[EL] Rule of Law post

[Allen Dickerson]

Gladly. And I’ll wager a drink to accompany our conversation – I don’t see there being a four-vote dissent.

From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Wednesday, February 22, 2012 6:00 PM
To: Allen Dickerson
Cc: law-election at UCI.edu
Subject: Re: Rule of Law post

Yes, one of the advantages of being a law professor is being able to speak truth to power.
Let's finish this discussion after the Court reverses Montana, and we read the 4-Justice dissent.


On 2/22/2012 2:45 PM, Allen Dickerson wrote:
Maybe it’s a logically defensible view, maybe not. But I think that, if Justice Ginsburg shared it, she wouldn’t have taken the time to chide Montana for ignoring binding precedent.

One of the privileges of being a law professor (or, I suppose, a nonprofit lawyer) is getting to hypothesize about whether a court is being “disingenuous.” I realize you agree with Montana’s interpretation of CU. But I’m surprised that you aren’t given pause by the available evidence that no one on the Supreme Court, on either side, agrees with you.


From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Wednesday, February 22, 2012 5:27 PM
To: Allen Dickerson
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: Rule of Law post

My point is that Montana took Justice Kennedy at his word and looked at evidence of corruption which could justify a limit on corporate expenditures in elections.  That's a defensible view.
For what it's worth, I think Justice Ginsburg was right on both points.  I would have granted the stay (because I think Montana was wrong, though acting defensibly, in taking Justice Kennedy as his word---as I've explained, all of his talk of facts in CU is disingenuous), and signaled to Montana and potential amici that they should use this case to try to get the Court to reconsider Citizens United.

The Second, Eighth and Ninth Circuits have all said that FEC v. Beaumont remains good law and that a corporate contribution ban is constitutional.  So far Judge Cacheris stands alone (the 8th Circuit case is currently being considered en banc).

On 2/22/2012 2:06 PM, Allen Dickerson wrote:
So Danielczyk defies the rule of law because a lower court chose to ignore a binding precedent from the Supreme Court. But Western Tradition Partnership doesn’t, because in this case the lower court wasn’t really defying the Supreme Court. It was simply taking Justice Kennedy at his word.

My point is simply that no one on the Supreme Court, including the dissenters, read Citizens United the way Montana did. That includes Justice Ginsburg, who voted for a stay because “lower courts are bound to follow [the] Court’s decisions until they are withdrawn or modified.” I don’t see how that can be read as anything other than a rebuke.

Perhaps you think Judge Cacheris was too cute by half in Danielczyk. That’s a defensible view. But there doesn’t seem to be a single member of the Supreme Court who doesn’t think the same of Montana.


From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, February 22, 2012 4:33 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] more news 2/22/12

“Michigan Democratic Party encourages crossover voting in GOP presidential primary”<http://electionlawblog.org/?p=30361>
Posted on February 22, 2012 1:31 pm<http://electionlawblog.org/?p=30361> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix<http://www.washingtonpost.com/blogs/the-fix/post/michigan-democratic-party-encourages-crossover-voting-in-gop-presidential-primary/2012/02/22/gIQA1qjoTR_blog.html>: “Operation Chaos in Michigan? Again? The Michigan Democratic Party sent an e-mail to supporters Wednesday encouraging them to take part in the state’s Republican presidential primary on Tuesday.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32> | Comments Off
“Federal Appeals Court Rules That N.M. Violated Federal Law, Failing to Provide Voter Registration Applications to Public Assistance Clients”<http://electionlawblog.org/?p=30358>
Posted on February 22, 2012 1:28 pm<http://electionlawblog.org/?p=30358> by Rick Hasen<http://electionlawblog.org/?author=3>

See this press release<http://projectvote.org/newsreleases/798-federal-appeals-court-rules-that-nm-violated-federal-law-failing-to-provide-voter-registration-applications-to-public-assistance-clients.html> about this new opinion.<http://www.ca10.uscourts.gov/opinions/11/11-2063.pdf>  From the release:, “The federal Tenth Circuit Court of Appeals ruled yesterday that the State of New Mexico Human Services Department (HSD) violated Section 7 of the National Voter Registration Act of 1993 (NVRA) by improperly withholding voter registration applications from certain public assistance clients. The decision came in a federal lawsuit brought against state officials by a coalition voting rights groups and attorneys, including the Lawyers’ Committee for Civil Rights Under Law, Project Vote, and Dēmos; the Albuquerque law firm of Freedman Boyd Hollander Goldberg Ives & Duncan, and the law firm of DLA Piper, on behalf of Albuquerque resident Shawna Allers. This major development concerned the HSD policy of providing a voter registration application to a public assistance client only if the client specifically requests an application. Section 7 requires New Mexico and most other states to offer voter registration to public assistance clients when they apply for benefits, periodically recertify their benefits eligibility, or submit a change of address for receipt of benefits. Along with HSD officials, the New Mexico Secretary of State shares responsibility for ensuring that State agencies comply with the NVRA.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, voter registration<http://electionlawblog.org/?cat=37> | Comments Off
“88% of Obama’s Itemized Donors in January Were Repeaters; 40% of Romney’s Donors Have Maxed Out; Santorum, Gingrich, Paul, and Obama Strong with Small Donors”<http://electionlawblog.org/?p=30355>
Posted on February 22, 2012 1:19 pm<http://electionlawblog.org/?p=30355> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read<http://cfinst.org/Press/PReleases/12-02-22/88_of_Obama%E2%80%99s_Itemized_Donors_in_January_Were_Repeaters_40_of_Romney%E2%80%99s_Donors_Have_Maxed_Out.aspx> CFI press release.
[cid:image001.png at 01CCF18B.955FBF50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30355&title=%E2%80%9C88%25%20of%20Obama%E2%80%99s%20Itemized%20Donors%20in%20January%20Were%20Repeaters%3B%2040%25%20of%20Romney%E2%80%99s%20Donors%20Have%20Maxed%20Out%3B%20Santorum%2C%20Gingrich%2C%20Paul%2C>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Does Money Corrupt the Political Process?”<http://electionlawblog.org/?p=30352>
Posted on February 22, 2012 11:36 am<http://electionlawblog.org/?p=30352> by Rick Hasen<http://electionlawblog.org/?author=3>

Kevin Drum blogs<http://motherjones.com/kevin-drum/2012/02/does-money-corrupt-political-process>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
Montana Supreme Court Campaign finance Decision Affront to the “Rule of Law”?<http://electionlawblog.org/?p=30349>
Posted on February 22, 2012 11:06 am<http://electionlawblog.org/?p=30349> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s Allen Dickerson’s claim<http://bit.ly/yKlU2z>.  Oh please.  The Montana Supreme Court took Justice Kennedy at his word <http://www.slate.com/articles/news_and_politics/jurisprudence/2012/01/montana_supreme_court_citizens_united_can_montana_get_away_with_defying_the_supreme_court_.html> and looked at the state’s evidence of corruption to justify its law.  That might be wrong—but it is not defying the rule of law.

Want to talk about defying the rule of law?  Look at the district court decision<http://electionlawblog.org/?p=18848> in the Danielczyk case (now on appeal to the 4th Circuit), defying Supreme Court precedent on the constitutionality of limits on corporate contributions to candidates.  (Here<http://electionlawblog.org/?p=26906>‘s the 2d Circuit on that opinion: The Court is aware of United States v. Danielczyk, No. 1:11cr85 (JCC), 2011 WL 2161794 (E.D. Va. May 26, 2011), which struck down a ban on corporate contributions, based on what it called an ‘inescapable’ expansion of Citizen United’s logic. Id. at *18; Danielczyk, 2011 WL 2268063 (E.D. Va. June 7, 2011) (denying reconsideration). The role of an appellate court is to apply to law as it exists. Since the Supreme Court reaffirmed the validity of the 100-year old corporate ban just 8 years ago, Beaumont, 539 U.S. at 154-55, and declined to overrule this holding in Citizens United, this Court will not do so here. Indeed, Citizens United confirms that the anti-corruption interest is a legitimate justification for campaign contribution restrictions. Citizens United also does not disturb the validity of the anti-circumvention interest. See Thalheimer v. City of San Diego, Nos. 10-55322, 10-55324, 10-55434, 2011 WL 2400779, at *13 (9th Cir. Jun. 9, 2011) (concluding that ‘nothing in the explicit holdings or broad reasoning’ of Citizens United invalidates the anti-circumvention interest in the context of contribution limits)”)

In the end, it will be up to the Supreme Court to weigh in in both the Montana case and the question in Danielczyk.

[Disclosure: I am an attorney for the City of San Diego in the Thalheimer case, where the corporate contribution issue is presented.]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
“Election law changes are ‘in really uncharted territory’”<http://electionlawblog.org/?p=30344>
Posted on February 22, 2012 7:58 am<http://electionlawblog.org/?p=30344> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<http://www.the-daily-record.com/news/article/5159744> from the voting wars in Ohio.  MORE<http://www.alternet.org/story/154190/backfired%21_4_ways_the_ohio_gop_tilts_voting_rules_but_ends_up_helping_democrats/> from Jennifer Brunner at AlterNet.


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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60> | Comments Off
Murphy and von Spakovsky Debate Voter ID at National Press Club<http://electionlawblog.org/?p=30341>
Posted on February 22, 2012 7:39 am<http://electionlawblog.org/?p=30341> by Rick Hasen<http://electionlawblog.org/?author=3>

Laura Murphy of the ACLU debates<http://www.press.org/events/status-and-impact-new-state-voter-id-laws> Hans von Spakovsky of the Heritage Foundation at the National Press Club tomorrow.  [No webcast.]

I tell some amusing stories about Hans von Spakovsky’s research and scholarship in this area in the “Fraudulent Fraud Squad” sneak preview<http://www.amazon.com/Fraudulent-Fraud-Squad-Understanding-ebook/dp/B00795X5XI/ref=zg_bs_157417011_9> chapter of my forthcoming book, The Voting Wars<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>.  You can also take a trip down memory lane with other members of the squad, including Thor Hearne, John Fund, Matthew Vadum, Dick Armey, Michelle Malkin, and Bradley Schlozman.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
“The Supreme Court and Citizens United II”<http://electionlawblog.org/?p=30339>
Posted on February 22, 2012 7:35 am<http://electionlawblog.org/?p=30339> by Rick Hasen<http://electionlawblog.org/?author=3>

An NYT editorial.<http://www.nytimes.com/2012/02/22/opinion/the-supreme-court-and-citizens-united-take-2.html?_r=1>  My Slate piece<http://www.slate.com/articles/news_and_politics/politics/2012/02/justice_ruth_bader_ginsburg_is_ready_to_speak_out_on_the_danger_of_super_pacs_.html?fb_ref=sm_fb_plugin_activity>  (which now has 1,000 “likes” on Facebook [I don't think that's happened before])  expresses similar sentiments about the Montana case.
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Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Only sensible campaign reform: Real-time reporting”<http://electionlawblog.org/?p=30337>
Posted on February 22, 2012 7:29 am<http://electionlawblog.org/?p=30337> by Rick Hasen<http://electionlawblog.org/?author=3>

Jon Ralson has written this column<http://www.lasvegassun.com/news/2012/feb/22/only-sensible-campaign-reform-real-time-reporting/?hpp>. If only those people <http://mcconnell.senate.gov/public/> who used to say<http://thinkprogress.org/politics/2010/08/03/111030/mcconnell-disclose/> they supported full, instant disclosure and no limits would not have abandoned their position after Citizens United, we might be able to fix the disclosure problem.
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Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Super PAC Money Getting More Scrutiny, Complaints”<http://electionlawblog.org/?p=30334>
Posted on February 22, 2012 7:25 am<http://electionlawblog.org/?p=30334> by Rick Hasen<http://electionlawblog.org/?author=3>

Eliza Newlin Carney reports<http://www.rollcall.com/news/super_pac_money_getting_more_scrutiny_complaints_rick_santorum-212571-1.html?pos=htmbtxt> for Roll Call.
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Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Postal cutbacks and the voting process”<http://electionlawblog.org/?p=30332>
Posted on February 22, 2012 7:24 am<http://electionlawblog.org/?p=30332> by Rick Hasen<http://electionlawblog.org/?author=3>

The SF Chronicle reports<http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/18/INLN1MNT7G.DTL>.
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Posted in election administration<http://electionlawblog.org/?cat=18> | Comments Off
“Secretary of State Mark Ritchie offers Voter ID alternative: electronic poll books”<http://electionlawblog.org/?p=30330>
Posted on February 22, 2012 7:23 am<http://electionlawblog.org/?p=30330> by Rick Hasen<http://electionlawblog.org/?author=3>

MinnPost reports.<http://www.minnpost.com/political-agenda/2012/02/secretary-state-mark-ritchie-offers-voter-id-alternative-electronic-poll-bo>
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Posted in election administration<http://electionlawblog.org/?cat=18>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
“Justice Kennedy Unlikely to Budge on ‘Citizens United’”<http://electionlawblog.org/?p=30328>
Posted on February 22, 2012 7:22 am<http://electionlawblog.org/?p=30328> by Rick Hasen<http://electionlawblog.org/?author=3>

Matt Taylor reports<http://nationalmemo.com/article/justice-kennedy-unlikely-budge-citizens-united> for the National Memo.
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Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“The Electoral College Explained”<http://electionlawblog.org/?p=30325>
Posted on February 22, 2012 7:20 am<http://electionlawblog.org/?p=30325> by Rick Hasen<http://electionlawblog.org/?author=3>

ABC News reports<http://abcnews.go.com/Politics/video/electoral-college-is-explained-by-author-kenneth-c-davis-15482102>.
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Posted in electoral college<http://electionlawblog.org/?cat=44> | Comments Off
“Juvenile judge race goes back to court”<http://electionlawblog.org/?p=30323>
Posted on February 22, 2012 7:19 am<http://electionlawblog.org/?p=30323> by Rick Hasen<http://electionlawblog.org/?author=3>

The Hunter case<http://electionlawblog.org/?s=hunter>, a significant Bush v. Gore sequel, heads back<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201202211849/NEWS0106/302210150> to the Sixth Circuit, thanks to a partisan tie broken by Ohio SOS Jon Husted.
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Posted in election administration<http://electionlawblog.org/?cat=18> | Comments Off
“Campaign Finance in the 2012 Elections: The Rise of Super PACs”<http://electionlawblog.org/?p=30320>
Posted on February 22, 2012 7:16 am<http://electionlawblog.org/?p=30320> by Rick Hasen<http://electionlawblog.org/?author=3>

Brookings is holding this event<http://www.brookings.edu/events/2012/0301_super_pacs.aspx> March 1 with Tom Mann, Tony Corrado, and Trevor Potter.  It will be webcast as well.
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Posted in campaign finance<http://electionlawblog.org/?cat=10> | 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://electionlawblog.org

--
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://electionlawblog.org

--
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://electionlawblog.org
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