[EL] ELB News and Commentary 12/15/15
Rick Hasen
rhasen at law.uci.edu
Mon Dec 14 20:28:13 PST 2015
“Bush v. Gore Fifteen Years Later: The Supreme Court and American
Democracy” <http://electionlawblog.org/?p=77884>
Posted onDecember 14, 2015 8:25 pm
<http://electionlawblog.org/?p=77884>byRick Hasen
<http://electionlawblog.org/?author=3>
[Bumping to the top with news that Curt Levey is joining the panel.]
Really looking forward to this event
<https://events.acslaw.org/rsvp?id=a0YG0000009WL1NMAW>on December 15:
Bush v. Gore Fifteen Years Later: The Supreme Court and American
Democracy
Tuesday, December 15, 2015
12:00 PM – 02:00 PM
*Event Location:*
Open Society Foundations
1730 Pennsylvania Ave NW
7th Floor
Washington, DC 20006
*Details: *
On *December 15*, ACS will host a panel discussion reflecting on the
2000 presidential election, the unprecedented court battle that
ensued, and the Supreme Court decision that brought it to a close.
As the 2016 presidential election quickly approaches, panelists will
address both the impact of the case on our elections and what the
decision meant for the Court as an institution.*Introduction:*
* *Caroline Fredrickson*, President, American Constitution Society
for Law & Policy
*Panelists*
* *Joan Biskupic,*/Moderator/*, *Editor in Charge for Legal
Affairs, Reuters News
* *Judith Browne Dianis*, Co-Director, Advancement Project
* *Richard Hasen, *Chancellor’s Professor of Law and Political
Science, UC Irvine School of Law
* *Pamela Karlan,*Kenneth and Harle Montgomery Professor of Public
Interest Law, Stanford Law School; Co-director, Stanford Law
School Supreme Court Litigation Clinic
* *Nelson Lund,*University Professor, George Mason University
School of Law
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Posted inBush v. Gore reflections
<http://electionlawblog.org/?cat=5>,Supreme Court
<http://electionlawblog.org/?cat=29>
“McConnell Takes Credit for Resuscitating the Senate”
<http://electionlawblog.org/?p=78344>
Posted onDecember 14, 2015 8:22 pm
<http://electionlawblog.org/?p=78344>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2015/12/15/us/politics/mitch-mcconnell-takes-credit-for-resuscitating-the-senate.html?ref=politics>:
Barney Frank once told me that asking Republicans to govern was like
asking him, the first openly gay member of Congress, to judge the
Miss America contest: He would do it, but he wouldn’t enjoy it much
or be very good at it.
With control of the Senate up for grabs in 2016, Senate Republicans
have spent the year trying to prove Mr. Frank wrong. And
SenatorMitch McConnell
<http://topics.nytimes.com/top/reference/timestopics/people/m/mitch_mcconnell/index.html?inline=nyt-per>of
Kentucky, the majority leader, believes they have been pretty good
at it — particularly when measured against the vicious stalemate of
the previous four years. “I think the Senate is functioning again
and producing results,” Mr. McConnell said in an interview as he
assessed 2015 and looked ahead to a challenging election cycle that
could quickly end his control of the Senate agenda if the public
disagrees with his take. Mr. McConnell can tick off the bills he
sees as victories — a budget, a long-sought solution to a perennial
problem withMedicare
<http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/medicare/index.html?inline=nyt-classifier>doctor
fees, the first changes toSocial Security
<http://topics.nytimes.com/top/reference/timestopics/subjects/s/social_security_us/index.html?inline=nyt-classifier>in
decades, a cybersecurity bill, a reconciliation measure undercutting
thehealth care law
<http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html?inline=nyt-classifier>,Keystone
XL
<http://topics.nytimes.com/top/reference/timestopics/subjects/k/keystone_pipeline/index.html?inline=nyt-classifier>oil
pipeline approval, the Iran nuclear review law and, most recently,
major transportation and education bills. He admits he could not
have compiled those achievements without significant help from an
unlikely quarter — the Senate Democrats he so frustrated in his
position as minority leader.
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Posted inlegislation and legislatures
<http://electionlawblog.org/?cat=27>,political parties
<http://electionlawblog.org/?cat=25>,political polarization
<http://electionlawblog.org/?cat=68>
“Hurdles for Changing ‘One Person, One Vote'”
<http://electionlawblog.org/?p=78342>
Posted onDecember 14, 2015 8:11 pm
<http://electionlawblog.org/?p=78342>byRick Hasen
<http://electionlawblog.org/?author=3>
Jost on Justice.
<http://jostonjustice.blogspot.com/2015/12/hurdles-for-changing-one-person-one-vote.html>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Montana GOP lawsuit to force ‘closed primary’ election is going to
trial” <http://electionlawblog.org/?p=78340>
Posted onDecember 14, 2015 8:08 pm
<http://electionlawblog.org/?p=78340>byRick Hasen
<http://electionlawblog.org/?author=3>
MTN News reports.
<http://www.kxlh.com/story/30745413/montana-gop-lawsuit-to-force-closed-primary-election-is-going-to-trial>
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>
“Zimmerman’s lawsuit over Austin fundraising rules heads to court”
<http://electionlawblog.org/?p=78338>
Posted onDecember 14, 2015 8:04 pm
<http://electionlawblog.org/?p=78338>byRick Hasen
<http://electionlawblog.org/?author=3>
Austin-American Statesman
<http://www.mystatesman.com/news/news/local/zimmermans-lawsuit-over-austin-fundraising-rules-h/nphy6/?icmp=statesman_internallink_referralbox_free-to-premium-referral>:
Austin City Council Member Don Zimmerman’sunprecedented lawsuit
against the city
<http://www.mystatesman.com/news/news/local/council-member-don-zimmerman-sues-austin-over-camp/nm74h/#e694f0a3.3594764.735826>will
go to trial Monday, with Zimmerman hoping to upend Austin’s campaign
finance rules so he can raise money year-round from donors outside
the area.
The suit challenges the city’s $350-per-donor contribution limit,
the $36,000 cap on total donations from outside the Austin area and
the prohibition on fundraising until six months before the election.
Zimmerman, who filed the suit in July in federal court, has argued
that these rules limit his constitutional right to free speech.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Ned Foley: The Risk of Another Disputed Presidential Election is
Higher than Most Think <http://electionlawblog.org/?p=78237>
Posted onDecember 14, 2015 8:00 pm
<http://electionlawblog.org/?p=78237>byRick Hasen
<http://electionlawblog.org/?author=3>
The following is the second of five guest posts byNed Foley
<http://moritzlaw.osu.edu/faculty/professor/edward-b-foley/>of Ohio
State, about his new bookBallot Battles: The History of Disputed
Elections in the United States
<https://global.oup.com/academic/product/ballot-battles-9780190235277?cc=us&lang=en&>:
ballotbattles
<http://electionlawblog.org/wp-content/uploads/ballotbattles.jpeg>‘
*Theme Two*: History shows that the risk of another disputed
presidential election is greater than one might think.
/Ballot Battles/is not just about presidential elections. But as
America is on the eve of another presidential election year—and because
presidential elections are obviously the most significant ones in our
system—it is worth reflecting on the possibility that 2016, like 2000,
might end up embroiled in a ballot-counting controversy.
The risk, thankfully, is small. The fact that the nation has suffered
only two seriously disputed presidential elections is a sign of that.
Still, it significantly understates the risk to say that we’ve
encountered only two of these episodes in over 200 years, and so we are
probably safe for another century.
First of all, one conclusion reached in/Ballot Battles/is that 1960
needs to be classified with 1876 and 2000 as presidential elections in
which the nation failed to have in place an adequate mechanism to handle
a vote-counting dispute. Now, I want to be very clear about what this
assertion does/not/entail. I’m/not/claiming that Daley stole Illinois
for Kennedy, or that LBJ’s machine stole Texas for the Democratic
ticket. Instead, what I am asserting is that in 1960 there was no
system in place, especially in Texas, by which Nixon would have been
able to get a fair recount if he had asked for one. Nixon was a
practical politician; he conceded because he knew he did not have a
chance for a fair fight over allegations that a proper count of valid
(and only valid) ballots would show that he had won both Illinois and
Texas—and thus the White House that year. Given that there was no
mechanism for a fair recount in place, Nixon’s concession to Kennedy
cannot be taken as evidence that the system worked. Instead, it was
just capitulation to the reality that America still lacked an adequate
system for counting ballots in a close presidential election.
With this sobering assessment of 1960 in mind, the historical numbers
start to look a little different. Rather than only two failed
presidential elections—in terms of having an adequate ballot-counting
system in place—there are three. Moreover, two of these three failures
occurred within a span of forty years. That’s roughly a failure rate of
two out of every ten quadrennial elections. Especially when considers
that this forty-year span is recent rather than distant history, that
failure rate is uncomfortably high.
Add to these three failures the “near misses” when the nation narrowly
escaped seriously disputed presidential elections. Most Americans today
are blissfully unaware of the fact that in both 1884 and 1916 the
outcome of the presidential election remained unsettled for a couple of
weeks, while lawyers closely scrutinized ballots in the way that they
had in 1876 and would again in 2000. The good news is that in neither
1884 nor 1916 did that scrutiny produce evidence of problems that would
have been worthy of a more protracted fight. But it was not for lack of
looking hard for something to fight on about.
To invoke contemporary terminology, the “margin of litigation” was much
narrower in 1884 and 1916, because the pivotal states those years (New
York in 1884, California in 1916) ran their elections well enough to
withstand a margin of victory of a thousand votes or so. Had the
pivotal state been Florida, as it was in 1876 (actually one of four
pivotal states that year) or would be again in 2000, lawyers likely
could have fought on for weeks or months over a margin of that
magnitude. Thus, 1884 and 1916 were years in which the proverbial
“killer asteroid” came awfully close to hitting planet Earth, but
fortunately passed by without an impact—although today the idea of
waiting two weeks for a concession in a presidential election, while the
lawyers looked closely ballots, would be viewed as a calamity in and of
itself.
1884, moreover, was the closest of a trilogy of three very close
presidential elections in the 1880s, all turning on New York. It was
like asteroids coming fairly close each time, but thankfully not quite
close enough, after a big one had hit in 1876. Some political
scientists say that we are currently living through an era of
hyper-polarized, hyper-competitive politics not dissimilar to the
1880s. If so, it’s like planet Earth passing through a more dangerous
patch of the asteroid belt; our orbit took us through this tricky patch
before and now we’re going through it again.
I don’t want to overstate the risk of a seriously disputed presidential
election. Even in our current political conditions, it’s still
unlikely. But just as a “killer asteroid” would be a monumental
calamity although a low-risk proposition, so too another disputed
presidential election like 2000 or, even worse, 1876. The consequences
are bad enough that they are very much worth trying to avoid even if the
probability of them happening is mercifully small.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
‘How Children Emerged as Key Players in ‘One Person, One Vote’ Case’
<http://electionlawblog.org/?p=78336>
Posted onDecember 14, 2015 4:10 pm
<http://electionlawblog.org/?p=78336>byRick Hasen
<http://electionlawblog.org/?author=3>
Tony Mauro fascinating column
<http://www.nationallawjournal.com/supremecourtbrief/id=1202744837637/How-Children-Emerged-as-Key-Players-in-One-Person-One-Vote-Case?mcode=0&curindex=0&curpage=2>on
Evenwel.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Andrew Grossman and Nate Persily Talk Evenwel with Dahlia Lithwick
<http://electionlawblog.org/?p=78334>
Posted onDecember 14, 2015 2:26 pm
<http://electionlawblog.org/?p=78334>byRick Hasen
<http://electionlawblog.org/?author=3>
On theSlate Amicus podcast.
<http://www.slate.com/articles/podcasts/amicus/2015/12/the_supreme_court_considers_the_meaning_of_one_person_one_vote.html>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Bush v. Gore as Precedent in Ohio and Beyond”
<http://electionlawblog.org/?p=78331>
Posted onDecember 14, 2015 1:55 pm
<http://electionlawblog.org/?p=78331>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis post
<http://www.acslaw.org/acsblog/bush-v-gore-as-precedent-in-ohio-and-beyond>for
the ACS Blog:
Almost from the moment in December 2000 that the Supreme Court
decided its controversial opinion in/Bush v. Gore/
<https://www.law.cornell.edu/supct/html/00-949.ZPC.html>ending the
recount in Florida,there has been great debate
<http://www.nytimes.com/2008/12/23/us/23bar.html>about whether the
case had any precedential value and, assuming it did, what precisely
its equal protection principle stood for. Was it a one-day-only
ticket? Is it a case about equality of procedures in the conduct of
a jurisdiction-wide recount? Or does it require broader equal
treatment of voters, so as to fulfill/Bush v. Gore/’s admonition
against the government, by “arbitrary and disparate treatment,
valu[ing] one person’s vote over that of another”? We may finally
find out the case’s precedential value as soon as the 2016 elections.
At the Supreme Court,/Bush v. Gore/has beena legal Voldemort
<http://the-parallax-view.blogspot.com/2006/08/bush-v-gore-legal-voldemort.html>,
a case whose name a Court majority has dare not spoken since 2000.
Only Justice Clarence Thomas has cited the case,in a dissenting
opinion
<https://scholar.google.com/scholar_case?case=14763185671625765035&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[13]>,
and not speaking on its equal protection principles.
Lower courts have been initially divided over whether/Bush v.
Gore/could be used to force jurisdictions to require greater
equality in the conduct of elections. Is it an equal protection
violation, for example, to use much less reliable voting technology
in some parts of a state but not in others? Some courts initially
ruled such disparities created constitutional problems. By 2007,
however, federal appellate courts seemed to reject these muscular
readings of the case, and I declared the precedent all but dead ina
2007/Stanford Law Review/article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976701>.
But since the time I wrote that article, a key federal circuithas
resurrected/Bush v. Gore/as precedent
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>: the
Sixth Circuit. In a number of cases out of Ohio, the perennial
battleground state in presidential elections, the Sixth Circuit has
found lack of uniform rules in the state to raise/Bush v.
Gore/problems.It has held
<https://casetext.com/case/hunter-v-hamilton-county-bd-of-elections>that
the disparate treatment of provisional ballots in a recount
violate/Bush//v. Gore/equal protection principles, thatthe
disproportionate distribution of voting machinery
<https://www.courtlistener.com/opinion/1287216/league-of-women-voters-of-ohio-v-brunner/>leading
to long lines in more populated areas can violate the principle, and
thatgiving only certain military and overseas voters
<https://casetext.com/case/obama-for-am-v-husted-2>but no other
voters the chance to cast a ballot in early voting the weekend
before an election violates/Bush v. Gore/.
Most recently, in 2014, a federal district court held that Ohio’s
cutback in the number of days of early voting violated/Bush v.
Gore/. The Sixth Circuitrejected a request to stay
<http://electionlawblog.org/?p=65407>that order but the Supreme
Court,without opinion
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/order_016.pdf>reversed,
allowing Ohio’s early voting cutback to go through. The vote was 5-4
at the Supreme Court, suggesting deep division on the Court
(although the ruling might have beenmore about the timing
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>of the
relief than about the merits).
Those deep divisions shown by the Court and the question of the
meaning of/Bush v. Gore/itself could make its way back to the Court
in time for the 2016 election. There is anew challenge
<http://moritzlaw.osu.edu/electionlaw/litigation/organizingvhusted.php>to
Ohio voting cutbacks currently pending in federal district court,
and it would not be surprising to see the Court asked to weigh in on
the meaning of/Bush v. Gore/yet again.
If past performance is any guide, the Court will do what it can to
avoid uttering the words /Bush v. Gore/and reflecting on the case’s
merits.
With a lot potentially riding on the results in Ohio in 2016,
however, the temptation to decide the question of/Bush v. Gore/as
valid precedent may finally prove irresistible.
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Posted inBush v. Gore reflections
<http://electionlawblog.org/?cat=5>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Much-Anticipated FEC Legal Report Suggests Crossroads GPS Is a
Political Committee” <http://electionlawblog.org/?p=78329>
Posted onDecember 14, 2015 1:53 pm
<http://electionlawblog.org/?p=78329>byRick Hasen
<http://electionlawblog.org/?author=3>
Craig Holman
<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=5760>of
Public Citizen:
/Note: As a result of a recent order in/Public Citizen v. Federal
Election Commission (FEC)
<http://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=853>/,
the FEC has released areport (PDF)
<http://www.citizen.org/documents/FEC_1st_report.pdf>that has been
kept under wraps for two years. It indicates that Public Citizen
likely is correct in contending that Crossroads GPS is a political
organization masquerading as a policy-focused nonprofit./
At long last, the public can read the first version of the FEC
general counsel’s report on the political committee status of
Crossroads GPS, a group co-founded by Republican strageist Karl
Rove. The report, like the later report that was released to the
public at the time the FEC deadlocked and declined to take action
against Crossroads GPS, suggests that Public Citizen likely was
correct in calling for Crossroads GPS to be classified as a
political committee subject to disclosure requirements for political
committees.
Crossroads GPS spent millions to influence the 2010, 2012 and 2014
elections – a pattern that may be repeated in the 2016 elections.
Yet, because it is registered as a “social welfare” nonprofit
organization rather than a political committee, Crossroads evades
disclosure laws designed to let voters know who is trying to
influence their votes.
There are only two major differences between this report and the
final report from the FEC general counsels’ office – both of which
argue that Crossroads GPS has indeed crossed the line into political
committee status. The newly disclosed report places greater emphasis
than the final report on the close link between Crossroads GPS and
its super PAC sister, American Crossroads. The report also argues
that Crossroads GPS should be viewed as having the “primary purpose”
of influencing elections under either a “plurality” or “majority”
standard for determining how much of an organization’s activity must
be electoral in order to qualify as its major purpose.
The report weighs strongly in favor of Public Citizen’s complaint
and its lawsuit against the FEC, which contends that the FEC acted
arbitrarily and unlawfully in declining to pursue the allegation
that Crossroads GPS should be classified as a political committee
subject to the disclosure requirements imposed by federal election laws.
A robust democracy requires transparency. Voters deserve to know who
is spending money to influence their choices at the polls.
More from CCP,
<http://www.campaignfreedom.org/2015/12/11/ccp-obtains-first-first-general-counsels-report-in-crossroads-gps-case/?utm_content=bufferd1945&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer>which
says the document was released in response to its FOIA request.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,tax law and election law
<http://electionlawblog.org/?cat=22>
“The Kochs’ War on Poverty” <http://electionlawblog.org/?p=78327>
Posted onDecember 14, 2015 1:49 pm
<http://electionlawblog.org/?p=78327>byRick Hasen
<http://electionlawblog.org/?author=3>
Vogel:
<http://www.politico.com/story/2015/12/charles-david-koch-poverty-charity-216631>
The political operation created by the billionaire conservative
mega-donors Charles and David Koch is quietly investing millions of
dollars in programs to win over an unlikely demographic target for
their brand of small-government conservatism ― poor people.
The outreach includes everything from turkey giveaways, GED training
and English-language instruction for Hispanic immigrants to
community holiday meals and healthy living classes for predominantly
African American groups to vocational training and couponing classes
for the under-employed. The strategy, according to sources familiar
with it and documents reviewed by POLITICO, calls for presenting a
more compassionate side of the brothers’ politics to new audiences,
while fighting the perception that their groups are merely fronts
for rich Republicans seeking to game the political process for
personal gain….
The Koch efforts can seem at times almost like a post-/Citizens
United
<http://www.politico.com/story/2010/01/court-decision-opens-floodgates-for-corporate-cash-031786>/version
of turn-of-the-century political machines like Tammany Hall ― part
privatized social-service agency, part voter mobilization. But
liberal critics see it as a craven and patronizing gambit to bribe
the disadvantaged into supporting a de-regulatory agenda that helps
the haves at the expense of the have-nots.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Reform Groups Urge Democratic Leaders to Oppose Any Efforts to Kill
Presidential Tax Checkoff System in Omnibus”
<http://electionlawblog.org/?p=78325>
Posted onDecember 14, 2015 1:46 pm
<http://electionlawblog.org/?p=78325>byRick Hasen
<http://electionlawblog.org/?author=3>
Release.
<http://www.democracy21.org/legislative-action/press-releases-legislative-action/reform-groups-urge-democratic-leaders-to-oppose-any-efforts-to-kill-presidential-tax-checkoff-system-in-omnibus/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Ohio Secretary of State Ignores Precedent, Says Trump Can’t be an
Independent Presidential Candidate in Ohio”
<http://electionlawblog.org/?p=78323>
Posted onDecember 14, 2015 1:45 pm
<http://electionlawblog.org/?p=78323>byRick Hasen
<http://electionlawblog.org/?author=3>
BAN reports.
<http://ballot-access.org/2015/12/14/ohio-secretary-of-state-ignores-precedent-says-trump-cant-be-an-independent-presidential-candidate-in-ohio/>
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Posted inballot access <http://electionlawblog.org/?cat=46>
“Judge suggests conditional ruling on Va. congressional districts”
<http://electionlawblog.org/?p=78319>
Posted onDecember 14, 2015 10:46 am
<http://electionlawblog.org/?p=78319>byRick Hasen
<http://electionlawblog.org/?author=3>
Richmond Times-Dispatch:
<http://www.richmond.com/news/virginia/government-politics/article_d9800898-5ada-54d3-8aa0-b8f8eb0a5ea7.html#.Vm8ImMtX1VE.twitter>
A three-judge federal panel in Richmond might choose a fix for the
constitutionally flawed 3rd congressional district, but make its
imposition of a new map conditional on a later ruling by the U.S.
Supreme Court.
U.S. District Judge Robert E. Payne suggested that course of action
today as he, U.S. District Judge Liam O’Grady and Judge Albert Diaz
of the 4th U.S. Circuit Court of Appeals presided over a two-hour
hearing in Virginia’s congressional redistricting case.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
--
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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