[EL] ELB News and Commentary 7/12/13
Rick Hasen
rhasen at law.uci.edu
Thu Jul 11 21:16:27 PDT 2013
<http://electionlawblog.org/>
Justice Ginsburg's Vigor, as Evidenced by Her Shelby County Dissent
<http://electionlawblog.org/?p=52866>
Posted on July 11, 2013 9:09 pm <http://electionlawblog.org/?p=52866> by
Rick Hasen <http://electionlawblog.org/?author=3>
[This is one of a series of posts <http://electionlawblog.org/?p=52774>
on issues related to the /Shelby County /
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>voting rights
case flagged, but not fully developed, in my draft paper, Shelby County
and the Illusion of Minimalism
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>.]
One of the last major opinions Justice Stevens wrote for the Supreme
Court, his dissent
<http://www.law.cornell.edu/supct/html/08-205.ZX.html> in the /Citizens
United/ <http://www.law.cornell.edu/supct/html/08-205.ZS.html> campaign
finance case, was a disappointment. Rather than being a strong and crisp
statement of principles to support reasonable campaign finance
regulation under anti-corruption, egalitarian principles, or both, the
opinion was meandering and unfocused (so much so that I dedicateda law
review article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737938> to its
weaknesses). I had always been a fan of Justice Stevens and found this
disappointing. Justice Stevens too expressed concern about his oral
dissent in /Citizens United/ in explaining why he decided it was time to
retire
<http://www.abajournal.com/news/article/justice_stevens_decided_to_retire_after_stumbling_during_citizens_united_di/>.
I bring up the Stevens issue because there has been talk too that
Justice Ginsburg should retire soon
<http://www.thedailybeast.com/articles/2012/05/24/is-justice-ginsburg-risking-the-future-of-the-supreme-court.html>
given her age and the chance that the next President might be
Republican, giving Republicans the chance to put a young new
conservative on the Court. In an interview last week with Joan Biskupic
<http://www.reuters.com/article/2013/07/04/us-usa-court-ginsburg-idUSBRE9630C820130704>,
Justice Ginsburg rejected retirement talk, putting the kibosh on
conventional wisdom that she would retire at the end of the Court's next
term.
The question whether the 80-year-old Ginsburg should retire is a
difficult one, and I will likely leave this debate for others. The
issue is difficult because, unlike Stevens, Ginsburg is still at the top
of her game. If Justice Ginsburg started missing a step, the case for
her quick retirement would be an easy one.
Her dissent in the landmark voting rights ruling last month, /Shelby
County v. Holder/, is crisp and directed, pointed and clear. With a
couple <http://electionlawblog.org/?p=52774> of exceptions (most
importantly its attempt
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612> to paint a
happy picture of Congress's 2006 renewal), it is an exemplary dissent.
Most impressive about the dissent is that Justice Ginsburg offers a
nascent new theory of federal power to regulate state elections in the
name of promoting democracy.This is hardly the stuff of a Justice going
through the motions. The opinion puts forward the theory and at the same
time explains what I've considered
<http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html>
to be a curious decision
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/are_the_liberals_on_the_supreme_court_savvy_or_suckers.html>
of Justice Ginsburg and the other liberals
<http://electionlawblog.org/?p=51773> to join in full Justice Scalia's
opinion in the /Arizona Inter-Tribal/
<http://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf>case. Part
of that opinion seems to give states new ammunition to fight /against/
federal oversight of elections. So why did Ginsburg sign it? Here's
the relevant discussion from my draft paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>:
The dissent offers a muscular and integrated vision of the five
constitutional amendments mentioning the right to vote and, coupled
with its view of the Elections Clause in Article 4, the Constitution
gives Congress broad power to protect the franchise and democratic
processes against state encroachment.[1]
<http://electionlawblog.org/#_ftn1>
------------------------------------------------------------------------
[1] <http://electionlawblog.org/#_ftnref1> Id at *24 n 2 ("The
Constitution uses the words 'right to vote' in five separate places:
the Fourteenth, Fifteenth, Nineteenth, Twenty--Fourth, and
Twenty--Sixth Amendments. Each of these Amendments contains the same
broad empowerment of Congress to enact "appropriate legislation" to
enforce the protected right. The implication is unmistakable: Under
our constitutional structure, Congress holds the lead rein in making
the right to vote equally real for all U.S. citizens. These
Amendments are in line with the special role assigned to Congress in
protecting the integrity of the democratic process in federal
elections. U.S. Const., Art. I, § 4 ("[T]he Congress may at any time
by Law make or alter" regulations concerning the "Times, Places and
Manner of holding Elections for Senators and Representatives.");
/Arizona v. Inter Tribal Council of Ariz., Inc.,/ ------U.S.,
--------, -------- -- --------, 133 S.Ct. 2247, -------- --
--------, ------ L.Ed.2d -------- (2013)).
This footnote may help explain why the /Shelby County /dissenters
were willing to sign on to Justice Scalia's majority opinion in
/Arizona v. Inter Tribal Council/ despite language in the opinion
which could be used later by states to fight federal election
legislation by claiming such legislation impedes state power to set
voter qualifications. /See/ Richard L. Hasen, /The Supreme Court
Gives States New Weapons in the Voting Wars/, The Daily Beast, Jun.
17, 2013,
http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html.
In a future case involving a state's qualifications power being
raised against a federal election rule, the dissenters likely would
seek to distance themselves from the voter qualifications dicta in
/Inter Tribal Council/ just as they distanced themselves from the
/NAMUDNO /dicta in /Shelby County/. Instead, the dissenters offer a
nascent theory of broad congressional power to assure equality in
voting.
So say what you will about whether Justice Ginsburg should retire given
her age, giving President Obama a sure chance to appoint a young new
liberal Justice to the Court. But don't think for a moment that Justice
Ginsburg isn't up to the task of continuing at full (and impressive for
any age) strength for the near term.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Sen. Nelson blasts Supreme Court on voting rights"
<http://electionlawblog.org/?p=52863>
Posted on July 11, 2013 4:23 pm <http://electionlawblog.org/?p=52863> by
Rick Hasen <http://electionlawblog.org/?author=3>
The Sun-Sentinel reports
<http://www.sun-sentinel.com/news/local/florida/politics-blog/sfl-sen-nelson-blasts-supreme-court-on-voting-rights-20130711,0,6947270.story>.
Share
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Another IRS Scandal Waiting to Happen; Federal Elections
Commissioner Donald McGahn wants to rein in the bureaucracy of this
sensitive agency. The political left is furious. "
<http://electionlawblog.org/?p=52861>
Posted on July 11, 2013 3:53 pm <http://electionlawblog.org/?p=52861> by
Rick Hasen <http://electionlawblog.org/?author=3>
Kimberly Strassel /WSJ
<http://online.wsj.com/article/SB10001424127887324879504578599783139351080.html>/column.
<http://online.wsj.com/article/SB10001424127887324879504578599783139351080.html>
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
Filibuster Reform Coming? <http://electionlawblog.org/?p=52858>
Posted on July 11, 2013 3:51 pm <http://electionlawblog.org/?p=52858> by
Rick Hasen <http://electionlawblog.org/?author=3>
NY Times: Democrats Poised to Limit Filibusters, Angering GOP
<http://www.nytimes.com/2013/07/12/us/politics/showdown-nears-in-senate-over-filibusters-change.html?hp>
Ezra Klein: Mitch McConnell's problem: How can he threaten to obstruct
the Senate even more?
<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/11/mitch-mcconnells-problem-how-can-he-threaten-to-obstruct-the-senate-even-more/>
Jonathan Bernstein: Why Senate Reform is Needed
<http://www.washingtonpost.com/blogs/post-partisan/wp/2013/07/11/why-senate-reform-is-needed/>
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68> | Comments Off
"News Analysis: Macon-Bibb's on again, off again election; VRA
ruling gives election a green light, but not so fast"
<http://electionlawblog.org/?p=52853>
Posted on July 11, 2013 3:10 pm <http://electionlawblog.org/?p=52853> by
Rick Hasen <http://electionlawblog.org/?author=3>
That's the lead story in this week's Electionline Weekly.
<http://www.electionline.org/index.php/electionline-weekly>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Shuchman on Corsi Case <http://electionlawblog.org/?p=52850>
Posted on July 11, 2013 3:07 pm <http://electionlawblog.org/?p=52850> by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.forbes.com/sites/realspin/2013/07/11/in-todays-america-consult-your-attorney-before-speaking-freely/>,
in Forbes.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
Extensive Sen. McConnell Profile Discusses His Anti-Campaign Finance
Law Stance, Alliance with Jim Bopp
<http://electionlawblog.org/?p=52847>
Posted on July 11, 2013 3:06 pm <http://electionlawblog.org/?p=52847> by
Rick Hasen <http://electionlawblog.org/?author=3>
Fascinating read
<http://www.huffingtonpost.com/2013/07/11/mitch-mcconnell-profile_n_3550173.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
"G.A.B. Issues Polling Place Accessibility Report"
<http://electionlawblog.org/?p=52843>
Posted on July 11, 2013 2:58 pm <http://electionlawblog.org/?p=52843> by
Rick Hasen <http://electionlawblog.org/?author=3>
Press Release <http://gab.wi.gov/node/2866>:
MADISON, WI -- Wisconsin's polling places are becoming more
accessible, but some people with disabilities and the elderly still
face significant obstacles when they vote, according to a new report
from the Government Accountability Board....
The report is available on the G.A.B. website:
http://gab.wi.gov/publications/reports/2013-accessibility-report.
The Board's website also has voting accessibility resource pages for
people with disabilities (http://gab.wi.gov/voters/accessibility)
and for clerks who are responsible for making sure polling places
are accessible (http://gab.wi.gov/clerks/guidance/accessibility).
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Posted in voters with disabilities <http://electionlawblog.org/?cat=71>
| Comments Off
"Supreme Court rules against Legislature in redistricting case"
<http://electionlawblog.org/?p=52841>
Posted on July 11, 2013 2:56 pm <http://electionlawblog.org/?p=52841> by
Rick Hasen <http://electionlawblog.org/?author=3>
The Buzz
<http://www.tampabay.com/blogs/the-buzz-florida-politics/supreme-court-rules-against-legislature-in-redistricting-case/2130935?utm_source=twitterfeed&utm_medium=twitter>(Tampa
Bay Times):
The Florida Supreme Court on Thursday handed a legal setback to the
state Legislature, ruling that a legal challenge to the remapping of
Senate districts can go forward in a lower court. The 5-2 decision
is a victory for the League of Women Voters of Florida, which is
seeking to prove that the GOP Senate majority drew districts in
violation of the two "fair districts" amendments to the state
Constitution that prohibit favoritism toward incumbents or political
parties.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
"FEC nominations moving forward Officials: Senate Rules Committee
planning hearing for July 24? <http://electionlawblog.org/?p=52839>
Posted on July 11, 2013 2:54 pm <http://electionlawblog.org/?p=52839> by
Rick Hasen <http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2013/07/11/12948/fec-nominations-moving-forward>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Groups File Brief Supporting Challenge to Contractor Donation Ban"
<http://electionlawblog.org/?p=52836>
Posted on July 11, 2013 8:59 am <http://electionlawblog.org/?p=52836> by
Rick Hasen <http://electionlawblog.org/?author=3>
CCP issued this press release
<http://www.campaignfreedom.org/2013/07/10/groups-file-brief-supporting-challenge-to-contractor-donation-ban/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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