[EL] ELB News and Commentary 4/21/14

[Rick Hasen]

    Justice Stevens Especially Unconvincing About His Partisan
    Gerrymandering Amendment <http://electionlawblog.org/?p=60685>

Posted on April 21, 2014 8:19 am <http://electionlawblog.org/?p=60685>by 
Rick Hasen <http://electionlawblog.org/?author=3>

In my /Daily Beast/ review 
<http://www.thedailybeast.com/articles/2014/04/20/change-the-constitution-in-six-easy-steps-it-won-t-be-that-simple-justice-stevens.html> 
of Justice Stevens new book, /Six //Amendments/ 
<http://www.amazon.com/Six-Amendments-Should-Change-Constitution-ebook/dp/B00GM0P55M/>, 
I was pretty tough on Justice Stevens. I focused on campaign finance, 
but there are problems throughout the book on questions of drafting of 
the amendments and his reasoning (note today's Liptak column 
<http://www.nytimes.com/2014/04/22/us/politics/justice-stevenss-prescription-for-giant-step-in-wrong-direction.html?ref=politics&_r=0>in 
which Justice Stevens cannot even tell us 
<http://electionlawblog.org/?p=60681>how he would deal with the media 
exemption, one of the key questions in overturning /Citizens United/ 
etc.). Josh Blackman, 
<http://joshblackman.com/blog/2014/04/14/justice-stevens-2nd-amendment-op-ed-quietly-edited-and-it-still-doesnt-make-any-sense/>to 
give another example, notes the poor drafting of Justice Stevens' 
attempt to overturn Second Amendment jurisprudence.

I wanted to focus a bit more here on partisan gerrymandering, on an 
issue which did not make it into the /Daily Beast /piece. In his ABC 
interview, Justice Stevens says "it doesn't take a genius" to recognize 
political gerrymandering---basically that gerrymandering can be 
determined from the bizarre shape of the district. When the interviewer, 
George Stephanopoulos analogizes this to Potter Stewart's pornography 
standard ("I know it when I see it"), Stevens agrees and says Stewart 
would have agreed with him on political gerrymandering.

Whether or not Justice Stewart would have agreed with Justice Stevens 
(I'm skeptical, given hisdissenting opinion 
<http://supreme.justia.com/cases/federal/us/377/713/case.html> in 
/Lucas), /Justice Stevens' take in his book on political gerrymandering 
is wholly unconvincing. Here is his proposed amendment:

    Districts represented by members of Congress, or by members of any
    state legislative body, shall be compact and composed of contiguous
    territory. The state shall have the burden of justifying any
    departures from this requirement by reference to neutral criteria
    such as natural, political, or historical boundaries or demographic
    changes. The interest in enhancing or preserving the political power
    of the party in control of the state government is not such a
    neutral criterion.

The language of the proposed Amendment would have courts decide how 
"compact" is compact enough and what the definition of "preserving the 
political power of the party in control of the state government means," 
As with the other amendments, these leave room for very wide and varying 
judicial interpretations.

But more to the point, I don't think the Amendment reflects the standard 
Justice Stevens would use, this Amendment focuses on intent, but in the 
book and the ABC News interview the Justice says he would focus on the 
physical appearance of the districts. Twice in his book he analogizes 
partisan gerrymandering questions to the /racial/ gerrymandering cases. 
"As our racial gerrymandering cases demonstrate, the courts are fully 
capable of recognizing and remedying such a violation."  Further, 
discussing the 1993 case of Shaw v. Reno 
<http://www.law.cornell.edu/supct/html/92-357.ZS.html>, Justice Stevens 
writes:

    While [the Court in Shaw v. Reno] recognized that a state
    legislature is not entirely prohibited from acting with
    consciousness of race, it concluded that racial gerrymandering is
    impermissible whenever race was the legislature's "dominant and
    controlling rationale" in drawing district lines. There is no reason
    why that test should not also apply to political gerrymanders like
    the one that Governor Gerry and his fellow Republicans designed in 1812.

Justice Stevens omits the key fact that he /dissented /in /Shaw /and in 
all of the racial gerrymandering cases of the Court. He does not believe 
that such districting violates the Constitution.  He explains that the 
/Shaw/ dissenters "thought that race-conscious districting for the 
purpose of benefiting minority voters was permissible...."

But that was not the sole basis for the dissents in /Shaw/ and in the 
racial cases. Further, unlike racial categories, political categories 
are much harder to characterize, and social scientists and courts have 
struggled with workable definitions of the term "partisan 
gerrymandering." At the very least, we deserve an explanation as to how 
a partisan gerrymandering test would be workable when he believes a 
racial gerrymandering test would not be.

"I know it when I see it" pretty much sums up the Justice's explanation 
of this amendment. Like much else in the book, Justice Stevens does not 
offer a clear and full defense of his controversial ideas. Perhaps a 
full defense would be convincing.  Too bad we do not have one to consider.

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Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme 
Court <http://electionlawblog.org/?cat=29>


    More on Justice Breyer's Citation to Book Not in the Record
    <http://electionlawblog.org/?p=60683>

Posted on April 21, 2014 7:37 am <http://electionlawblog.org/?p=60683>by 
Rick Hasen <http://electionlawblog.org/?author=3>

The other day I noted that Justice Breyer 
<http://electionlawblog.org/?p=60645> cited to unavailable scholarship 
in his /McCutcheon /dissent. I updated the post to reflect that Derek 
Muller had made those points when the opinion was released, something I 
had missed. Here's another reference I missed, from Collins and Skover's 
introduction 
<http://www.scotusblog.com/2014/04/foreword-its-all-forward-now/>to the 
SCOTUSBlog /McCutcheon /symposium:

    *Reliance on secondary sources*

    While James Madison and /The Federalist Papers/ were quoted by the
    dissent, neither the plurality opinion nor Justice Thomas's
    concurrence found the need to do so. Then again, the plurality did
    quote from an Edmund Burke speech, though it otherwise did not cite
    to any other secondary sources apart from references to news
    articles.  Justice Thomas did not reference any secondary scholarly
    authorities, not even any originalist sources.*In his dissenting
    opinion, Justice Breyer did find some use for secondary sources
    beyond the two mentioned.  Those sources ranged from Jean Jacques
    Rousseau's /An Inquiry Into the Nature of the Social
    Contract/ (1791) to James Wilson's/Commentaries on the Constitution
    of the United States of America/ (1792) to precise page citations to
    Robert Post's forthcoming book /Citizens Divided: Campaign Financed
    Reform and the Constitution/. The latter citation may be a first in
    Supreme Court history, especially since we were unable to find any
    reference to it in any of the briefs filed with Court or in any text
    of the forthcoming book (due out in June) on the Internet.* Another
    possible first:  Breyer's reference to the /Oxford Dictionary of
    Humorous Quotations/. Finally, all in all, none of the opinions
    found any value in relying on any law review articles.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>


    Today's Must-Read: Liptak Talks to Justice Stevens About Citizens
    United, McCutcheon <http://electionlawblog.org/?p=60681>

Posted on April 21, 2014 7:34 am <http://electionlawblog.org/?p=60681>by 
Rick Hasen <http://electionlawblog.org/?author=3>

For one thing 
<http://www.nytimes.com/2014/04/22/us/politics/justice-stevenss-prescription-for-giant-step-in-wrong-direction.html?ref=politics&_r=0>, 
in this column Justice Stevens confirms the rumors swirling for years 
that Justice Souter wrote the first draft of a /Citizens United/ 
dissent.  (I called for its release in this /Slate /column. 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/05/citizens_united_justice_david_souter_s_dissent_in_the_supreme_court_s_momentous_campaign_finance_case_.html>)

    The draft dissent, which has not been made public, questioned the
    majority's attempt to recast a modest case into a blockbuster that
    would overrule major precedents and allow unlimited campaign
    spending by corporations and unions.

    The draft dissent caused the majority to pause, Justice Stevens
    said, thanks to "the strong expression of the feeling among the
    dissenters that procedurally the case was not in the proper posture
    to reach the issue that they ultimately decided."

    "I think it persuaded the majority that it would be better to have a
    re-argument so that they could not be accused of deciding something
    that had not been adequately argued," he said. "And I think they
    were right to do that."

For another thing, Justice Stevens opines on whether under his proposed 
Amendment dealing with Citizens United would cover corporate books and 
newspaper editorials:

    I asked whether the amendment would allow the government to prohibit
    newspapers from spending money to publish editorials endorsing
    candidates. He stared at the text of his proposed amendment for a
    little while. "The 'reasonable' would apply there," he said, "or
    might well be construed to apply there."

    Or perhaps not. His tentative answer called to mind an exchange at
    the first Citizens United argument
    <http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205.pdf>,
    when a government lawyer told the court that Congress could in
    theory ban books urging the election of political candidates.

    Justice Stevens said he would not go that far.

    "Perhaps you could put a limit on the times of publication or
    something," he said. "You certainly couldn't totally prohibit
    writing a book."

As I said yesterday in my /Daily Beast /review of 
<http://www.thedailybeast.com/articles/2014/04/20/change-the-constitution-in-six-easy-steps-it-won-t-be-that-simple-justice-stevens.html> 
Justice Stevens' book, Justice Stevens /Six Amendments/ does not favors 
for progressives. It lacks nuance and deep thought.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>


    Ginni Thomas, Justice Thomas's Spouse, Interviews Cleta Mitchell,
    and Reflects on IRS Scandal <http://electionlawblog.org/?p=60679>

Posted on April 21, 2014 7:25 am <http://electionlawblog.org/?p=60679>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Thomas 
<http://dailycaller.com/2014/04/20/former-democratic-lawyer-goes-after-the-irs-video/>says:

    Contrary to the president's allegation to Fox's Bill O'Reilly
    on Feb. 2 that there is "not a smidgen of corruption
    <http://www.realclearpolitics.com/video/2014/02/02/obama_on_irs_scandal_not_even_a_smidgen_of_corruption.html>,"
    the IRS scandal is going from bad to worse as newly released emails
    have revealed even more information.

    Now, the Department of Justice, the Federal Election Commission and
    even the White House Counsel's office have been alleged to be involved.

What would PunditFact <http://electionlawblog.org/?p=60673> say about 
those claims?

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law 
and election law <http://electionlawblog.org/?cat=22>


    "SCOTUS hears local free speech case Tuesday"
    <http://electionlawblog.org/?p=60677>

Posted on April 21, 2014 7:20 am <http://electionlawblog.org/?p=60677>by 
Rick Hasen <http://electionlawblog.org/?author=3>

USA Today 
<http://www.cincinnati.com/story/news/politics/2014/04/20/scotus-hears-local-free-speech-case-tuesday/7952627/> 
on /Susan B. Anthony./

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Posted in campaigns <http://electionlawblog.org/?cat=59>


    "Courts Should Stay Out of Political Fact-Checking; At least 15
    states prohibit 'false' political statements in campaigns. That's
    the kind of judgment best left to voters"
    <http://electionlawblog.org/?p=60675>

Posted on April 21, 2014 7:18 am <http://electionlawblog.org/?p=60675>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Mike Carvin and Yaakov Roth, representing the petitioners in the /Susan 
B. Anthony/ case, have written this WSJ oped. 
<http://online.wsj.com/news/articles/SB10001424052702303663604579502101469980002>

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Posted in campaigns <http://electionlawblog.org/?cat=59>


    PunditFact on George Will on IRS as "Obama's Watergate"
    <http://electionlawblog.org/?p=60673>

Posted on April 21, 2014 7:16 am <http://electionlawblog.org/?p=60673>by 
Rick Hasen <http://electionlawblog.org/?author=3>

PunditFact 
<http://www.politifact.com/punditfact/article/2014/apr/18/is-the-irs-scandal-the-next-watergate/>:

    Will likened the events at the IRS to Watergate. That's his right as
    a Washington pundit, but we found little evidence (in fact, no one
    has) linking the actions of the IRS to the Obama White House in the
    way the Watergate break-in and cover up was orchestrated by Nixon's
    White House.

    That's part of Will's point --- a more thorough investigation is
    merited. But several investigations are under way.

    Democrats say the Republicans are on an endless witch hunt that
    conveniently falls during a midterm election cycle, and Republicans
    say Democrats are protecting Obama and to ice out conservative
    groups from the elections process.

    The evidence available so far indicates IRS employees behaved poorly
    but did so in a silo; it was not reflective of corruption from the
    White House or external forces.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law 
and election law <http://electionlawblog.org/?cat=22>


    "Kansas Crosscheck Now Covers Over 100 Million Voters"
    <http://electionlawblog.org/?p=60671>

Posted on April 21, 2014 7:14 am <http://electionlawblog.org/?p=60671>by 
Rick Hasen <http://electionlawblog.org/?author=3>

A ChapinBlog. 
<http://blog.lib.umn.edu/cspg/electionacademy/2014/04/kansas_crosscheck_now_covers_o.php>

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60>, voter registration 
<http://electionlawblog.org/?cat=37>


    Watch Justice Stevens' ABC interview About "Six Amendments"
    <http://electionlawblog.org/?p=60669>

Posted on April 20, 2014 11:05 am 
<http://electionlawblog.org/?p=60669>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Watch 
<http://abcnews.go.com/blogs/politics/2014/04/john-paul-stevens-ruth-bader-ginsburg-asked-my-advice-on-retirement/>. 
Read an excerpt <http://t.co/AgWTkk1JTq>.

He says "it doesn't take a genius" to recognize political gerrymandering.

I'm skeptical of much of the book. Here <http://t.co/VDbGjXDlkf> is my 
review of his book.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, 
redistricting <http://electionlawblog.org/?cat=6>, Supreme Court 
<http://electionlawblog.org/?cat=29>

-- 
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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