[EL] NAMUDNO
Rick Hasen
rhasen at law.uci.edu
Fri Nov 9 14:36:39 PST 2012
I meant that in the campaign finance context, Roberts in Citizens United
was done with half measures to try to save campaign finance law.
Similarly, he will see that there's no need to try to use half measures,
as in NAMUDNO, to save the Voting Rights Act.
On 11/9/12 2:33 PM, Steve Hoersting wrote:
> Rick, do you want this sentence back? Or do you want simply to explain
> what you meant?
>
> 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.”
>
> Steve
>
> On Fri, Nov 9, 2012 at 5:25 PM, Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
>
> 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.
>
>
>
>
>
>
>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43966&title=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
> 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:
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43957&title=%E2%80%9CBig%20money%20lost%2C%20but%20don%E2%80%99t%20be%20relieved%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>
>
> 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>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43954&title=More%20Ballots%20Cast%20for%20Democrats%20Rather%20than%20Republicans%20in%20House%20Races%20But%20Republicans%20Control%20House&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
> 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./
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43951&title=%E2%80%9CCitizens%20United%20Is%20Still%20Worth%20Hating%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>
>
> “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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43948&title=%E2%80%9CMoney%E2%80%99s%20Influence%20on%20Politics%20Extends%20Way%20Beyond%20Election%20Day%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>
>
> “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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43945&title=%E2%80%9CIt%E2%80%99s%20not%20the%202000%20recount%2C%20but%20voting%20snafus%20and%20disputes%20still%20plague%20Florida%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
> 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 <tel:949.824.3072> - office
> 949.824.0495 <tel: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
> Now available: The Voting Wars:http://amzn.to/y22ZTv
>
>
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>
>
> --
> Stephen M. Hoersting
>
--
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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