[EL] more news 4/22/14
Rick Hasen
rhasen at law.uci.edu
Tue Apr 22 08:46:53 PDT 2014
Two from CPI on McCutcheon <http://electionlawblog.org/?p=60731>
Posted on April 22, 2014 8:41 am <http://electionlawblog.org/?p=60731>by
Rick Hasen <http://electionlawblog.org/?author=3>
The 'McCutcheon' decision explained --- more money to pour into
political process
<http://www.publicintegrity.org/2014/04/22/14611/mccutcheon-decision-explained-more-money-pour-political-process>
'Jumbo joints': How big will the newest political animals get?
<http://www.publicintegrity.org/2014/04/22/14612/jumbo-joints-how-big-will-newest-political-animals-get>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Michael Li Explains that New Ed Blum Texas Voting Suit is a Lot Like
One Blum Recently Lost <http://electionlawblog.org/?p=60728>
Posted on April 22, 2014 8:38 am <http://electionlawblog.org/?p=60728>by
Rick Hasen <http://electionlawblog.org/?author=3>
So why bring it
<http://txredistricting.org/post/83485633267/the-new-suit-over-the-texas-senate-map-an-explainer>?
By bringing it up in this way, it will come up to the Supreme Court on
direct appeal rather than a discretionary petition for cert. As I've
explained to blog readers many times, cases up on direct appeal are
different because a decision not to hear such a case is a ruling on the
merits (unlike a cert denial).
But in this case, I'll make a bold prediction. Lower court cites
earlier authority to reject Blum's suit. Supreme Court summarily affirms.
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Posted in voting <http://electionlawblog.org/?cat=31>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Campaign Finance Lawsuits In Minnesota And Other States Take Aim At
Contribution Limits" <http://electionlawblog.org/?p=60726>
Posted on April 22, 2014 8:35 am <http://electionlawblog.org/?p=60726>by
Rick Hasen <http://electionlawblog.org/?author=3>
Unsurprising news
<http://tcbmag.com/News/News-Elsewhere/Campaign-Finance-Lawsuits-In-Minnesota-And-Other-S>
from Minnesota.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Politicians Debate Ohio Election Administration Changes
<http://electionlawblog.org/?p=60724>
Posted on April 22, 2014 8:31 am <http://electionlawblog.org/?p=60724>by
Rick Hasen <http://electionlawblog.org/?author=3>
Seitz: Don't believe voting law myths
<http://www.cincinnati.com/story/opinion/contributors/2014/04/21/seitz-believe-voting-law-myths/7992303/>
Reece: Voting rights have been dismantled
<http://www.cincinnati.com/story/opinion/contributors/2014/04/21/rep-reece-voting-rights-dismantled/7992367/>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
Early Voting Down 82 Percent in Hamilton County, Ohio
<http://electionlawblog.org/?p=60722>
Posted on April 22, 2014 8:29 am <http://electionlawblog.org/?p=60722>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.cincinnati.com/story/news/politics/elections/2014/04/21/early-voters/7992251/>.
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Posted in voting <http://electionlawblog.org/?cat=31>
Susan B. Anthony Preview Roundup <http://electionlawblog.org/?p=60718>
Posted on April 22, 2014 8:26 am <http://electionlawblog.org/?p=60718>by
Rick Hasen <http://electionlawblog.org/?author=3>
Howard has a roundup here
<http://howappealing.law.com/042214.html#055982>. More from SCOTUSBlog
<http://www.scotusblog.com/2014/04/tuesday-round-up-219/#more-208693>.
And these:
TPM <http://talkingpointsmemo.com/dc/supreme-court-case-campaign-lies>
Bob Bauer
<http://www.moresoftmoneyhardlaw.com/2014/04/ohio-supreme-court-defending-power-police-political-speech-end-near-now/>(Bob
thinks US v. Alvarez is dispositive; I don't
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> but think
it is quite important)
Jonathan Adler.
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/22/why-the-supreme-courts-right-to-lie-case-is-not-really-about-the-right-to-lie/>
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"GOP Response to PCEA: Green Light on Voter Registration Reforms,
Red Light on Early Voting" <http://electionlawblog.org/?p=60716>
Posted on April 22, 2014 8:17 am <http://electionlawblog.org/?p=60716>by
Rick Hasen <http://electionlawblog.org/?author=3>
Doug Chapin
<http://blog.lib.umn.edu/cspg/electionacademy/2014/04/gop_response_to_pcea_green_light_on_voter_registration_reforms_red_light_on_early_voting.php>:
"in a field where consensus is often in short supply, it's encouraging
to see that a key political and policy voice like the RNLA finds more
than a few things to like in the PCEA report."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
PCEA (Bauer-Ginsberg Commission) <http://electionlawblog.org/?cat=79>
Schuette Affirmative Action Decision Offers Different Views of the
Initiative Process and Political Process.
<http://electionlawblog.org/?p=60714>
Posted on April 22, 2014 7:56 am <http://electionlawblog.org/?p=60714>by
Rick Hasen <http://electionlawblog.org/?author=3>
In today's major Supreme Court opinion
<http://www.supremecourt.gov/opinions/13pdf/12-682_j4ek.pdf>, Justice
Kennedy for a plurality of three Justices waxes poetic about the
initiative process (which in Michigan led to an amendment banning the
use of affirmative action in higher education), Justice Scalia, for
himself and Justice Scalia, wants to abandon the /Carolene Products/
approach to determining if the political process is somehow stuck in
deciding whether there should be enhanced judicial review for "discrete
and insular minorities." (Along the way he coins the term
"dictumizer".) Justice Breyer, concurring for himself only, seems to
agree that in Michigan, the political process was working, not broken.
And Justice Sotomayor, dissenting for herself and Justice Ginsburg, sees
the political process as broken, with the majority of Michigan voters
putting special roadblocks in the political process between minority
voters and university boards.
A few snippets from each:
Kennedy:
Here Michigan voters acted in concert and statewide to seek
consensus and adopt a policy on a difficult subject against a
historical background of race in America that has been a source of
tragedy and persisting injustice. That history demands that we
continue to learn,to listen, and to remain open to new approaches if
we are to aspire always to a constitutional order in which all
persons are treated with fairness and equal dignity. Were the Court
to rule that the question addressed by Michigan voters is too
sensitive or complex to be within the grasp of the electorate; or
that the policies at issue remain too delicate to be resolved save
by university officials or faculties, acting at some remove from
immediate public scrutiny and control; or that these matters are so
arcane that the electorate's power must be limited because the
people cannot prudently exercise that power even after a full
debate, that holding would be an unprecedented restriction on the
exercise of a fundamental right held not just by one person but by
all in common. It is the right to speak and debate and learn and
then, as a matter of political will, to act through a lawful
electoral process.
The respondents in this case insist that a difficult question of
public policy must be taken from the reach of thevoters, and thus
removed from the realm of public discussion, dialogue, and debate in
an election campaign. Quite in addition to the serious First
Amendment implications of that position with respect to any
particular election, it is inconsistent with the underlying premises
of a responsible, functioning democracy. One of those premises is
that a democracy has the capacity---and the duty---to learnfrom its
past mistakes; to discover and confront persistingbiases; and by
respectful, rationale deliberation to rise above those flaws and
injustices. That process is impeded,not advanced, by court decrees
based on the proposition that the public cannot have the requisite
repose to discusscertain issues. It is demeaning to the democratic
process to presume that the voters are not capable of deciding
anissue of this sensitivity on decent and rational grounds. The
process of public discourse and political debate should not be
foreclosed even if there is a risk that during a public campaign
there will be those, on both sides, who seek to use racial division
and discord to their own political advantage. An informed public
can, and must, rise above this. The idea of democracy is that it
can, and must, mature. Freedom embraces the right, indeed the duty,
to engage in a rational, civic discourse in order to determine how
best to form a consensus to shape the destiny of the Nation and its
people. These First Amendment dynamics would be disserved if this
Court were to say that the question here at issue is beyond the
capacity of the voters to debate and then to determine.
Breyer:
The Constitution allows local, state, and national communities to
adopt narrowly tailored race-conscious programs designed to bring
about greater inclusion and diversity. But the Constitution foresees
the ballot box, not the courts, as the normal instrument for
resolving differences and debates about the merits of these
programs. Compare Parents Involved, 551 U. S., at 839 (BREYER, J.,
dissenting) (identifying studies showing the benefits of racially
integrated education), with id., at 761--763 (THOMAS, J.,
concurring) (identifying studies suggesting racially integrated
schools may not confer educational benefits). In short, the
"Constitution creates a democratic political system through which
the people themselves must together find answers" to disagreements
of this kind. Id., at 862 (BREYER, J., dissenting).
Scalia:
The dissent does not argue, of course, that such"prejudice" produced
§26. Nor does it explain why certain racial minorities in Michigan
qualify as "'insular,'" meaning that "other groups will not form
coalitions with them---and, critically, not because of lack of
common interests but because of 'prejudice.'" Strauss, Is Carolene
Products Obsolete? 2010 U. Ill. L. Rev. 1251, 1257. Nor does it even
make the case that a group's "discreteness" and "insularity" are
political liabilities rather than political strengths8---a serious
question that alone demonstrates the prudence of the Carolene
Products dictumizers in leaving the "enquir[y]" for another day. As
for the question whether "legislation which restricts those
political processes which can ordinarily be expected to bring about
repeal of undesirable legislation . . . is to be subjected to more
exacting judicial scrutiny," the Carolene Products Court found it
"unnecessary to consider [that] now." 304
U. S., at 152, n. 4. If the dissent thinks that worth considering
today, it should explain why the election of a university's
governing board is a "political process which can ordinarily be
expected to bring about repeal of undesirablelegislation," but
Michigan voters' ability to amend their Constitution is not. It
seems to me quite the opposite. Amending the Constitution requires
the approval of only"a majority of the electors voting on the
question." Mich. Const., Art. XII, §2. By contrast, voting in a
favorable board (each of which has eight members) at the three major
public universities requires electing by majority vote at least 15
different candidates, several of whom would be running during
different election cycles. See BAMN v. Regents of Univ. of Mich.,
701 F. 3d 466, 508 (CA6 2012) (Sutton, J., dissenting). So if
Michigan voters, instead of amending their Constitution, had pursued
the dissent's preferred path of electing board members promising to
"abolish race-sensitive admissions policies," post, at 3, it would
have been harder, not easier, for racial minorities favoring
affirmative action to overturn that decision. But the more important
point is that we should not design our jurisprudence to conform to
dictum in a footnote in a four-Justice opinion
Sotomayor:
We are fortunate to live in a democratic society. But without
checks, democratically approved legislation can oppress minority
groups. For that reason, our Constitution places limits on what a
majority of the people may do. This case implicates one such limit:
the guarantee of equal protection of the laws. Although that
guarantee is traditionally understood to prohibit intentional
discrimination under existing laws, equal protection does not end
there.Another fundamental strand of our equal protection
jurisprudence focuses on process, securing to all citizens the right
to participate meaningfully and equally in self government. That
right is the bedrock of our democracy,for it preserves all other rights.
Yet to know the history of our Nation is to understand its long and
lamentable record of stymieing the right ofracial minorities to
participate in the political process. At first, the majority acted
with an open, invidious purpose. Notwithstanding the command of the
Fifteenth Amendment, certain States shut racial minorities out of
the political process altogether by withholding the right to vote.
This Court intervened to preserve that right. The majority tried
again, replacing outright bans on votingwith literacy tests, good
character requirements, poll taxes, and gerrymandering. The Court
was not fooled; it invalidated those measures, too. The majority
persisted.This time, although it allowed the minority access to
thepolitical process, the majority changed the ground rules of the
process so as to make it more difficult for the minority,and the
minority alone, to obtain policies designed tofoster racial
integration. Although these political restructurings may not have
been discriminatory in purpose, the Court reaffirmed the right of
minority members of oursociety to participate meaningfully and
equally in the political process.
This case involves this last chapter of discrimination: A majority
of the Michigan electorate changed the basic rules of the political
process in that State in a manner that uniquely disadvantaged racial
minorities.1 Prior to the enactment of the constitutional initiative
at issue here, all of the admissions policies of Michigan's public
colleges and universities---including race-sensitive admissions
poli- cies2---were in the hands of each institution's governing
political parties and elected by the citizenry in statewide
elections. After over a century of being shut out of Michigan's
institutions of higher education, racial minorities in Michigan had
succeeded in persuading the elected board representatives to adopt
admissions policies that took intoaccount the benefits of racial
diversity. And this Court twice blessed such efforts---first in
Regents of Univ. of Cal.
v. Bakke, 438 U. S. 265 (1978), and again in Grutter v. Bollinger,
539 U. S. 306 (2003), a case that itself concerned a Michigan
admissions policy.
In the wake of Grutter, some voters in Michigan set out to eliminate
the use of race-sensitive admissions policies.Those voters were of
course free to pursue this end in any number of ways. For example,
they could have persuaded existing board members to change their
minds through individual or grassroots lobbying efforts, or through
general public awareness campaigns. Or they could have mobilized
efforts to vote uncooperative board members out of office, replacing
them with members who would share their desire to abolish
race-sensitive admissions policies.When this Court holds that the
Constitution permits a particular policy, nothing prevents a
majority of a State's voters from choosing not to adopt that policy.
Our system of government encourages---and indeed, depends on---that
type of democratic action.
But instead, the majority of Michigan voters changed the rules in
the middle of the game, reconfiguring the existing political process
in Michigan in a manner that burdened racial minorities. They did so
in the 2006 election by amending the Michigan Constitution to enact
Art.I, §26, which provides in relevant part that Michigan's public
universities "shall not discriminate against, or grant preferential
treatment to, any individual or group on the basis of race, sex,
color, ethnicity, or national origin in the operation of public
employment, public education, or public contracting."
As a result of §26, there are now two very different processes
through which a Michigan citizen is permitted to influence the
admissions policies of the State's universities: one for persons
interested in race-sensitive admissions policies and one for
everyone else. A citizen who is a University of Michigan alumnus,
for instance, can advocate for an admissions policy that considers
an applicant's legacy status by meeting individually with members of
the Board of Regents to convince them of her views, by joining with
other legacy parents to lobby the Board, or by voting for and
supporting Board candidates who share her position. The same options
are available to a citizen whowants the Board to adopt admissions
policies that consider athleticism, geography, area of study, and so
on. The one and only policy a Michigan citizen may not seek through
this long-established process is a race-sensitive admissions policy
that considers race in an individualized manner when it is clear
that race-neutral alternatives are not adequate to achieve
diversity. For that policy alone, the citizens of Michigan must
undertake the daunting task of amending the state's constitution.
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Posted in 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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