[EL] Breaking: Supreme Court to Hear Arizona Redistricting Case and Florida Case on Judicial Campaign Speech: Analysis

[Douglas Carver]

The *Willliams-Yulee* case will have to be read in light of *Caperton, *as
well as *Republican Party v. White *I would think (as alluded to briefly at
the end of the Liptak piece). The lineup at the Supreme Court has not
changed overly much since *Caperton*, at least as far as the perceived
traditional court split. The four *Caperton* dissenters were Roberts,
Scalia, Alito and Thomas. The Caperton majority has lost Stevens and Souter
replaced, of course, by Sotomayor and Kagan. This looks like a classic
"what way will Kennedy go" case.

Douglas Carver
Albuquerque, NM


Breaking: Supreme Court to Hear Arizona Redistricting Case and Florida Case
on Judicial Campaign Speech: Analysis <http://electionlawblog.org/?p=66201>
Posted on October 2, 2014 6:36 am <http://electionlawblog.org/?p=66201> by Rick
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’s Supreme 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.

The Florida 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 in this 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
called Republican
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.]

-- 
Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.

(I have loved justice and hated iniquity, therefore I die in exile.)

    -- the last words of Saint Pope Gregory VII (d. 1085)
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