[EL] ELB News and Commentary 2/26/15
Rick Hasen
rhasen at law.uci.edu
Wed Feb 25 21:56:50 PST 2015
Off to University of Alabama Voting Rights Act Symposium
<http://electionlawblog.org/?p=70565>
Posted onFebruary 25, 2015 9:55 pm
<http://electionlawblog.org/?p=70565>byRick Hasen
<http://electionlawblog.org/?author=3>
Looking forward to this
<http://www.law.ua.edu/calendar/event/50th-anniversary-of-the-voting-rights-act-symposium/>.
I’ll be talking about theAlabama redistricting case
<http://www.scotusblog.com/?p=220511>,awaiting
decision<http://www.scotusblog.com/?p=221453>at the Supreme Court.
Regular blogging resumes on Monday.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70565&title=Off%20to%20University%20of%20Alabama%20Voting%20Rights%20Act%20Symposium&description=>
Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Obama Calls Out America’s Dismal Voter Turnout: ‘Why Are You
Staying Home?'” <http://electionlawblog.org/?p=70563>
Posted onFebruary 25, 2015 9:51 pm
<http://electionlawblog.org/?p=70563>byRick Hasen
<http://electionlawblog.org/?author=3>
HuffPo.
<http://www.huffingtonpost.com/2015/02/25/obama-voter-turnout-immigration_n_6756606.html?utm_hp_ref=politics&ir=Politics>
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70563&title=%E2%80%9CObama%20Calls%20Out%20America%E2%80%99s%20Dismal%20Voter%20Turnout%3A%20%E2%80%98Why%20Are%20You%20Staying%20Home%3F%27%E2%80%9D&description=>
Posted invoting <http://electionlawblog.org/?cat=31>
“Kansas Senate advances bill giving Kobach power to prosecute
election crimes” <http://electionlawblog.org/?p=70561>
Posted onFebruary 25, 2015 9:45 pm
<http://electionlawblog.org/?p=70561>byRick Hasen
<http://electionlawblog.org/?author=3>
What
<http://www2.ljworld.com/news/2015/feb/24/senate-advances-bill-giving-secretary-state-power-/>could
go wrong?
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70561&title=%E2%80%9CKansas%20Senate%20advances%20bill%20giving%20Kobach%20power%20to%20prosecute%20election%20crimes%E2%80%9D&description=>
Posted inUncategorized <http://electionlawblog.org/?cat=1>
Josh Douglas: “The Right to Vote Amendment is Worth At Least One
Candle: A Reply to Heather Gerken” <http://electionlawblog.org/?p=70559>
Posted onFebruary 25, 2015 9:38 pm
<http://electionlawblog.org/?p=70559>byRick Hasen
<http://electionlawblog.org/?author=3>
The following is a guest post fromJosh Douglas
<http://www.law.uky.edu/index.php?hid=93>:
A new constitutional amendment affirmatively granting the right to
vote could have a significant impact on protecting voting rights for
all Americans. Most significantly – and perhaps paradoxically – we
are likely to see the biggest effects of a federal amendment where
we least expect it: in state courts.
Professor Heather Gerken, in a characteristically eloquent and
well-reasonednew <http://electionlawblog.org/?p=70486>article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567394>, claims
that pursuing a new constitutional amendment enshrining the right to
vote is “not worth the candle.” The heart of Professor Gerken’s
argument is that the benefits of a new right-to-vote amendment do
not justify the costs involved, particularly as Supreme Court
Justices and other federal judges are unlikely to alter the scope of
voting rights analysis given the likelihood that, to pass, the
amendment’s language would have to be too vague.
But a constitutional amendment granting the right to vote does not
need federal judges, or even the U.S. Supreme Court, to have a big
impact. That is because many state courts follow federal law even
when construing their own state constitutions. So a new provision
in the federal Constitution, even if couched in broad platitudes,
will have corollary effects on state constitutional law.
The doctrinal implication of a federal right-to-vote amendment
depends on a concept known as “lockstepping,” which I discussed
inthis article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234762>analyzing state
constitutional protection for the right to vote.
Many rights are listed in both federal and state constitutions. Yet
even when state constitutional protection is textually broader than
what is afforded under the U.S. Constitution, many state courts
simply follow – or lockstep – their state constitutions to be in
line with the federal constitution. The right to vote is a perfect
example of this phenomenon. Every state constitution
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234762>(besides
Arizona’s) affirmatively confers the right to vote to the state’s
citizens, a broader grant than the lack of an explicit right within
the U.S. Constitution. Yet many state courts lockstep their
state-level protection so that it is the same as the U.S. Supreme
Court’s more restrictive interpretation of the federal right to vote.
A U.S. constitutional amendment affirmatively granting the right to
vote would have a trickle down effect on these state courts. No
longer would state judges be able to lockstep the state
constitution’s grant of voting rights with the U.S. Supreme Court’s
narrow jurisprudence. Instead, a state court that chooses to
lockstep would follow the analogous explicit right within the U.S.
Constitution, making the protection in the state and federal
constitutions coextensive – and broader than it is now.
Having an affirmative constitutional right to vote makes a
difference in judicial decision making at the state level. Courts
that currently lockstep their state constitutions with federal law
tend to rule more narrowly toward voting rights; state courts that
independently construe their state constitutional right-to-vote
provisions as broader than federal law tend to rule more expansively
toward voting rights. The hot-button issue of voter ID provides a
great example. In 2008, the U.S. Supreme Court upheld Indiana’s
voter ID law under the Equal Protection Clause of the Fourteenth
Amendment. Litigants then turned to state courts around the country,
challenging voter ID laws under the state constitutions’ more
explicit and broader right-to-vote provisions. Courts that properly
construed their state constitutions as going beyond the federal
constitution, such as in Pennsylvania and Arkansas, invalidated the
voter ID laws. But courts that lockstepped their state
constitutional protection with federal law, such as in Georgia and
Wisconsin, generally upheld the state’s laws. If there were a
right-to-vote provision in the U.S. Constitution, it is more likely
that these courts would have lockstepped their state constitutions
with that broader federal protection.
Further, as I recount in anew article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2495078>, state
courts resolve tons of election law cases, dealing with voter ID,
felon disenfranchisement, and the voting process, among others. By
and large, when state courts lockstep their state constitutions with
federal law, they provide less protection to the right to vote.
Although lockstepping in this setting is itself problematic (for
reasons I discuss in my article), a federal right-to-vote amendment
would mitigate that concern. Even if federal courts might be slow
to adapt, state courts that currently lockstep would have to
recognize this change in federal law and adjust accordingly.
A constitutional amendment granting the right to vote would thus
have an impact that goes well beyond the federal judiciary. It
could affect hundreds or thousands of cases at the state level –
which is, after all, where the majority of election litigation
occurs. This is a meaningful change that is worth the effort: in
addition to its many other virtues – such as signaling the
importance of voting rights and energizing people to care about this
issue – a constitutional amendment can have a significant
substantive effect on state court protection of the right to vote.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70559&title=Josh%20Douglas%3A%20%E2%80%9CThe%20Right%20to%20Vote%20Amendment%20is%20Worth%20At%20Least%20One%20Candle%3A%20A%20Reply%20to%20Heather%20Gerken%E2%80%9D&description=>
Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
“Foreign governments gave millions to foundation while Clinton was
at State Dept.” <http://electionlawblog.org/?p=70557>
Posted onFebruary 25, 2015 5:04 pm
<http://electionlawblog.org/?p=70557>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/politics/foreign-governments-gave-millions-to-foundation-while-clinton-was-at-state-dept/2015/02/25/31937c1e-bc3f-11e4-8668-4e7ba8439ca6_story.html?postshare=3671424911701912>:
TheClinton Foundation <https://www.clintonfoundation.org/>accepted
millions of dollars from seven foreign governments during Hillary
Rodham Clinton’s tenure as secretary of state, including one
donation that violated its ethics agreement with the Obama
administration, foundation officials disclosed Wednesday.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70557&title=%E2%80%9CForeign%20governments%20gave%20millions%20to%20foundation%20while%20Clinton%20was%20at%20State%20Dept.%E2%80%9D&description=>
Posted inconflict of interest laws <http://electionlawblog.org/?cat=20>
McGinley and McGahn on Aaron Schock Case
<http://electionlawblog.org/?p=70555>
Posted onFebruary 25, 2015 3:10 pm
<http://electionlawblog.org/?p=70555>byRick Hasen
<http://electionlawblog.org/?author=3>
This could get interesting
<http://www.politico.com/story/2015/02/schock-lawyers-up-115476.html>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70555&title=McGinley%20and%20McGahn%20on%20Aaron%20Schock%20Case&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“The Next Attack on Voting Rights; And why Democrats should fight
for a constitutional right-to-vote amendment.”
<http://electionlawblog.org/?p=70552>
Posted onFebruary 25, 2015 2:00 pm
<http://electionlawblog.org/?p=70552>byRick Hasen
<http://electionlawblog.org/?author=3>
Jamelle Bouie
<http://www.slate.com/articles/news_and_politics/politics/2015/02/the_next_republican_attack_on_voting_right_democrats_should_fight_for_a.html>for
Slate.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70552&title=%E2%80%9CThe%20Next%20Attack%20on%20Voting%20Rights%3B%20And%20why%20Democrats%20should%20fight%20for%20a%20constitutional%20right-to-vote%20amendment.%E2%80%9D&description=>
Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Today’s #SCOTUS Yates Ruling Tells Us Nothing About Obamacare
Challenge: Analysis <http://electionlawblog.org/?p=70550>
Posted onFebruary 25, 2015 12:18 pm
<http://electionlawblog.org/?p=70550>byRick Hasen
<http://electionlawblog.org/?author=3>
Over at the CAC, Brianne Gorod
<http://theusconstitution.org/text-history/3133/government%E2%80%99s-loss-supreme-court-today-may-signal-more-important-win-down-road>sees
good things for the government’s position in /King v. Burwell/
<http://www.scotusblog.com/case-files/cases/king-v-burwell/?wpmp_switcher=desktop>based
on today’s ruling in the Yates (fish) case at the Supreme Court:
With the Supreme Court scheduled to hear oral argument in/King v.
Burwell/next week, those looking for clues as to what the Court will
decide later this year when it rules in/King/need look no further
than a very different case the Court decided today. In/Yates v.
United States/, the Court held, in a fractured 4-1-4 decision, that
a provision of the Sarbanes-Oxley Act that bars the destruction of
“tangible object[s]” does not apply to the destruction of fish
(specifically, red grouper). In their opinions in/Yates/, the
plurality and the dissent didn’t agree about much, but there’s one
thing they did agree on, and that principle is key to why the
government should win in/King/: when you’re interpreting a law,
context matters.
In/King/, the Court has been asked to decide whether the tax credits
that put the “affordable” in the Affordable Care Act are available
to all Americans who meet the income criteria, or only to those who
purchase their insurance on state-run Exchanges. When one looks at
the whole statute in/King/, the answer is clear: tax credits are
available to all Americans who qualify based on income, regardless
of whether they purchase insurance on a state-run or a
federally-facilitated Exchange. The argument made by the law’s
challengers rests on a facile reading of four words—“established by
the State”—that appear in the formula for calculating the/amount/of
the tax credit (not eligibility for it), as well as the argument
that one need not look any further than those four words when trying
to understand what the statute means. Today’s opinion
in/Yates/makes clear how wrong those arguments are.
I disagree, and think that /Yates/tells us nothing in how the Court will
rule in the Obamacare challenge. I say this for two reasons.
First, the general principles of statutory interpretation discussed by
the Court (with the exception of the question of reliance on legislative
history) are accepted, on at least a superficial level, by all nine
Justices. Consider, for example, the rule that courts should read
statutes /in context. /Here is what Justice Kagan in /dissent/says on
this point: “That is not necessarily the end of the matter; I agree with
the plurality (really, who does not?) that context matters in
interpreting statutes.” “Really, who does not?” indicates the problem.
There are enough different rules of statutory interpretation that can
push or pull in a case like /Yates/or /King/that stating the general
principle does not bind any Justice to decide a case one way or another.
Second, most cases in most courts, including most cases at the Supreme
Court, involve issues where precedent (and sometimes accepted means of
interpretation) are a very good predictor of how a court will rule. That
is, in many cases, judges (and Justices) do their best to apply close
precedent to issues before the Court. (It is less true that means of
interpretation are seen as precedential, but that’s not my main point).
But in a small class of cases with a very strong ideological valence,
you can throw the usual rules of interpretation out the window. The
Justices are much more likely in these cases to be (subconsciously?)
swayed by their ideological commitments, world view, and consideration
of the consequences of a ruling than by application of earlier precedent.
I would not be surprised in the/King /case if both the majority and
dissent cite /Yates /to support their side’s argument. But if anyone
really thinks any Justice’s vote in /King v. Burwell/will depend upon
what the Court did in /Yates/, I’d be very, very surprised.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70550&title=Today%E2%80%99s%20%23SCOTUS%20Yates%20Ruling%20Tells%20Us%20Nothing%20About%20Obamacare%20Challenge%3A%20Analysis&description=>
Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Chicago voters overwhelmingly endorse campaign finance reform”
<http://electionlawblog.org/?p=70547>
Posted onFebruary 25, 2015 11:18 am
<http://electionlawblog.org/?p=70547>byRick Hasen
<http://electionlawblog.org/?author=3>
Al Jazeera
<http://america.aljazeera.com/blogs/scrutineer/2015/2/25/chicago-voters-overwhelmingly-endorse-campaign-finance-reform.html>:
Chicago voters endorsed by a wide margin Tuesdaya plan to institute
public campaign financing and limit outside contributions
<http://america.aljazeera.com/blogs/scrutineer/2015/2/19/chicago-initiative-seeks-to-give-small-donors-bigger-voice.html>.
The ballot measure, though non-binding, begins a process that will
now move to city and state government, where legislation would be
drafted.
Asked whether the city of Chicago and the state of Illinois should
“reduce the influence of special interest money in elections by
financing campaigns using small contributions from individuals and a
limited amount of public money,”voters signaled yes by a 58-point
margin, 79 percent to 21 percent
<http://elections.chicagotribune.com/results/#category/chicago_referendums>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70547&title=%E2%80%9CChicago%20voters%20overwhelmingly%20endorse%20campaign%20finance%20reform%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>
“The Relationship Market: How Modern Lobbying Gets Done”
<http://electionlawblog.org/?p=70545>
Posted onFebruary 25, 2015 11:16 am
<http://electionlawblog.org/?p=70545>byRick Hasen
<http://electionlawblog.org/?author=3>
Very important analysis
<http://ethics.harvard.edu/blog/relationship-market-how-modern-lobbying-gets-done>from
Maggie McKinley and Thomas Groll over at Harvard’s Safra.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70545&title=%E2%80%9CThe%20Relationship%20Market%3A%20How%20Modern%20Lobbying%20Gets%20Done%E2%80%9D&description=>
Posted incampaign finance
<http://electionlawblog.org/?cat=10>,legislation and legislatures
<http://electionlawblog.org/?cat=27>,lobbying
<http://electionlawblog.org/?cat=28>
“Senators Are Announcing Retirements Earlier. Fund-Raising Plays a
Big Role.” <http://electionlawblog.org/?p=70543>
Posted onFebruary 25, 2015 11:13 am
<http://electionlawblog.org/?p=70543>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT’s “The Upshot:”
<http://www.nytimes.com/2015/02/26/upshot/senators-are-announcing-retirements-earlier-fund-raising-plays-a-big-role.html?_r=0&abt=0002&abg=1>
If you’re a United States senator thinking about retiring before the
November 2016 elections, the clock is ticking.
Since 1991, more than 80 percent of senators who have announced
their retirements already did so by January of their election years.
From 1920 through 1990, just 46 percent of retiring senators did the
same, according toa new paper
<http://www.gvpt.umd.edu/karol/Forcing%20their%20Hands__.pdf>by
David Karol, a professor of government and politics at the
University of Maryland.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70543&title=%E2%80%9CSenators%20Are%20Announcing%20Retirements%20Earlier.%20Fund-Raising%20Plays%20a%20Big%20Role.%E2%80%9D&description=>
Posted incampaign finance
<http://electionlawblog.org/?cat=10>,legislation and legislatures
<http://electionlawblog.org/?cat=27>
Podcast with Michael Morley on Arizona Redistricting Case
<http://electionlawblog.org/?p=70541>
Posted onFebruary 25, 2015 11:12 am
<http://electionlawblog.org/?p=70541>byRick Hasen
<http://electionlawblog.org/?author=3>
Northwestern University Law Review Online is pleased to announce its
publication of apodcast
<http://colloquy.law.northwestern.edu/main/2015/02/conversation-with-professor-michael-t-morley.html> with
Professor Michael Morley discussing his recent essay,/The
Intratextual Independent “Legislature” and the Elections Clause
<http://colloquy.law.northwestern.edu/main/2015/01/intratextual-legislatures.html>/.
In the essay, Professor Michael Morley assesses the Constitution’s
Elections Clause and how the Supreme Court might interpret the
clause in/Arizona State Legislature v. Arizona Independent
Redistricting Commission/(set for oral argument on March 2). The
case will decide whether an Arizona voter initiative vesting
congressional redistricting authority in an independent commission
rather than the state legislature violates the Constitution’s
Elections Clause. Morley employs “intratextualism” to interpret the
Elections Clause, carefully assessing the use of “legislature” in
other parts of the United States Constitution and founding-era state
constitutions. This analysis leads Morley to conclude that the
Arizona’s voter initiative is unconstitutional, because it
completely removes the state legislature’s congressional
redistricting authority.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70541&title=Podcast%20with%20Michael%20Morley%20on%20Arizona%20Redistricting%20Case&description=>
Posted incitizen commissions
<http://electionlawblog.org/?cat=7>,Elections Clause
<http://electionlawblog.org/?cat=70>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Unlimited and Undisclosed: The Religious Right’s Crusade to
Deregulate Political Spending” <http://electionlawblog.org/?p=70539>
Posted onFebruary 25, 2015 11:06 am
<http://electionlawblog.org/?p=70539>byRick Hasen
<http://electionlawblog.org/?author=3>
New Common Cause report
<http://www.commoncause.org/research-reports/unlimited-and-undisclosed.html>:
Common Cause’s new report, “Unlimited and Undisclosed: The Religious
Right’s Crusade to Deregulate Political Spending,” focuses on how
one particular interest group has waged war on important campaign
finance laws in order to allow more big money in our political system.
*The new report explores:*
* How religious right, anti-marriage equality, and anti-abortion
organizations have served as plaintiffs in over 70 lawsuits
challenging campaign finance laws over the last twenty years at
the state, local, and federal level.
* How James Bopp, a prominent conservative attorney, uses
Republican and religious right organizations as a vehicle to
derail campaign finance laws, including in high profile cases
such as Citizens United and McCutcheon, which have contributed
to the flood of money in our elections.
* The political spending of religious right groups to support
Republican candidates over the last two decades, and how it has
increased since the /Citizens United/.
* The work of religious right groups against disclosure laws that
would require big political spenders such as the National
Organization for Marriage and the National Right to Life
Committee to disclose their donors who give for the purpose of
influencing elections.
*>READ THE REPORT<
<http://www.commoncause.org/research-reports/unlimited-and-undisclosed.pdf>*
Unlimited and Undisclosed: The Religious Right’s Crusade to
Deregulate Political Spending
<http://www.commoncause.org/research-reports/unlimited-and-undisclosed.pdf>
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70539&title=%E2%80%9CUnlimited%20and%20Undisclosed%3A%20The%20Religious%20Right%E2%80%99s%20Crusade%20to%20Deregulate%20Political%20Spending%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>
--
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150225/3698c3ce/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150225/3698c3ce/attachment.png>
View list directory