[EL] Citizens United About to Be Reversed?/More News

[Bill Maurer]

If Lessig is right, why did Kennedy go with the stay for the Montana decision?  After all, the Montana court made an attempt to distinguish Citizens United-that could have been a basis to reject the stay application.  Moreover, the Citizens United "pushback," such as it is, was already in full swing when the Court decided the Arizona Free Enterprise Club case, which contains quite a bit of discussion about CU.  Kennedy could have voted differently in that case or he could have concurred to "clarify" CU's scope, at least with regard to the Arizona statute.  He did neither.

Of course, Lessig could be right and I could be wrong (I've been wrong before, but it's been a few years), but this seems to be more likely an effort to generate enthusiasm for amicus in support of an argument to overturn CU.

Bill

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Hoersting
Sent: Wednesday, February 29, 2012 4:45 PM
To: Rick Hasen
Cc: law-election at UCI.edu
Subject: Re: [EL] Citizens United About to Be Reversed?/More News

Lessig's quip reminds me of the time he was engaged in a friendly telephone debate with Richard Epstein, lasting approximately twelve minutes.  Near the end of the call, Epstein said, in Epstein fashion, that it is often true, in matters of public policy, that concentrated benefits and dispersed costs often result in odd policy outcomes, and that perhaps something can be done about that.

My recollection is that Lessig dined-out, so to speak, on that concession for a year or more, crowing, in effect, that even Richard Epstein agrees with [Lessig].

Who here thinks Epstein is for amending the First Amendment to exclude corporate persons?

While I was surprised at J. Kennedy's Caperton opinion, I can tell from reading the Citizens United majority opinion -- I, too have no inside information -- that its author "gets it" and meant it.

I am willing to wait to be proved wrong,

Steve Hoersting
On Wed, Feb 29, 2012 at 6:05 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Lessig: "I think it's quite likely Justice Kennedy is about to flip" on Citizens United Issue<http://electionlawblog.org/?p=30776>
Posted on February 29, 2012 3:04 pm<http://electionlawblog.org/?p=30776> by Rick Hasen<http://electionlawblog.org/?author=3>

Via iWatch<http://www.iwatchnews.org/2012/02/29/8278/lawrence-lessig-campaign-finance-reform-overturning-citizens-united-isnt-enough?utm_source=iwatch&utm_medium=social_media&utm_campaign=twitter>:

After the speech, Lessig, who worked as a clerk for conservative Justice Antonin Scalia before becoming an academic, added that he was confident that Citizens United will soon be reversed by the high court.

"I think it's quite likely Justice Kennedy is about to flip," he said, referring to the Supreme Court justice who cast the deciding vote in the controversial 5-to-4 decision. Although Lessig cautioned that he had no inside information, he said Kennedy "is completely surprised by how much damage this decision has done - even Scalia doesn't like the world where all the money in the world is on one side."

I am quite surprised by Larry Lessig's statement. I too have no inside information, but all the Court watchers I speak to (including Supreme Court reporters) seem to believe that Justice Kennedy has no regrets, and indeed was emboldened by the criticism of the Court-seeing himself as the champion of the First Amendment.

In short, while I hope Larry's right, I have no confidence that he is.
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"Minority groups object to new Texas political maps"<http://electionlawblog.org/?p=30772>
Posted on February 29, 2012 2:57 pm<http://electionlawblog.org/?p=30772> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://hosted.ap.org/dynamic/stories/U/US_TEXAS_REDISTRICTING?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>: "Minority groups in Texas objected Wednesday to new congressional and state House maps drawn by a San Antonio court, urging a separate court in Washington, D.C., to speed up a review that could mark the last opportunity to change the political boundaries ahead of the 2012 elections."  (More on the filing from Texas Redistricting<http://txredistricting.org/post/18497017198/parties-tell-d-c-court-ruling-is-needed-to-correct>.)

Note no mention of a possible motion for a stay to the U.S. Supreme Court.  More at Texas Redistricting<http://txredistricting.org/post/18488718643/q-a-on-the-new-interim-maps> on what comes next and who won or lost.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
Obama team fires back at Koch brothers<http://electionlawblog.org/?p=30769>
Posted on February 29, 2012 2:51 pm<http://electionlawblog.org/?p=30769> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports<http://www.washingtonpost.com/blogs/the-fix/post/obama-team-fires-back-at-koch-brothers/2012/02/29/gIQA3UXbiR_blog.html>.
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National Law Journal Interviews Montana AG on Citizens United Sequel<http://electionlawblog.org/?p=30767>
Posted on February 29, 2012 2:50 pm<http://electionlawblog.org/?p=30767> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202543926049&slreturn=1>.
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New Brennan Center Voting Newsletter<http://electionlawblog.org/?p=30764>
Posted on February 29, 2012 2:42 pm<http://electionlawblog.org/?p=30764> by Rick Hasen<http://electionlawblog.org/?author=3>

Available here<http://www.brennancenter.org/blog/archives/new_voting_newsletter/>.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60> | Comments Off
Richie: Michigan Primary: Winning Isn't Everything (and Not the Only Thing)<http://electionlawblog.org/?p=30760>
Posted on February 29, 2012 1:00 pm<http://electionlawblog.org/?p=30760> by Rick Hasen<http://electionlawblog.org/?author=3>

Here's a guest post from Rob Richie<http://www.fairvote.org/rob-richie#.T06RhXmiaxM> of Fairvote, making an important observation:

The Washington Post's Chris Cillizza wrote<http://www.washingtonpost.com/blogs/the-fix/post/mitt-romney-in-michigan-arizona-just-win-baby/2012/02/28/gIQA5vYFhR_blog.html> last night that "In politics, winning isn't everything, it's the only thing. The score sheet only shows 'W's' and 'L's'....When we look back in the history books, all it will say is that Romney won Michigan and Arizona."

To be sure, Mitt Romney's wins yesterday boosted his campaign, but Cillizza overstates their significance. In a nomination contest that may easily end up being all about convention delegates, the results were more divided. Rick Santorum has likely won half of Michigan's voting delegates, and Romney's Arizona delegate sweep faces a challenge at the convention due to the Arizona GOP's flagrant violation of RNC rules.

In Michigan, Romney won the state vote by just under 3%. But winning doesn't necessarily forecast future outcomes - consider the post-Iowa momentum shifts of Romney winning New Hampshire, Gingrich South Carolina, Romney Florida, Santorum's three state sweep of February 7th and now Romney's return. More to the point, Michigan's voting delegates were allocated primarily by congressional district, not the statewide result. Although the Secretary of State bizarrely reports <http://miboecfr.nictusa.com/election/results/12PPR/25.HTM> primary results according to Michigan's old congressional district map, Michigan's GOP instead uses results<http://www.migopprimary.com/index.asp> in the state's 14 new districts. Santorum and Romney each have relatively secure leads in seven districts.

Because Michigan violated party rules by voting in February, the RNC stripped half of its convention delegates. Each district winner earns two voting delegates in Tampa. Although additional delegates will be awarded to Romney and Santorum based on their proportion of the statewide vote, only two statewide delegates will vote in Tampa. Romney forces maintain they'll get both delegates, but Santorum backers argue for one each. Michigan ultimately seems likely to have 15 voting delegates each for Romney and Santorum - and Santorum would have won an 17-13 edge if he had won all the votes cast for withdrawn candidates like Bachmann, Cain and Perry and overcome Romney's 0.8% edge.

Meanwhile, Arizona has joined Florida in violating the crystal clear<http://www.fairvote.org/florida-the-GOPrule-breaker-winner-take-all> RNC prohibition against winner-take-all allocation of delegates in contests held before April 1st. The RNC has left penalizing states for this infraction to the convention's credentials committee, and if the race stays close or the delegate leader is seen as a weak nominee, expect fireworks - and potentially many delegates voting their conscience, as I've argued<http://www.politico.com/news/stories/1111/69048.html> in POLITICO is permitted.

I see two key lessons here. First, pundits should calm down about order of finish in particular states. Let this contest unfold, give more voters a chance to participate and have the eventual nominee prove his mettle under fire, as clearly helped Democrats in 2008 despite similar grumbling<http://www.fairvote.org/blame-game-nj-governor-chris-christie-wrong-to-fault-rnc-s-proportional-rules-for-romney-s-nomination-travails> early on. Second, congressional district outcomes don't necessarily reflect popular vote outcomes -something the nation may discuss much more if Pennsylvania Republicans revive their proposal t<http://www.fairvote.org/fuzzy-math-wrong-way-reforms-for-allocating-electoral-college-votes>o allocate electors based on congressional district. Certainly, allocating delegates by district is not "proportional representation" - a term wrongly applied to a wide array<http://www.fairvote.org/delegate-allocation-rules-in-2012-gop> of state rules this year.

Onto Super Tuesday and, quite possibly, state wins by all four remaining candidates.

-Rob Richie
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32> | Comments Off
After All the Machinations at the Supreme Court, Was It Worth It for Texas to Appeal the Interim Maps?<http://electionlawblog.org/?p=30756>
Posted on February 29, 2012 10:06 am<http://electionlawblog.org/?p=30756> by Rick Hasen<http://electionlawblog.org/?author=3>

The verdict appears to be "yes."  Rothenberg Political Report:<http://rothenbergpoliticalreport.com/news/article/new-texas-map-democrats-hoped-for-more-than-split-decision>

 While neither party gets its ideal scenario, the proposed map is likely to result in a split of the state's four new congressional districts by creating three new Hispanic-majority seats that should be won by Democrats. The new map strongly resembles a "compromise" map that emerged earlier this month between Attorney General Greg Abbott and a Latino interest group - but it was a map that many Democrats and other Hispanic coalitions didn't endorse or like.

Still, the map won't help the calculus Democrats need to take back the House. While Democrats concede privately that the map is slightly better than the one the GOP-controlled legislature produced last year, they would have liked to have seen more gains, with three of the new seats solidly in their column. While Democrats should pick up at least two seats, an Austin seat transforms into a solid GOP seat and the 23rd remains a toss-up. The map could result in a 25-11 advantage for Republicans - a two seat gain for both parties, resulting in no real net change from the current 23-9 split.

Democratic Rep. Lloyd Doggett's district was decimated in this proposal (as it was in the original GOP map), turning his 25th District into a GOP-leaning seat and likely forcing him to run in one of the new Hispanic districts, most likely the 35th District that stretches from Austin to San Antonio - a solidly Democratic seat with a 58 percent Hispanic population. Doggett will still likely face a primary from a Latino candidate, but with over $3.3 million in the bank, it would take a cash-flush challenger to take him on in an abbreviated primary campaign. State Rep. Joaquin Castro is still expected to run in the open 20th District, vacated by retiring Rep. Charlie Gonzalez.


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"Evil lurks in Super PACs; The California Assembly is making another attempt to require disclosure of donations to political campaigns, and it deserves support."<http://electionlawblog.org/?p=30753>
Posted on February 29, 2012 8:55 am<http://electionlawblog.org/?p=30753> by Rick Hasen<http://electionlawblog.org/?author=3>

New Steve Lopez column<http://www.latimes.com/news/local/la-me-0229-lopez-dirtymoney-20120228,0,6177621.column> in the LA Times.
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Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
"Veterans, Military Members Voice Opposition to Photo ID"<http://electionlawblog.org/?p=30751>
Posted on February 29, 2012 8:54 am<http://electionlawblog.org/?p=30751> by Rick Hasen<http://electionlawblog.org/?author=3>

See this press release <http://www.takeactionminnesota.org/_assets/document/022919MilitaryVoterIDRelease.pdf> from Take Action Minnesota.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
California Republican Poll Using Ranked Choice Voting<http://electionlawblog.org/?p=30748>
Posted on February 29, 2012 8:53 am<http://electionlawblog.org/?p=30748> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting<http://www.fairvote.org/survey-of-california-republicans#.T05XoXmiaxM>.
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"Money in Judicial Politics: Individual Contributions and Collective Decisions"<http://electionlawblog.org/?p=30746>
Posted on February 29, 2012 8:51 am<http://electionlawblog.org/?p=30746> by Rick Hasen<http://electionlawblog.org/?author=3>

Matias Iaryczower and Matthew Shum have posted this draft <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1998895> on SSRN:

We study how campaign contributions affect the voting strategies and effectiveness of justices in the Supreme Court of eight US states. A judge's voting strategy leans more heavily towards an interest group the larger are its contributions to the judge, and the smaller are its contributions to other members of the court. This indirect effect is consistent with an equilibrium adjustment to contributions to other members of the court. Observed contributions have a large effect on the behavior of individual judges - affecting both the probability that they vote to overturn a decision of the lower court and the probability that they support an incorrect decision - but they have a small effect on the decisions and effectiveness of the Court.

I look forward to reading this piece.  If the research bears out, this is potentially very important.
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Given Maine's Ballot Access Rules, Running for Sen. Snowe's Seat Will Be No Easy Task<http://electionlawblog.org/?p=30743>
Posted on February 29, 2012 8:49 am<http://electionlawblog.org/?p=30743> by Rick Hasen<http://electionlawblog.org/?author=3>

Bangor Daily News<http://pinetreepolitics.bangordailynews.com/2012/02/28/snowe-storm-implications-the-art-of-the-possible/>:

The deadline to get on the primary ballot for Republican and Democratic candidates is March 15.  Any interested candidate will need to get 2,000 certified signatures by that date (which means well above 2,000 total if you figure in the names that will be thrown out), or they won't be on the ballot.

The logistical requirements of actually meeting that hurdle are very high.  This is not something that can be done by a political novice in two weeks - indeed it is a difficult task for established figures.

In the 2010 gubernatorial contest, both Democrats and Republicans were having a difficult time getting enough signatures, and most campaigns only managed to finish collecting them a few days before they were due.  That was with a year (sometimes more) lead time.  People now have two weeks.

Unless something changes - I have heard mention that the Maine legislature has the capability to push that date back, but my sources say there have been no conversations about that yet - that means that the only people that can pull it off are folks with already established political machines, or people with the money to instantly purchase the manpower to get it done.

This has implications for more than just the Senate race.  If Chellie Pingree or Mike Michaud (or both) decide to run for the Senate seat, that means that potential candidates to replace them in the House of Representatives would have to meet that requirement as well
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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