[EL] ELB News and Commentary 3/14/14

Fri Mar 14 07:55:32 PDT 2014

    D.C. Circuit sidesteps origination clause challenge to Obamacare"
    <http://electionlawblog.org/?p=59434>

Posted on March 14, 2014 7:54 am <http://electionlawblog.org/?p=59434>by 
Rick Hasen <http://electionlawblog.org/?author=3>

I missed this news from Jonathan Adler 
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/10/d-c-circuit-sidesteps-origination-clause-challenge-to-obamacare/>: 
"On Friday, the U.S. Court of Appeals for the D.C. Circuit issued its 
opinion in /Association of American Physicians and Surgeons v. Sebelius 
<http://www.cadc.uscourts.gov/internet/opinions.nsf/63A794EDE9A83BE185257C9400541351/$file/13-5003-1482743.pdf>/, 
rejecting several challenges to the constitutionality or implementation 
of the Patient Protection and Affordable Care Act (PPACA).  Among the 
claims made by AAPS is that Congress violated the Constitution's 
Origination Clause in enacting the PPACA.  Specifically, AAPS alleged 
that insofar as the PPACA contained revenue-raising measures, such as 
the individual mandate (recognized as a "tax" by the Supreme Court in 
/NFIB v. Sebelius/), the bill had to originate in the House of 
Representatives.  This is a potential problem for the PPACA because, 
although the PPACA utilized a House bill number, the substance of the 
bill was produced in the Senate."

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Posted in legislation and legislatures <http://electionlawblog.org/?cat=27>

    Mikva Searched in Probe of Ultra Orthodox Voter Fraud in NY
    <http://electionlawblog.org/?p=59432>

Posted on March 14, 2014 7:42 am <http://electionlawblog.org/?p=59432>by 
Rick Hasen <http://electionlawblog.org/?author=3>

See here 
<http://www.midhudsonnews.com/News/2014/March/14/FBI_Bloomingburg_search-14Mar14.html>.

This Mikva <http://en.wikipedia.org/wiki/Mikveh>, not this one. 
<http://en.wikipedia.org/wiki/Abner_J._Mikva>

More from Failed Messiah. 
<http://failedmessiah.typepad.com/failed_messiahcom/2014/03/video-fbi-at-work-in-bloomingburg-satmar-voter-fraud-allegedly-basis-for-raid-567.html>

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Posted in chicanery <http://electionlawblog.org/?cat=12>

    "It's Easy to Vote in Ohio" <http://electionlawblog.org/?p=59430>

Posted on March 14, 2014 7:37 am <http://electionlawblog.org/?p=59430>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Ohio SOS Jon Husted has written this oped. 
<http://www.cincinnati.com/story/opinion/contributors/2014/03/13/husted-voting-ohio-easy/6398061/>

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

    "Free at Last: Rejecting Equal Sovereignty and Restoring the
    Constitutional Right to Vote: Shelby County v. Holder"
    <http://electionlawblog.org/?p=59427>

Posted on March 14, 2014 7:34 am <http://electionlawblog.org/?p=59427>by 
Rick Hasen <http://electionlawblog.org/?author=3>

James Blacksher and Lani Guinier have postedthis draft 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400098> on SSRN 
(forthcoming, /Harvard Law and Policy Review/).  Here is the abstract:

    The "equal sovereignty" principle the Supreme Court majority relied
    on in Shelby County v. Holder to strike down the coverage formula in
    Section 4 of the Voting Rights Act is rooted in the jurisprudence of
    slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief
    Justice Roger Taney held that black Americans, slave or free, were
    not members of the sovereign people and could never be "citizens"
    within the meaning of the Constitution. Otherwise, he said, blacks
    would be entitled to all the fundamental rights of citizenship
    guaranteed by the Privileges and Immunities Clause of Article IV,
    Section 2, including the right to vote, a result that would violate
    the equal sovereignty of the slave states. Black people, Chief
    Justice Taney wrote, could only enjoy those rights the sovereign
    people of each state chose to give them.

    The Dred Scott decision was one of the provocations that led to the
    Civil War and to the adoption of the Reconstruction amendments to
    the Constitution. Section 1 of the Fourteenth Amendment, ratified in
    1868, overruled Dred Scott's holding that freedmen and their
    descendants were not citizens, and it prohibited the states from
    abridging "the privileges or immunities of citizens of the United
    States." Section 5 of the Fourteenth Amendment gave Congress the
    power to enforce the Privileges or Immunities Clause. But black
    voting rights were unpopular in the northern states, as well as in
    the South. Referendums on black suffrage had been defeated in many
    northern states in 1867, including Ohio, Kansas, and Minnesota. So
    the drafters of the Privileges or Immunities Clause had to concede,
    at least for the time being, that it did not guarantee the
    franchise. Instead, they placed in Section 2 of the Fourteenth
    Amendment a threat to reduce Congressional representation for states
    who denied the franchise to any of its "male inhabitants." The
    Reconstruction Republicans forced the former Confederate states,
    still under military rule, to enfranchise blacks as a condition for
    being readmitted to Congress. Then in 1870 they adopted the
    Fifteenth Amendment, which prohibited denying or abridging the right
    to vote on account of race. The door was left open, however, for a
    future Congress to give the Privileges or Immunities Clause its
    plain meaning by enforcing the right to vote of every American citizen.

    The Supreme Court moved immediately to close the door to such future
    Congressional action by judicially neutering the Privileges or
    Immunities Clause. The 1873 Slaughter-House Cases reaffirmed Dred
    Scott's holding that power to define the fundamental rights of
    citizenship belonged to the states, not to the federal government. A
    year later, in Minor v. Happersett, the Court rejected the claim of
    women suffragists that the Fourteenth Amendment Privileges or
    Immunities Clause guaranteed them the franchise. The Constitution
    does not give anyone the right to vote, the Court said.

    The former slave states wasted little time taking the Court's cue.
    By the turn of the century they had disfranchised their black
    citizens and had openly established regimes of white supremacy that
    racially segregated nearly all aspects of life in the South, without
    fear of penalty by a Congress engaged in reconciling whites North
    and South. In a 1903 opinion written by Justice Oliver Wendell
    Holmes, the Supreme Court told blacks in Alabama the federal courts
    were powerless to restore their right to vote.

    African Americans remained disfranchised in the South until, through
    generations of bloody sacrifice, they finally got Congress to use
    its power to enforce the anti-discrimination provision of the
    Fifteenth Amendment and pass the Voting Rights Act of 1965. At first
    the Supreme Court upheld Congress' authority to enact and to
    re-enact the Voting Rights Act, but eventually it began to push
    back. Now, in Shelby County, a five-four majority has struck down
    the coverage formula in the 2006 amendments to the Voting Rights
    Act, relieving the Southern states from having to obtain federal
    preclearance before implementing changes in their voting practices.
    But, by invoking the unwritten doctrine of "equal sovereignty,"
    Chief Justice John Roberts' opinion for the Court forces us to
    revisit the racially discriminatory origins of that doctrine and its
    role in undermining the Privileges or Immunities Clause.

    The authors argue that the appropriate response by Congress to
    Shelby County would be reasserting its explicit constitutional
    authority to interpret the Privileges or Immunities Clause. Adoption
    of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth
    Amendments and the Court's repeated acknowledgment of a
    constitutional right to vote have effectively overruled the
    Slaughter-House Cases and Minor v. Happersett. The American people
    of the twenty-first century should demand that Congress enact
    statutes expressly proclaiming what no one today can deny, that the
    right to vote is the paramount privilege or immunity of citizenship
    in the United States. Congress should exercise its Fourteenth
    Amendment power to enforce the Privileges or Immunities Clause and
    begin establishing uniform national standards for the administration
    of all elections, federal, state, and local, that guarantee full
    access to the franchise for all American citizens.

    The 2006 Voting Rights Act had special constitutional stature; it
    was the first voting rights law in American history passed with the
    participation of African-American members of Congress from every one
    of the former Confederate states. Its re-enactment based on
    Congressional authority to enforce the right to vote under the
    Privileges or Immunities Clause, rather than on the
    anti-discrimination provisions of the Equal Protection Clause and
    the Fifteenth Amendment, would render irrelevant the Supreme Court's
    call for comparing the states' current records of voting
    discrimination. It would emphatically repudiate the racially tainted
    equal sovereignty principle relied on in Shelby County and finally
    renounce the legacy of Dred Scott by proclaiming African-American
    citizens' full membership in the sovereign people of the United States.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15>

    "Secret Clinton memos to be released on Gore campaign, 2000 recount"
    <http://electionlawblog.org/?p=59425>

Posted on March 13, 2014 3:25 pm <http://electionlawblog.org/?p=59425>by 
Rick Hasen <http://electionlawblog.org/?author=3>

WaPo reports 
<http://www.washingtonpost.com/blogs/post-politics/wp/2014/03/13/secret-clinton-memos-to-be-released-on-gore-campaign-2000-recount/>.

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Posted in Bush v. Gore reflections <http://electionlawblog.org/?cat=5>

    "What's Holding Up Ukraine Aid Bill In Congress? Anger Over IRS"
    <http://electionlawblog.org/?p=59423>

Posted on March 13, 2014 1:59 pm <http://electionlawblog.org/?p=59423>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Peter Overby 
<http://www.npr.org/blogs/itsallpolitics/2014/03/13/289807609/whats-holding-up-ukraine-aid-bill-in-congress-anger-over-irs>: 
"The financial package for Ukraine itself has strong support in 
Congress. But Democrats want to add another element, boosting the 
lending power of the International Monetary Fund. Many Republicans never 
liked the IMF, but they might be persuaded to go along on the bill if it 
also includes a provision forcing the IRS to stop work on its new 
regulations."

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law 
and election law <http://electionlawblog.org/?cat=22>

    Two from CLC <http://electionlawblog.org/?p=59421>

Posted on March 13, 2014 1:56 pm <http://electionlawblog.org/?p=59421>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Intimidating the IRS and Protecting "Dark Money" Groups 
<http://www.clcblog.org/index.php?option=com_content&view=article&id=551:intimidating-the-irs-and-protecting-dark-money-groups-> 
(Meredith McGehee)

FEC Agrees with Campaign Legal Center that Former Rep. Towns Violated 
Ban on Personal Use of Campaign Funds 
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2403:march-13-2014-fec-agrees-with-campaign-legal-center-that-former-rep-towns-violated-ban-on-personal-use-of-campaign-funds&catid=63:legal-center-press-releases&Itemid=61>

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law 
and election law <http://electionlawblog.org/?cat=22>

    "South Dakota tests new program for military voters"
    <http://electionlawblog.org/?p=59419>

Posted on March 13, 2014 10:10 am 
<http://electionlawblog.org/?p=59419>by Rick Hasen 
<http://electionlawblog.org/?author=3>

That's the lead story in this week's Electionline Weekly 
<http://www.electionline.org/index.php/electionline-weekly>.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
military voting <http://electionlawblog.org/?cat=48>

    "Cummings says Issa killed chances for Lois Lerner contempt
    proceedings" <http://electionlawblog.org/?p=59417>

Posted on March 13, 2014 9:05 am <http://electionlawblog.org/?p=59417>by 
Rick Hasen <http://electionlawblog.org/?author=3>

WaPo reports. 
<http://www.washingtonpost.com/blogs/federal-eye/wp/2014/03/13/democrat-says-issa-killed-chances-for-lois-lerner-contempt-proceedings/>

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Posted in Uncategorized <http://electionlawblog.org/?cat=1>

-- 
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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