[EL] ELB News and Commentary 2/9/15

[Rick Hasen]

    tice Thomas: The Right to Same Sex Marriage is Coming But Show
    States Some Respect <http://electionlawblog.org/?p=70189>

Posted onFebruary 9, 2015 7:41 am 
<http://electionlawblog.org/?p=70189>byRick Hasen 
<http://electionlawblog.org/?author=3>

This morningthe Supreme Court turned aside 
<http://www.supremecourt.gov/opinions/14pdf/14a840_gol1.pdf>Alabama’s 
request to stay an order requiring the state to grant same sex couples 
marriage licenses. Alabama wanted the injunction issued as the Court 
considers the merits of the constitutional issues in a group of Sixth 
Circuit cases the Court has already agreed to hear. The result is that 
same sex marriage will come to yet another state (are we up to 37) and 
any eventual Supreme Court rejection of a constitutional right to same 
sex marriage seems even less likely, given the many new legal 
relationships recognized by the states and the changing of expectations 
and realities in the states.

Justice Thomas, joined by Justice Scalia, dissented from today’s order, 
which is no surprise given the recent similar dissents the two have 
issued. Some of the basis for the dissent raises some inside baseball 
issues at the Supreme Court. For example, there is a dispute over 
whether a state necessarily suffers irreparable harm whenever its laws 
are put on hold by a federal court on constitutional grounds.  Once 
again, the Supreme Court majority remained silent, leaving us to guess 
at the Court’s reasoning and rationale.  The Supreme Court’sshadow 
docket 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545130>andsecret 
decisionmaking 
<http://www.nytimes.com/2015/02/03/opinion/the-supreme-courts-secret-decisions.html?_r=0>grows 
ever more important and harder to defend. (I’vewritten about this 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>in the 
context of emergency voting cases.)

What struck me about today’s dissent was Justice Thomas’s recognition 
that these stay orders signal what is likely coming on the merits: a 
constitutional right to same sex marriage. (I think at this point the 
only question is the vote: I can see 5-4, 6-3 (with Roberts joining 
Kennedy and the liberals) or perhaps, though least likely 7-2 (with 
Alito coming too).)  The tone was one of resignation of what is coming 
and a lament about the loss of the power of the states.  Here is some 
language from Justice Thomas’s dissent (my emphasis):

    It was thus no surprise when we granted a stay in similar
    circumstances a little over a year ago. See Herbert v. Kitchen,
    supra. Nor was it a surprise when we granted a stay in similar
    circumstances less than six months ago. McQuigg v. Bostic, 573 U. S.
    ___ (2014). Those decisions reflected the appropriate respect we owe
    to States as sovereigns and to the people of those States who
    approved those laws. This application should have been treated no
    differently. That the Court more recently denied several stay
    applications in this context is of no moment. Those denials followed
    this Court’s decision in October not to review seven petitions
    seeking further review of lower court judgments invalidating state
    marriage laws. Although I disagreed with the decisions to deny those
    applications, Armstrong v. Brenner, ante, p. ___; Wilson v. Condon,
    ante, p. ___; Moser v. Marie, ante, p. ___,*I acknowledge that there
    was at least an argument that the October decision justified an
    inference that the Court would be less likely to grant a writ of
    certiorari to consider subsequent petitions*. That argument is no
    longer credible. The Court has now granted a writ of certiorari to
    review these important issues and will do so by the end of the Term.
    The Attorney General of Alabama is thus in an even better position
    than the applicant to whom we granted a stay in Herbert v. Kitchen.
    Yet rather than treat like applicants alike, the Court looks the
    other way as yet another Federal District Judge casts aside state
    laws without making any effort to preserve the status quo pending
    the Court’s resolution of a constitutional question it left open in
    United States v. Windsor, 570 U. S. ___ (2013) (slip op., at
    25–26).*This acquiescence may well be seen as a signal of the
    Court’s intended resolution of that question. This is not the proper
    way to discharge our Article III responsibilities*. And, it is
    indecorous for this Court to pretend that it is. Today’s decision
    represents yet another example of this Court’s increasingly cavalier
    attitude toward the States. Over the past few months, the Court has
    repeatedly denied stays of lower court judgments enjoining the
    enforcement of state laws on questionable constitutional grounds.
    See, e.g., Maricopa County v. Lopez-Valenzuela, 574 U. S. ___, ___
    (2014) (slip op., at 2) (THOMAS, J., joined by SCALIA, J.,
    respecting denial of application for stay) (collecting cases). It
    has similarly declined to grant certiorari to review such judgments
    w*ithout any regard for the people who approved those laws in
    popular referendums or elected the representatives who voted for
    them*. In this case, the Court refuses even to grant a temporary
    stay when it will resolve the issue at hand in several months. I
    respectfully dissent from the denial of this application.*I would
    have shown the people of Alabama the respect they deserve*and
    preserved the status quo while the Court resolves this important
    constitutional question

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    Bauer on the FEC’s McCutcheon Hearing
    <http://electionlawblog.org/?p=70187>

Posted onFebruary 9, 2015 7:29 am 
<http://electionlawblog.org/?p=70187>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here. 
<http://www.moresoftmoneyhardlaw.com/2015/02/upcoming-fec-hearing-uses/>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal 
election commission <http://electionlawblog.org/?cat=24>


    “Obama: Eliminate The Senate Filibuster”
    <http://electionlawblog.org/?p=70185>

Posted onFebruary 9, 2015 7:23 am 
<http://electionlawblog.org/?p=70185>byRick Hasen 
<http://electionlawblog.org/?author=3>

TPM reports. 
<http://talkingpointsmemo.com/livewire/obama-eliminate-the-filibuster>

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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>


    “Five Reasons Why You’re Too Dumb to Vote”
    <http://electionlawblog.org/?p=70183>

Posted onFebruary 9, 2015 7:20 am 
<http://electionlawblog.org/?p=70183>byRick Hasen 
<http://electionlawblog.org/?author=3>

National Review: 
<http://www.nationalreview.com/article/388945/five-reasons-why-youre-too-dumb-vote-kevin-d-williamson>

    I would like to suggest, as gently as I can, that if you are voting
    as an act of self-gratification, if you do not understand the role
    that voting in fact plays in a constitutional republic, and if you
    need Lena Dunham to tell you why and how you should be voting — you
    should not vote. If you get your politics from actors and your news
    from television comedians — you should not vote. There’s no shame in
    it, your vote is statistically unlikely to affect the outcome of an
    election, and there are many much more meaningful ways to serve your
    country and your fellow man: Volunteer at a homeless shelter; join
    the Marine Corps; become a nun; start a business.

Disgusting.

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Posted invoting <http://electionlawblog.org/?cat=31>


    “A legal use of power: Parties funnel millions to California
    candidates” <http://electionlawblog.org/?p=70181>

Posted onFebruary 9, 2015 7:16 am 
<http://electionlawblog.org/?p=70181>byRick Hasen 
<http://electionlawblog.org/?author=3>

SacBee 
<http://www.sacbee.com/news/investigations/the-public-eye/article9471695.html>on 
a huge issue in CA.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “5 Myths About Super PACs” <http://electionlawblog.org/?p=70179>

Posted onFebruary 9, 2015 7:14 am 
<http://electionlawblog.org/?p=70179>byRick Hasen 
<http://electionlawblog.org/?author=3>

Lenhard. <http://www.natlawreview.com/article/5-myths-about-super-pacs>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “On CCP’s Complaints: Tempest, Meet Teapot”
    <http://electionlawblog.org/?p=70177>

Posted onFebruary 9, 2015 7:14 am 
<http://electionlawblog.org/?p=70177>byRick Hasen 
<http://electionlawblog.org/?author=3>

Lessig blog. 
<http://lessig.tumblr.com/post/110334252807/on-ccps-complaints-tempest-meet-teapot>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “GOP-backed Indiana election law changes raise concerns they’ll make
    voting more difficult” <http://electionlawblog.org/?p=70175>

Posted onFebruary 8, 2015 10:10 am 
<http://electionlawblog.org/?p=70175>byRick Hasen 
<http://electionlawblog.org/?author=3>

AP reports. 
<http://www.dailyjournal.net/view/story/531ff33e2b6d4185b4971e618c951d4a/IN--Voting-Law-Changes/>

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>

-- 
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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