[EL] NAMUDNO

Fri Nov 9 14:51:26 PST 2012

Thanks!

On Fri, Nov 9, 2012 at 5:36 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  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> 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.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>  [image: 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:
>>
>>
>>  [image: 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>
>>  [image: 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.*
>>  [image: 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.
>>  [image: 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.
>>  [image: 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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>

-- 
Stephen M. Hoersting
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