[EL] more news 9/30/13
Rick Hasen
rhasen at law.uci.edu
Mon Sep 30 11:03:21 PDT 2013
Rooting for "Faux Judicial Restraint"--My Slate Piece on McCutcheon
<http://electionlawblog.org/?p=55576>
Posted on September 30, 2013 11:02 am
<http://electionlawblog.org/?p=55576>by Rick Hasen
<http://electionlawblog.org/?author=3>
I have written The Next /Citizens United/? The campaign finance case at
the Supreme Court next week will be big---or huge
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/campaign_finance_at_the_supreme_court_is_mccutcheon_v_fec_the_next_citizens.html>.
for /Slate. /It begins:
Sometimes at the Supreme Court, it is not if you lose, but how
<http://www.slate.com/articles/news_and_politics/jurisprudence/2009/09/how_liberals_can_win_by_losing_at_the_roberts_court.html>.
That principle will be on full display in /McCutcheon v. Federal
Election Commission/
<http://www.scotusblog.com/case-files/cases/mccutcheon-v-federal-election-commission/>,
the campaign finance case the Supreme Court will hear next Tuesday,
the second day of the new term. If the government loses big, it
could mark the beginning of the end
<http://www.newyorker.com/online/blogs/comment/2013/07/supreme-court-another-citizens-united-but-worse.html>
of any limits on campaign contributions given directly to candidates
in federal, state, and local elections.
/Citizens United/ and the rise of super PACs are already flooding
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979> the
election system with money. But so far we've managed to keep a
little distance between the money and the candidates themselves. If
hard-line conservatives get their way, that distance will evaporate,
and soon you could write a multimillion-dollar check that would go
right into a candidate's bank account. The question is whether Chief
Justice John Roberts will hold back the conservative majority back
from the brink---though if he does, Justice Antonin Scalia will
surely taunt him for it.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Ari Berman on DOJ Suit Against North Carolina
<http://electionlawblog.org/?p=55574>
Posted on September 30, 2013 10:59 am
<http://electionlawblog.org/?p=55574>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.thenation.com/blog/176421/justice-department-challenging-north-carolinas-extreme-voter-suppression-law#>.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
The Voting Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
Read DOJ's Complaint Against North Carolina
<http://electionlawblog.org/?p=55572>
Posted on September 30, 2013 10:58 am
<http://electionlawblog.org/?p=55572>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here <http://t.co/dOKCLWkZwg>.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
The Voting Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
Just in Time for the Government Shutdown: Revised Version of
Political Dysfunction and Constitutional Change
<http://electionlawblog.org/?p=55565>
Posted on September 30, 2013 8:45 am
<http://electionlawblog.org/?p=55565>by Rick Hasen
<http://electionlawblog.org/?author=3>
A few months ago I posted a draft paper, Political Dysfunction and
Constitutional Change
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243798>. It
generated some interesting responses, includingthis Salon piece
<http://t.co/tKKopXjbrN> from Jonathan Bernstein.
I have now postedthe final draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243798>of the
paper, which is appearing in a /Drake Law Review/ symposium on political
dysfunction. The final version includes data through the 2012 elections
on public attitudes about divided government and the extent of
split-ticket voting. (Split ticket voting at lowest level since at
least 1952, but sizable portion of public says they want divided
government---the paper explains this apparent paradox.)
Here's are two of the charts:
split2 <http://electionlawblog.org/wp-content/uploads/split2.png>
split <http://electionlawblog.org/wp-content/uploads/split.png>
Here is the abstract:
This Essay was prepared for a symposium at Drake Law School on "The
U.S. Constitution and Political Dysfunction: Is There a Connection?"
Signs of political dysfunction abound in the United States
government. Perhaps the best illustration is the ongoing fight over
the U.S. budget, the national debt, and tax and entitlement reform ,
which has led to extraordinary (and so far unsuccessful) efforts to
resolve legislative stalemate including the "super committee" and
the sequester. The source of these deadlocks over budget reform is
hardly a mystery: it is the mismatch between highly ideological
political parties and our divided form of government which makes
passing legislation difficult even in the absence of partisan
deadlock. The partisanship of our political branches and mismatch
with our structure of government raise this fundamental question: Is
the United States political system so broken that we should change
the United States Constitution to adopt a parliamentary system
either a Westminster system as in the United Kingdom or a different
form of parliamentary democracy? Such a move toward unified
government would allow the Democratic or Republican parties to act
in a unified way to pursue a rational plan on budget reform on other
issues. Voters could then hold the party in power accountable if the
programs its pursued were against voter preferences. It seems a more
logical way to organize politics and insure that each party will
have a chance to present its platform to the voters, to have that
platform enacted, and to allow voters at the next election to pass
on how well the party has managed the country. But changing the
Constitution is a big deal.Even if a sense of national crisis and
paralysis allowed an opening for parliamentary constitutional
change, we should not lightly change the fundamental rules of our
governance. There is a value to our constitutional tradition. Change
can have unintended consequences. The country has weathered many
crises under our existing form of government, and tinkering with
long-term success, even given profound recent dysfunction, can be
dangerous.
In this Essay, I briefly examine four arguments against making
constitutional change to deal with current political dysfunction.
The first two arguments contend that the current governmental system
is not that dysfunctional. First, the current political stalemate
may reflect the preferences of the median voter or the public at
large. Second, the current political system actually produces a good
amount of legislation, and a parliamentary democracy might produce
too much rash legislation. The third argument accepts the premise
that the current system is dysfunctional, but contends the
dysfunction could be cured by sub-constitutional change, such as
eliminating the filibuster or adopting additional open primary
systems to produce more moderate candidates. The fourth argument
also accepts the premise that the current system is dysfunctional,
but sees that dysfunction as temporary, and expects dysfunction to
be self-correcting as voters reject the current Republican Party far
from the median voter, leading the Republican Party, and then
Democrats, to move to the center. Evidence supporting the first
three of the arguments against constitutional reform is conflicting
and somewhat weak, but that the fourth argument is plausible and
hard to evaluate in the midst of a potentially transformative era.
We are in the middle of a highly partisan moment in American history
but it is hard to know how long it will last. I conclude it is worth
waiting to see if the political system self-corrects, especially
given the risks of tinkering with the constitutional system and the
value of not changing our constitutional traditions lightly. Given
current political dysfunction which would block a move toward a
parliamentary democracy in any case, waiting not only prudent but
unavoidable.
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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>
True the Vote Helps Historically Black College Get Polling Place
<http://electionlawblog.org/?p=55563>
Posted on September 30, 2013 7:37 am
<http://electionlawblog.org/?p=55563>by Rick Hasen
<http://electionlawblog.org/?author=3>
The Texas Tribune hasthe interesting story.
<http://www.nytimes.com/2013/09/29/us/a-polling-place-of-their-own-students-win-a-long-battle.html?ref=texas>
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Posted in election administration <http://electionlawblog.org/?cat=18>
"The Posterity Project: Developing a Method for Long-Term Political
Reform" <http://electionlawblog.org/?p=55561>
Posted on September 30, 2013 7:33 am
<http://electionlawblog.org/?p=55561>by Rick Hasen
<http://electionlawblog.org/?author=3>
Ned Foley has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2326423> on SSRN
(forthcoming, /Oklahoma Law Review/). Here is the abstract:
Akhil Amar, at the end of AMERICA'S UNWRITTEN CONSTITUTION (2012),
mentions the idea of postponing for a long while the date on which
newly adopted constitutional reforms become effective. The rationale
for this idea, as Amar explains, is to impose a Rawlsian "veil of
ignorance" on the adopters of the constitutional reforms, so that
they have less ability to act strategically on behalf of their own
descendants. This essay develops how Amar's idea might best be
operationalized. In doing so, it proposes the creation of a
nonpartisan Posterity College, with each state sending the same
number of members as the state has in the Electoral College. The
nation's two immediate past presidents from different political
parties (now Clinton and Bush) would serve as the bipartisan
co-chairs of this Posterity College. The essay discusses the
procedures that this Posterity College would use for its
deliberations, how its members would be appointed, some of the
potential reforms it might consider, and how its proposals would
become part of the Constitution but taking effect only long afterwards.
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Posted in theory <http://electionlawblog.org/?cat=41>
Bauer on Ornstein, Smith on McCutcheon
<http://electionlawblog.org/?p=55559>
Posted on September 30, 2013 7:31 am
<http://electionlawblog.org/?p=55559>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.moresoftmoneyhardlaw.com/2013/09/ornstein-and-smith-argue-about-mccutcheon-distinguishing-theories-of-influence-from-theories-of-corruption/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
IRV for NYC? <http://electionlawblog.org/?p=55557>
Posted on September 30, 2013 7:30 am
<http://electionlawblog.org/?p=55557>by Rick Hasen
<http://electionlawblog.org/?author=3>
NY Times
<http://www.nytimes.com/2013/09/30/nyregion/high-cost-runoff-for-public-advocates-post-prompts-calls-for-reform.html?_r=0>:
"The numbers are attention-getting: on Tuesday, New York City will spend
about $13 million to hold a runoff in the Democratic primary for an
office, public advocate, that is budgeted only $2.3 million a year. And
the combination of a little-known post with a little-understood election
process is expected to lead to startlingly low turnout --- maybe 100,000
to 175,000 voters, in a city of 8 million people. Yet the election is
likely to determine the occupant of one of the city's top offices,
because there is no Republican candidate. The high cost of an election
for a low-cost office has inspired wags to muse. Some have suggested
that the race be decided by a coin toss
<http://www.crainsnewyork.com/article/20130927/OPINION/130929894>.
Others, including the Republican nominee for mayor, Joseph J. Lhota,
have joked that, because the public advocate has few concrete powers,
the two candidates could be allowed to serve, at a saving to taxpayers."
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Posted in alternative voting systems <http://electionlawblog.org/?cat=63>
"Justice Department Poised to File Lawsuit Over Voter ID Law"
<http://electionlawblog.org/?p=55555>
Posted on September 29, 2013 9:06 pm
<http://electionlawblog.org/?p=55555>by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2013/09/30/us/politics/justice-department-poised-to-file-lawsuit-over-voter-id-law-in-north-carolina.html>:
The Justice Department is expected to sue North Carolina on Monday
over its restrictive new voting law, further escalating the Obama
administration's efforts to restore a stronger federal role in
protecting minority voters after the Supreme Court
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org>
struck down part of the Voting Rights Act
<http://topics.nytimes.com/topics/reference/timestopics/subjects/v/voting_rights_act_1965/index.html?inline=nyt-classifier>,
according to a person familiar with the department's plans....
North Carolina's law cut back on early-voting days, eliminated the
ability of people to register to vote on the same day as casting an
early ballot, and prohibited the counting of provisional ballots
cast by eligible voters who went to the wrong precinct.
It also requires voters to present photo identification to cast
ballots, but does not allow student IDs, public-employee IDs or
photo IDs issued by public assistance agencies. Black voters in
North Carolina are disproportionately likely to lack identification
issued by the State Department of Motor Vehicles, according to state
data.
All four provisions are being challenged by the Justice Department,
the person familiar with the plans said.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
Supreme Court <http://electionlawblog.org/?cat=29>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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