[EL] Query relating to federal judge remarks on plurality voting in Utah case (was: ELB News and Commentary 4/11/15)
Rob Richie
rr at fairvote.org
Sat Apr 11 09:53:50 PDT 2015
Folks,
The story Rick links to below doesn't mention this tidbit, but see some
tweets below by reporters covering the oral argument yesterday. From the
bench, Judge Nuffer apparently said: "I really like this [plurality] issue
... I think it could be a winner.”" and "I have concerns about [plurality]
personally, but I don’t see anything in case law”
The nub of the issue is that before next year, Utah has apparently never
had a primary election won with less than a majority of the vote. That's
because conventions have always limited the field to two or decided the
outright.
I gather that the Utah Republican Party is arguing that the new law may
force it to accept non-majority nominees absent changes to its convention
process that it doesn't want to do. A bill in the legislature this spring
passed one chamber that would have had a post-primary convention pick the
winner if no candidate won a certain share of the vote, as already done in
Iowa. Others have proposed ranked choice voting and runoff elections.
Of the issues raised by the Utah Republican Party, this is the one for
which the judge showed the most sympathy - -but didn't see any precedent
for challenging it. I was wondering if someone has ever seen a legal theory
proposed or tested that voters in a primary or general election have a
right to protection of majority opinion when there are statutory means
available to protect it.
Feel free to send any thoughts directly to me.
Thanks,
Rob
1. *RobertGehrke* @RobertGehrke <https://twitter.com/RobertGehrke> 23m23
minutes ago <https://twitter.com/RobertGehrke/status/586601949325172736>
Nuffer: "I have concerns about [*plurality*] personally, but I don’t see
anything in case law” regarding if its unconstitutional #*utpol*
<https://twitter.com/hashtag/utpol?src=hash>
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2.
*DNews Politics* @DNewsPolitics <https://twitter.com/DNewsPolitics> 27m27
minutes ago <https://twitter.com/DNewsPolitics/status/586601104374239232>
Nuffer: *Plurality* 'could be a winner,' but I don't want to be first
judge to rule on -- asks for other cases #*utpol*
<https://twitter.com/hashtag/utpol?src=hash>
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3.
*RobertGehrke* @RobertGehrke <https://twitter.com/RobertGehrke> 27m27
minutes ago <https://twitter.com/RobertGehrke/status/586601046220242944>
Nuffer:"I really like this [*plurality*] issue ... I think it could be a
winner.” But unsure he wants to be 1st in U.S. to rule on it. #*utpol*
<https://twitter.com/hashtag/utpol?src=hash>
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4.
*Ben Winslow* @BenWinslow <https://twitter.com/BenWinslow> 28m28
minutes ago <https://twitter.com/BenWinslow/status/586600836207251457>
"I really like this issue, I think it could be a winner," Judge Nuffer
says of @UtahGOP <https://twitter.com/UtahGOP> arguments on *plurality*.
#*utpol* <https://twitter.com/hashtag/utpol?src=hash> #SB54
<https://twitter.com/hashtag/SB54?src=hash>
1 retweet0 favorites
On Sat, Apr 11, 2015 at 12:08 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> “Hedge-Fund Magnate Robert Mercer Emerges as a Generous Backer of
> Cruz” <http://electionlawblog.org/?p=71676>
> Posted on April 11, 2015 9:04 am <http://electionlawblog.org/?p=71676> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Fascinating NYT report.
> <http://www.nytimes.com/2015/04/11/us/politics/hedge-fund-magnaterobert-mercer-emerges-as-a-generous-backer-of-ted-cruz.html?ref=politics&_r=0>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71676&title=%E2%80%9CHedge-Fund%20Magnate%20Robert%20Mercer%20Emerges%20as%20a%20Generous%20Backer%20of%20Cruz%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>,
> campaigns <http://electionlawblog.org/?cat=59>
> “Judge Scolds U.S. Attorney Preet Bharara Over Speeches And Tweets”
> <http://electionlawblog.org/?p=71674>
> Posted on April 10, 2015 5:19 pm <http://electionlawblog.org/?p=71674> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> BuzzFeed
> <http://www.buzzfeed.com/matthewzeitlin/judge-scolds-us-attorney-preet-bharara-over-speeches-and-twe?utm_term=.fnvQDJ2ej6#.hk9r4gdQZ>
> :
>
> U.S. Attorney Preet Bharara was scolded by a federal judge today for his
> comments to the press and his office’s tweets in the aftermath of the
> arrest of former New York state Assembly speaker Sheldon Silver. The
> embattled longtime Assembly leader had requested that his indictment be
> dismissed because of Bharara’s comments, which his attorneys described as
> prejudicial, but the case will go on despite the judge’s criticism.
>
> “The U.S. Attorney … strayed so close to the edge of the rules governing
> his own conduct that Defendant Sheldon Silver has a non-frivolous argument
> that he fell over the edge to the Defendant’s prejudice,” U.S. District
> Judge Valerie Caproni said in an opinion released
> <http://www.documentcloud.org/documents/1822035-judge-caproni-opinion.html#document/p2>Friday
> afternoon.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71674&title=%E2%80%9CJudge%20Scolds%20U.S.%20Attorney%20Preet%20Bharara%20Over%20Speeches%20And%20Tweets%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
> Bainbridge: “Corporate Social Responsibility in the Night-Watchman
> State” <http://electionlawblog.org/?p=71672>
> Posted on April 10, 2015 4:15 pm <http://electionlawblog.org/?p=71672> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> New
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/>
> Steve Bainbridge in the *Columbia Law Review* Sidebar:
>
> In a recent article,[5]
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/#_ftn5>
> Strine and his coauthor Nicholas Walter argue that the U.S. Supreme
> Court’s controversial *Citizens United v. FEC *[6]
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/#_ftn6>decision
> poses a significant challenge for “conservative corporate law theory.”[7]
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/#_ftn7>
> They argue that conservative corporate law theory supports shareholder
> primacy[8]
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/#_ftn8>
> on grounds that government regulation is a more superior constraint on
> the externalities caused by corporate conduct than social-responsibility
> norms.[9]
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/#_ftn9>
> Because *Citizens United* purportedly has unleashed a torrent of
> corporate political campaign contributions intended to undermine
> regulations, they argue that the decision undermines the viability of
> conservative corporate law theory.[10]
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/#_ftn10>
> As a result, they contend, *Citizens United*“logically supports the
> proposition that a corporation’s governing board must be free to think like
> any other citizen and put a value on things like the quality of the
> environment, the elimination of poverty, the alleviation of suffering among
> the ill, and other values that animate actual human beings.”[11]
> <http://columbialawreview.org/corporate_social_responsibility_bainbridge/#_ftn11>
>
> This Essay argues that Strine and Walter’s analysis is flawed in three
> major respects. Part I contends that “conservative corporate law theory” is
> a misnomer. Strine and Walter apply the term to such a wide range of
> thinkers as to make it virtually meaningless. More importantly, scholars
> who range across the political spectrum embrace shareholder primacy. Part
> II summarizes and critiques the key factual claims that underlie Strine and
> Walter’s principal normative claim. In particular, Part II argues that
> Strine and Walter likely overstate the extent to which*Citizens United *will
> result in significant erosion of the regulatory environment that constrains
> corporate conduct. Finally, the role of government regulation in
> controlling corporate conduct is just one of many arguments in favor of
> shareholder primacy. Many of those arguments would be valid even in a
> night-watchman state in which corporate conduct is subject only to the
> constraints of property rights, contracts, and tort law. As such, even if
> Strine and Walter were right about the effect of *Citizens United* on the
> regulatory state, conservative corporate law theory would continue to favor
> shareholder primacy over corporate social responsibility.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71672&title=Bainbridge%3A%20%E2%80%9CCorporate%20Social%20Responsibility%20in%20the%20Night-Watchman%20State%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29>
> “New law forces a choice – job or elected office”
> <http://electionlawblog.org/?p=71670>
> Posted on April 10, 2015 3:52 pm <http://electionlawblog.org/?p=71670> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> The Chicago Tribune reports.
> <http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-election-law-reaction-st-0412-20150410-story.html>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71670&title=%E2%80%9CNew%20law%20forces%20a%20choice%20%E2%80%93%20job%20or%20elected%20office%E2%80%9D&description=>
> Posted in campaigns <http://electionlawblog.org/?cat=59>, conflict of
> interest laws <http://electionlawblog.org/?cat=20>
> “Federal judge deals Utah Republican Party a blow in its challenge
> of new election law” <http://electionlawblog.org/?p=71668>
> Posted on April 10, 2015 3:09 pm <http://electionlawblog.org/?p=71668> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Salt Lake Tribune
> <http://www.sltrib.com/news/2386618-155/federal-judge-deals-utah-republican-party>
> :
>
> A federal judge on Friday refused to block a new Utah law that will change
> the way candidates are nominated in next year’s election.
>
> U.S. District Judge David Nuffer ruled from the bench at the conclusion of
> a more than five-hour hearing on the Utah Republican Party’s quest for a
> preliminary injunction against SB54.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71668&title=%E2%80%9CFederal%20judge%20deals%20Utah%20Republican%20Party%20a%20blow%20in%20its%20challenge%20of%20new%20election%20law%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
> “Secret Money Group Tied to Marco Rubio Super PAC Has Been
> Researching Presidential Primary Voters”
> <http://electionlawblog.org/?p=71664>
> Posted on April 10, 2015 1:51 pm <http://electionlawblog.org/?p=71664> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> National Journal.
> <http://www.nationaljournal.com/2016-elections/secret-money-group-tied-to-marco-rubio-super-pac-has-been-researching-presidential-primary-voters-20150410>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71664&title=%E2%80%9CSecret%20Money%20Group%20Tied%20to%20Marco%20Rubio%20Super%20PAC%20Has%20Been%20Researching%20Presidential%20Primary%20Voters%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>,
> campaigns <http://electionlawblog.org/?cat=59>
> Justice Sotomayor Unfairly Slams #SCOTUS Press Corps
> <http://electionlawblog.org/?p=71661>
> Posted on April 10, 2015 1:22 pm <http://electionlawblog.org/?p=71661> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> BLT
> <http://www.nationallawjournal.com/legaltimes/id=1202723165481/Sotomayor-Dont-Blame-the-Justices-for-Politicization-of-Supreme-Court?cmp=share_twitter>
> :
>
> Sotomayor also took a swipe at media coverage of the court. “I pick up a
> newspaper half an hour after we’ve issued a decision,” she said, “and
> they’re writing about what we’ve done wrong, and half the time they’re
> saying things we haven’t done. They’re writing before they’ve even read the
> thing. And so that’s a dangerous way to assume that the Supreme Court is
> doing this.”
>
> I assume she means she’s read a story online rather than read a newspaper
> one half hour after an opinion issues. But in any case this is not my
> experience with SCOTUS press coverage at all. It is usually careful and
> fair, and filled in as time goes on, balancing need for speed with desire
> for nuance.
>
> More generally, I deal with a lot of reporters and I find that, on
> average, Supreme Court reporters are much more knowledgeable about the
> subjects they are covering than other reporters.
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71661&title=Justice%20Sotomayor%20Unfairly%20Slams%20%23SCOTUS%20Press%20Corps&description=>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
> “Why is Blago’s appeal dragging on and on?”
> <http://electionlawblog.org/?p=71659>
> Posted on April 10, 2015 10:35 am <http://electionlawblog.org/?p=71659> by
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> Gerald Skoning
> <http://www.chicagotribune.com/news/opinion/commentary/ct-rod-blagojevich-prison-appeal-corruption-perspec-0413-jm-20150410-story.html>with
> a question I’ve been asking for a while.
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71659&title=%E2%80%9CWhy%20is%20Blago%E2%80%99s%20appeal%20dragging%20on%20and%20on%3F%E2%80%9D&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12>
> Campaign Reform Groups Really Afraid of Constitutional Convention
> <http://electionlawblog.org/?p=71657>
> Posted on April 10, 2015 9:48 am <http://electionlawblog.org/?p=71657> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> I find this odd and misplaced
> <http://www.democracy21.org/money-in-politics/press-releases-money-in-politics/reform-groups-strongly-oppose-efforts-in-the-states-to-call-a-constitutional-convention/>.
> Tell me what campaign finance reform measure is going to get approved by a
> supermajority of the states right now, in either direction.
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71657&title=Campaign%20Reform%20Groups%20Really%20Afraid%20of%20Constitutional%20Convention&description=>
> 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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
> _______________________________________________
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> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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