[EL] ELB News and Commentary 1/6/15
Rick Hasen
rhasen at law.uci.edu
Mon Jan 5 19:52:34 PST 2015
“Reining in the Purcell Principle” <http://electionlawblog.org/?p=69501>
Posted onJanuary 5, 2015 7:51 pm
<http://electionlawblog.org/?p=69501>byRick Hasen
<http://electionlawblog.org/?author=3>
I have postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>on SSRN (for
a March symposium on voting rights for the /Florida State University Law
Review/). Here is the abstract:
About a month before the 2014 election, the United States Supreme
Court issued a series of four extraordinary orders in election law
cases. Without any explanation, the Court: stayed a district court
order which would have required Ohio to restore extra days of early
voting; stayed a Fourth Circuit order (partially reversing a
district court) which would have restored same day voter
registration and the counting of certain provisional ballots in
North Carolina; vacated a Seventh Circuit stay of a district court
order barring Wisconsin from implementing its new strict voter
identification law; and refused to vacate a Fifth Circuit stay of a
district court order which would have barred Texas from continuing
to use its new strict voter identification law. The district court,
after a trial on the merits, had declared Texas’s law
unconstitutional and in violation of the Voting Rights Act.
The orders appeared contradictory, for example by allowing strict
voter identification requirements to be used on Election Day 2014 in
Texas but not Wisconsin. But the apparent common thread was the
Supreme Court’s application of “the Purcell principle:” the idea
that courts should not issue orders which change election rules in
the period just before the election. This idea has appeared in
earlier Supreme Court cases, most prominently in Purcell v.
Gonzalez, a 2006 short per curiam case in which the Court vacated a
Ninth Circuit injunction which had temporarily blocked use of
Arizona’s strict new voter identification law. In this symposium
Article, I argue the Supreme Court should rein in the Purcell
principle. Certainly the potential for voter confusion and electoral
chaos raise a strong public interest argument against last minute
changes in election rules. But under normal Supreme Court remedial
standards for considering stays and injunctions, the effect of a
court order on the public interest is only one factor to consider.
Although the precise test the Court uses in these emergency
situations is somewhat fluid and uncertain, there is no doubt that
ordinarily the Court considers the likelihood of success on the
merits and relative hardship to the parties as two crucial factors
in deciding whether to grant or vacate a stay or impose an
injunction. By making the Purcell principle paramount, the Court
runs the risk of issuing orders which can disenfranchise voters or
impose significant burdens on election administrators for no good
reason. Had the Court applied all the ordinary appropriate factors
for emergency relief to the four 2014 election cases, in addition to
special concerns attendant in election cases, there is a strong
argument it would have reached a different decision in at least the
Texas case and potentially in the North Carolina case.
Part I of this Article explains the tests the Court applies in
considering emergency stays and related orders, arguing that the
Purcell principle should properly be understood not as a stand-alone
rule but instead as relevant to one of the factors (the public
interest) the Court usually considers. Part II applies the proper
standards to the four 2014 emergency election cases considered by
the Supreme Court, arguing that the Court got it wrong in at least
the Texas case and possibly in the North Carolina case. Part III
briefly argues that, regardless of whether the Supreme Court agrees
with this call to rein in the Purcell principle, the Court should
issue opinions, even weeks or months after the Court acts in an
emergency elections case, explaining its reasoning. Such opinions
would provide valuable guidance to lower courts considering election
cases and help legitimize the Court’s actions by making them more
transparent. It also might discipline the Justices to decide
controversial cases more consistently.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“19 Years Later, Article by Kagan Echoes at the Supreme Court”
<http://electionlawblog.org/?p=69499>
Posted onJanuary 5, 2015 5:45 pm
<http://electionlawblog.org/?p=69499>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam Liptak Sidebar column.
<http://www.nytimes.com/2015/01/06/us/kagans-words-echo-at-the-supreme-court-19-years-later.html?ref=politics>
Back when Justice Kagan was a nominee, I looked at thissame
article<http://www.scotusblog.com/wp-content/uploads/2010/03/Private-Speech-Public-Purpose.pdf> by
Kagan on the First Amendment (focusing in particular its discussion of
the Supreme Court’s /Austin/case and campaign finance), and wroteThe Big
Ban Theory: Does Elena Kagan want to ban books? No, and she might even
be a free-speech zealot
<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/05/the_big_ban_theory.html>,
for /Slate./
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Who disagrees with ‘Selma’s’ portrayal of LBJ? Blacks in the civil
rights era.” <http://electionlawblog.org/?p=69497>
Posted onJanuary 5, 2015 4:08 pm
<http://electionlawblog.org/?p=69497>byRick Hasen
<http://electionlawblog.org/?author=3>
The Monkey Cage.
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/01/05/who-disagrees-with-selmas-portrayal-of-lbj-blacks-in-the-civil-rights-era/>
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“The State as Witness: Windsor, Shelby County, and Judicial Distrust
of the Legislative Record” <http://electionlawblog.org/?p=69495>
Posted onJanuary 5, 2015 3:11 pm
<http://electionlawblog.org/?p=69495>byRick Hasen
<http://electionlawblog.org/?author=3>
Bertrall Ross has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2544533>on SSRN
(/NYU Law Review/). Here is the abstract:
More than ever, the constitutionality of laws turns on judicial
review of an underlying factual record, assembled by lawmakers. Some
scholars have suggested that by requiring extensive records, the
Supreme Court is treating lawmakers like administrative agencies.
The assumption underlying this metaphor is that if the state puts
forth enough evidence in the record to support the law, its action
will survive constitutional scrutiny. What scholars have overlooked,
however, is that the Court is increasingly questioning the
credibility of the record itself. Even in cases where the state
produces adequate evidence to support its action, the Court
sometimes invalidates the law because it does not believe the
state’s facts. In these cases, the Court treats the state like a
witness in its own trial, subjecting the state’s record and the
conclusions drawn from it to rigorous cross-examination and
second-guessing.
In this “credibility-questioning” review of the record, the Court
appears to be animated by an implicit judgment about the operation
of the political process. When Justices consider the political
process to have functioned properly, they treat the state as a good
faith actor and merely check the adequacy of its evidence in the
record. But when Justices suspect that the democratic process has
malfunctioned because opponents of the law were too politically weak
or indifferent to challenge distortions in the record, they treat
the state as a witness, suspecting bias in its factual
determinations supporting the law.
In this Article, I both support and critique this new form of
review. Contrary to conventional wisdom, I argue courts should
engage in credibility-questioning review of the record when the
political process has malfunctioned. Public choice and pluralist
defect theory imply that the record supporting a law is more likely
to be distorted in contexts of democratic malfunction. But for
reasons of institutional legitimacy and separation of powers, I
argue courts should limit credibility-questioning review to contexts
where there is actual proof of democratic malfunction.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
“New IRS Rules on Dark Money Likely Won’t Be Ready Before 2016
Election” <http://electionlawblog.org/?p=69493>
Posted onJanuary 5, 2015 3:06 pm
<http://electionlawblog.org/?p=69493>byRick Hasen
<http://electionlawblog.org/?author=3>
ProPublica reports
<http://www.propublica.org/article/new-irs-rules-on-dark-money-likely-wont-be-ready-before-2016-election>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Double Dip: How Rand Paul Can Legally Tap His Biggest Donors Twice”
<http://electionlawblog.org/?p=69491>
Posted onJanuary 5, 2015 7:50 am
<http://electionlawblog.org/?p=69491>byRick Hasen
<http://electionlawblog.org/?author=3>
National Journal reports.
<http://www.nationaljournal.com/politics/double-dip-how-rand-paul-can-legally-tap-his-biggest-donors-twice-20150104>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Online Political Opinions Don’t Need Regulating; YouTube videos
expressing conservative views are an exercise of free speech, not a
reason to rein in the Internet.” <http://electionlawblog.org/?p=69489>
Posted onJanuary 5, 2015 7:43 am
<http://electionlawblog.org/?p=69489>byRick Hasen
<http://electionlawblog.org/?author=3>
FEC Commissioner Lee Goodman has writtenthis WSJ oped
<http://www.wsj.com/articles/lee-e-goodman-online-political-opinions-dont-need-regulating-1420155421>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“For the Wealthiest Political Donors, It Was a Very Good Year”
<http://electionlawblog.org/?p=69486>
Posted onJanuary 5, 2015 7:41 am
<http://electionlawblog.org/?p=69486>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg reports
<http://www.bloomberg.com/politics/articles/2014-12-31/for-the-wealthiest-political-donors-it-was-a-very-good-year>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Inexpensive Issues Speech and the Regulation of Impact”
<http://electionlawblog.org/?p=69484>
Posted onJanuary 5, 2015 7:10 am
<http://electionlawblog.org/?p=69484>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs.
<http://www.moresoftmoneyhardlaw.com/2015/01/inexpensive-issues-speech-regulation-impact/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Race and Voting Rights in Ferguson”
<http://electionlawblog.org/?p=69482>
Posted onJanuary 4, 2015 8:53 pm
<http://electionlawblog.org/?p=69482>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT editorial.
<http://www.nytimes.com/2015/01/05/opinion/race-and-voting-rights-in-ferguson.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region®ion=c-column-top-span-region&WT.nav=c-column-top-span-region>
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Posted inVoting Rights Ac <http://electionlawblog.org/?cat=15>
--
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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