[EL] ELB News and Commentary 1/25/14
Rick Hasen
rhasen at law.uci.edu
Fri Jan 24 19:58:32 PST 2014
McCutcheon Monday? <http://electionlawblog.org/?p=58332>
Posted on January 24, 2014 7:56 pm
<http://electionlawblog.org/?p=58332>by Rick Hasen
<http://electionlawblog.org/?author=3>
The Supreme Court will issue opinions
<http://live.scotusblog.com/Event/Live_blog_of_opinions_2> on Monday,
January 27. The next chance after that is the week of February 13.
/McCutcheon /is one of the few cases remaining from the October sitting.
But last year, the Court heard the /Fisher/ affirmative action case in
October, but did not render a decision until the end of the term.
So the odds of /McCutcheon/ Monday? Decent but not great.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Schumer: Administration, IRS Must 'Redouble Efforts' on Campaign
Finance Enforcement" <http://electionlawblog.org/?p=58330>
Posted on January 24, 2014 7:49 pm
<http://electionlawblog.org/?p=58330>by Rick Hasen
<http://electionlawblog.org/?author=3>
Roll Call reports.
<http://atr.rollcall.com/schumer-administration-irs-must-redouble-efforts-on-campaign-finance-enforcement/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
Upcoming Speaking Engagements <http://electionlawblog.org/?p=58327>
Posted on January 24, 2014 5:30 pm
<http://electionlawblog.org/?p=58327>by Rick Hasen
<http://electionlawblog.org/?author=3>
Jan. 25 Federalist Society western conference
<http://electionlawblog.org/?p=57808> (on panel with Ken Miller, Dan
Kolkey, and Justin Levitt--and moderated by 9th Circuit Judge Ikuta---on
Has the United States Supreme Court killed California's initiative
process or helped check its abuses?)
Jan. 28 Voting Rights Under Fire? The Value of a Vote Post Shelby County
<http://electionlawblog.org/?p=57771> (OC Bar/ADL/UCI Law/Orange County
Jewish Bar Association Event)
Feb. 7 The Future of Campaign Finance Reform
<http://electionlawblog.org/?p=58292> (Hosted by the Duke Journal of
Constitutional Law and Public Policy and the Center on Law, Race, and
Politics, where I'll be presenting Super PAC Contributions, Corruption,
and the Proxy War over Coordination
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383452>)
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Republicans Approve Changes to Nominating Process"
<http://electionlawblog.org/?p=58325>
Posted on January 24, 2014 4:27 pm
<http://electionlawblog.org/?p=58325>by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2014/01/25/us/politics/republicans-approve-changes-to-nominating-process.html>:
The Republican National Committee moved Friday to consolidate its
presidential nominating process in 2016, a pre-emptive effort to
avoid a drawn-out campaign that many in the party say could imperil
their effort to reclaim the White House.
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Posted in political parties <http://electionlawblog.org/?cat=25>,
primaries <http://electionlawblog.org/?cat=32>
"Don't Blame the Maps" <http://electionlawblog.org/?p=58323>
Posted on January 24, 2014 4:25 pm
<http://electionlawblog.org/?p=58323>by Rick Hasen
<http://electionlawblog.org/?author=3>
Jowei Chen and Jonathan Rodden in NYT's Sunday Review:
<http://www.nytimes.com/2014/01/26/opinion/sunday/its-the-geography-stupid.html>
DO the Republicans owe their current congressional majority to
gerrymandering? At first glance, it seems self-evident that they do.
In the 2012 election, the Democrats won the popular votes for the
presidency, the Senate and the House of Representatives. But somehow
in the House --- for whose seats Republicans controlled the
redistricting process in many crucial states --- the Republicans
managed to end up with a 16-seat majority despite losing the popular
vote.
The presumption among many reformers is that the Democrats would
control Congress today if the 2012 election had been contested in
districts drawn by nonpartisan commissioners rather than politicians.
But is this true? Another possibility is that Democrats receive more
votes than seats because so many of their voters reside in dense
cities that Democratic candidates win with overwhelming majorities,
while Republican voters are more evenly distributed across exurbs
and the rural periphery. Perhaps even a nonpartisan redistricting
process would still have delivered the House to the Republicans.
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Posted in redistricting <http://electionlawblog.org/?cat=6>
Congrats to Election Law Prof Lloyd Mayer
<http://electionlawblog.org/?p=58321>
Posted on January 24, 2014 3:58 pm
<http://electionlawblog.org/?p=58321>by Rick Hasen
<http://electionlawblog.org/?author=3>
Elected <http://www.ali.org/index.cfm?fuseaction=news.prelease_01242014>
to the American Law Institute.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
Controversy Over Possible Move of Hamilton County Board of Elections
<http://electionlawblog.org/?p=58319>
Posted on January 24, 2014 2:51 pm
<http://electionlawblog.org/?p=58319>by Rick Hasen
<http://electionlawblog.org/?author=3>
Read.
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201401232007/NEWS010801/301230126>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
The Supreme Court's Most Unusual Order in the Little Sisters Case
<http://electionlawblog.org/?p=58316>
Posted on January 24, 2014 1:28 pm
<http://electionlawblog.org/?p=58316>by Rick Hasen
<http://electionlawblog.org/?author=3>
Just this morning, Lyle Denniston was pondering
<http://www.scotusblog.com/2014/01/little-sisters-a-further-order-or-not/>
if we'd ever see another order in the Little Sisters case (involving the
contraception mandate). Well now we have our answer: asingle paragraph,
apparently unanimous order
<http://www.supremecourt.gov/orders/courtorders/012414zr_6jgm.pdf> (or
at least no noted dissents). It is a partial win
<http://www.scotusblog.com/2014/01/partial-win-for-little-sisters/> for
the Little Sisters,
<http://www.buzzfeed.com/chrisgeidner/supreme-court-exempts-religious-non-profits-from-contracepti>
who don't have to fill out a form indicating they have a religious
objection to the contraception mandate in the healthcare law.
What took so long? It doesn't take too long to write a paragraph after all.
This appears to be the product of some delicate negotiating behind the
scenes to achieve unanimity. Apart from the statement in the order that
nothing here should be construed as a ruling on the merits, it is an odd
kind of victory for the Little Sisters: they made the claim that even
filling out the form saying they were not participating in the
contraception program (which would trigger insurance companies to pay
for it directly) was a form of participating in the program. So they win
by not having to fill out the form. But they have now to /send a
letter/ c/ontaining essentially the same disavowal /in order to not be
covered. Presumably this triggers the very same thing: the insurance
companies providing the contraceptive coverage directly.
If the Little Sisters has a genuine religious objection to not filling
out the form (and I assume they do have a genuine objection), how is
this any different?
So what looks like a victory against having to do a symbolic act may
really be a defeat in having to do the nearly identical symbolic act.
Strange.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
Voting Discrimination Differs from Election Administration
Challenges <http://electionlawblog.org/?p=58312>
Posted on January 24, 2014 12:14 pm
<http://electionlawblog.org/?p=58312>by Spencer Overton
<http://electionlawblog.org/?author=17>
Earlier today, Heritage Sr. Legal Fellow John Malcolm and I had a lively
discussion on the Voting Rights Amendment Act and the Presidential
Commission on Election Administration's recommendations on *NPR's Tell
Me More. You can listen here
<http://www.npr.org/2014/01/24/265671118/is-fresh-take-on-the-voting-rights-act-a-gold-mine>*.
My take in a nutshell--voting discrimination and election administration
challenges are different problems that require different solutions.
Republicans and Democrats in Congress should work together to prevent
voting discrimination by passing the Voting Rights Amendment Act, and
officials in the approximately 8000 state and local jurisdictions that
administer American elections should review and implement many of the
election administration recommendations proposed by the Presidential
Commission.
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Posted in PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
Practical Consequences and Missing Legislative History in
Mississippi ex rel. Hood v. AU Optronics Corporation
<http://electionlawblog.org/?p=58306>
Posted on January 24, 2014 12:06 pm
<http://electionlawblog.org/?p=58306>by Anita Krishnakumar
<http://electionlawblog.org/?author=16>
<http://electionlawblog.org/?p=58306#respond>
This past week, the Supreme Court issued a decision in a seemingly
straightforward case that involved some noteworthy statutory
interpretation maneuvers (and omissions): /Mississippi ex rel. Hood v.
AU Optronics Corporation/
<http://www.supremecourt.gov/opinions/13pdf/12-1036_0971.pdf>. The
State of Mississippi sued manufacturers of liquid crystal displays
(LCDs) in state court for alleged antitrust violations, seeking
restitution for LCD purchases made both by itself and by its citizens.
The LCD manufacturers sought to remove the case to federal court,
arguing that the lawsuit is a "mass action" under the Class Action
Fairness Act of 2005 ("CAFA"). CAFA defines a "mass action" to mean
"any civil action ... in which monetary relief claims of 100 or more
persons are proposed to be tried jointly on the ground that the
plaintiffs' claims involve common questions of law or fact"---and
significantly relaxes diversity jurisdiction requirements for such actions.
/So the statutory interpretation issue is whether a lawsuit brought by a
State, which seeks damages for injuries suffered by a large number of
the State's citizens---but which does not name any of the State's
citizens as plaintiffs---qualifies as a "mass action" under CAFA./
The Fifth Circuit concluded that it does, reading the words "persons"
and "plaintiffs" to refer to the "real parties in interest" in a
lawsuit. The Supreme Court last week unanimously reversed, holding that
because Mississippi is the only named plaintiff in the lawsuit, the suit
does not count as a "mass action." Justice Sotomayor's opinion for the
Court relies heavily on the whole act rule, ordinary meaning, a
sprinkling of dictionary definitions, and an analogy to how the terms
"persons" and "plaintiffs" are used in Federal Rule of Civil Procedure
20. The opinion then turns to a practical consequences argument about
the "administrative nightmare" that would result if it were to read the
term "plaintiffs" to include unnamed real parties in interest in the
lawsuit. (The Court worries, /inter alia/, that such a construction
would force district courts to engage in unwieldy factual inquiries in
order to identify unnamed parties in interest whose claims are for less
than $75,000, since CAFA allows "mass action" diversity jurisdiction
only for plaintiffs whose claims exceed this amount. "/How is a
district court to identify [such] unnamed parties?"/ the Court asks.
"/Would [it] have to hold an evidentiary hearing to determine the
identity of each of the hundreds of thousands of unnamed Mississippi
citizens who purchased one of respondent's LCD products between 1996 and
2006? Even if it could identify every such person, how would it
ascertain the amount in controversy for each individual claim?"/).
We have seen this kind of practical consequences argument from the
Roberts Court before, in another case involving diversity jurisdiction.
In the 2010 case, /Hertz Corp v. Friend/
<http://www.supremecourt.gov/opinions/09pdf/08-1107.pdf>, the Court
similarly emphasized the need for administrative simplicity when giving
meaning to jurisdictional statutes. I have previously discussed this
form of practical consequences argument, calling it an "anti-messiness"
principle
<http://ndlawreview.org/wp-content/uploads/2013/06/Krishnakumar.pdf> and
noting its prevalence in many statutory interpretation cases. Here, I
am particularly interested in the unanimity that the Court's
anti-messiness focus helped it achieve. The Court is not always
unanimous when construing jurisdictional statutes, but it often decides
such cases by a wide margin. (My empirical research shows that the
Roberts Court tends to reach unanimity in roughly half of its cases
involving jurisdictional statutes, and to be closely divided in only 10%
of such cases). So what, if anything, explains the Court's high levels
of consensus in jurisdictional cases, or at least its unanimity in
/Hertz/ and /AU Optronics/?
I think the answer lies in a unique convergence that occurs in
jurisdictional cases, perhaps especially in cases involving diversity
jurisdiction. What I mean is that in cases involving jurisdictional
statutes, judicial concerns about fulfilling a statute's policy
objectives tend to merge with judicial concerns about administrability
(e.g., the interpretation's effect on judicial resources, the difficulty
of implementing it, and the clarity and predictability of the rule it
establishes).
Some justices on the Roberts Court care a lot about ensuring that any
statutory interpretation they adopt will be relatively easy to
administer and will fit coherently within the framework of legal rules
surrounding it. But other justices on the Court seem to care more about
fulfilling the policy objectives of the particular statute that they are
interpreting, and making sure that that statute is given an internally
coherent and consistent meaning. I have elsewhere described this
coherence divide
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503442> in detail.
But I think it plays out in interesting ways in cases involving
jurisdictional statutes, for a number of reasons: Jurisdictional
statutes by their nature seek to organize the judicial system, drawing
lines that establish which cases may be heard in which venues. If the
inquiry required to implement a jurisdictional statute becomes too
complicated, or "messy," disorganization results and the entire judicial
system suffers---as multiple courts grapple with the threshold question
of where a case may be heard, before they even get to the substantive
issues raised in the case. In other words, because jurisdictional
statutes are designed to organize the judicial system, simplicity,
clarity, and predictability are key to their effectiveness. As a
result, all jurists confronted with the application of a jurisdictional
statute tend to focus, at least to some extent, on administrability
concerns when deciding how best to interpret the statute---even those
jurists who do not ordinarily privilege predictability, clarity, and
other such rule of law values when interpreting statutes. Perhaps
another way to put it is that with jurisdictional statutes, there is
rarely conflict between the underlying policy of the statute and
administrability concerns, because ease of administration is /part of
the statute's purpose/. So when one interpretation of a jurisdictional
statute is significantly easier to administer than others (or when one
interpretation is an "administrative nightmare" to implement), the
Justices find it relatively easy to agree upon the easier-to-administer
interpretation.
/*Missing Legislative History? */
Also noteworthy in /AU Optronics/ is the Court's failure to make any
reference to some helpful, on-point legislative history. Specifically,
the Senate committee report on CAFA describes "mass actions" as "suits
that are brought on behalf of numerous /named/ plaintiffs who claim that
their suits present common questions of law or fact that should be tried
together even though they do not seek class certification status." (My
emphasis). This definition provides strong support for the Court's
conclusion that a lawsuit brought by a State as sole named plaintiff
cannot qualify as a "mass action," even if the action is based on
injuries to numerous unnamed citizens of the State. The Mississippi
Attorney General's brief
<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-1036_pet.authcheckdam.pdf>
highlighted this helpful legislative history, and Justice Ginsburg
referenced it at oral argument
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-1036_a4l9.pdf>.
Yet there is no mention whatsoever of the committee report, or of any
other legislative history, in the Court's opinion---not even a passing
statement that the legislative history corroborates the Court's
construction. This omission is noteworthy, I think, given the
Court's---and particularly opinion author Justice
Sotomayor's---willingness to make corroborative legislative history
references
<https://www.brooklaw.edu/%7E/media/PDF/LawJournals/BLR_PDF/blr_v76iii.ashx>
in other cases. One possible explanation for the Court's omission is
that the Senate report was issued ten days after CAFA was signed into
law by the President---so it cannot be said to have influenced members'
votes on the bill. A majority of the Court previously has rejected
legislative history that was inserted into the record after a bill was
enacted into law (/See Hamdan v. Rumsfeld
<http://www.supremecourt.gov/opinions/05pdf/05-184.pdf> /- there, floor
statements). But the Court at least discussed the after-the-fact
legislative history in that case. Here, the lack of mention and lack of
debate about the value of the committee report strikes me as
interesting. Statements made in a committee report issued shortly after
a statute's enactment may not have been relied upon by those voting for
the law, but they do reflect the understanding of those who drafted the
statute and who are most familiar with its components, so it seems odd
that at least some of the justices did not find the Senate report's
statements worth noting.
In the end, I am left wondering whether the Court's failure to mention
the Senate report in this case reflects an overall judgment that
committee reports dated after a statute's enactment are not good or
useful legislative history, or whether the Court's omission was a
strategic one, designed to protect unanimity in this case? Did the
Court decline to mention the after-the-fact committee report because of
a desire to avoid controversy, or to retain Justice Scalia's vote (what
James Brudney has called the "Scalia Effect"
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008330>)---or did
it do so because it has decided that committee reports issued after a
law is enacted lack credibility?
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Leave a
reply <http://electionlawblog.org/?p=58306#respond>
Quote of the Day <http://electionlawblog.org/?p=58304>
Posted on January 24, 2014 10:25 am
<http://electionlawblog.org/?p=58304>by Rick Hasen
<http://electionlawblog.org/?author=3>
"People have to understand that we are not opposed to photo
identification in a vacuum," he said, but it must not be used "to
disenfranchise" people for racial or "partisan reasons." While some
GOP lawmakers may have a "good faith" concern here, Holder said,
others are disingenuously "using it for partisan advantage."
"The reality is that all the studies show that this whole question
of ballot integrity, in-person voter fraud -- simply does not
exist," he stressed. Given all the data, Holder contended,
Republicans' fixation on voter ID suggests "a remedy in search of a
problem." "It is being used, in too many instances," he continued,
"to depress the vote of particular groups of people who are not
supportive of the party that is advancing these photo ID measures."
Attorney General Eric Holder, speaking to MSNBC's Ari Melber
<http://www.msnbc.com/the-cycle/holder-people-just-need-be-patient>
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>, Voting Rights Act
<http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
"Koch World 2014? <http://electionlawblog.org/?p=58302>
Posted on January 24, 2014 9:35 am
<http://electionlawblog.org/?p=58302>by Rick Hasen
<http://electionlawblog.org/?author=3>
Vogel
<http://www.politico.com/story/2014/01/koch-brothers-2014-elections-102555.html>
(who else?).
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>, tax law and election law
<http://electionlawblog.org/?cat=22>
"Alabama would avoid federal elections supervision under new bill;
Congress debates renewing part of Voting Rights Act that U.S.
Supreme Court tossed" <http://electionlawblog.org/?p=58300>
Posted on January 24, 2014 7:29 am
<http://electionlawblog.org/?p=58300>by Rick Hasen
<http://electionlawblog.org/?author=3>
Gannett reports
<http://www.montgomeryadvertiser.com/article/20140124/NEWS02/301240009/Alabama-would-avoid-federal-elections-supervision-under-new-bill?nclick_check=1>.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
--
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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