[EL] Breaking News: Montana Case/South Carolina voter ID/more news

[JBoppjr at aol.com]

It is interesting that Justice Ginsburg, joined by  Justice Breyer, seems 
to reject the principal argument the State of Montana  was making for 
upholding its Supreme Court's decision. The Montana AG claimed  that Montana was 
unique and that, as a result, the particular facts in Montana  should be 
examined to see if there was a compelling interest for upholding  Montana's law, 
even if Citizens United still prevents a similar federal  ban. Instead, they 
joined in the stay on the basis that all lower courts "are  bound to follow 
this Court’s decisions until they are withdrawn or modified." So  the 
Montana "facts" are relevant to these Justices only as a possible basis to  
overrule Citizens, but not as a basis for a Montana exception in  the meantime. 
So we have one rule from Citizens United, and that is the  corporate ban on 
independent expenditures is unconstitutional  everywhere. 
 
Regarding Rick's 3 points:
 
(1) Rick says that Justice Ginsburg seems to agree with his point,  
repeatedly stated, that the Supreme Court should examine the "facts." Well the  
only "facts" relevant to the Supreme Court is whether there is a  quid-pro-quo 
exchange with a candidate by an independent spender. Of course,  this is an 
impossibility since they don't talk to each other about the spending  and 
cannot possibly, therefore, engage in a quid-pro-quo exchange. So this is  not 
a "fact" that would ever exist.  Now if there was such a conversation,  the 
independent spending would not be independent, but would either be a bribe  
or coordinated. Either way, it does nothing to undermine the Court's 
position in  CU.
 
That is why Justice Ginsburg said it differently: "in light of the huge  
sums currently deployed to buy candidates’ allegiance." This statement has the 
 following possible assumptions that "hugh sums" are either evil in thems
elves,  that the "intent" of the spender is to buy the candidate's allegiance, 
that the  candidate is so grateful for the spending that the candidate will 
respond by  selling out their votes, or that there is actually secret 
quid-pro-quo  conversations going on. The Court has rejected the "hugh sums are 
evil" argument  and the "intent of the speaker" and the "candidates are so 
grateful that they  will sell themselves out" arguments already. And there are 
not "facts" that any  of this is actually true.  At least Justice Giinsburg 
makes it plain that  she does not just accept these, but says that 
"petition for certiorari will  give the Court an opportunity to consider" this, as 
they already have done over  and over again in Buckley, MCFL, McConnell,  
WRTL, and CU, rejecting these each time.
 
(2) As I understand it, if 5 Justices vote to summarily affirm or reverse,  
that is a done deal regardless if 4 want to hear the case.
 
(3) Despite Rick arguing repeatedly, the foreign contribution case is not  
inconsistent with CU but perfectly consistent.  It is a question  of 
compelling interests that must be shown if the freedom of speech is  abridged.  And 
freedom of speech applies to all speech -- regardless of the  speaker.  Jim 
Bopp
 
 Jim
 
 
In a message dated 2/17/2012 6:33:15 P.M. Eastern Standard Time,  
rhasen at law.uci.edu writes:

 
_Breaking News: Supreme  Court Grants Stay in Citizens United Montana 
Sequel, Special Statement of J.  Ginsburg_ (http://electionlawblog.org/?p=30145)  
Posted  on _February 17, 2012 3:28 pm_ 
(http://electionlawblog.org/?p=30145)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
I _wasn’t expecting _ (http://electionlawblog.org/?p=30113) the granting  
of the stay until next week..  Here’s_ the order_ 
(http://big.assets.huffingtonpost.com/11A762.pdf) , with a  special statement from Justices Breyer and 
Ginsburg: 
AMERICAN TRADITION PARTNERSHIP, INC., ET AL. V. BULLOCK, ATT’Y
GEN. OF  MT, ET AL.
The application for stay presented to Justice Kennedy and by  him referred 
to the Court is granted, and the Montana Supreme Court’s  December 30, 2011, 
decision in case No. DA 11-0081, is stayed pending the  timely filing and 
disposition of a petition for a writ of certiorari. Should  the petition for 
a writ of certiorari be denied, this stay shall terminate  automatically. In 
the event the petition for a writ of certiorari is  granted, the stay shall 
terminate upon the issuance of the mandate of this  Court. 
Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting  
the grant of the application for stay. Montana’s experience, and experience  
elsewhere since this Court’s decision in Citizens United v. Federal 
Election  Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain 
that  independent expenditures by corporations “do not give rise to 
corruption or  the appearance of corruption.” Id., at ___ (slip op., at 42). A 
petition for  certiorari will give the Court an opportunity to consider whether, 
in light  of the huge sums currently deployed to buy candidates’ allegiance, 
Citizens  United should continue to hold sway. Because lower courts are 
bound to  follow this Court’s decisions until they are withdrawn or modified, 
however,  Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 
477, 484  (1989), I vote to grant the stay.
A few initial thoughts: 
1. The granting of the stay is _unsurprising._ 
(http://electionlawblog.org/?p=29674)   The Montana  Supreme Court decision is a direct challenge to the 
Supreme Court’s  Citizens United case.  The real question will be whether 
the  Court sets the case for argument or not.  Here’s a thought: it takes 
only  four Justices to set a case for argument.  Might the CU dissenters (plus  
Kagan for Stevens) vote to hear the case, so that the hypocrisy of the 
Supreme  Court’s decision could be exposed.  What hypocrisy?  As I’ve 
_explained_ (http://electionlawblog.org/?p=29674) , The CU majority  presented its 
determination that independent spending cannot corrupt  candidates or 
undermine voter confidence as a statement of fact, when it was  not a statement of 
fact which can be rebutted with evidence.  It was a  legal fiction to avoid 
saying: the first amendment trumps concerns about  corruption.  I have urged 
the CU dissenters to make this point clear in  any dissent from a summary 
reversal, and from Justice Ginsburg’s statement  today about large amounts of 
money “elsewhere” (read Super PACs) it is clear  that this is what Justice 
Ginsburg has in mind.  If this is about  evidence, let’s consider the 
evidence. 
2. Supreme Court mavens: if 5 justices vote for summary reversal, and four  
vote to grant cert. and hear the case, what happens?  Maybe the case will  
be heard as a matter of courtesy in those circumstances.  Will the  
5-Justice majority have the stomach for CU II? 
3. And something else has changed since CU.  The Supreme Court  summarily 
affirmed the Bluman case, affirming that sometimes the  identity of the 
speaker in campaign finance does matter.  That is, the  Court affirmed that the 
government can keep out foreign money.  _I’ve_ 
(http://www.nytimes.com/roomfordebate/2012/01/05/should-foreign-money-be-allowed-to-finance-us-elections/bl
uman-v-fec-is-a-trojan-horse)   _argued  _ 
(http://www.tnr.com/article/politics/98162/citizens-united-foreign-money) _repeatedly_ 
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576)   that barring foreign spending in 
elections is inconsistent with CU  logic.  Will that sway the 5 justice CU 
majority?  Likely not.   But it does make for a stronger dissent. 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30145&title=Breaking%20News:%20Supreme%20Court%20Grants%20Stay%20in%20Citizens%20
United%20Montana%20Sequel,%20Special%20Statement%20of%20J.%20Ginsburg&descri
ption=) 


Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,  
_Supreme Court_ (http://electionlawblog.org/?cat=29)   | Comments Off 

 
_Bad Judge Draw for  South Carolina in Voter ID Preclearance Case_ 
(http://electionlawblog.org/?p=30142)  
Posted  on _February 17, 2012 3:15 pm_ 
(http://electionlawblog.org/?p=30142)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
Via _Texas  Redistricting_ 
(http://txredistricting.org/post/17787488141/the-three-judge-panel-in-the-south-carolina-voter-id)  comes the news that the 
panel is district court judges  Collen Kollar-Kotelly, and John Bates and 
D.C. Circuit judge Brett Kavanaugh.  This panel will decide whether the 
Department of Justice erred in not  approving South Carolina’s voter 
identification law under section 5 of the  Voting Rights Act.  DOJ concluded the law 
would worsen the position of  minority voters because minority voters are less 
likely than whites to have  government-issued id.  Among South Carolina’s 
arguments is that the court  should read the preclearance requirement narrowly 
(making it easier to get  things precleared) to avoid serious constitutional 
problems with a  broadly-read section 5.  (The underlying claim is that 
section 5 violates  states’ rights to choose their own election rules and is 
now an  unconstitutional exercise of congressional power given no recent 
history of  intentional discrimination by covered jurisdictions.) 
A few reactions.  First, the brain power on this panel is  unbelievable.  
The quality of the DC judges is very high to begin with  but this is a very 
smart panel.  Second, this draw is probably not great  for South Carolina.  
Judge Kollar-Kotelly was a tour de force in writing  one of the mammoth 
opinions in the three-judge court case McConnell v.  FEC upholding most of the 
McCain-Feingold campaign finance law.  The  Ninth Circuit ended up following 
her decision.  She’s going to be  skeptical of South Carolina’s arguments 
about the constitutional problems with  section 5 of the VRA.  John Bates, a 
George W. Bush appointee, recently  issued two opinions (Shelby County and 
the LaRoque (Kinston) case)  rejecting constitutional challenges to section  
of the Voting rights  Act.  Judge Kavanaugh, while very conservative, has 
proven himself no  activist when it comes to the election case; he rejected a 
recent argument to  blow a hole in the McCain-Feingold law’s soft money 
provisions on grounds that  it was for the Supreme Court, not the lower courts, 
to overturn earlier  precedent. 
But even if South Carolina faces long odds before the three-judge court, we 
 all know the main action will be before the Supreme Court.  That’s why  
South Carolina already hired big gun Paul Clement to work on this case. 
The next question will be whether South Carolina seeks to expedite  
consideration of this case so that it will have a chance to use its voter id  law 
in the November elections.  _I’ve  explained in _ 
(http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administration_s_risky_
voter_id_move_threatens_the_voting_rights_act.html) _Slate_ 
(http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administrat
ion_s_risky_voter_id_move_threatens_the_voting_rights_act.html)   how this 
could put the thorny issue before SCOTUS before the election  (though that 
seems less likely as time ticks by). 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30142&title=Bad%20Judge%20Draw%20for%20South%20Carolina%20in%20Voter%20ID%20Precl
earance%20Case&description=) 


Posted in _Supreme Court_ (http://electionlawblog.org/?cat=29) , _voter id_ 
(http://electionlawblog.org/?cat=9) , _Voting Rights Act_ 
(http://electionlawblog.org/?cat=15)   | Comments Off 

 
_“Sheriff Baca admits  violating campaign endorsement law”_ 
(http://electionlawblog.org/?p=30139)  
Posted  on _February 17, 2012 2:02 pm_ 
(http://electionlawblog.org/?p=30139)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
_LA  Times_ 
(http://latimesblogs.latimes.com/lanow/2012/02/sheriff-baca-admits-campaign-endorsement-law-violation-uniform.html) : “Los Angeles County 
Sheriff Lee Baca admitted Friday that he broke  state law by making a 
political endorsement while in uniform. Baca’s  acknowledgment of the violation 
came after inquiries from The Times about a  campaign video on the website for 
Dist. Atty. hopeful Carmen Trutanich that  shows Baca wearing his badge and 
his department-issued sheriff’s uniform.” 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30139&title=“Sheriff%20Baca%20admits%20violating%20campaign%20endorsement%20law”
&description=) 


Posted in _campaigns_ (http://electionlawblog.org/?cat=59) , _chicanery_ 
(http://electionlawblog.org/?cat=12) , _conflict of interest  laws_ 
(http://electionlawblog.org/?cat=20)  | Comments Off 

 
_“Foster Friess aspirin  joke shows danger to candidates of outside 
political groups”_ (http://electionlawblog.org/?p=30136)  
Posted  on _February 17, 2012 1:12 pm_ 
(http://electionlawblog.org/?p=30136)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
Dan Eggen _writes_ 
(http://www.washingtonpost.com/politics/foster-friess-aspirin-joke-shows-danger-to-candidates-of-outside-political-groups/2012/02/17/
gIQA3VB6JR_story.html)   for WaPo. 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30136&title=“
Foster%20Friess%20aspirin%20joke%20shows%20danger%20to%20candidates%20of%20outside%20political%20groups”&description=) 


Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
Comments Off 

 
_“Should You Donate to  a Candidate or a Super PAC?”_ 
(http://electionlawblog.org/?p=30133)  
Posted  on _February 17, 2012 1:10 pm_ 
(http://electionlawblog.org/?p=30133)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
A Slate _Explainer_ 
(http://www.slate.com/articles/news_and_politics/explainer/2012/02/super_pac_or_candidate_where_do_you_get_the_most_bang_for_your_po
litical_buck_.html) . 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30133&title=“Should%20You%20Donate%20to%20a%20Candidate%20or%20a%20Super%20PAC?”
&description=) 


Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
Comments Off 

 
_“The .0000063%  Election”_ (http://electionlawblog.org/?p=30131)  
Posted  on _February 17, 2012 1:08 pm_ 
(http://electionlawblog.org/?p=30131)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
Ari Berman _blogs_ 
(http://www.huffingtonpost.com/ari-berman/super-pacs-2012_b_1281716.html) . 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30131&title=“The%20.0000063%%20Election”&description=) 


Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
Comments Off 

 
_“Internet Voting: Will  Democracy or Hackers Win?”_ 
(http://electionlawblog.org/?p=30128)  
Posted  on _February 17, 2012 1:06 pm_ 
(http://electionlawblog.org/?p=30128)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
The News Hour _reports_ (http://www.youtube.com/watch?v=MgZewQYZK7w) . 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30128&title=“Internet%20Voting:%20Will%20Democracy%20or%20Hackers%20Win?”
&description=) 


Posted in _internet voting_ (http://electionlawblog.org/?cat=49) , _voting 
technology_ (http://electionlawblog.org/?cat=40)   | Comments Off 

 
_“Newt Gingrich  threatens TV stations over ad”_ 
(http://electionlawblog.org/?p=30126)  
Posted  on _February 17, 2012 1:05 pm_ 
(http://electionlawblog.org/?p=30126)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
Politico _reports_ (http://www.politico.com/news/stories/0212/73031.html) : 
 
The ad is a slight variation of one that Restore Our Future has been 
_running heavily in multiple states_ 
(http://www.politico.com/blogs/burns-haberman/2011/12/mitt-super-pac-hits-gingrich-on-china-abortion-108195.html)  since 
December, and the  Gingrich campaign did not respond when asked why they 
were launching the  official challenge now. 
A well-connected Washington, D.C., campaign finance lawyer suggested the  
timing may be related to the fact that McKenna Long & Aldridge, the law  firm 
of Gingrich’s top outside campaign counsel Stefan Passantino,  represents 
TV stations in Georgia. 
In fact, the Gingrich campaign paid another law firm, the Atlanta-based  
Hall Booth Smith & Slover, to send the letter to TV stations “to ensure  there 
are no conflicts,” said Gingrich campaign spokesman R.C. Hammond. 
The Gingrich campaign said some of the stations that received the letter  
intended to report on it, but did not answer when asked if any planned to  
remove the ad.

 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30126&title=“Newt%20Gingrich%20threatens%20TV%20stations%20over%20ad”
&description=) 


Posted in _campaigns_ (http://electionlawblog.org/?cat=59)   | Comments Off 

 
_“Texas: Court of  Appeals tosses out El Paso recall”_ 
(http://electionlawblog.org/?p=30123)  
Posted  on _February 17, 2012 1:02 pm_ 
(http://electionlawblog.org/?p=30123)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
_This  item_ 
(http://recallelections.blogspot.com/2012/02/texas-court-of-appeals-tosses-out-el.html)  appears at the Recall Elections Blog. 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30123&title=“Texas:%20Court%20of%20Appeals%20tosses%20out%20El%20Paso%20recall”
&description=) 


Posted in _recall elections_ (http://electionlawblog.org/?cat=11)   | 
Comments Off 

_Felon Voting Possibly  at Issue in Dewine Flip from Romney to Santorum_ 
(http://electionlawblog.org/?p=30118)  
Posted  on _February 17, 2012 9:41 am_ 
(http://electionlawblog.org/?p=30118)  by _Rick Hasen_ (http://electionlawblog.org/?author=3)   
 
_Interesting._ 
(http://www.buzzfeed.com/zekejmiller/ohio-ag-to-withdraw-romney-endorsement-will-back)    There aren’t too many issues where Romney can 
run to the right of  Santorum. 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=30118&title=Felon%20Voting%20Possibly%20at%20Issue%20in%20Dewine%20Flip%20from%20
Romney%20to%20Santorum&description=) 


Posted in _felon voting_ (http://electionlawblog.org/?cat=66)   | Comments 
Off 
-- 
Rick Hasen
Chancellor's 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://law.uci.edu/faculty/page1_r_hasen.html) 
_http://electionlawblog.org_ (http://electionlawblog.org/) 



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