

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On Tue, Jun 28, 2011 at 11:41 AM, Edward Still <still at votelaw.com> wrote:

> I would like to hear others' assessments about why the majority said, "we
> do not need empirical evidence to determine that the law at issue is
> burdensome."
>
> Is it because of the presumption that violations of the First Amendment are
> irreparable injuries? [Irreparable injury = burden]
>
> Is it because the Court had applied strict scrutiny, so that the burden is
> on the State?
>
>
> Edward Still                         NEW CONTACT INFO
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>
>
> On Mon, Jun 27, 2011 at 5:16 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> **
>>
>>  Evidence? We Don’t Need No Stinking Evidence.<http://electionlawblog.org/?p=19769>
>> Posted on June 27, 2011 <http://electionlawblog.org/?p=19769> by Rick
>> Hasen <http://electionlawblog.org/?author=3>
>>
>> Chief Justice Roberts in today’s opinion (which I am now editing for our
>> casebook supplement <http://electionlawblog.org/?p=19226>): “As in *
>> Davis,* we do not need empirical evidence to determine that the law at
>> issue is burdensome. See* *554 U.S., at 738–740<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=2016385175&ReferencePosition=738>
>> * *(requiring no evidence of a burden whatsoever).”
>>
>> I’ve written about the Court’s wildly inconsistent approach to evidence in
>> the campaign finance cases before, most recently in my *Michigan Law
>> Review* article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576>on
>> *Citizens United.*
>>
>>
>>
>
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