[EL] Breaking: Supreme Court to Hear Arizona Redistricting Case and Flori...

[JBoppjr at aol.com]

I am curious why Caperton might apply?  Justice Kennedy wrote  both 
Caperton and Citizens United.  In Citizens  United, he said that Caperton was not a 
justification for limiting  political speech, it was only a recusal case.  
Justice Kennedy tries very  hard to be consistent and this suggests that 
Caperton is just not  relevant here. So what we are left with is that Kennedy 
joined  White but also concurred to emphasize his agreement with it. Jim  Bopp
 
 
In a message dated 10/2/2014 4:16:49 P.M. Eastern Daylight Time,  
dhmcarver at gmail.com writes:

 
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)  


_______________________________________________
Law-election  mailing  list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141002/d38ffc90/attachment.html>