[EL] ELB Quick Hits

Sun Dec 29 19:56:19 PST 2013

<http://electionlawblog.org/>

    ELB Vacation Quick Hits <http://electionlawblog.org/?p=57630>

Posted on December 29, 2013 7:55 pm 
<http://electionlawblog.org/?p=57630>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Dan Balz 
<http://www.washingtonpost.com/politics/red-blue-states-move-in-opposite-directions-in-a-new-era-of-single-party-control/2013/12/28/9583d922-673a-11e3-ae56-22de072140a2_story.html> 
writes on red state law and blue state law in the polarized states.

The Lawyers' Committee 
<http://www.lawyerscommittee.org/newsroom/clips?id=0832> (and Perkins 
Coie) bring suit 
<http://www.azcentral.com/news/politics/articles/20131227arizona-law-community-college-board-members-lawsuit.html> 
against Arizona for the addition of two at-large seats in a community 
college district.

New York 
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=39335679&vname=mpebulallissues&jd=a0e4p5y8g6&split=0>says 
/SpeechNow.org/ is wrongly decided and wants to keep its contribution 
limits to independent expenditure committees.

Political Maryland 
<http://politicalmaryland.com/2013/12/27/md-fundraising-loophole/>writes 
on a campaign finance "loophole."

Harold Simmons 
<http://www.nytimes.com/2013/12/30/us/politics/harold-simmons-dies-at-82-backed-swift-boat-ads.html?ref=politics>, 
the large donor connected with the "Swift Boat" ads, has passed away.

/WSJ/ considers 
<http://online.wsj.com/news/articles/SB10001424052702303330204579248700102407732> 
blurred lines when lobbyists invest in the industries they represent.

Marc Caputo 
<http://www.miamiherald.com/2013/12/28/3839593/in-dirty-dade-the-year-of-the.html> 
describes public corruption in Miami-Dade, including quite a few 
election law activities.

The /Concord Monitor/ editorializes 
<http://www.concordmonitor.com/opinion/editorials/9954122-95/editorial-an-interesting-effort-to-expand-ballot-access> 
in favor for 17-year-old primary voting.

  CPI 
<http://www.publicintegrity.org/2013/12/26/14053/numbers-2013-money-politics-index> 
gives a /Harper's/-like Money-in-Politics Index for 2013.

NYT 
<http://www.nytimes.com/2013/12/29/us/a-rare-elected-voice-for-socialism-pledges-to-be-heard-in-seattle.html?ref=politics> 
considers a socialist on the Seattle city council.

WaPo 
<http://www.washingtonpost.com/blogs/govbeat/wp/2013/12/26/new-laws-coming-in-elections-and-social-issues/> 
canvasses new state election laws.

AND former Indiana Secretary of State Charlie Whiteloses his voter fraud 
appeal 
<http://www.indystar.com/story/news/crime/2013/12/26/judge-denies-charlie-whites-request-for-new-trial/4207831/>based 
upon ineffective assistance of counsel.

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

    How Soon Before SCOTUS Reaches Merits of Same-Sex Marriage Issue?
    Very Soon <http://electionlawblog.org/?p=57627>

Posted on December 25, 2013 12:43 pm 
<http://electionlawblog.org/?p=57627>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Back in July,I wrote the following 
<http://blogs.reuters.com/great-debate/2013/07/15/court-due-to-make-second-trip-down-the-aisle/> 
in a piece for Reuters Opinion:

    Near the end of his engaging and informative e-book on the Supreme
    Court's recent same-sex marriage decisions, To Have and To Uphold
    <http://www.amazon.com/To-Have-Uphold-Same-Sex-ebook/dp/B00DNIUK9C>,
    /New York Times/ reporter Adam Liptak makes a prediction: "The day
    will come when the constitutional question [over the
    constitutionality of a ban on same-sex marriage] will return to the
    Supreme Court for some final mopping up, perhaps when the number of
    states still banning same-sex marriage has dwindled to a score or
    fewer."

    Though I agree with much of Liptak's book, I think he's wrong on
    this particular prediction: The constitutionality of bans on
    same-sex marriage will return to the Supreme Court sooner rather
    than later --- and it will happen while more than a score of states
      still ban the practice. What the court does then is anyone's guess.

I pressed Adam on this point when he appeared at UCI Law's 2013 Supreme 
Court term in review 
<http://www.law.uci.edu/events/supreme-court-term-review/2013.html> 
event last summer.  I asked Adam with so many cases in the pipeline, how 
could the Court not take them?  Adam's response was two words: "cert. 
denied."  In other words, these cases would come up as part of the 
Supreme Court's discretionary docket, and that means that the Court 
could simply decline to hear the cases.

I thought that the Court simply ducking the issue for a while was 
unlikely when I wrote the piece last July, and I think it even more 
unlikely now.  It takes only four votes to grant a cert. petition, and 
it is hard for me to imagine Justices Scalia, Thomas and Alito not 
wanting to take one of the cases coming up, such as the Utah case 
<http://www.buzzfeed.com/chrisgeidner/appeals-court-refuses-to-halt-utah-marriages-for-same-sex-co>, 
in which a federal court held that the state's ban on same-sex marriage 
violates both equal protection and due process guarantees, or the Ohio 
case 
<http://www.volokh.com/2013/12/23/limited-nature-ohio-sex-marriage-decision/>, 
where a federal judge indicated he's quite likely to reach that same 
result as to Ohio's law.  If lower courts are going to start siding with 
same-sex marriage proponents, and start legalizing same-sex marriage as 
a result of court order in places such as conservative Utah, then it 
seems hard to imagine Scalia, Thomas, and Alito not urging the Court to 
take the case.

So where's the fourth vote?  I think Adam is right that Kennedy would 
rather let the issue percolate for a while (witness his convoluted 
opinion in /Windsor/ 
<http://www.scotusblog.com/case-files/cases/windsor-v-united-states-2/>not 
addressing the issue more straightforwardly). But Chief Justice Roberts 
is a different story.  He appears in /Windsor/ to oppose judicial 
imposition of same sex marriage.  That's where his sympathies are. The 
question is whether he pulls the trigger or not and votes to take one of 
these cases. Strategically, he could decide it is better not to vote to 
take the cases if he thinks, as many thoughtful observers do, that if 
Kennedy had to decide the issue, he would side with the right to 
same-sex marriage.

But that same strategic calculation which might lead the Chief not to 
vote to grant cert. could lead one of the four Court liberals to vote to 
take the case. That is, they too may want to force Kennedy's hand, if 
they are confident in his vote.  If it only takes one of the four to 
join in a vote for cert., I think it is pretty likely to happen. The way 
it might not happen happen is if Alito, Scalia and Thomas all decide to 
vote strategically not to hear these cases.  I'm guessing they won't be 
able to resist.

We may get a sense of all of this in a few days when the Court will rule 
on the request for a stay 
<http://www.scotusblog.com/2013/12/utah-marriage-case-on-way-to-the-court/> 
in the Utah case. The issue will go to Justice Sotomayor, and if she 
does not issue a stay herself, it will get referred to the whole Court.  
We may get some statements from the Justices with respect to granting a 
stay.

It is fairly likely that the Court grants a stay to keep the status quo 
as things progress in the 10th Circuit.  That will buy the Court some 
time.  But not that much.  I expect within a year or two this case or 
another will make it to the Court in a way that leads the Court to 
decide the same-sex marriage issue on the merits.  There are just too 
many questions, and so much litigation, for the Court to avoid the 
merits for too long.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>

    "Voter fraud investigation uncovers few crimes"
    <http://electionlawblog.org/?p=57625>

Posted on December 25, 2013 10:54 am 
<http://electionlawblog.org/?p=57625>by Rick Hasen 
<http://electionlawblog.org/?author=3>

News 
<http://news.cincinnati.com/article/20131225/NEWS010801/312240026/Voter-fraud-investigation-uncovers-few-crimes> 
from Ohio.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60>

    Gov. Christie Retribution Against Redistricting Tiebreaker in NJ?
    <http://electionlawblog.org/?p=57623>

Posted on December 24, 2013 1:14 pm 
<http://electionlawblog.org/?p=57623>by Rick Hasen 
<http://electionlawblog.org/?author=3>

NYT 
<http://www.nytimes.com/2013/12/25/nyregion/accounts-of-petty-retribution-reinforce-christies-bullying-image.html?pagewanted=2&hp>:

    Later that year, the governor was pressing hard on Alan Rosenthal
    <http://nyti.ms/1bnfQa3>, the Rutgers political scientist whom
    Republicans and Democrats had chosen as the tiebreaking member of
    the commission that was redistricting the state's legislative
    districts. Mr. Christie wanted Mr. Rosenthal to vote for the map put
    forward by the Republicans on the commission, but instead he chose
    the Democrats' plan, saying it offered more stability. That summer,
    Mr. Christie used his line-item veto to cut $169,000 for two
    programs at Mr. Rosenthal's institute at Rutgers.

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Posted in redistricting <http://electionlawblog.org/?cat=6>

-- 
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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