[EL] More news 6/28
Justin Levitt
levittj at lls.edu
Thu Jun 28 15:59:51 PDT 2012
The Other Other Supreme Court Case: Arizona Voter Registration
<http://electionlawblog.org/?p=36325>
Posted on June 28, 2012 3:16 pm <http://electionlawblog.org/?p=36325> by
Justin Levitt <http://electionlawblog.org/?author=4>
Beyond Affordable Care, beyond Stolen Valor, the Supreme Court took a
third very important action today. The Ninth Circuit --- first as a
panel <http://electionlawblog.org/?p=16358>, then /en banc/
<http://electionlawblog.org/?p=33081> --- decided that Arizona's refusal
to accept federal voter registration forms without proof of citizenship
was preempted by the NVRA. Two weeks ago, the state asked Justice
Kennedy to stay the mandate of that decision, which he did temporarily
<http://electionlawblog.org/?p=35727>, long enough for briefing.
Today, the full Court vacated
<http://www.supremecourt.gov/orders/courtorders/062812zr.pdf> that
temporary order and denied a more durable (or permanent) stay, with
Justice Alito dissenting. This means that citizens will be able to
register in Arizona for this cycle's elections without first having to
produce specific documentary proof of their citizenship.
*UPDATE:* Reaction from the Lawyers' Committee
<http://www.lawyerscommittee.org/newsroom/clips?id=0560>.
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Posted in NVRA (motor voter) <http://electionlawblog.org/?cat=33>,
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Fourth Circuit Upholds Ban on Corporate Contributions
<http://electionlawblog.org/?p=36320>
Posted on June 28, 2012 11:05 am <http://electionlawblog.org/?p=36320>
by Justin Levitt <http://electionlawblog.org/?author=4>
It's been an active day in the courts even beyond the health care
rulings. In the /Danielczyk/ case, the Fourth Circuit has reversed
<http://www.campaignfreedom.org/wp-content/uploads/2012/06/Danielczyk.pdf>
the Virginia district court opinion striking down the federal ban on
corporate contributions to candidates in the wake of /Citizens United/.
Rick had urged <http://electionlawblog.org/?p=18848> a prompt appeal of
the district court's outlier opinion, and the Fourth Circuit appears to
have responded. The court not only found /Danielczyk/ squarely governed
by /Beaumont v. FEC/ (the Supreme Court case upholding the federal ban
on corporate contributions in 2003), but emphasized the distinction
between the direct contributions at issue here and the independent
expenditures at issue in /Citizens United/.
So now it looks like uniformity in the circuits: the government may ban
corporate contributions, but not independent corporate expenditures.
Which returns to placing even more emphasis on the next front in the
campaign finance wars: the conditions for coordination that mark the
difference between one and the other.
*Update:* Reports from WaPo
<http://www.washingtonpost.com/politics/appeals-court-rejects-ruling-allowing-corporate-campaign-funding/2012/06/28/gJQAGjgi9V_story.html>,
Bloomberg
<http://www.bloomberg.com/news/2012-06-28/company-campaign-funds-ban-survives-citizens-united-test.html>,
and the AP
<http://www.sfgate.com/news/article/Va-appeals-court-affirms-campaign-finance-law-3670828.php>;
reactions from the Center for Competitive Politics
<http://www.campaignfreedom.org/2012/06/28/fourth-circuit-upholds-ban-on-corporate-contributions-in-danielczyk/>
and Campaign Legal Center
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1779:june-28-2012-fourth-circuit-overturns-decision-that-struck-down-century-old-law-banning-corporate-contributions-to-candidates-a-parties&catid=63:legal-center-press-releases&Itemid=61>.
More to come, I'm sure.
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Federal Court Declines to Enjoin Disavowed Florida Purge Under NVRA
<http://electionlawblog.org/?p=36317>
Posted on June 28, 2012 10:53 am <http://electionlawblog.org/?p=36317>
by Justin Levitt <http://electionlawblog.org/?author=4>
In a decision
<http://electionlawblog.org/wp-content/uploads/USvFloridaTRO.pdf>
released this morning, a federal court declined to issue a temporary
restraining order in the DOJ's NVRA challenge to Florida's purported
purge of noncitizens.
Part of the reason was that the Florida Secretary of State Detzner
apparently said that he has abandoned the program (or, at least, the
program's use of a purge list that was wildly inaccurate
<http://www.myfoxtampabay.com/story/18441636/fla-says-more-than-53000-dead-on-voting-rolls>,
including an apparent failure to recognize that Puerto Rican natives are
US citizens
<http://www.theledger.com/article/20120525/POLITICS/120529540>). But
part of the reason was a curious construction of the NVRA, which stops
systematic purges within 90 days of an election based on an apparent
change of address, but not based on an apparent death or
disenfranchising conviction ... or, according to the Florida court,
apparent noncitizen status. It will be interesting to see whether the
government appeals (if only to seek vacatur of an opinion opining on an
avowedly abandoned program) on the statutory construction question.
IMO, the 90-day provision exists to reduce the negative consequences of
error, and there were (and are) plenty of reasons to be concerned with
error here. There are two other lawsuits against the purge program,
with legal claims beyond the NVRA; I'll have more on the purge program
more generally in a bit.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
NVRA (motor voter) <http://electionlawblog.org/?cat=33>, statutory
interpretation <http://electionlawblog.org/?cat=21>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voter registration
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A Few Thoughts on the Chief Justice and Healthcare Decision from
SCOTUS <http://electionlawblog.org/?p=36309>
Posted on June 28, 2012 9:13 am <http://electionlawblog.org/?p=36309> by
Rick Hasen <http://electionlawblog.org/?author=3>
1. I am less surprised by the outcome of this case (I switched my
expectations after reading Orin Kerr's dissection
<http://www.volokh.com/2012/06/19/foolishly-reading-the-tea-leaves-of-justice-ginsburgs-speech-at-the-acs/>
of Justice Ginsburg's recent speech at the American Constitution Society
convention) than I am by the vote: I expected that if the Court voted to
uphold the mandate, it would have been a 6-3 vote, with Kennedy voting
(internally) to uphold the law and the Chief going along with Kennedy.
Instead, Kennedy was the co-author of a rare jointly-authored dissent
for all of the dissenting Justices, one which not only rejected the
commerce clause and other arguments for the mandate, but also would have
struck down the /entire health care law/.
2. What explains Roberts vote? David Bernstein remarks
<http://www.volokh.com/2012/06/28/the-perils-of-shortsightedness/>, with
some truth, that Roberts is much more pro-government than Justice
Alito. But I think too other factors are important here too. First,
Roberts cares much more about the institutional legitimacy of the Court
and elite public opinion than the other Justices. Larry Solum rightly
remarks that it would have been a tectonic shift
<http://lsolum.typepad.com/legaltheory/2012/06/the-decision-to-uphold-the-mandate-as-a-gestalt-shift-in-constitutional-law.html>
for the Court to have struck down such a major federal law, especially
when the (original) expectations of almost all Court scholars of all
political stripes was that the Court's precedents made this an easy case
to sustain the mandate. Roberts wanted to avoid this result. Second,
Roberts' passion is elsewhere. He'd rather use his political capital on
issues in which he is passionate, most importantly on the issue of
race. With affirmative action and the Voting Rights Act coming before
the Court, don't expect Roberts
<http://www.huffingtonpost.com/adam-winkler/the-roberts-court-is-born_b_1634070.html>
to side with liberals in those cases.
3. Roberts also wrote his opinion in a way to narrow the scope of the
commerce power, and to legitimate the Randy Barnett theory for future
cases. I have not yet parsed the opinion enough to know how big a deal
this is, but there are now 5 Justices rejecting the older, established
commerce clause jurisprudence which gave Congress almost unlimited power
when it came to economic legislation.
4. Ironically, Roberts went out of his way to reach those commerce
clause issues, which he did not need to reach given his holding on the
tax power. Once again, the Chief has manipulated the doctrine of
constitutional avoidance
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436669> to do what
he wanted to do in a high profile, important case. His opinion also
splits the finest hairs in finding the law to be a tax for
constitutional purposes but not for the anti-injunction act.
5. Finally, I wonder about leaks from the Court about Roberts changing
his mind. David Bernstein remarks
<http://www.volokh.com/2012/06/28/was-scalias-dissent-originally-a-majority-opinion/>
that "Back in May, there were rumors floating around relevant legal
circles that a key vote was taking place, and that Roberts was feeling
tremendous pressure from unidentified circles to vote to uphold the
mandate." This would explain why George Will, Kathleen Parker and
others wrote opinion pieces to try to buck up the Chief Justice. In
this Politico oped,
<http://www.politico.com/news/stories/0512/76919.html> I noted how
ludicrous it was to talk about the Chief facing threats, pressure, and
bullying. But if the Chief is sensitive to the institutional legitimacy
of the Court and a desire to preserve his political capital for other
reasons, then it is possible he was waffling in the face of the torrent
of commentary. But how did the waffling leak out? An interesting
question to say the least.
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What Does Chief Justice Roberts Think About the Mandate?
<http://electionlawblog.org/?p=36305>
Posted on June 28, 2012 5:25 am <http://electionlawblog.org/?p=36305> by
Richard Pildes <http://electionlawblog.org/?author=7>
We will know, of course, in a couple of hours. But in all the commentary
on the health-care cases, I do not recall seeing the following
possibility explored (though surely someone else must have had this
thought). So I wanted to flag the thought in case it does end up being
expressed in the opinion. From his comments at the oral argument on the
mandate, it is possible to read CJ Roberts as believing two crucial
things about the mandate: (1) that a mandate to purchase certain kinds
of health insurance -- in particular, catastrophic coverage -- would be
constitutional, based on the government's argument that enough of the
uninsured will eventually consume these kind of medical services so that
everyone is, indeed, in the market for these services at some point in
time but that (2) the scope of the specific mandate in the ACA is overly
broad with respect to this justification, because it requires some
categories of people to purchase insurance for services they are almost
certainly never going to use (pediatric care for people who are not
going to have kids) or for services that are not random events but ones
over which people have some control (coverage for substance abuse).
For someone who believes both of those things, what would that mean for
the outcome in the case? I see two possibilities:
1. CJ Roberts could write an opinion establishing the principle that a
mandate to purchase certain health-care services is constitutional under
the commerce clause. He could then, however, hold the specific mandate
in the ACA unconstitutional on the ground that it is not reasonably
tailored to the specific justification the government offers for the
mandate. The opinion would presumably assert that a high-level of
constitutional scrutiny is required to justify the mandate, for reasons
along the lines Justice Kennedy suggested at the argument, and that the
mandate is unconstitutionally overbroad. This would leave open the
possibility that a more narrowly drafted mandate, such as one tied to
catastrophic coverage, would be constitutional. Of course, the current
Congress is unlikely to generate any legislation that would in the
short-term accept this invitation to craft a more narrow mandate. And I
don't know whether the health-care economics are such that a narrow
mandate would achieve the necessary objectives if policymakers would
seek to maintain guaranteed coverage and community rating. But in
principle, this kind of opinion would leave the door open to future
Congresses to adopt a more narrowly framed mandate.
2. More intriguingly, CJ Roberts could conclude that the mandate is not
unconstitutional on its face. At this stage, the litigation involves
what's known as a facial challenge to the mandate; the claim is that the
mandate is unconstitutional across the board and in essentially all its
applications. In upholding the mandate on its face, CJ Roberts could
conclude that the way to deal with the overbreadth of the mandate -- if
that's the way he sees it -- is to handle that in later as-applied
challenges that would arise down the road, in which specific categories
of individuals who claim that they will never need some of the specific
services they are being asked to purchase would be able to make that
claim and perhaps prevail with respect to certain categories of services.
The effect of this resolution would be to uphold the mandate for now but
to have the courts carve down the scope of the mandate in later cases.
One downside to this approach would be that it would spawn a good deal
of litigation down the road and would create uncertainty in the
health-care markets until the issues were resolved fully. On the other
hand, one of the characteristic themes of the Roberts Court has been to
resist deciding cases as facial challenges and to insist that more cases
be handled as as-applied challenges. So such a resolution would be
consistent with that larger set of jurisprudential themes.
3. I am not in the prediction business and this is not a prediction. But
I have thought for a long time that this is an intriguing option I have
not seen discussed elsewhere, and so I wanted to raise it in advance of
the decision.
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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