[EL] Breaking #SCOTUS redistricting opinion; ELB News and Commentary 12/8/15
Rick Hasen
rhasen at law.uci.edu
Tue Dec 8 07:46:26 PST 2015
Breaking: Supreme Court Unanimously Decides 3-Judge Redistricting
Case, Helping Those Seeking #SCOTUS Fast Track
<http://electionlawblog.org/?p=78127>
Posted onDecember 8, 2015 7:32 am
<http://electionlawblog.org/?p=78127>byRick Hasen
<http://electionlawblog.org/?author=3>
This morning, as the Court hears arguments in the Evenwel one person one
vote case and theHarris Arizona redistricting case
<http://www.scotusblog.com/case-files/cases/harris-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>,
it issueda short, unanimous 8 page opinion
<http://www.supremecourt.gov/opinions/15pdf/14-990_10n2.pdf>by Justice
Scalia in/Shapiro v. McManus. /The issue in /Shapiro/is when one is
entitled to a three-judge court in a redistricting case. The Fourth
Circuit had held that if an issue brought for a three judge court is
frivolous, then a single judge can deny the three judge court and
dismiss the case. Today the Supreme Court held that the standard imposed
by the Fourth Circuit for convening a three judge court was too high,
and that it is relatively easy to get a three-judge court when it falls
within the ambit of a three-judge court statute. This holding will make
it easier for those who want to get election law issues before the
Supreme Court, as I’ll explain.
First, to the standard: In /Shapiro/, the plaintiff challenged an
alleged Democratic gerrymander of Maryland congressional districts on
grounds that the district violated plaintiffs’ First Amendment political
association rights. The idea that there could be a First Amendment
violation flows from Justice Kennedy’s opinion in /Vieth/, which agreed
with the Justice Scalia plurality opinion that there were (as yet) no
judicially manageable standards for determining what constitutes a
partisan gerrymander, but disagreed that the cases were wholly
non-justiciable. Justice Kennedy said that courts might eventually come
up with a standard, and he suggested that the First Amendment was one
place to look.
In today’s case, Justice Scalia said essentially that if one Justice
didn’t close the door on such a theory and it hadn’t been contradicted
by a majority of the court, it can’t be “wholly insubstantial” and
therefore so frivolous as to deny a three-judge court:
Without expressing any view on the merits of petitioners’ claim, we
believe it easily clears Goosby’s low bar; after all, the amended
complaint specifically challenges Maryland’s apportionment “along
the lines suggested by Justice Kennedy in his concurrence in Vieth
[v. Jubelirer, 541 U. S. 267 (2004)].” App. to Brief in Opposition
44. Although the Vieth plurality thought all political
gerrymandering claims nonjusticiable, JUSTICE KENNEDY, concurring in
the judgment, surmised that if “a State did impose burdens and
restrictions on groups or persons by reason of their views, there
would likely be a First Amendment violation, unless the State shows
some compelling interest. . . . Where it is alleged that a
gerrymander had the purpose and effect of imposing burdens on a
disfavored party and its voters, the First Amendment may offer a
sounder and more prudential basis for intervention than does the
Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315
(2004). Whatever “wholly insubstantial,” “obviously frivolous,”
etc., mean, at a minimum they cannot include a plea for relief based
on a legal theory put forward by a Justice of this Court and
uncontradicted by the majority in any of our cases. Accordingly, the
District Judge should not have dismissed the claim as
“constitutionally insubstantial” under Goosby. Perhaps petitioners
will ultimately fail on the merits of their suit, but §2284 entitles
them to make their case before a three-judge district court.
Now, the significance of this case: getting to a three judge court
matters a great deal. A three-judge court is a fast track to the
Supreme Court. Indeed,in a current draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902> looking at
election law cases decided by the Roberts Court, fully half the election
law cases the Roberts Court has decided came to the Court via the
three-judge court method.
Here’s what I wrote recently about a decision by a district court to
give a three-judge court in a case challenging the McCain-Feingold’s ban
on party “soft money:”
A federal district courthas
held<http://www.fec.gov/law/litigation/lagop_dc_opinion.pdf>that the
Louisiana GOP, under the guidance of tenacious campaign finance
lawyer Jim Bopp, has the right to have a challenge to
McCain-Feingold’s soft money ban applied to state parties through a
three-judge court. Getting there took some very clever drafting, as
the court recognized…:
Why are the stakes so high? I explained it in August in The
McCain-Feingold Law May Doom Itself
<http://www.nationallawjournal.com/id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself?cmp=share_twitter>,/National
Law Journal/, Aug. 16, 2015:
Tucked within the Bipartisan Campaign Reform Act (the formal name
for “McCain-Feingold”) is a provision requiring that certain
constitutional challenges to the law be heard by a three-judge
court, with direct appeal to the U.S. Supreme Court. This special
jurisdictional provision makes it much more likely that within the
next few years the Supreme Court will strike limits on the amounts
people and entities can contribute to the political parties in
so-called party soft money.
If the court does so, it would be knocking down the second of
McCain-Feingold’s two pillars. The court knocked down the first
pillar—the limits on corporate and union spending—in the 2010
case/Citizens United v. Federal Election Commission/.
It may seem hard to believe that procedural rules for court
challenges could make a difference as to the fate of campaign
financing in the United States, but it matters. When a case comes up
to the Supreme Court through the normal process of federal district
court or state court decision followed by appellate court review,
the losing side files a petition for writ of certiorari.
A Supreme Court decision to deny certiorari has no precedential
value; no one can cite a certiorari denial as proof the Supreme
Court believes the lower court got it right.
But in a rare set of cases (these days confined to certain campaign
finance, redistricting and voting-rights cases) pursuant to federal
statute are heard initially by a three-judge federal district court
with direct appeal to the Supreme Court. In these cases, a court
decision to affirm a three-judge court or to dismiss the appeal does
count as a decision that the lower court got right, even if not
necessarily for its reasoning. This fact makes it much more likely
that the Supreme Court will hear such cases.
Justices have said the jurisdictional provision matters.
Since I wrote this oped, Chief Justice Roberts at the oral argument
in Shapiro v. McManushas confirmed
<http://electionlawblog.org/?p=77284>his feeling of the obligation
to take three-judge court cases:
CHIEF JUSTICE ROBERTS: I mean, the other
alternative is it’s a three-judge district court, and
then we have to take it on the merits. I mean, that’s a
serious problem because there are a lot of cases that
come up in three-judge district courts that would be the
kind of case – I speak for myself, anyway– that we
might deny cert in, to let the issue percolate. And now
with the three-judge district court, no, we have to
decide it on the merits…
As I concluded in my August oped:
The Roberts Court has proved itself quite deregulatory in
campaign-finance cases. It has struck down or narrowed severely
every campaign-finance limit it has ever considered. Further, in the
2014 McCutcheon case, Roberts suggested a soft money ban is
unconstitutional.
But the court has also proven itself willing to not hear every
campaign-finance case to come its way. Twice, for example, it turned
down certiorari petitions testing whether the ban on direct campaign
contributions by corporations violates the First Amendment. In 2010,
over the dissents of justices Anthony Kennedy, Antonin Scalia and
Clarence Thomas, it turned down a certiorari petition in yet another
case Republicans brought to challenge the soft-money rules
If the Republican Party of Louisiana is able to convince the courts
this time that the three-judge court is the appropriate route to
hear its soft-money challenge, then there’s a good chance the court
will not only take the case, but will strike down what remains of
McCain-Feingold.
Read
more:http://www.nationallawjournal.com/id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself#ixzz3sjc1ZVbf
So the easier it is to get before the Roberts Court, the more one can
move the Court in the direction favored by that majority, even if the
majority might otherwise pass on the case.
[This post has been updated.]
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
” Supreme Court takes up ‘one person, one vote'”
<http://electionlawblog.org/?p=78125>
Posted onDecember 8, 2015 7:24 am
<http://electionlawblog.org/?p=78125>byRick Hasen
<http://electionlawblog.org/?author=3>
Ariane de Vogue reports
<http://www.cnn.com/2015/12/08/politics/supreme-court-one-person-one-vote/index.html>for
CNN.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Is Paul Caron’s Daily Posting on the 3 Year “IRS Scandal” About
Driving Blog Traffic? <http://electionlawblog.org/?p=78123>
Posted onDecember 7, 2015 7:50 pm
<http://electionlawblog.org/?p=78123>byRick Hasen
<http://electionlawblog.org/?author=3>
Brian
Leiter<http://leiterlawschool.typepad.com/leiter/2015/12/has-there-really-been-an-irs-scandal-going-on-for-nearly-three-years.html>runs
a poll.
Share
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Posted intax law and election law <http://electionlawblog.org/?cat=22>
“Judge rejects voter’s request for dismissal in Kobach fraud case”
<http://electionlawblog.org/?p=78121>
Posted onDecember 7, 2015 7:44 pm
<http://electionlawblog.org/?p=78121>byRick Hasen
<http://electionlawblog.org/?author=3>
Bryan Lowry
<http://www.kansas.com/news/politics-government/article48523230.html>:
A Sherman County magistrate judge rejected an argument Monday that
Secretary of State Kris Kobach needs to personally prosecute voter
fraud cases under a new statute.
Lincoln Wilson faces felony charges from Kobach’s office accusing
him of voting in both Colorado and Kansas in multiple elections –
something Wilson admitted to doing and said he thought he was
allowed to do in an October interview with The Eagle. His attorney,
Jeff Mason, tried to get the case thrown out of court on the grounds
that Assistant Secretary of State Eric Rucker is prosecuting the
case rather than Kobach himself. The statute refers only to the
secretary of state, Mason argued.
Share
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Posted inchicanery <http://electionlawblog.org/?cat=12>,election
administration <http://electionlawblog.org/?cat=18>,fraudulent fraud
squad <http://electionlawblog.org/?cat=8>
“Undisclosed FEC Report on Crossroads Ordered Released”
<http://electionlawblog.org/?p=78117>
Posted onDecember 7, 2015 7:28 pm
<http://electionlawblog.org/?p=78117>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=80153011&vname=mpebulallissues&jd=a0h6j2c7q8&split=0>:
A staff report that the Federal Election Commission has fought to
keep under wraps in an enforcement case involving the conservative
nonprofit Crossroads GPS could be disclosed soon following a new
order by a federal judge (Public Citizen v. FEC, D.D.C., No.
14-cv-148,order, 12/4/15).
Judge Richard Leon of the U.S. District Court for the District of
Columbia Dec. 4 ordered the release of the FEC general counsel’s
report analyzing charges that Crossroads GPS violated campaign
finance laws. The nonprofit group organized under tax code Section
501(c)(4) spent millions of dollars raised from undisclosed sources
to help Republicans in congressional election races in 2010 and
later years.
The FEC report that the judge ordered released was completed in
2011, but has never been made public.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>,tax law and
election law <http://electionlawblog.org/?cat=22>
Thor’s Back! <http://electionlawblog.org/?p=78115>
Posted onDecember 7, 2015 4:24 pm
<http://electionlawblog.org/?p=78115>byRick Hasen
<http://electionlawblog.org/?author=3>
Readers of my book,The Voting Wars
<http://www.amazon.com/The-Voting-Wars-Election-Meltdown/dp/0300198248>,
may remember the role that Mark “Thor” Hearne played in drumming up
false and exaggerated claims of voter fraud through the now defunct
American Center for Voting Rights (check out where someone who has
bought ACVR’s former websiteac4vr.com <http://ac4vr.com/>now redirects
it). Here’s some background on ACVR and the creation of thefraudulent
fraud squad
<http://www.slate.com/articles/news_and_politics/jurisprudence/2007/05/the_fraudulent_fraud_squad.html>,
and here’sa post of mine <http://electionlawblog.org/?p=32037>on ACVR’s
race baiting. (Much much more on Thor fromBrad Friedman
<http://www.bradblog.com/?page_id=4418>.)
I haven’t seen Thor’s name all that much in the election law world
lately but tomorrow he has a very big moment: he is arguing in the
Supreme Court in the /Harris /
<http://www.scotusblog.com/case-files/cases/harris-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>redistricting
case
<http://www.scotusblog.com/case-files/cases/harris-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>,
arguing against Arizona’s independent redistricting commission.
Wish I could be there to see it (and Evenwel) in person.
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Posted inelection law biz
<http://electionlawblog.org/?cat=51>,fraudulent fraud squad
<http://electionlawblog.org/?cat=8>,Supreme Court
<http://electionlawblog.org/?cat=29>
“How the ‘one person, one vote’ case in Texas could impact
California” <http://electionlawblog.org/?p=78113>
Posted onDecember 7, 2015 4:13 pm
<http://electionlawblog.org/?p=78113>byRick Hasen
<http://electionlawblog.org/?author=3>
I spoke withKPCC’s Take Two
<http://www.scpr.org/programs/take-two/2015/12/07/45482/how-the-one-person-one-vote-case-in-texas-could-im/>about
Evenwel.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Porn industry faces $61,500 fine for putting foreign money into
2012 campaign” <http://electionlawblog.org/?p=78111>
Posted onDecember 7, 2015 2:09 pm
<http://electionlawblog.org/?p=78111>byRick Hasen
<http://electionlawblog.org/?author=3>
The Sacramento Bee reports.
<http://www.sacbee.com/news/politics-government/capitol-alert/article48490005.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Possible Compromise on Omnibus Campaign Finance Rider
<http://electionlawblog.org/?p=78109>
Posted onDecember 7, 2015 12:59 pm
<http://electionlawblog.org/?p=78109>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo:
<https://www.washingtonpost.com/news/powerpost/wp/2015/12/07/pressure-mounts-for-a-year-end-spending-deal/>
Campaign finance could be another area of compromise. Conservatives
worry that the proposed changes would give greater electoral control
to mainstream party leaders. Aides said the campaign finance rule
could possibly be adapted to ease those concerns by including
language that would allow the rule to apply to potential third party
committees that might be created in the future.
Wertheimer red alert.
<http://www.democracy21.org/legislative-action/press-releases-legislative-action/wertheimer-reported-possible-compromise-on-mcconnell-rider-would-destroy-candidate-contribution-limits/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“A Guide to Election Year Activities of Section 501(c)(3)
Organizations” <http://electionlawblog.org/?p=78107>
Posted onDecember 7, 2015 11:58 am
<http://electionlawblog.org/?p=78107>byRick Hasen
<http://electionlawblog.org/?author=3>
A timely
update<http://www.gibbonslaw.com/Files/Publication/89d966b0-8a8a-409d-a9e4-69a8a26a4431/Presentation/PublicationAttachment/024eeca7-8949-43ca-9831-6b3fff89beda/Election%20Year%20Activities%20of%20Section%20501c3_%20Organization.pdf>from
Steven Sholk.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Latino Clout Turns on Supreme Court View of One-Person-One-Vote”
<http://electionlawblog.org/?p=78105>
Posted onDecember 7, 2015 10:09 am
<http://electionlawblog.org/?p=78105>byRick Hasen
<http://electionlawblog.org/?author=3>
Greg Stohr reports
<http://www.bloomberg.com/politics/articles/2015-12-07/latino-clout-turns-on-top-u-s-court-view-of-one-person-one-vote>for
Bloomberg.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Misguided hysteria over Evenwel v. Abbott
<http://electionlawblog.org/?p=78101>
Posted onDecember 7, 2015 9:50 am
<http://electionlawblog.org/?p=78101>byRichard Pildes
<http://electionlawblog.org/?author=7>
That’s the title of theessay
<http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott/>I
wrote, shortly after the Court agreed to hear this case, for the Supreme
Court blog. Nothing in the briefing has changed my conclusion about
that, though I expect lots of tough questions for both Texas and the
United States (and the appellants). I had hoped the Court would address
whether the Constitution/requires/that districting be based on total
population, but as I noted at this laterposting
<http://electionlawblog.org/?p=77410>on this blog, none of the lawyers
before the Court will be arguing that position. The United States comes
close to doing so, but encourages the Court to avoid the issue/.
/Without any of the parties pressing the Court to reach the question, it
is less likely the Court will resolve this important question.
Here is the beginning of the Supreme Court blog contribution arguing
that the Court was right to take on the/E/v/enwel/case, even though the
most likely outcome is a reaffirmation of the status quo:
As soon as the Court decided to hear/Evenwel/, a barely suppressed
anger emerged inmany quarters
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html>,
on grounds of both process and substance. On process: how dare the
Court address this issue, when a 1966 precedent seemingly settled
the issue, andno conflict
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html>existed
in the lower courts, to boot. On substance: how disturbing for the
Court to consider any change in the legal status quo, in which
states are perfectly free to define the “one person, one vote”
baseline (total population or eligible voters) for themselves. But
on both process and substance, these complaints and anxieties are
misplaced and misguided.
The Court is right to confront this issue. And more importantly, the
most likely outcome is that the Court will either re-affirm the
status quo or conclude that equal protection/requires/states to use
population, not voters, as the measure of political equality – a
possibility almost none of the commentary, thus far, seems to recognize.
Let’s start with the substantive issue. The issue is whether “one
person, one vote” is a principle of “representational equality” or
one of “electoral equality.” Once the Court fully grapples with the
issue, I consider it extremely unlikely a majority will conclude
that the constitutional metric must be voters. Four reasons of
principle and practicality, at least, lead to this conclusion.
If you’re interested in those reasons, seehere
<http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott/>.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,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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