[EL] more news 2/27/13
Rick Hasen
rhasen at law.uci.edu
Wed Feb 27 13:41:28 PST 2013
True the Vote Issues Report: "The 2012 Voter Suppression Myth"
<http://electionlawblog.org/?p=47828>
Posted on February 27, 2013 1:33 pm
<http://electionlawblog.org/?p=47828> by Rick Hasen
<http://electionlawblog.org/?author=3>
Posted here <http://t.co/NfVihzBqrf>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
Interesting DOJ/FEC Split in Danielczyk Case Raises Tricky Question
for Election Lawyers <http://electionlawblog.org/?p=47826>
Posted on February 27, 2013 1:32 pm
<http://electionlawblog.org/?p=47826> by Rick Hasen
<http://electionlawblog.org/?author=3>
See this post
<http://www.insidepoliticallaw.com/2013/02/27/the-dangers-of-sua-sponte/>at
Inside Political Law.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
Department of Justice <http://electionlawblog.org/?cat=26>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Contractor Contribution Ban Defended by Watchdogs in Appeals Court
Filing" <http://electionlawblog.org/?p=47823>
Posted on February 27, 2013 1:29 pm
<http://electionlawblog.org/?p=47823> by Rick Hasen
<http://electionlawblog.org/?author=3>
Press release
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2064:february-27-2013-contractor-contribution-ban-defended-by-watchdogs-in-appeals-court-filing-&catid=63:legal-center-press-releases&Itemid=61>:
"Today, the Campaign Legal Center, joined by Democracy 21 and Public
Citizen, filed an /amici/ brief
<http://www.campaignlegalcenter.org/images/CLC_D21_PC_amici_brief_Wagner_v._FEC.pdf>
in /Wagner v. FEC/ opposing an effort to overturn the 70-year-old ban on
campaign contributions by federal contractors. The case is currently on
appeal to the U.S. Court of Appeals for the District of Columbia after a
federal district court upheld the ban in November of 2012."
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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More Early Oral Argument Stories <http://electionlawblog.org/?p=47819>
Posted on February 27, 2013 1:24 pm
<http://electionlawblog.org/?p=47819> by Rick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman
<http://www.thenation.com/blog/173126/congress-honors-rosa-parks-while-supreme-court-targets-voting-rights-act>
at the Nation: "It quickly became clear inside the courtroom that there
are four votes to uphold Section 5 and four votes to strike it down.
Justice Kennedy, as is so often the case, appears to be the swing vote,
although he certainly leaned toward the conservatives."
Bob Barnes
<http://www.washingtonpost.com/politics/supreme-court-majority-skeptical-of-voting-law-provision/2013/02/27/e89b038e-80fd-11e2-b99e-6baf4ebe42df_story.html>
for WaPo: "The Supreme Court's conservative justices strongly suggested
Wednesday that a key portion of the Voting Rights Act is no longer
justified and the time had come for Southern states to be freed from
special federal oversight."
David Savage f
<http://www.latimes.com/news/nation/nationnow/la-na-nn-supreme-court-voting-rights-act-20130227,0,5838178.story>or
LA Times: "Justice Anthony M. Kennedy
<http://www.latimes.com/topic/crime-law-justice/justice-system/judges/anthony-kennedy-PEPLT00008042.topic>,
whose vote may be decisive, said the states deserved to be treated
equally and that Congress did not have reason to continue a law that
puts the South under a special scrutiny."
Richard Wolf
<http://www.usatoday.com/story/news/politics/2013/02/27/supreme-court-voting-rights-south-blacks-discrimination/1949719/>
for USA Today: "It's easy to go broke guessing on the outcome of any
Supreme Court argument," said Edward Blum, director of the Project on
Fair Representation, which solicited the challenge to the law. But he
said the questions from Roberts and others "highlighted the justices'
skepticism about the differences in discrimination between the covered
and non-covered jurisdictions. Those differences simply don't exist any
longer."
Lyle Denniston
<http://www.scotusblog.com/2013/02/argument-recap-voting-law-in-peril-maybe/>
for SCOTUSBlog: If Kennedy believes that there is no way to justify any
longer that kind of oversight of nine states that have to do the most to
obey the 1965 law, that law may well be doomed. But it also was
Kennedy who left the impression that he might be willing to go along
with a potential way to short-circuit the case of /Shelby County v.
Holder/,
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/> and
allow the law to survive for some time more.
Andrew Cohen
<http://www.theatlantic.com/national/archive/2013/02/america-is-one-step-closer-to-killing-the-voting-rights-act/273566/>for
The Atlantic: It never shocks me when Denniston is correct. I certainly
wouldn't bet against him. But my sense is that there will be no
last-minute vote switch
<http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/>
this time. There will be no ideological compromise. The Court won't
exercise judicial restraint in the face of clear legislative intent. In
other words, it doesn't matter that the Senate renewed the law by a vote
of 98-0 in 2006. It doesn't matter that the House of Representatives
passed it by an enormous margin as well or that President George W. Bush
held a signing ceremony. This Court clearly has had it in for this law
for years now, and will, within the next four months, gut its most
effective provision.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Pildes: Did Congress Abdicate Its Responsibility to Update the
Voting Rights Act? <http://electionlawblog.org/?p=47816>
Posted on February 27, 2013 1:12 pm
<http://electionlawblog.org/?p=47816> by Rick Hasen
<http://electionlawblog.org/?author=3>
The following is a guest post from *Rick Pildes*:
In light of today's oral argument concerning the constitutionality
of Section 5 of the VRA, I remain deeply disappointed that Congress
did nothing in 2006 either to update the scope of Section 5?s
coverage or to explain why it continued to make sense to continue to
cover all the areas (and only the areas) first put under Section 5?s
unique regime in the 1960s (or, at latest, 1975). Congress' failure
to do so now appears likely to be the basis for a Supreme Court
decision that will hold Section 5 unconstitutional, to the extent
oral argument foreshadows outcomes.
The House did not even consider evidence comparing race and voting
issues in the covered and non-covered jurisdictions; it did not seem
to consider these comparisons necessary or relevant. The Senate
Judiciary Committee was certainly told in 2006 that the failure to
update the Act would put it in constitutional jeopardy. But even
there, the only major piece of evidence comparing the covered and
non-covered jurisdictions before the Senate was "the Katz study,"
<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/Katz-cite.png>
not designed for this purpose in the first place, and which
subsequent academic work (here
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=977271>, here
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142986> and
here <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1260998>)
has shown does not provide significant evidence that distinguishes
between the covered and non-covered areas. To be sure, meaningful
distinctions might exist between covered and non-covered areas, or
between some of the covered areas and those not covered. But the
record before Congress was simply not constructed with this
comparative question very much in mind, let alone with that question
being a central focus of the congressional process.
So why did Congress not look in more detail at what was going on in
both the covered and non-covered areas and modernize Section 5,
instead of simply extending Section 5 for another 25 years unchanged
in coverage?
The actual answer is realpolitik: it was politically easier for
Congress to simply reaffirm the status quo, rather than confront the
difficult policy and political questions posed by making judgments
about where problems of race and voting rights were most acute today
(are Ohio and Pennsylvania similar today to Virginia and North
Carolina?). As I wrote at the time in the /Yale Law
Journal/ online, in a short essay
<http://http/yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/political-avoidance,-constitutional-theory,-and-the-vra/> called
/Political Avoidance, Constitutional Theory, and the Voting Rights
Act/, by failing to update the Act:
/Congress has, whether intentionally or not, in effect thrown down a
gauntlet to the Court. The renewed VRA . . . makes no concessions to
the[Court's] post-1982 /Boerne/ doctrines nor to the social,
political, and institutional changes since 1982. . . . Section 5
stands at the intersection of race-conscious policymaking and
federalism, the latter in the unique context of regionally specific
legislation; in each of these domains, the Court has insisted that
legislation rest on an adequately documented
foundation. [R]ealpolitik provides the best explanation for why
Congress left the VRA's essential structure and coverage unchanged.
The question waiting in the wings is whether realpolitik provides an
adequate justification when the Supreme Court confronts the
inevitable constitutional challenge to the power of Congress to
reenact the distinct coverage regime of section 5 for another
twenty-five years./
Similarly, Professor Nate Persily, writing
<http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/the-promise-and-pitfalls-of-the-new-voting-rights-act-%28vra%29/>about
the legislative process in 2006, concluded that any debate "about
the purpose and utility of section 5 itself . . . likely would have
led to the complete unraveling of the bill."
If today's argument accurately predicts the outcome, it seems to
suggest that realpolitik is going to be an insufficient explanation
to meet a majority of the Court's judgment about what constitutional
doctrine requires in this area.
Rick Pildes
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
No Hope: Reading the Tea Leaves in the Voting Rights Case
<http://electionlawblog.org/?p=47813>
Posted on February 27, 2013 1:05 pm
<http://electionlawblog.org/?p=47813> by Rick Hasen
<http://electionlawblog.org/?author=3>
Yes, it is true that most of us (including me) predicted the Supreme
Court would strike down section 5 of the Voting Rights Act back in 2009
in the NAMUDNO case
<http://www.law.cornell.edu/supct/html/08-322.ZS.html>. In that case,
however, the Court punted, with a serious warning to Congress (not
heeded to fix the Act). And we all remember Jeffrey Toobin running to
CNN after the oral argument in the health care case to predict it would
fall. It didn't, as Chief Justice Roberts blinked. But I've read the
transcript
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf>
from today's oral argument and I have no hope that the Voting Rights Act
will continue in its current form after the Supreme Court is done with
it in the Shelby County case.
So why will things be different this time?
First, there's the issue of respect for the Supreme Court. In the
conservative Justices' minds, there seems no doubt that the Court is
miffed that Congress didn't fix the Act's (in their view) outdated
coverage formula after /NAMUDNO/. Justice Kennedy seems to think the
reason Congress didn't update in the first place is that they didn't
want to take the time or were too lazy. That's not it at all---it is
that it is hard to come up with a politically acceptable new coverage
formula which would pass in the current Congress. (Justice Scalia for
his part believes that simply overturning the VRA would be a radioactive
move for politicians, something I believe is no longer true---witness
Rick Perry dissing the Voting Rights Act section 5 during a Republican
presidential debate and getting nary a mention.) Congress had four
years to react to /NAMUDNO /and did nothing.
Second, the real action here in this case is with Chief Justice Roberts
or Justice Kennedy. (Alito and Scalia expressed clear hostility to the
law, and Thomas already in /NAMUDNO/ said it was unconstitutional.) The
thought that the Chief Justice would blink (or be a "statesman") not
once (in /NAMUDNO/), not twice (in the health care case), but thrice in
four years seems unbelievable. And this is Roberts' signature issue.
Remember, he's the Justice who said that it is "a sordid business" to
divvy people up by race, and that "the way to stop discriminating on the
basis of race is to stop discriminating on the basis of race." Since he
was in the Reagan administration he's supported a weakened Voting Rights
Act. And now he's given Congress time to fix the problem and they haven't.
And that leaves Justice Kennedy. Liberals always pin their hopes on
him, but they are usually disappointed (outside the context of social
issues such as (sometimes) abortion and gay rights). But he's been very
hostile to the VRA and very strong on federalism and the sovereignty and
dignity of states. One might say that is a signature issue for him.
Reading his questions at oral argument, he is clearly troubled by the
Act, and believes it is outdated (claiming that the Marshall Plan was
great for then, but this is now). Justice Kennedy seems to believe,
wrongly in my view, that section 2 and the use of preliminary
injunctions, could do the same work as section 5. In a future post I'll
explain why this is wrong (the burden of proof is different, the
substantive standard is different, and the threat of section 2
litigation is not the same bargaining chip
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/01/voting_rights_act_what_s_lost_if_the_supreme_court_kills_it.html>as
Section 5 is).
The one area of hope which some observers see from Justice Kennedy in
today's oral argument is the suggestion that even if the Act is not
constitutional as to some covered jurisdictions, Alabama would be
covered under any provision of the Act. I think people are overreading
this exchange. Justice Kennedy did not seem convinced---it seems more
likely he would buy Justice Scalia's point that if Congress wants to
cover Alabama, let it pass a statute covering Alabama and then justify it.
Let me be clear. If Justice Kennedy or the Chief want to use this as a
way to get around a finding of unconstitutionality they clearly could.
After all, the Justices in /NAMUDNO/ all (aside from Thomas) engaged in
a disingenuous act of statutory interpretation
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436669> to avoid
striking down the Act last time. But this time what is different is that
I don't see Kennedy or the Chief having any appetite to do so.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
ELB is Back Up! <http://electionlawblog.org/?p=47811>
Posted on February 27, 2013 1:04 pm
<http://electionlawblog.org/?p=47811> by Rick Hasen
<http://electionlawblog.org/?author=3>
So sorry for the inconvenience. ELB's servers were just overwhelmed with
requests to visit the site following today's oral argument in the Shelby
County. We'll be moving to a better server soon. And I've created
electionlaw2.blogspot.com <http://electionlaw2.blogspot.com/> if the
site goes down again until we transition.
Thanks for your patience.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
More Early Reports from Oral Argument
<http://electionlawblog.org/?p=47809>
Posted on February 27, 2013 9:50 am
<http://electionlawblog.org/?p=47809> by Rick Hasen
<http://electionlawblog.org/?author=3>
[Apologies if you have trouble getting through. A link from HuffPo
seems to have temporarily overwhelmed the servers.]
Adam Liptak NYT:
<http://www.nytimes.com/2013/02/28/us/politics/conservative-justices-voice-skepticism-on-voting-law.html?hp>A
central provision of the Voting Rights Act of 1965 may be in peril,
judging from tough questioning on Wednesday from the Supreme Court's
more conservative members. Justice Antonin Scalia called the provision,
which requires nine states, mostly in the South, to get federal
permission before changing voting procedures, a "perpetuation of racial
entitlement." Chief Justice John G. Roberts Jr. asked a skeptical
question about whether people in the South are more racist than those in
the North. Justice Anthony M. Kennedy asked how much longer Alabama must
live "under the trusteeship of the United States government."
Ryan Reilly HuffPo
<http://www.huffingtonpost.com/2013/02/27/voting-rights-act-supreme-court_n_2768942.html?1361986405>:
Justice Antonin Scalia suggested that the continuation of Section 5 of
the Voting Rights Act represented the "perpetuation of racial
entitlement," saying that lawmakers had only voted to renew the act in
2006 because there wasn't anything to be gained politically from voting
against it. "Even the name of it is wonderful, the Voting Rights Act.
Who's going to vote against that?" Scalia wondered during oral argument
in Shelby County v. Holder. He said that the Voting Rights Act had
effectively created "black districts by law."
Sahil Kapur TPM:
<http://tpmdc.talkingpointsmemo.com/2013/02/roberts-are-citzens-in-the-south-more-racist-than-citizens-not-in-the-south.php?ref=fpa>Oral
arguments showed a sharp divide along ideological lines and suggested
that the conservative majority is strongly inclined to overturn Section
5 of the half-century-old law.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | 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
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