[EL] Montana

Rick Hasen rhasen at law.uci.edu
Tue Oct 16 15:16:43 PDT 2012 

    Unanimous Ninth Circuit Panel Extends Stay of Montana Campaign
    Contributions Case Pending Appeal <http://electionlawblog.org/?p=41793>

Posted on October 16, 2012 3:14 pm <http://electionlawblog.org/?p=41793> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Following up onthis post <http://electionlawblog.org/?p=41444>, the 
Ninth Circuit motions panel, in an opinion 
<http://www.ca9.uscourts.gov/datastore/general/2012/10/16/12-35809.filed.order.pdf>by 
Judge Bybee, unanimously stayed the district court order which would 
have had the effect of removing most of the contribution limits in the 
state of Montana judge weeks before the election.  As I had suggested, 
heavy on the 9th Circuit judges' concerns were what it would mean to 
lift these limits just before the election and the fact that the judge 
threw out a large number of contribution limits after finding a problem 
only with one of them.  But also especially relevant was earlier Ninth 
Circuit authority upholding Montana's limits, which the district court 
had held was no longer binding on the court in light of the Supreme 
Court's decision in /Randall/. The Ninth Circuit panel, made up of 
pretty conservative judges, gave an unusually detailed explanation for 
why it was staying the judge's ruling.

Here's part of the introduction to the 44-page opinion:

    The State of Montana has sought a stay of the district court's order
    pending appeal. For the reasons we explain below, we believe that
    the state is likely to succeed on appeal. We conclude that the State
    of Montana has made a strong showing that a merits panel of this
    Court will likely conclude that, absent en banc proceedings or an
    intervening decision of the Supreme Court, we remain bound by our
    decision in Eddleman. See Miller v. Gammie, 335 F.3d 889, 892--93
    (9th Cir. 2003) (en banc). We also conclude that a merits panel is
    likely to hold that the analytical framework of the Supreme Court's
    decision in Randall does not alter the analysis of Buckley or Shrink
    Missouri in a way that affects our decision in Eddleman, for three
    reasons. First, there is no opinion of the Court in Randall.
    Thalheimer v. City of San Diego, 645 F.3d 1109, 1127 n.5 (9th Cir.
    2011) ("[T]he plurality opinion [in Randall] [i]s persuasive
    authority, though not a binding precedent." (internal quotation
    marks omitted)). Second, even if we thought that Justice Breyer's
    plurality opinion represented the narrowest view of a majority of
    the Court, it did not depart from the principles of Buckley and
    Shrink Missouri that we applied in Eddleman. Randall, 548 U.S. at
    242 (opinion of Breyer, J.) ("[T]his Court has repeatedly adhered to
    Buckley's constraints . . . ."). Third, even if we applied Randall
    to § 13-37-216, we cannot find, on the basis of the district court's
    findings, reason to disagree with, much less overturn, Eddleman. In
    light of Montana's interest in regulating campaign contributions,
    the lack of evidence that other parties will be substantially
    injured, and the public's substantial interest in the stability of
    its electoral system in the final weeks leading to an election, we
    will stay the order pending the state's appeal. See Nken v. Holder,
    556 U.S. 418, 434 (2009).

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-- 
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
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http://electionlawblog.org
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