[EL] ELB News and Commentary 4/23/14
Rick Hasen
rhasen at law.uci.edu
Wed Apr 23 07:36:38 PDT 2014
Is Yesterday's SCOTUS Affirmative Action Decision a Win for Ballot
Measures? <http://electionlawblog.org/?p=60771>
Posted on April 23, 2014 7:31 am <http://electionlawblog.org/?p=60771>by
Rick Hasen <http://electionlawblog.org/?author=3>
Josh Gerstein explores
<http://www.politico.com/story/2014/04/affirmative-action-ruling-takeaways-105929.html?hp=f2>
as one of his five questions about /Schuette./
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Posted in direct democracy <http://electionlawblog.org/?cat=62>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Supreme Court suspicious of Ohio law that criminalizes false speech
about candidates" <http://electionlawblog.org/?p=60769>
Posted on April 23, 2014 7:27 am <http://electionlawblog.org/?p=60769>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bob Barnes reports
<http://www.washingtonpost.com/politics/supreme-court-suspicious-of-ohio-law-that-criminalizes-false-speech-about-candidates/2014/04/22/bced8fb4-ca5c-11e3-93eb-6c0037dde2ad_story.html?wpmk=MK0000200>
for WaPo.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, Supreme Court
<http://electionlawblog.org/?cat=29>
"Nonprofits Challenge Donor Disclosures Required by California AG,
IRS, and FEC" <http://electionlawblog.org/?p=60767>
Posted on April 23, 2014 7:26 am <http://electionlawblog.org/?p=60767>by
Rick Hasen <http://electionlawblog.org/?author=3>
Lloyd Mayer blogs
<http://lawprofessors.typepad.com/nonprofit/2014/04/nonprofit-challenges-california-ags-demand-for-unredacted-donor-lists.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Why Care About McCutcheon?" <http://electionlawblog.org/?p=60765>
Posted on April 23, 2014 7:23 am <http://electionlawblog.org/?p=60765>by
Rick Hasen <http://electionlawblog.org/?author=3>
Mark Bittman NYT column.
<http://www.nytimes.com/2014/04/23/opinion/bittman-why-care-about-mccutcheon.html>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"The Turn Against Transparency in Campaign Finance; Is influential
columnist Charles Krauthammer's new stance a sign of things to come
on the right? " <http://electionlawblog.org/?p=60763>
Posted on April 23, 2014 7:05 am <http://electionlawblog.org/?p=60763>by
Rick Hasen <http://electionlawblog.org/?author=3>
The Atlantic.
<http://www.theatlantic.com/politics/archive/2014/04/charles-krauthammers-shortsighted-turn-against-transparency/361013/>
And I would not say a sign of things to come. It is already here
<http://www.politico.com/news/stories/0512/76919.htmlhttp://www.politico.com/news/stories/0512/76919.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Senate Rules Committee to Hold Hearing on Campaign Finance
Disclosure Post-McCutcheon <http://electionlawblog.org/?p=60761>
Posted on April 23, 2014 7:01 am <http://electionlawblog.org/?p=60761>by
Rick Hasen <http://electionlawblog.org/?author=3>
Details.
<http://www.rules.senate.gov/public/index.cfm?p=CommitteeHearings&ContentRecord_id=3fb0fbe5-f5f6-4366-80fa-ab84c40746ff&ContentType_id=14f995b9-dfa5-407a-9d35-56cc7152a7ed&Group_id=1983a2a8-4fc3-4062-a50e-7997351c154b&MonthDisplay=4&YearDisplay=2014>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
SCOTUS's Recycled Outtakes? <http://electionlawblog.org/?p=60759>
Posted on April 22, 2014 5:28 pm <http://electionlawblog.org/?p=60759>by
Rick Hasen <http://electionlawblog.org/?author=3>
Gerard N. Magliocca, writing about today's /Schuette/ decision, says
<http://balkin.blogspot.com/2014/04/schuette-v-bamn.html>"The opinions
<http://www.supremecourt.gov/opinions/13pdf/12-682_j4ek.pdf> are out,
and they are extremely interesting. (One gets the impression that some
of this material was drafted last year for /Fischer /and left on the
cutting room floor.)."
I think Gerald is right about J. Sotomayor's dissent, which is really
one which is more appropriate for a case in which the Court blocks an
affirmative action plan than this case (which is about whether the state
through the initiative process can ban affirmative action).
But the comment got me wondering how much other recycling we've seen.
How much of Justice Stevens' /Citizens United/ dissent came from the
draft <http://electionlawblog.org/?p=60694> Souter
<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>dissent
<http://www.nytimes.com/2014/04/22/us/politics/justice-stevenss-prescription-for-giant-step-in-wrong-direction.html?ref=politics&_r=0>which
did not see the light of day? How much of Justice Ginsburg's /Shelby
County/ dissent was originally draft (by whom?) for /NAMUDNO./
I guess our grandchildren might find out when papers are released.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"ACLU asks judge to block enforcement of Arkansas voter ID law while
lawsuit is considered" <http://electionlawblog.org/?p=60757>
Posted on April 22, 2014 5:20 pm <http://electionlawblog.org/?p=60757>by
Rick Hasen <http://electionlawblog.org/?author=3>
AP reports
<http://m.therepublic.com/view/story/f892b60e047e4c4eb484b967fe249727/AR--Voter-ID-Arkansas>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>
NYT Room for Debate: Do the Rich Call the Shots?
<http://electionlawblog.org/?p=60755>
Posted on April 22, 2014 5:17 pm <http://electionlawblog.org/?p=60755>by
Rick Hasen <http://electionlawblog.org/?author=3>
>From the intro:
<http://www.nytimes.com/roomfordebate/2014/04/21/do-the-rich-call-the-shots-13>
A recent study
<http://www.princeton.edu/%7Emgilens/Gilens%20homepage%20materials/Gilens%20and%20Page/Gilens%20and%20Page%202014-Testing%20Theories%203-7-14.pdf>
by Martin Gilens and Benjamin I. Page examining 30 years of opinion
surveys and policy decisions by the federal government found that,
"When a majority of citizens disagrees with economic elites and/or
with organized interests, they generally lose." The average voter
has little influence on government, the study found, but the
well-to-do hold tremendous sway.
Has the United States become more of an oligarchy than a democracy?
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
Dahlia SCOTUS Dispatch on False Speech Case
<http://electionlawblog.org/?p=60753>
Posted on April 22, 2014 5:10 pm <http://electionlawblog.org/?p=60753>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2014/04/susan_b_anthony_list_v_driehaus_the_supreme_court_gets_an_earful_on_truthiness.html>,
at Slate.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, Supreme Court
<http://electionlawblog.org/?cat=29>
"Christian Adams, the Election Law Listserv, and Private Speech";
And Clearing Up What Judicial Watch Wanted
<http://electionlawblog.org/?p=60748>
Posted on April 22, 2014 2:18 pm <http://electionlawblog.org/?p=60748>by
Rick Hasen <http://electionlawblog.org/?author=3>
Allen Dickerson, Legal Director of the Center for Competitive Politics
(with whom I've had countless but respectful disagreements over the
years) writes at CCP's blog:
<http://www.campaignfreedom.org/2014/04/22/christian-adams-the-election-law-listserve-and-prof-hasen/>
In a similar vein, Mr. Adams takes issue with a listserv run by
Professor Rick Hasen:
/ Hasen runs an online meeting hall for all the would-be
speech totalitarians. They post, bluster, and kibitz about the
latest news on their effort to erode the First Amendment and
increase federal power. Whenever a free speech advocate seeks to
contribute to the conversation at the blog, they are often
deliberately given a cold shoulder and ignored, per plan. The
ignored don't understand that leftists aren't interested in debate.
Their pedigree requires the eradication of opposing ideas, not their
incubation./
He goes on to suggest that, because this listserv is hosted by a
public university (Prof. Hasen teaches at the University of
California, Irvine), that it is appropriate to file "a freedom of
information request demanding Hasen's emails to the White House and
other government officials including any on the topic of speech
regulations."
As a participant on that listserv---and I do not believe that Mr.
Adams would consider me a "speech totalitarian"---I can say that
while Prof. Hasen and I disagree on a great many things, I have
never been given the cold shoulder or ignored. There have been
exchanges both terse and tense, but that is to be expected in
discussing this issue. This isn't a field populated by folks with
thin skins.
More importantly, a bedrock principle for many of us is that private
speech should be left alone. Prof. Hasen is a private citizen. While
leaving aside the merits of any particular state Public Records Act
request (I am not a California lawyer), there is an unmistakable air
of intimidation in requesting a private person's emails, especially
when that same request can be more properly addressed to any
government officials involved.
I do want to clear up one misconception of Allen's, created by Mr.
Adams' original post. Adams wrote
<http://pjmedia.com/jchristianadams/2014/04/17/a-new-more-sinister-irs-scandal/2/>:
"Judicial Watch sent the University of California at Irvine a freedom of
information request demanding*Hasen's emails to the White House and
other government officials* including any on the topic of speech
regulations." (my emphasis) Allen then writes that any public records
requests should go to whatever government officials are out there. But
that's not all that Judicial Watch asked for. They asked for
*/virtually all of my email/*//for a three year period except internal
UCI email and email sent to students:
"...Judicial Watch, Inc. requests from the University of
California access to and a copy of any and all record(s)...
concerning or relating to the following:
1) All emails from Law Professor Rick Hasen from September 1, 2010
through November 6, 2012, to any party outside of the University of
California, Irvine, sent on University of California, Irvine,
servers from rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>. This
request does not therefore include any administrative emails
regarding the University of California, or any emails to students or
the like.
2) All emails from third parties outside the University of
California, Irvine, system sent to Law Professor Rick Hasen sent
from September 1, 2010 through November 6, 2012, on University of
California, lrvine, servers to rhasen at law.uci.edu
<mailto:rhasen at law.uci.edu>. This request does not therefore include
any administrative emails regarding the University of California, or
any emails from students or the like.
3) Moreover, this request does not seek any emails which are already
public record by virtue of being part of a list serve run by Law
Professor Rick Hasen and housed on University of California, Irvine,
servers at
http://department-lists.uci.edu/mailman/listinfo/lawelection. This
request does not include email traffic which is part of this list
serve and already has been posted publically though it also appears
in Professor Hasens in or out box for his email mailbox
rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>."
So it is worse thanEric Rasmussen <http://electionlawblog.org/?p=60687>
thought too.
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Posted in academic freedom <http://electionlawblog.org/?cat=92>
"Dysfunction and Belief at the FEC"
<http://electionlawblog.org/?p=60745>
Posted on April 22, 2014 1:59 pm <http://electionlawblog.org/?p=60745>by
Rick Hasen <http://electionlawblog.org/?author=3>
David Mason
<http://www.campaignfreedom.org/2014/04/22/dysfunction-and-belief-at-the-fec/>:
Former FEC GC Larry Noble has offered his take
<http://www.clcblog.org/index.php?option=com_content&view=article&id=558:more-dysfunction-at-the-fec>
on the public dispute between FEC Vice Chair Ann Ravel
<http://www.nytimes.com/2014/04/03/opinion/how-not-to-enforce-campaign-laws.html?_r=0>
and the FEC's Republican commissioners
<http://www.fec.gov/members/goodman/statements/PublicCitizenStatement_LEG_CCH_MSP.pdf>.
Noble ultimately calls for "fundamental changes" at the FEC
"including the appointment of commissioners who believe in the law
and its enforcement."
This question of "belief in the law" reminds me of the
fundamentalist minister who was asked if he believed in total
immersion baptism. "Believe it in?" he thundered in response, "why,
I've seen it done!"
There is no question about whether Republican FEC Commissioners
believe in the law. The law sits in ready sight in a bound book on
their desks.
So, the "belief" question appears to have something to do with
enforcement philosophies. Noble's complaint is akin to law and
order conservatives bemoaning the appointment of liberal judges who
don't "believe" in lengthy and inflexible prison terms. Some
reformers apparently believe they have a special claim on
enforcement policy at the FEC, and that those who believe election
law should be enforced more flexibly, more leniently, or with
stricter adherence to constitutional limits should be disqualified
from service as FEC Commissioners.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24>
Justice Sotomayor's Schuette Dissent Talks of Shelby County and
Voting Rights <http://electionlawblog.org/?p=60743>
Posted on April 22, 2014 1:56 pm <http://electionlawblog.org/?p=60743>by
Rick Hasen <http://electionlawblog.org/?author=3>
In Adam Liptak's analysis
<http://www.nytimes.com/2014/04/23/us/supreme-court-michigan-affirmative-action-ban.html?hp>
of today's Supreme Court decision in /Shuette/, he notes: "But Justice
Sonia Sotomayor, in the longest and most significant dissent of her
career, said the Constitution required special vigilance in light of the
history of slavery, Jim Crow and 'recent examples of discriminatory
changes to state voting laws.'"
I hadn't had a chance to carefully read Justice Sotomayor's dissent, and
that got me looking for the reference. There are a number of election
cases mentioned in the dissent, including these references to the
/Shelby County/ decision, striking down a key part of the Voting Rights Act.
11. Attempts by the majority to make it more difficult for the
minority to exercise its right to vote are, sadly, not a thing of
the past. See Shelby County v. Holder, 570 U. S. ___, ___ (2013)
(slip op., at 15--17) (GINSBURG, J., dissenting) (describing recent
examples of discriminatory changes to state voting laws, including a
1995 dual voter registration system in Mississippi to disfranchise
black voters, a 2000 redistricting plan in Georgia to decrease black
voting strength, and a 2003 proposal to change the voting mechanism
for school board elections in South Carolina). Until this Court's
decision last Term in Shelby County, the preclearance requirement of
§5 of the Voting Rights Act of 1965 blocked those and many other
discriminatory changes to voting procedures.
And:
Contrary to today's decision, protecting the right to meaningful
participation in the political process must mean more than simply
removing barriers to participation. It must mean vigilantly policing
the political process to ensure that the majority does not use other
methods to prevent minority groups from partaking in that process on
equal footing. Why? For the same reason we guard the right of every
citizen to vote. If "[e]fforts to reduce the impact of minority
votes, in contrast to direct attempts to block access to the
ballot," were "'second generation barriers'" to minority voting,
Shelby County v. Holder, 570 U. S. ___, ___ (2013) (GINSBURG, J.,
dissenting) (slip op., at 5), efforts to reconfigure the political
process in ways that uniquely disadvantage minority groups who have
already long been disadvantaged are third-generation barriers.
And:
Race matters. Race matters in part because of the long history of
racial minorities' being denied access to thepolitical process. See
Part I, supra; see also South Carolina v. Katzenbach, 383 U. S. 301,
309 (1966) (describing racial discrimination in voting as "an
insidious and pervasive evil which had been perpetuated in certain
parts ofour country through unremitting and ingenious defiance of
the Constitution"). And although we have made great strides, "voting
discrimination still exists; no one doubtsthat." Shelby County, 570
U. S., at __ (slip op., at 2).
Race also matters because of persistent racial inequality in
society---inequality that cannot be ignored and that has produced
stark socioeconomic disparities. See Gratz, 539 U. S., at 298--300
(GINSBURG, J., dissenting) (cataloging the many ways in which "the
effects of centuries of law sanctioned inequality remain painfully
evident in our communities and schools," in areas like employment,
poverty, access to health care, housing, consumer transactions, and
education); Adarand, 515 U. S., at 273 (GINSBURG, J., dissenting)
(recognizing that the "lingering effects" of discrimination,
"reflective of a system of racial caste only recently ended, are
evident in our workplaces, markets, and neighborhoods").
And race matters for reasons that really are only skin deep, that
cannot be discussed any other way, and that cannot be wished away.
Race matters to a young man'sview of society when he spends his
teenage years watching where he grew up. Race matters to a young
woman's sense of self when she states her hometown, and then is
pressed, "No, where are you really from?", regardless of how many
generations her family has been in the country.Race matters to a
young person addressed by a stranger in a foreign language, which he
does not understand because only English was spoken at home. Race
matters because of the slights, the snickers, the silent judgments
that reinforce that most crippling of thoughts: "I do not belong here."
In my colleagues' view, examining the racial impact of legislation
only perpetuates racial discrimination. This refusal to accept the
stark reality that race matters is regrettable. The way to stop
discrimination on the basis of race is to speak openly and candidly
on the subject of race, and to apply the Constitution with eyes open
to the unfortunate effects of centuries of racial discrimination. As
members of the judiciary tasked with intervening to carryout the
guarantee of equal protection, we ought not sit back and wish away,
rather than confront, the racial inequality that exists in our
society. It is this view that works harm, by perpetuating the facile
notion that what makes race matter is acknowledging the simple truth
that race /does/ matter.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, voting
<http://electionlawblog.org/?cat=31>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Is It Ripe?" <http://electionlawblog.org/?p=60741>
Posted on April 22, 2014 1:45 pm <http://electionlawblog.org/?p=60741>by
Rick Hasen <http://electionlawblog.org/?author=3>
Ron Collins
<http://www.concurringopinions.com/archives/2014/04/fan-11-5-first-amendment-news-oral-arguments-in-the-susan-b-anthony-case-is-it-ripe.html#more-85217>
on Susan B. Anthony.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Thwarted GOP candidate for U.S. Senate tells court Warwick
ordinance 'null and void'" <http://electionlawblog.org/?p=60739>
Posted on April 22, 2014 1:45 pm <http://electionlawblog.org/?p=60739>by
Rick Hasen <http://electionlawblog.org/?author=3>
Providence Journal
<http://www.providencejournal.com/politics/content/20140422-thwarted-gop-candidate-for-u.s.-senate-tells-court-warwick-ordinance-null-and-void.ece>
on challenge to state Hatch Act prohibition.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Ambassadorships should not be political payoffs"
<http://electionlawblog.org/?p=60737>
Posted on April 22, 2014 1:43 pm <http://electionlawblog.org/?p=60737>by
Rick Hasen <http://electionlawblog.org/?author=3>
Meredith McGehee blogs
<http://www.clcblog.org/index.php?option=com_content&view=article&id=561:ambassadorships-should-not-be-political-payoffs>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Thoughts on Today's SCOTUS False Speech Case
<http://electionlawblog.org/?p=60735>
Posted on April 22, 2014 12:31 pm
<http://electionlawblog.org/?p=60735>by Rick Hasen
<http://electionlawblog.org/?author=3>
I have now had the chance to review the transcript
<http://www.scotusblog.com/case-files/cases/susan-b-anthony-list-v-driehaus/>in
today's /Susan B. Anthony/ case. I'm going to stick with my pre-argument
prediction <http://electionlawblog.org/?p=60708>: This is likely to be a
unanimous decision against the state of Ohio. There may be a few
Justices (Scalia, Alito, Thomas) who will want to reach the merits of
the constitutionality of the false speech scheme. I imagine the other
Justices won't go that far because it is not necessary to reach that
question right now. But a majority opinion could well cast doubt on the
constitutionality of a false speech law, at least one that has the
government itself engage in a "ministry of truth" function. (My analysis
of that inA Constitutional Right to Lie in Campaigns and Elections?
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>)
Interesting too was the contrast with defamation laws, which could well
remain constitutional. Consider what the Chief Justice and Justice
Scalia said:
CHIEF JUSTICE ROBERTS: Well, no, but a defamation action, people sue
everybody all the time. No one's going to take that seriously. In
fact, it's probably going to redound to the benefit of SBA and COAST
to say the congressman is, you know, bringing a defamation action.
It highlights it, but it's another thing to have the State involved
making a determination that there's probable cause that you lied.
JUSTICE SCALIA: The mere fact that a private individual can chill
somebody's speech does not say, well, since a private individual can
do it, you know, the ministry of truth can do it. That's not that's
not the law.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, Supreme Court
<http://electionlawblog.org/?cat=29>
Transcript in Susan B. Anthony Case
<http://electionlawblog.org/?p=60733>
Posted on April 22, 2014 10:53 am
<http://electionlawblog.org/?p=60733>by Rick Hasen
<http://electionlawblog.org/?author=3>
Read it here.
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-193_n6o1.pdf>
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
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.
Share
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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/>.
Share
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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/>
Share
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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."
Share
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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>
Justice Stevens' Seventh Amendment?
<http://electionlawblog.org/?p=60712>
Posted on April 21, 2014 5:51 pm <http://electionlawblog.org/?p=60712>by
Rick Hasen <http://electionlawblog.org/?author=3>
He tells USA Today's Richard Wolf:
<http://www.usatoday.com/story/news/politics/2014/04/21/justice-stevens-supreme-court-constitution-book/7872695/>
"It's certainly not easy to get the Constitution amended, and
perhaps that's one flaw in the Constitution that I don't mention in
the book," he said during a wide-ranging interview with USA TODAY in
his chambers at the court. Noting his book's half dozen proposed
amendments, he mused, "Maybe I should have had seven."
Share
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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
http://www.law.uci.edu/faculty/full-time/hasen/ http://electionlawblog.org
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