[EL] ELB News and Commentary 1/17/15

Fri Jan 16 21:55:20 PST 2015

    Read Seth Waxman’s SCOTUS Brief for Arizona Redistricting Commission
    <http://electionlawblog.org/?p=69716>

Posted onJanuary 16, 2015 9:48 pm 
<http://electionlawblog.org/?p=69716>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here 
<http://electionlawblog.org/wp-content/uploads/arizona-commission-brief.pdf>.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    “When Can a Judge Ask, ‘Write Me a Check’?”
    <http://electionlawblog.org/?p=69714>

Posted onJanuary 16, 2015 4:50 pm 
<http://electionlawblog.org/?p=69714>byRick Hasen 
<http://electionlawblog.org/?author=3>

Garrett 
Epps<http://www.theatlantic.com/politics/archive/2015/01/when-can-a-judge-ask-write-me-a-check/384606/>on 
/Williams-Yulee./

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,judicial 
elections <http://electionlawblog.org/?cat=19>,Supreme Court 
<http://electionlawblog.org/?cat=29>

    “Tycoon dough: The ultimate electoral martial art”
    <http://electionlawblog.org/?p=69712>

Posted onJanuary 16, 2015 3:55 pm 
<http://electionlawblog.org/?p=69712>byRick Hasen 
<http://electionlawblog.org/?author=3>

Larry Noden and Daniel Weiner 
<http://blogs.reuters.com/great-debate/2015/01/16/tycoon-dough-the-ultimate-electoral-martial-art/>for 
Reuters Opinion.

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

    “Jeb Bush’s Decision To ‘Actively Explore’ 2016 Run Allows Him To
    Avoid Super PAC Rules” <http://electionlawblog.org/?p=69709>

Posted onJanuary 16, 2015 3:52 pm 
<http://electionlawblog.org/?p=69709>byRick Hasen 
<http://electionlawblog.org/?author=3>

Paul 
Blumental<http://www.huffingtonpost.com/2015/01/16/jeb-bush-super-pac_n_6487380.html>for 
HuffPo:

    When former Florida Gov. Jeb Bush (R)waded into the 2016
    presidential race
    <http://www.huffingtonpost.com/2014/12/16/jeb-bush-president_n_6333658.html>in
    December, he did so with some awkward wording. He stated that he
    would “actively explore the possibility of running for President of
    the United States.”

    This hedged language on the part of a politician whose father and
    brother have each served in the White House could represent some
    hesitation on Bush’s part as to whether he wants to run. But, it’s
    also convenient phrasing to provide Bush with a legal loophole
    permitting him to avoid numerous campaign finance regulations and to
    raise money and coordinate with his very own personal super PAC — at
    least until he officially declares he is done exploring
    possibilities and commits to a run.

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

    Has #SCOTUS Stacked the Deck Against Gay Marriage in How It Has
    Framed the Question? <http://electionlawblog.org/?p=69702>

Posted onJanuary 16, 2015 12:53 pm 
<http://electionlawblog.org/?p=69702>byRick Hasen 
<http://electionlawblog.org/?author=3>

The Supreme Court’s decision 
<http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf>to 
hear the gay marriage cases today came accompanied by some strange 
rephrasing of the questions presented:

    The cases are consolidated and the petitions for writs of certiorari
    are granted limited to the following questions: 1) Does the
    Fourteenth Amendment require a state to license a marriage between
    two people of the same sex? 2) Does the Fourteenth Amendment require
    a state to recognize a marriage between two people of the same sex
    when their marriage was lawfully licensed and performed
    out-of-state? A total of ninety minutes is allotted for oral
    argument on Question 1. A total of one hour is allotted for oral
    argument on Question 2. The parties are limited to filing briefs on
    the merits and presenting oral argument on the questions presented
    in their respective petitions.

The first question presented is quite odd. Rather than ask about an 
equal right of gays and lesbians to marry same sex partners, it asks 
about the right of the /states /to deny same sex marriage licenses. This 
not only phrases it as an equal protection type claim, but of course 
leaves open the possibility that states could get out of the marriage 
business entirely. This perhaps takes away issues related to the due 
process rights of same sex couples, and perhaps keeps the court from 
getting into questions about heightened scrutiny for sexual orientation 
discrimination.

The framing of these questions apparently differ from the way the 
questions were presented in all of the petitions, which raises the 
question of why were they rewritten (with an accompanying direct 
order—I’ve not seen that before—admonishing the parties to stick with 
discussing these questions presented). This strikes me as the handiwork 
of the Chief Justice, perhaps looking for a way to have as narrow a win 
for same sex couples as it is possible to achieve. That is, if the Chief 
calculates that Kennedy and the liberals are going to reverse the Sixth 
Circuit no matter what, perhaps this is a way to have that majority 
write as narrow an opinion as possible, one that even the Chief could 
possibly join (hedging a bet against historical trends?).

This is of course speculation. Perhaps Justice Kennedy wanted the 
question framed in this odd way (though his earlier gay rights opinions 
do not suggest he would be averse to deciding the issue as to the rights 
of gay couples (and derivatively their children). But the delay in 
issuing today’s order, the deliberate reframing of the question, and the 
admonition to the parties to stick with the issues means something was 
afoot.

UPDATE: I’ve heard from a few people that the admonition related more to 
the fact that some of the petitions presented only one of these two 
issues, and the parties should each address only the one they’ve gone up 
on. That seems plausible.

[This post has been updated.]

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

    “Florida’s Ban on Direct Solicitation Has Significant Implications
    for Due Process” <http://electionlawblog.org/?p=69700>

Posted onJanuary 16, 2015 10:01 am 
<http://electionlawblog.org/?p=69700>byRick Hasen 
<http://electionlawblog.org/?author=3>

Kate Berry 
<http://www.brennancenter.org/blog/florida%E2%80%99s-ban-direct-solicitation-has-significant-implications-due-process>for 
the Brennan Center:

    In “A Minor Measure with Major Benefits before the Supreme Court?,”
    attorney Bob Bauerquestions
    <http://www.moresoftmoneyhardlaw.com/2014/12/minor-measure-major-benefits-supreme-court/>whether
    Florida’s rule prohibiting judicial candidates from personally
    soliciting campaign contributions can both be minor in scope and
    yield significant benefits. Bauer’s skepticism elides the fact that
    two distinct rights are at stake –– Florida’s rule imposes only a
    minor restriction on First Amendment speech, but it provides crucial
    due process protections.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,judicial 
elections <http://electionlawblog.org/?cat=19>

-- 
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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