[EL] ELB News and Commentary 7/25/14
Rick Hasen
rhasen at law.uci.edu
Thu Jul 24 21:09:39 PDT 2014
"Attorneys for FEC, Republican Party Debate Procedure in Soft Money
Case" <http://electionlawblog.org/?p=63728>
Posted on July 24, 2014 9:08 pm <http://electionlawblog.org/?p=63728>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=50494107&vname=mpebulallissues&jd=a0f3u4w2g7&split=0>:
Lawyers for the Federal Election Commission and the Republican
National Committee are arguing in court about whether a new RNC
lawsuit challenging the ban on unlimited "soft money" contributions
to political parties should be heard under expedited procedures,
including convening a special, three-judge court (RNC v. FEC,
D.D.C., No. 14-853, hearing 7/16/14).
The outcome of the procedural dispute could have a major impact on
how fast the case gets resolved. If the case is heard by a
three-judge court, that court's ruling could immediately be appealed
to the Supreme Court, giving the high court a chance to overturn the
soft-money ban.
I'd go even further than Bloomberg's reporter Ken Doyle. If this comes
up from a three judge court, the Supreme Court will almost certainly
take it, because a decision on an appeal IS a decision on the merits
(unlike denial of a cert. petition in the usual course). That's why
this fight matters so much. (Here's more onthis inside baseball point
<http://electionlawblog.org/?p=60392>about the difference between
appeals and cert. denials.)
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Judge 'skeptical' he can delay election with unconstitutional map"
<http://electionlawblog.org/?p=63726>
Posted on July 24, 2014 9:03 pm <http://electionlawblog.org/?p=63726>by
Rick Hasen <http://electionlawblog.org/?author=3>
Orlando Sentinel:
<http://www.orlandosentinel.com/news/blogs/political-pulse/os-judge-skeptical-he-can-delay-election-with-unconstitutional-map-20140724,0,2560443.post>
Facing a looming electoral deadline, a judge said Thursday he was
"extremely skeptical" he could delay elections this fall using
Central Florida's illegally drawn congressional maps.
Instead, Leon County
<http://www.orlandosentinel.com/topic/us/florida/leon-county-%28florida%29-PLGEO100100400000396.topic>
Circuit Judge *Terry Lewis *said he would make a decision by the end
of next week on what to do now that he has found they
unconstitutionally were drawn with partisan intent.
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Posted in redistricting <http://electionlawblog.org/?cat=6>
"Third-party candidates are getting noticed in some key Senate
races. History shows they'll fade at the end"
<http://electionlawblog.org/?p=63724>
Posted on July 24, 2014 8:52 pm <http://electionlawblog.org/?p=63724>by
Rick Hasen <http://electionlawblog.org/?author=3>
Aaron Blake writes
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/07/24/third-party-candidates-are-getting-noticed-in-some-key-senate-races-history-shows-theyll-fade-at-the-end/>
for The Fix.
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Posted in third parties <http://electionlawblog.org/?cat=47>
"Montana Dems Have Time To Find A New Candidate, But It Won't Be
Schweitzer" <http://electionlawblog.org/?p=63722>
Posted on July 24, 2014 8:39 pm <http://electionlawblog.org/?p=63722>by
Rick Hasen <http://electionlawblog.org/?author=3>
Ben Jacobs reports
<http://www.thedailybeast.com/articles/2014/07/24/montana-dems-have-time-to-find-a-new-candidate-but-it-won-t-be-schweitzer.html>
for /The Daily Beast./
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Alarcon conviction is the latest in string of residency
prosecutions" <http://electionlawblog.org/?p=63720>
Posted on July 24, 2014 8:34 pm <http://electionlawblog.org/?p=63720>by
Rick Hasen <http://electionlawblog.org/?author=3>
Soumyya Karlamangla reports
<http://www.latimes.com/local/la-me-adv-alarcon-prosecution-20140725-story.html>
for the LAT.
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Posted in residency <http://electionlawblog.org/?cat=38>
Bonus Quote of the Day <http://electionlawblog.org/?p=63718>
Posted on July 24, 2014 5:19 pm <http://electionlawblog.org/?p=63718>by
Rick Hasen <http://electionlawblog.org/?author=3>
"[W]rite the biggest, fattest check that you can possibly write."
---First Lady Michelle Obama,
<http://politics.suntimes.com/article/washington/michelle-obama-vows-get-quinn-over-finish-line-audio/thu-07242014-630pm>
on the best way to have a voice in politics.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Could it be that ethics are improving on Capitol Hill?"
<http://electionlawblog.org/?p=63716>
Posted on July 24, 2014 5:17 pm <http://electionlawblog.org/?p=63716>by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports.
<http://www.washingtonpost.com/blogs/in-the-loop/wp/2014/07/24/office-of-congressional-ethics-activity-dropped-off-after-first-two-years/>
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Posted in conflict of interest laws
<http://electionlawblog.org/?cat=20>, ethics investigations
<http://electionlawblog.org/?cat=42>
"Chris McDaniel should either show evidence or concede in
Mississippi's GOP primary" <http://electionlawblog.org/?p=63714>
Posted on July 24, 2014 3:41 pm <http://electionlawblog.org/?p=63714>by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo editorial.
<http://www.washingtonpost.com/opinions/chris-mcdaniel-should-either-show-evidence-or-concede-in-mississippis-gop-primary/2014/07/23/a7d3aec4-1291-11e4-9285-4243a40ddc97_story.html>
The anti-McDaniel "Y'all Politics" says
<http://yallpolitics.com/index.php/yp/post/38795/>"According to McDaniel
sources, #McDDay version 2.0 should be on Friday. That's when we are
supposed to see the formal protest to the MS GOP executive committee
followed immediately by a lawsuit. "
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Posted in campaigns <http://electionlawblog.org/?cat=59>, recounts
<http://electionlawblog.org/?cat=50>
"Citizens Successfully Challenge Unconstitutional Arizona Ballot
Access Law" <http://electionlawblog.org/?p=63712>
Posted on July 24, 2014 2:37 pm <http://electionlawblog.org/?p=63712>by
Rick Hasen <http://electionlawblog.org/?author=3>
Press release via email:
The Arizona Public Integrity Alliance and four Maricopa County
voters have successfully challenged an Arizona law governing the
number of signatures statewide political candidates must obtain to
appear on the ballot. This morning the government stipulated to the
unconstitutionality of the challenged provision, and the Arizona
Secretary of State agreed not to enforce the provision going
forward. This result guarantees that, in all future elections, the
petition signatures of Arizona voters will be given equal weight.
The lawsuit alleged that Arizona Revised Statutes § 16-322(A)(1),
which requires candidates for statewide office in Arizona to obtain
nomination petition signatures from "at least one-half of one
percent of the voter registration of the party of the candidate in
at least three counties in the state," was unconstitutional. After
the preliminary injunction phase of the case, the government agreed
that the ballot access statute violated the Equal Protection Clause
of the Fourteenth Amendment by impermissibly diluting the value of
signatures from citizens in more populous counties and increasing
the value of signatures from citizens in less populous counties.
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Posted in ballot access <http://electionlawblog.org/?cat=46>
Ah, The Old "I Forgot to Disclose My Checking Account with $2.9
Million in It" Problem <http://electionlawblog.org/?p=63710>
Posted on July 24, 2014 12:57 pm <http://electionlawblog.org/?p=63710>by
Rick Hasen <http://electionlawblog.org/?author=3>
The latest
<http://www.freep.com/article/20140724/NEWS06/307240154/1001/RSS01>on
the Michigan dispute over Senate candidate Terri Land's self-financing.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"McDaniel spokesman gets angry over FEC questions"
<http://electionlawblog.org/?p=63708>
Posted on July 24, 2014 12:21 pm <http://electionlawblog.org/?p=63708>by
Rick Hasen <http://electionlawblog.org/?author=3>
When did Sam Hall
<http://www.clarionledger.com/story/dailyledes/2014/07/24/mcdaniel-fec-report-liberty-action-center/13105867/>
stop beating his wife?
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
Understatement of the Day <http://electionlawblog.org/?p=63706>
Posted on July 24, 2014 12:14 pm <http://electionlawblog.org/?p=63706>by
Rick Hasen <http://electionlawblog.org/?author=3>
"Blogs put your voice in front of the digital world. But Judicial Watch
reminds that 'election fraud is a sensitive issue, and you should have
no difficulty getting people to respond.'"
---David Freddoso, Widespread or Not, Stopping Voter Fraud is Essential
for Honest Elections
<http://washingtonexaminer.com/widespread-or-not-stopping-voter-fraud-is-essential-for-honest-elections/article/2551200>
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>
"Judge: True the Vote lawsuit not a case of voter fraud"
<http://electionlawblog.org/?p=63704>
Posted on July 24, 2014 11:21 am <http://electionlawblog.org/?p=63704>by
Rick Hasen <http://electionlawblog.org/?author=3>
The latest
<http://www.clarionledger.com/story/news/politics/2014/07/24/miss-senate-runoff-lawsuit/13102349/>
on #MSSEN.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, election
administration <http://electionlawblog.org/?cat=18>, NVRA (motor voter)
<http://electionlawblog.org/?cat=33>, The Voting Wars
<http://electionlawblog.org/?cat=60>
"National Turnout Trending Toward Record Low; Fifteen of Twenty-Five
States Set New Low Turnout Records; Convenience Voting Not Helping"
<http://electionlawblog.org/?p=63699>
Posted on July 24, 2014 11:18 am <http://electionlawblog.org/?p=63699>by
Rick Hasen <http://electionlawblog.org/?author=3>
New report
<http://electionlawblog.org/wp-content/uploads/2014pppr5-1.docx>from the
Center for the Study of the American Electorate (Curtis Gans).
Charts <http://electionlawblog.org/wp-content/uploads/2014pppr5-1.docx>
Data <http://electionlawblog.org/wp-content/uploads/2014ppdc.docx>
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Posted in voting <http://electionlawblog.org/?cat=31>
"The SEC should shine a light on dark political donations from
corporations " <http://electionlawblog.org/?p=63697>
Posted on July 24, 2014 11:13 am <http://electionlawblog.org/?p=63697>by
Rick Hasen <http://electionlawblog.org/?author=3>
Liz Kennedy and Sean McElwee write f
<http://theweek.com/article/index/265193/the-sec-should-shine-a-light-on-dark-political-donations-from-corporations>or
The Week.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"WyLiberty Attorneys File Lawsuit Challenging Aggregate Political
Contribution Limits" <http://electionlawblog.org/?p=63695>
Posted on July 24, 2014 11:09 am <http://electionlawblog.org/?p=63695>by
Rick Hasen <http://electionlawblog.org/?author=3>
See this press release
<http://wyliberty.org/feature/wyliberty-attorneys-file-lawsuit-challenging-aggregate-political-contribution-limits/#fA9Ie>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Ed Whelan's Statutory Interpretation Revisionism
<http://electionlawblog.org/?p=63693>
Posted on July 24, 2014 9:14 am <http://electionlawblog.org/?p=63693>by
Rick Hasen <http://electionlawblog.org/?author=3>
Over at NRO's Bench Memos, Ed Whelan
<http://www.nationalreview.com/bench-memos/383617/false-dichotomy-ed-whelan>
takes on my recent /Slate /piece on the conflicting Obamacare decisions
issued this week:
On /Slate
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/d_c_circuit_and_4th_circuit_obamacare_rulings_the_perils_of_following_scalia.html>/,
law professor Richard Hasen perceives in the D.C. Circuit and Fourth
Circuit rulings on Obamacare exchange subsidies "a more fundamental
question: Is it the courts' job to make laws work for the people, or
to treat laws as arid linguistic puzzles?" I'd vote for a third
option---it's the courts' job to say what the law means.
In his broadside against textualism, Hasen complains that "Rigid
textualism can lead to harsh results." It surely can---when the
enacted text provides for such results. That's properly a complaint
against legislatures, not against textualism.
To read Whelan (who is a former Scalia clerk and who jumps to Scalia's
defense whenever Scalia is attacked), Scalian textualism is the one true
way of statutory interpretation.
Two responses:
1. As Abbe Gluck <http://electionlawblog.org/?author=15> and others have
shown, a full textual reading of the ACA provision does not support the
reading that the DC Circuit has given. Good textualism, as Justice
Scalia and others have said, requires reading the words of a statute in
the context of the entire statute. The reading that the DC Circuit
majority gave to the provision at issue renders the other subsidy
provisions of the ACA absurd. At the very least, a full textual reading
reveals much more ambiguity than Whelan admits to.
2. There is a very long tradition, which predates Scalia's narrow
textualism, of reading statutes purposefully to effectuate the
legislature's intent. There is another theory, most closely associated
with Professor William Eskridge, of reading statutes dynamically over
time and in light of current circumstances. Thus, there are at least
three separate theories of interpretation which have been used and
accepted by courts and commentators over time. (The four statutory
interpretation chapters in my new book, Legislation, Statutory
Interpretation, and Election Law: Cases and Materials
<http://www.amazon.com/Examples-Explanations-Legislation-Statutory-Interpretation/dp/1454845414/ref=sr_1_1?ie=UTF8&qid=1401919780&sr=8-1&keywords=hasen+legislation>,
discuss and critique each of these theories. Each theory is subject to
criticism, including textualism, for leading to rather indeterminate
results which often line up with the ideological orientation of the
judge doing the interpreting.)
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Posted in statutory interpretation <http://electionlawblog.org/?cat=21>
Quote of the Day <http://electionlawblog.org/?p=63691>
Posted on July 24, 2014 9:03 am <http://electionlawblog.org/?p=63691>by
Rick Hasen <http://electionlawblog.org/?author=3>
Josh Blackman
<http://news.bna.com/lwln/lpages/lpages.adp?pg=breaking_news&bn_product=lwln#urn:bna:a0f3r8m8z3>
(to Bloomberg BNA US Law Week):
''John Roberts wasn't willing to kill Obamacare in 2012 when no one
was relying on it. Why would he do so in 2015 when millions are
relying on it?''
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Don't expect campaign finance reform to reduce polarization"
<http://electionlawblog.org/?p=63689>
Posted on July 24, 2014 8:55 am <http://electionlawblog.org/?p=63689>by
Rick Hasen <http://electionlawblog.org/?author=3>
Mann and Corrado respond
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/07/23/dont-expect-campaign-finance-reform-to-reduce-polarization/>
to La Raja and Schaffner.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
political parties <http://electionlawblog.org/?cat=25>, political
polarization <http://electionlawblog.org/?cat=68>
"Campaign Finance Reform and the GOP: An 'About-Face?"
<http://electionlawblog.org/?p=63687>
Posted on July 24, 2014 8:54 am <http://electionlawblog.org/?p=63687>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bauer
<http://www.moresoftmoneyhardlaw.com/2014/07/campaign-finance-reform-gop-face/>
on Edsall.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"First Person Singular: Idaho Secretary of State Ben Ysursa"
<http://electionlawblog.org/?p=63685>
Posted on July 24, 2014 8:53 am <http://electionlawblog.org/?p=63685>by
Rick Hasen <http://electionlawblog.org/?author=3>
Electionline Weekly
<http://www.electionline.org/index.php/electionline-weekly>:
This year 12 state elections officials will move on, either because
of retirement, term limits or seeking higher office.
We'll do our best to profile all of them in the coming months and we
begin with Idaho Secretary of State Ben Ysursa
<http://www.sos.idaho.gov/>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
election law biz <http://electionlawblog.org/?cat=51>
"Joe Biden: Voter ID laws 'an attempt to repress minority voting"
<http://electionlawblog.org/?p=63683>
Posted on July 24, 2014 8:51 am <http://electionlawblog.org/?p=63683>by
Rick Hasen <http://electionlawblog.org/?author=3>
CBS News reports
<http://www.cbsnews.com/news/joe-biden-voter-id-laws-an-attempt-to-repress-minority-voting/>.
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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>
Don't Buy the Cooperative-Federalism-Makes-Halbig-Logical Argument
<http://electionlawblog.org/?p=63677>
Posted on July 24, 2014 7:24 am <http://electionlawblog.org/?p=63677>by
Abbe Gluck <http://electionlawblog.org/?author=15>
I had hope to take a day off blogging about /Halbig/ and /King/ (the
ObamaCare Subsidies cases), but I cannot allow another new, and
inaccurate, narrative about ObamaCare to take hold. Over at /Volokh/, my
friend Ilya Somin argues
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/24/why-the-dc-circuits-interpretation-of-the-aca-in-halbig-v-burwell-is-far-from-absurd/>
that the holding in /Halbig/ is not absurd because Congress uses
statutory schemes all the time that try to incentivize states to
administer federal law (and penalize them if they don't). It is true we
see schemes like that all the time--Medicaid is a prime example--but the
insurance exchange design at issue in these cases is NOT one of them.
This federalism argument was made before the D.C. Circuit and even Judge
Griffith didn't buy it in his ruling for the challengers. I tried to
dispel this myth back in March, when I wrote the following on this blog.
As I said there, this isn't Medicaid---it's the Clean Air Act.
* "This is not a conditional spending program analogous to Medicaid. *
The challengers' strategy in this round has been to contend that the
subsidies are part of an overarching ACA "carrots and sticks" strategy
to lure states into health reform and penalize them if they decline. On
that version of the story, it might make sense that subsidies would be
unavailable in states that do not run their own exchanges. In their
view, the subsidies are therefore exactly like the ACA's Medicaid
provision (from appellants'brief
<http://cei.org/sites/default/files/Halbig%20appeal%20-%20Appellants%20Brief.pdf>:
"The ACA's subsidy provision offered an analogous 'deal' to entice
states to establish Exchanges---because Congress (wisely, in hindsight)
knew it had to offer huge incentives for the states to assume
responsibility for that logistically nightmarish and politically toxic
task.")
Putting aside the fact that /no one/ thought the states wouldn't want to
run the exchanges themselves (indeed, Senators were demanding that
option for their states), the exchange provisions simply do not work in
the same way as Medicaid. Unlike the ACA's Medicaid provisions, the
exchange provisions have a federal fallback: Medicaid is use it or lose
it; the exchanges are do it, or the feds step in and do it for you. In
other words, this isn't Medicaid; it's the Clean Air Act (CAA). If a
state decides not to create its own implementation plan under the CAA,
its citizens do not lose the benefit of the federal program---the feds
run it. The same goes for the ACA's exchanges and so it would be
nonsensical to deprive citizens in federal-exchange states of the
subsidies. More importantly, if we are going to compare apples to
oranges, the ACA's Medicaid provisions have an /explicit /provision
stating that if the state declines to participate, it loses the program
funds (this was the provision at issue in /NFIB v. Sebelius/ in 2012).
The ACA's subsidy provisions, in contrast, have no such provision,
strong evidence that the subsidies were was not intended to be forfeited
if the states did not participate. If the challengers are going to
insist on strict textual arguments, this is /exclusio unius 101:/ the
rule of interpretation that provides that where Congress includes a
specific provision in one part of the statute but does not include an
analogous provision elsewhere, that omission is assumed intentional."
* * *
It may be true that the ACA's politics have created a landscape no one
ever predicted---one in which federalism-focused states, whose
congressional representatives were /demanding /the states' rights to
establish exchanges instead of the federal government---have decided
that politics is more important than federalism and opted out. But
what's happened in hindsight doesn't change what happened when the
statute was enacted and how the statute is designed. What happened when
the statute was designed was that no one thought the states needed a
carrot to do this and the statute was never designed as a "use or lose
it" incentive, like Medicaid
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--
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
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http://www.law.uci.edu/faculty/full-time/hasen/
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