[EL] updated analysis of SCOTUS cases today
Rick Hasen
rhasen at law.uci.edu
Thu Oct 2 08:19:14 PDT 2014
Breaking: Supreme Court to Hear Arizona Redistricting Case and
Florida Case on Judicial Campaign Speech: Analysis
<http://electionlawblog.org/?p=66201>
Posted onOctober 2, 2014 6:36 am
<http://electionlawblog.org/?p=66201>byRick Hasen
<http://electionlawblog.org/?author=3>
The number of election laws the Supreme Court has heard with a full
argument has dropped off in recent years, I believe in part because
voting rights advocates have tried to stay out of the Supreme Court.
(See my ELJ analysis: The Supreme Court's Shrinking Election Law Docket,
2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1780508>.) If you
think of the major election cases the Supreme Court has heard in recent
years, they have been cases brought by the more conservative side aimed
at shrinking voting rights or loosening campaign finance rules
(/Citizens United/, /McCutcheon/, /Shelby County/). Today's emergency
petition<http://electionlawblog.org/?p=66198>from voting rights
advocates in Wisconsin is somewhat of an exception, but the petition
raises issues not about voting rights more broadly, but about changing
rules mid-election, an issue on which i think voting rights advocates
could win.
But today'sSupreme Court grants
<http://www.supremecourt.gov/orders/courtorders/100214zr_086c.pdf> to
hear two new redistricting cases fit into the category of petitions to
move the law in more conservative directions. In the /Arizona State
Legislature /case, the Court has the potential to prevent the increasing
use of citizen commissions to decide congressional redistricting, taking
the issue out of the hands of self-interested legislatures. Here is how
the Court phrased the issue in the Arizona redistricting case:
13-1314 AZ STATE LEGISLATURE V. AZ INDEP. REDISTRICTING, ET AL.
Further consideration of the question of jurisdiction is postponed
to the hearing of the case on the merits limited to the following
questions: 1) Do the Elections Clause of the United States
Constitution and 2 U. S. C. §2a(c) permit Arizona's use of a
commission to adopt congressional districts? 2) Does the Arizona
Legislature have standing to bring this suit?
I had expected the Court not to take this case but to summarily affirm.
The key question is whether the state "Legislature's" power under the
elections clause to set the manner for congressional elections includes
the power for state voters to set those rules by initiative. It seems to
me the matter is pretty settled that the answer is yes (for reasons
given in my /Hastings Constitutional Law Quarterly /article: When
'Legislature' May Mean More than 'Legislature': Initiated Electoral
College Reform and the Ghost of Bush v. Gore
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1065421>). But
maybe the issue is to be reopened? Perhaps some Justices are interested
in a more textualist reading of "Legislature," even if it is at odds
with earlier precedent. Will Baude
suggests<https://twitter.com/crescat/status/517675155699822592>that the
Arizona case may be distinguishable from earlier precedent in that in
those other cases the state legislature retained some role in the process.
Regardless of the arcane nature of the legal issue, it would be a big
deal to take away the potential for citizen redistricting reform as to
congressional elections.
TheFlorida judicial speech case
<http://www.bloomberg.com/news/2014-10-02/judicial-campaign-solicitations-get-supreme-court-review.html> concerns
the ability of states (or state supreme courts) to limit some of the
campaign activities of judicial candidates---in this case, the personal
solicitation of campaign contributions by judicial candidates. (Adam
Liptak previewed the /Williams-Yulee/judicial elections case inthis
recent column
<http://www.nytimes.com/2014/09/28/sunday-review/judges-on-the-campaign-trail.html>.)
The Supreme Court last weighed into this arena in 2002 in a case
calledRepublican Party of Minnesota v. White.
<https://supreme.justia.com/cases/federal/us/536/765/case.html> Then,
the Court divided 5-4 in striking down on First Amendment grounds some
limitations on what judicial candidates could say. Justice O'Connor
later expressed her regret for her vote in this case, and now we have a
number of new Justices on the Court. If the case follows the typical
pattern, this will end with a 5-4 decision with the conservatives
striking down the solicitation rule on free speech grounds. The theory
is, if you are going to have judicial elections, especially with outside
groups weighing in thanks to Citizens United, you cannot stop what
judicial candidates say or do. The question is whether it might be
possible to convince a Justice or two (thinking here mainly of the Chief
Justice or Justice Kennedy) that judicial elections could be subject to
special rules because of the key importance of the impartiality and
dignity of the judiciary.
These will be interesting ones to watch!
[This post has been updated.]
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Posted incampaigns <http://electionlawblog.org/?cat=59>,citizen
commissions <http://electionlawblog.org/?cat=7>,judicial elections
<http://electionlawblog.org/?cat=19>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Breaking: Challengers to WI Voter ID Law Seek Emergency SCOTUS
Order: Analysis <http://electionlawblog.org/?p=66198>
Posted onOctober 2, 2014 6:20 am
<http://electionlawblog.org/?p=66198>byRick Hasen
<http://electionlawblog.org/?author=3>
The challengers to Wisconsin's voter identification law have filed a
very strong and persuasive26 page
brief<http://electionlawblog.org/wp-content/uploads/14A352-Wisconsin-voting-application.pdf>in
the Supreme Court asking the judges to put Wisconsin's voter id law back
on hold for this election, regardless of what ultimately happens in the
case on the merits. Despite the fact that this is a conservative Supreme
Court, I think there is a fairly good chance the challengers will get
their emergency relief---and they certainly /should /get their emergency
relief.
Why do I think the challengers have a decent chance before the
conservative Supreme Court, a Court which just this weekvoted 5-4 (along
ideological lines) to reverse an order
<http://electionlawblog.org/?p=66036>restoring an extra week of early
voting in Ohio?
The key question before the Court is not whether the challengers can
ultimately convince the Supreme Court that Wisconsin's voter id law
violates the Constitution or Section 2 of the Voting Rights Act. On that
question, as I indicated inmy /Slate /column this week,
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>there
is a good chance the Court divided 5-4 on the scope of both of these
provisions.
Instead, the key question is whether Wisconsin has a strong enough state
interest in its sovereignty over elections to implement a voter id law
/very quickly/before the election, when there has been no preparation
and when the /undisputed evidence/shows that, by the state's own
account, up to *10 percent*//of the state's voters could be
disenfranchised (a position the 7th Circuit en banc dissenters called
shocking <http://electionlawblog.org/?p=66102>).
The brief filed with Justice Kagan today does a good job showing that
this issue about not changing the rules just before the election comes
not just from the Supreme Court's/Purcell v. Gonzalez/case
<http://electionlawblog.org/?p=65804>, but also from the practice in
South Carolina, where Judge Kavanaugh (himself no liberal) would not
allow South Carolina's voter id law to quickly go into effect without an
orderly rollout, and in Pennsylvania, where the Pennsylvania Supreme
Court would not allow an id law to go into effect without a chance for
everyone who wants to get an id to be able to do so. In the South
Carolina case, the id law (as modified to make it less drastic) was
allowed to go into effect by a three-judge court. In Pennsylvania, the
state could never get its act together on actually getting the IDss out
and the state abandoned its appeal.
C'mon folks. This should be a no brainer. You don't impose new
requirements in the weeks before an election without adequate
preparation which runsthe serious risk of disenfranchising voters.
<http://electionlawblog.org/?p=66196>If the Supreme Court doesn't
recognize that, we are in even worse shape than I thought.
[This post has been updated.]
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
On 10/2/14, 6:44 AM, Rick Hasen wrote:
>
>
> Breaking: Supreme Court to Hear Arizona Redistricting Case and
> Florida Case on Judicial Campaign Speech
> <http://electionlawblog.org/?p=66201>
>
> Posted onOctober 2, 2014 6:36 am
> <http://electionlawblog.org/?p=66201>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> [This post to be updated.]
>
> Here<http://www.supremecourt.gov/orders/courtorders/100214zr_086c.pdf>is
> the Court's order.
>
> Here is how the Court phrased the issue in the Arizona redistricting case:
>
> 13-1314 AZ STATE LEGISLATURE V. AZ INDEP. REDISTRICTING, ET AL.
> Further consideration of the question of jurisdiction is
> postponed to the hearing of the case on the merits limited to
> the following questions: 1) Do the Elections Clause of the
> United States Constitution and 2 U. S. C. §2a(c) permit
> Arizona's use of a commission to adopt congressional districts?
> 2) Does the Arizona Legislature have standing to bring this
> suit?
>
> The key question is whether the state "Legislature's" power under the
> elections clause to set the manner for congressional elections
> includes the power for state voters to set those rules by initiative.
> It seems to me the matter is pretty settled that the answer is yes
> (for reasons given in my /Hastings Constitutional Law Quarterly
> /article: When 'Legislature' May Mean More than 'Legislature':
> Initiated Electoral College Reform and the Ghost of Bush v. Gore
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1065421>). But
> maybe the issue is to be reopened?
>
> Adam Liptak previewed the /Williams-Yulee/judicial elections case
> inthis recent column
> <http://www.nytimes.com/2014/09/28/sunday-review/judges-on-the-campaign-trail.html>.
>
> Share
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66201&title=Breaking%3A%20Supreme%20Court%20to%20Hear%20Arizona%20Redistricting%20Case%20and%20Florida%20Case%20on%20Judicial%20Campaign%20Speech&description=>
> Posted inUncategorized <http://electionlawblog.org/?cat=1>
>
>
> Breaking: Challengers to WI Voter ID Law Seek Emergency SCOTUS
> Order <http://electionlawblog.org/?p=66198>
>
> Posted onOctober 2, 2014 6:20 am
> <http://electionlawblog.org/?p=66198>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> You can read the 32-page petitionat this link.
> <http://electionlawblog.org/wp-content/uploads/14A352-Wisconsin-voting-application.pdf>
>
> [I will post analysis of this brief later on this morning post-coffee
> at this link, SCOTUS orders, etc.]
>
> Share
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66198&title=Breaking%3A%20Challengers%20to%20WI%20Voter%20ID%20Law%20Seek%20Emergency%20SCOTUS%20Order&description=>
> Posted inelection administration
> <http://electionlawblog.org/?cat=18>,Supreme Court
> <http://electionlawblog.org/?cat=29>,The Voting Wars
> <http://electionlawblog.org/?cat=60>,voter id
> <http://electionlawblog.org/?cat=9>,Voting Rights Act
> <http://electionlawblog.org/?cat=15>
>
> --
> 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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--
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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