[EL] more news 6/25/14

Rick Hasen rhasen at law.uci.edu
Wed Jun 25 10:42:55 PDT 2014 

    About that #SCOTUS Unanimity...A Skeptical Note
    <http://electionlawblog.org/?p=62766>

Posted on June 25, 2014 10:41 am <http://electionlawblog.org/?p=62766>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Today's unanimous opinion 
<http://www.nytimes.com/2014/06/26/us/supreme-court-cellphones-search-privacy.html?hp&action=click&pgtype=Homepage&version=BannerSubHedSumLargeMedia&module=a-lede-package-region&region=lede-package&WT.nav=lede-package> 
in the cell phone cases is the latest in an unusual term of unanimity 
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/25/despite-hard-cases-supreme-court-displays-remarkable-degree-of-unanimity/>on 
the Supreme Court.

I don't want to downplay things, but I think the unanimity is likely an 
aberration. To begin with, the Court is still divided on big issues like 
campaign finance. Witness the bitter divisions in McCutcheon this term.  
Or Shelby County on voting rights last term. And it is still quite 
divided on abortion and same sex marriage, two issues not really on the 
agenda right now for the Court. And when this Court wants to duck tough 
issues it can: think of the last two affirmative action cases, Fisher 
and Schuette. Even though neither was 5-4, Fisher was a total punt and 
Schuette featured a bitter dispute between the Chief Justice and Justice 
Sotomayor.

So let's not let the unanimity mask the point that on highly ideological 
and partisan charged issues, this Court is as divided as ever.

Let's just wait for Hobby Lobby in the next few days.

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


    Justice Scalia Dissent in Aereo Case Says It is Lawyers' Jobs to
    Exploit Statutory Loopholes, and Congress's Job, Not the Court's
    Job, To Fix Them <http://electionlawblog.org/?p=62764>

Posted on June 25, 2014 10:27 am <http://electionlawblog.org/?p=62764>by 
Rick Hasen <http://electionlawblog.org/?author=3>

He writes <http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf>:

    It is not the role of this Court to identify and plug loopholes. It
    is the role of good lawyers to identify and exploit them, and the
    role of Congress to eliminate them if it wishes. Congress can do
    that, I may add, in a much more targeted, better informed, and less
    disruptive fashion than the crude "looks-like-cable-TV" solution the
    Court invents today.

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Posted in legislation and legislatures 
<http://electionlawblog.org/?cat=27>, statutory interpretation 
<http://electionlawblog.org/?cat=21>, Supreme Court 
<http://electionlawblog.org/?cat=29>


    SCOTUS Likely To Take Up Same Sex Marriage as Soon as Next Term
    <http://electionlawblog.org/?p=62761>

Posted on June 25, 2014 10:09 am <http://electionlawblog.org/?p=62761>by 
Rick Hasen <http://electionlawblog.org/?author=3>

With news <http://t.co/Dvbw8NbfKF> of today's Tenth Circuit 2-opinion 
<http://www.ca10.uscourts.gov/opinions/13/13-4178.pdf>holding Utah's ban 
on same-sex marriage unconstitutional, I think it useful to revisit the 
debate I had with Adam Liptak last term over timing.  Here's what I 
wrote in Court Due to Make a Second Trip Down the Aisle 
<http://blogs.reuters.com/great-debate/2013/07/15/court-due-to-make-second-trip-down-the-aisle/>, 
/Reuters Opinion/, July 16, 2013:

    Near the end of his engaging and informative e-book on the Supreme
    Court's recent same-sex marriage decisions, To Have and To Uphold
    <http://www.amazon.com/To-Have-Uphold-Same-Sex-ebook/dp/B00DNIUK9C>,
    /New York Times/ reporter Adam Liptak makes a prediction: "The day
    will come when the constitutional question [over the
    constitutionality of a ban on same-sex marriage] will return to the
    Supreme Court for some final mopping up, perhaps when the number of
    states still banning same-sex marriage has dwindled to a score or
    fewer."

    Though I agree with much of Liptak's book, I think he's wrong on
    this particular prediction: The constitutionality of bans on
    same-sex marriage will return to the Supreme Court sooner rather
    than later --- and it will happen while more than a score of states
      still ban the practice. What the court does then is anyone's guess....

    If history is any guide, lower courts will divide over the
    constitutionality of such bans. Some courts may follow the lead of
    that part of Justice Anthony Kennedy's opinion
    <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf> in the
    Defense of Marriage Act case, seeing same-sex marriage bans as
    driven by unconstitutional animus toward LGBT people.

    Other courts may follow the lead of the other part of Kennedy's
    opinion in the DOMA case, seeing the issue of same-sex marriage as
    one properly left for each state to decide. The lower courts will
    decide whether Kennedy's gay rights psyche is stronger or weaker
    than his federalism psyche.

    Within a few years, these cases will start percolating back up to
    the Supreme Court. Especially if lower courts split over the
    question of the constitutionality of same-sex marriage bans, it will
    be hard to see how the court avoids deciding the question.

    Liptak, in his e-book, says it is "awfully likely" the four most
    conservative justices were the ones who voted to hear the challenge
    to California's Proposition 8, "making a calculation that their
    chances of winning would not improve with time." The court
    ultimately ducked the constitutional issue
    <http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf> in that
    case, finding that the law's defenders didn't have legal standing to
    defend the case.

    Liptak is right that time is not on the side of marriage equality
    opponents. But if the case reaches the Supreme Court while Kennedy
    remains the deciding vote, it is anyone's guess whether red state
    same-sex marriage bans will bite the dust or whether federalism will
    win the day yet again.

There is one way in which this analysis was certainly wrong---so far 
there has been no divide in these cases---and one way in which I was 
likely wrong: I think Justice Kennedy is likely now a firm vote for a 
constitutional right to same sex marriage. This seems to be his legacy.

If that's right, that means that even without a circuit split, the four 
liberals on the Court could well vote to take case case while Kennedy is 
still on the Court. And the conservatives too seem like they would not 
be able to resist making their "last stand" on the issue---after all, 
time does not appear to be on their side.

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


    "Why McDaniel should not challenge GOP runoff results"
    <http://electionlawblog.org/?p=62758>

Posted on June 25, 2014 9:53 am <http://electionlawblog.org/?p=62758>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Sam Hall writes 
<http://www.clarionledger.com/story/dailyledes/2014/06/25/why-mcdaniel-should-not-challenge/11355533/> 
for the Clarion Ledger. He also notes thatwrite in campaigns are very 
limited <http://t.co/DBqwvi06vN> in Mississippi.

My earlier post on McDaniel's legal options is here 
<http://electionlawblog.org/?p=62735>.

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


    "Think we don't need to update the Voting Rights Act? Check out
    yesterday's primaries." <http://electionlawblog.org/?p=62756>

Posted on June 25, 2014 9:36 am <http://electionlawblog.org/?p=62756>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Janai Nelson writes 
<http://blogs.reuters.com/great-debate/2014/06/25/call-to-action-on-voting-rights-act-update/> 
for Reuters Opinion.

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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA 
<http://electionlawblog.org/?cat=81>


    "Democrats Are Trying to Rewrite the First Amendment"
    <http://electionlawblog.org/?p=62754>

Posted on June 25, 2014 8:58 am <http://electionlawblog.org/?p=62754>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Josh Blackman writes 
<http://spectator.org/articles/59746/democrats-are-trying-rewrite-first-amendment> 
for /The American Spectator./

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


    "1 step forward, 2 back on early voting"
    <http://electionlawblog.org/?p=62752>

Posted on June 25, 2014 8:55 am <http://electionlawblog.org/?p=62752>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Mike Brickner writes 
<http://www.cincinnati.com/story/opinion/contributors/2014/06/24/step-forward-back-early-voting/11342663/> 
from Ohio.

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Posted in election administration <http://electionlawblog.org/?cat=18>


    "Kasich, Husted, DeWine fighting federal court subpoenas"
    <http://electionlawblog.org/?p=62750>

Posted on June 25, 2014 8:53 am <http://electionlawblog.org/?p=62750>by 
Rick Hasen <http://electionlawblog.org/?author=3>

News 
<http://www.cincinnati.com/story/news/politics/2014/06/24/kasich-fights-subpoena-testify-federal-trial/11303647/> 
from Ohio: "Ohio's governor, secretary of state and attorney general are 
all fighting subpoenas to testify at the federal trial of a northeast 
Ohio businessman accused of funneling illegal campaign contributions to 
two Republican politicians."

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


    "Instead of recount, Mary Helen Garcia asks for absentee ballot
    review" <http://electionlawblog.org/?p=62747>

Posted on June 25, 2014 8:50 am <http://electionlawblog.org/?p=62747>by 
Rick Hasen <http://electionlawblog.org/?author=3>

News 
<http://www.lcsun-news.com/las_cruces-news/ci_26020907/state-house-district-34-election-dispute-takes-new>from 
New Mexico.

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Posted in absentee ballots <http://electionlawblog.org/?cat=53>, 
election administration <http://electionlawblog.org/?cat=18>


    "Lawmakers join to honor MLK Jr., but are split over voting rights
    bill" <http://electionlawblog.org/?p=62745>

Posted on June 25, 2014 8:40 am <http://electionlawblog.org/?p=62745>by 
Rick Hasen <http://electionlawblog.org/?author=3>

The LA Times reports. 
<http://www.latimes.com/nation/nationnow/la-na-nn-king-congressional-gold-medal-20140624-story.html>

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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>


    "The Investigation Into Scott Walker Could Be Way, Way Bigger Than
    Scott Walker" <http://electionlawblog.org/?p=62743>

Posted on June 25, 2014 8:32 am <http://electionlawblog.org/?p=62743>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Paul Blumenthal writes 
<http://www.huffingtonpost.com/2014/06/25/chris-mcdaniel-republicans_n_5528041.html>for 
HuffPo.

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


    The VRAA and the Future of Voting Rights Enforcement
    <http://electionlawblog.org/?p=62740>

Posted on June 25, 2014 7:07 am <http://electionlawblog.org/?p=62740>by 
Heather Gerken <http://electionlawblog.org/?author=6>

For those following today's hearings, I have an editorial 
<http://www.nationaljournal.com/next-america/perspectives/in-defense-of-a-voting-rights-act-amendment-20140625> 
today in the National Journal.  It notes the continuities between the 
VRAA's enforcement strategy and that used in other regulatory arenas, 
something I've written about in the past 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=788067>.  It also 
draws upon Ellen Katz's great piece 
<http://columbialawreview.org/south-carolinas-evolutionary-process/> on 
Section 5 enforcement in South Carolina.

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Posted in Uncategorized <http://electionlawblog.org/?cat=1>, Voting 
Rights Act <http://electionlawblog.org/?cat=15>, VRAA 
<http://electionlawblog.org/?cat=81> | Tagged Shelby County 
<http://electionlawblog.org/?tag=shelby-county>, Voting Rights Act 
<http://electionlawblog.org/?tag=voting-rights-act>, VRAA 
<http://electionlawblog.org/?tag=vraa>


    Watch Live Senate Judiciary Hearing on Updating Voting Rights Act
    <http://electionlawblog.org/?p=62738>

Posted on June 25, 2014 6:57 am <http://electionlawblog.org/?p=62738>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Here <http://t.co/WBHy2l9PqW>. Background from Mary Orndorff Troyan in 
USA Today. 
<http://www.usatoday.com/story/news/nation/2014/06/24/senate-debates-voting-rights-proposal/11330919/>

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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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