[EL] Breaking news/more news

Fri Nov 9 14:25:39 PST 2012

    Breaking News: Supreme Court To Consider Constitutional Challenge to
    Voting Rights Act; Reading Between the Lines in The Cert Grant
    <http://electionlawblog.org/?p=43966>

Posted on November 9, 2012 2:17 pm <http://electionlawblog.org/?p=43966> 
by Rick Hasen <http://electionlawblog.org/?author=3>

[with apologies for the delay in posting as the Election Law Blog server 
was down.]

The Supreme Court's order today 
<http://www.supremecourt.gov/orders/courtorders/110912zr_d18e.pdf> 
(coming, probably not coincidentally right after, rather than right 
before the election), was hardly unexpected.  We've all been expecting 
the Court to take this case, and, I suspect use it as a vehicle to 
strike down the preclearance provision of the Voting Rights Act.  Here's 
what I wrote last month on SCOTUSBlog 
<http://www.scotusblog.com/2012/09/online-vra-symposium-the-voting-rights-act-congressional-silence-and-the-political-polarization/>:

    The Supreme Court's 2009 decision in /NAMUDNO v. Holder
    <http://www2.bloomberglaw.com/public/document/Northwest_Austin_Mun_Utility_Dist_No_One_v_Holder_129_S_Ct_2504_1>/
    was an invitation to Congress to go back and make changes to Section
    5 of the Voting Rights Act to keep the Court from striking down the
    provision as an unconstitutional exercise of Congressional power. At
    oral argument
    <http://www.oyez.org/cases/2000-2009/2008/2008_08_322>, both Chief
    Justice Roberts and Justice Kennedy -- believed to be the key votes
    in this case -- expressed considerable skepticism about requiring
    only some jurisdictions (mostly in the South) but not the rest of
    the country to get permission from the federal government for all
    changes in their voting rules, from redistricting to voter id to
    moving a polling place. /NAMUDNO /was in effect a remand, perhaps an
    act of statesmanship by Roberts, Kennedy, or both, to give Congress
    more time to rework the Act.  Yet Congress did not respond, and now
    the Court seems almost certain to take either the /Shelby County v.
    Holder
    <http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>/ case
    or another case soon, and likely to strike down the Act. In this
    post I ask, why did Congress fail to act to fix the Act after /NAMUDNO/?

What's especially notable about today's cert grant 
<http://www.scotusblog.com/2012/11/court-to-rule-on-voting-rights-law-2/>is 
that the Court mildly rewrote (adding in the 14th amendment question) 
and limited the question presented to the following: ""Whether Congress' 
decision in 2006 to reauthorize Section 5 of the Voting Rights Act under 
the pre-existing coverage formula of Section 4(b) of the Voting Rights 
Act exceeded its authority under the Fourteenth and Fifteenth Amendments 
and thus violated the Tenth Amendment and Article IV of the United 
States Constitution."

This means that the Court will focus specifically on the question 
whether Congress exceeded its power in not updating the coverage 
formula---states and parts of states are covered based on voter turnout 
and the use of a test or device in 1964, 1968, or 1972.  The argument is 
that Congress couldn't use those proxies anymore to identify states 
which still need additional federal oversight.  It is exactly the 
argument which Chief Justice Roberts latched onto at the oral argument 
in /NAMUDNO. /Further, the references to the 10th amendment power of the 
states and the republican form of government clause show a great concern 
about federalism and states rights, a high concern of Kennedy.  Kennedy 
and Roberts are likely the swing Justices here---if they swing at all, 
it is only for prudential reasons about what it would mean politically 
to overturn the Act.

Coming after the reelection of an African American president and rising 
minority turnout, I have little doubt these Justices will say, as 
Roberts said in a campaign finance case, "Enough is enough."   I don't 
expect statesmanship or blinking from Court conservatives this time.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    "Big money lost, but don't be relieved"
    <http://electionlawblog.org/?p=43957>

Posted on November 9, 2012 11:22 am 
<http://electionlawblog.org/?p=43957> by Rick Hasen 
<http://electionlawblog.org/?author=3>

I have written this commentary 
<http://www.cnn.com/2012/11/09/opinion/hasen-outside-political-money/index.html?iref=allsearch>for 
CNN Opinion.  It begins:

    Those who oppose the 2010 Citizens United Supreme Court ruling and
    the explosion of outside money in politics might be breathing a sigh
    of relief that more than $1 billion in outside spending
    <http://www.cbsnews.com/8301-250_162-57541812/outside-spending-on-2012-elections-reaches-$1-billion/>
    in federal elections, which heavily favored Republicans, did not
    seem to buy the results that the big spenders wanted. After all,
    most of the candidates backed by Karl Rove's Crossroads groups and
    the Chamber of Commerce, beginning with Mitt Romney, lost their
    races. But those concerned about the role of money in politics
    shouldn't be relieved. Not at all. Here are three reasons to keep
    worrying:

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    More Ballots Cast for Democrats Rather than Republicans in House
    Races But Republicans Control House
    <http://electionlawblog.org/?p=43954>

Posted on November 9, 2012 10:14 am 
<http://electionlawblog.org/?p=43954> by Rick Hasen 
<http://electionlawblog.org/?author=3>

See Think Progress 
<http://thinkprogress.org/justice/2012/11/07/1159631/americans-voted-for-a-democratic-house-gerrymandering-the-supreme-court-gave-them-speaker-boehner/?mobile=nc>, 
Peter Shane 
<http://www.huffingtonpost.com/peter-m-shane/redistricting-ohio_b_2094148.html>

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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off

    "Citizens United Is Still Worth Hating"
    <http://electionlawblog.org/?p=43951>

Posted on November 9, 2012 9:55 am <http://electionlawblog.org/?p=43951> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Eric Posner writes 
<http://www.slate.com/articles/news_and_politics/view_from_chicago/2012/11/campaign_finance_in_2012_presidential_election_super_pacs_lost_but_citizens.html> 
for /Slate./

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "Money's Influence on Politics Extends Way Beyond Election Day"
    <http://electionlawblog.org/?p=43948>

Posted on November 9, 2012 9:52 am <http://electionlawblog.org/?p=43948> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Ellen Miller writes 
<http://sunlightfoundation.com/blog/2012/11/09/moneys-influence-on-politics-extends-way-beyond-election-day/> 
for Sunlight.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "It's not the 2000 recount, but voting snafus and disputes still
    plague Florida" <http://electionlawblog.org/?p=43945>

Posted on November 9, 2012 9:26 am <http://electionlawblog.org/?p=43945> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Tom Curry reports 
<http://nbcpolitics.nbcnews.com/_news/2012/11/08/15029964-its-not-the-2000-recount-but-voting-snafus-and-disputes-still-plague-florida#.UJ08FYnVCdo.twitter> 
for NBC.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | 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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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