[EL] ELB News and Commentary 6/30/14
Rick Hasen
rhasen at law.uci.edu
Mon Jun 30 10:05:37 PDT 2014
SCOTUS Declines to Reconsider Fairness Doctrine/Red Lion Case
<http://electionlawblog.org/?p=62886>
Posted on June 30, 2014 9:46 am <http://electionlawblog.org/?p=62886>by
Rick Hasen <http://electionlawblog.org/?author=3>
Kenneth Jost flags
<https://twitter.com/jostonjustice/status/483650095339294721> a BFD cert
denial in /Minority TV Project v. FEC. Read/ Ron Collins on the
<http://www.concurringopinions.com/archives/2014/04/fan-12-first-amendment-news-red-lion-revisited.html>
cert. petition, and Judge Kozinski's 11 reasons why the Supreme Court
should have reconsidered the distinction between broadcast and other media.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"Advancing the cause: Loved by conservatives, loathed by liberals,
Terre Haute's Jim Bopp Jr. ignores the controversy and focuses his
talent and energy on the cause" <http://electionlawblog.org/?p=62882>
Posted on June 30, 2014 9:40 am <http://electionlawblog.org/?p=62882>by
Rick Hasen <http://electionlawblog.org/?author=3>
/Tribune Star/
<http://www.tribstar.com/local/x1760116778/Advancing-the-cause>profile.
<http://www.tribstar.com/local/x1760116778/Advancing-the-cause>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Citizens United Gets Short Shift in #HobbyLobby Opinion
<http://electionlawblog.org/?p=62880>
Posted on June 30, 2014 9:39 am <http://electionlawblog.org/?p=62880>by
Rick Hasen <http://electionlawblog.org/?author=3>
Even though today's majority opinion in Hobby Lobby
<http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf>treats a
closed corporation as having religious liberty (enough to raise a RFRA
objection to contraception coverage), it is notable that the Alito
majority opinion does not cite /Citizens United/, a case holding that
corporations have a First Amendment right to spend money in candidate
elections. I'm not saying that CU would be controlling on any question
in Hobby Lobby, but given the closeness of the issues I was somewhat
surprised by the omission.
The case does appear in Justice Ginsburg's /Hobby Lobby /dissent, but it
is Ginsburg (for the four liberal dissenters) citing the liberal Justice
Stevens' opinion in /Citizens United/:
Corporations, Justice Stevens more recently reminded, "have no
consciences, no beliefs, no feelings, no thoughts, no desires."
Citizens United v. Federal Election Comm'n, 558 U. S. 310, 466(2010)
(opinion concurring in part and dissenting in part).
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
#HobbyLobby: When is Congress "Wise?" When the Court Agrees with
Congress's Wisdom <http://electionlawblog.org/?p=62877>
Posted on June 30, 2014 8:50 am <http://electionlawblog.org/?p=62877>by
Rick Hasen <http://electionlawblog.org/?author=3>
Near the end of Justice Alito's majority opinion in the Hobby Lobby
<http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf> case today,
he writes that it is not the Court's job to question the "wisdom" of
Congress in using the compelling interest test in RFRA, but the Court
applies that RFRA test strongly, and in a way which shows the Court
apparently giving great deference to Congress's judgment about how to
balance the government's interest in generally applicable laws with the
accommodations of religious freedoms. It reminded me of Justice Scalia's
pleas in Windsor
<http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf>last term
for deference to Congress on the need for the Defense of Marriage Act.
The Court has shown no such deference when it comes to the need for
campaign finance regulation or to protect the voting rights of racial
minorities and others. The Roberts Court has overturned or limited every
campaign finance law it has examined (aside from disclosure laws). It
has struck down a key provision of the Voting Rights Act. How much
deference did Congress get in those cases? None.
Well when is Congress wise and entitled to deference? When the Court
agrees with Congress's approach. Let's call that "faux deference," to go
with the "faux-nanimity
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>"
of the rest of the term.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
An Anticipatory Overruling of #Abood in #Harris Case?
<http://electionlawblog.org/?p=62875>
Posted on June 30, 2014 8:37 am <http://electionlawblog.org/?p=62875>by
Rick Hasen <http://electionlawblog.org/?author=3>
Justice Alito's opinion for the Supreme Court in the Harris v. Quinn
case <http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf>gives
all kinds of reasons for overturning the key pro-union case of Abood
<http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf>. Yet the
Court majority does not pull the trigger. Why not? This seems to be a
common move of the Roberts Court, as I explained in *Anticipatory
Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme
Court Justices Move the Law, 61 /Emory Law Journal/ 779 (2012)
<http://www.law.emory.edu/fileadmin/journals/elj/61/61.4/Hasen.pdf>*:
"Anticipatory overruling occurs when the Court does not overrule
precedent but suggests its intention to do so in a future case." It is
one of the tools the Roberts Court uses to appear moderate and minimalist.
For example, the Court did not immediately overturn the preclearance
provision of the Voting Rights Act when it had the opportunity to do so
in the 2009 /NAMUDNO/ case. Instead it signaled the Act was
unconstitutional, and then overturned it in the 2013 /Shelby County/
case. As I've explained,
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612> the Court
in /Shelby County/ relied upon dicta in /NAMUDNO /as though that earlier
case had settled it. Similarly, on the campaign finance side, Chief
Justice Roberts and Justice Alito signalled the coming overruling of the
ban on corporate general treasury spending in elections in the
/Wisconsin Right to Life /case, and then pulled the trigger with the 3
other conservative Justices in /Citizens United/.
But just because the Court takes two or three cases to reach its highly
ideological decision doesn't make it any less ideological or any more
comporting with principles of judicial minimalism or respect for precedent.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"Same-day voter registration coming to Illinois"
<http://electionlawblog.org/?p=62873>
Posted on June 29, 2014 9:18 pm <http://electionlawblog.org/?p=62873>by
Rick Hasen <http://electionlawblog.org/?author=3>
Chicago Tribune:
<http://www.chicagotribune.com/news/local/ct-illinois-same-day-voter-registration-met-0629-20140630,0,1434498.story>"The
changes, however, would only apply to the Nov. 4 election. That has some
Republicans questioning whether easing the voting rules simply is a way
to bolster Democratic prospects this fall."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
voter registration <http://electionlawblog.org/?cat=37>
"Voter-Fraud Claims and Activist's Suicide Add to Turmoil in
Mississippi" <http://electionlawblog.org/?p=62871>
Posted on June 29, 2014 8:51 pm <http://electionlawblog.org/?p=62871>by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2014/06/28/us/politics/tea-party-activist-arrested-in-mississippi-commits-suicide.html?ref=politics>.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
'Hinds County GOP chairman Pete Perry arrested for DUI"
<http://electionlawblog.org/?p=62869>
Posted on June 29, 2014 8:43 pm <http://electionlawblog.org/?p=62869>by
Rick Hasen <http://electionlawblog.org/?author=3>
Clarion Ledger:
<http://www.clarionledger.com/story/dailyledes/2014/06/29/pete-perry-dui-arrest/11705585/>
Perry has been at the center of a possible challenge in the
Republican primary runoff for U.S. Senate. Supporters of challenger
Chris McDaniel have been reviewing voting records in Hinds County
since incumbent U.S. Sen. Thad Cochran won the June 24 runoff.
The McDaniel campaign says they have found more than 1,000 illegally
cast votes in Hinds County, most centered around voters who
allegedly cast a ballot in the June 3 Democratic primary and then
voted in the June 24 Republican primary runoff. Perry, however, says
that most of the votes cited by McDaniel supporters were actually
clerical errors made by poll workers that were later corrected by
the poll workers themselves.
McDaniel supporters have criticized Perry's involvement with the
elections because his firm received $60,000 during the primary from
Mississippi Conservatives PAC, which supports Cochran, to help turn
out votes for the incumbent. In Mississippi, political parties and
not the state or county run the primary elections.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"E-voting experiments end in Norway amid security fears"
<http://electionlawblog.org/?p=62867>
Posted on June 29, 2014 8:36 pm <http://electionlawblog.org/?p=62867>by
Rick Hasen <http://electionlawblog.org/?author=3>
BBC News reports <http://www.bbc.com/news/technology-28055678>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
internet voting <http://electionlawblog.org/?cat=49>, voting technology
<http://electionlawblog.org/?cat=40>
The Best Grounds for An Election Contest. Ever.
<http://electionlawblog.org/?p=62863>
Posted on June 27, 2014 5:28 pm <http://electionlawblog.org/?p=62863>by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo
<http://m.washingtonpost.com/blogs/the-fix/wp/2014/06/27/the-manchurian-candidate-of-oklahoma/>:
"He's contesting the election results on the grounds that Lucas is dead
and has been replaced by a body double."
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Posted in campaigns <http://electionlawblog.org/?cat=59>
Empathy for Whom in First Amendment Cases?
<http://electionlawblog.org/?p=62859>
Posted on June 27, 2014 3:21 pm <http://electionlawblog.org/?p=62859>by
Rick Hasen <http://electionlawblog.org/?author=3>
Dahlia Lithwick <http://t.co/6Pro88wrv8>, comparing McCullen to Doe v. Reed:
Several members of the Roberts court seem to have a sliding scale of
empathy that affords boundless concern for signers of an anti-gay
referendum and very little compassion for real women experiencing
actual screaming and physical threats as they walk into reproductive
care clinics. If we are serious about speech rights for the sidewalk
counselors in/McCullen/, let's give exactly those rights to the
citizens of Washington state who would similarly like to have
"difficult conversations" with opponents of gay marriage.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, direct
democracy <http://electionlawblog.org/?cat=62>, Supreme Court
<http://electionlawblog.org/?cat=29>
ACLU Asks for Preliminary Injunction Against Kansas Two-Tiered
Voting System <http://electionlawblog.org/?p=62857>
Posted on June 27, 2014 3:05 pm <http://electionlawblog.org/?p=62857>by
Rick Hasen <http://electionlawblog.org/?author=3>
Belenky v. Kobach <https://www.aclu.org/voting-rights/belenky-v-kobach>:
The American Civil Liberties Union and the ACLU of Kansas filed a
lawsuit challenging Kansas' two-tiered voter registration system.
The complaint charges that eligible voters are being divided into
separate and unequal classes, in violation of the Kansas
Constitution's equal protection guarantees.**
[This post has been corrected to indicate that the ACLU was asking today
for a preliminary injunction.]
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Posted in election administration <http://electionlawblog.org/?cat=18>
(Pipe) Dreams Dashed Dept: Thad Cochran Not Supporting Voting Rights
Act Fix <http://electionlawblog.org/?p=62855>
Posted on June 27, 2014 12:29 pm <http://electionlawblog.org/?p=62855>by
Rick Hasen <http://electionlawblog.org/?author=3>
Sen. Cochran's spokesperson tells Greg Sargent
<http://www.washingtonpost.com/blogs/plum-line/wp/2014/06/27/trolling-of-thad-cochran-on-voting-rights-fails-to-get-desired-effect/>:
I asked Cochran spokesman Chris Gallegos for a response. He said
Cochran is "listening" to the argument over the new legislation, but
directed me back to his previous statement
<http://www.cochran.senate.gov/public/index.cfm/2013/6/cochran-statement-on-u-s-supreme-court-ruling-on-the-voting-rights-act>
praising the SCOTUS decision. Gallegos also emailed:
It does appear that Tuesday's election generally went smoothly, even
as the state implemented its new voter ID law. Mississippi election
officials deserve credit. The Senator would concur with Senator
Rand Paul, who recently said, "I'm for more people voting, not less
people voting."
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
"Perry: Mistakes were made, but no voter fraud found"
<http://electionlawblog.org/?p=62852>
Posted on June 27, 2014 10:52 am <http://electionlawblog.org/?p=62852>by
Rick Hasen <http://electionlawblog.org/?author=3>
Clarion Ledger:
<http://www.clarionledger.com/story/news/politics/2014/06/27/mcdaniel-cochran-jackson-hinds/11471857/>"Hinds
County Republican Party chairman Pete Perry said Friday morning that
examples of voter fraud cited by the tea party and Chris McDaniel's
campaign are simple clerical errors that were fixed."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
fraudulent fraud squad <http://electionlawblog.org/?cat=8>
--
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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