[EL] breaking news/ELB News and Commentary 6/29/15
Rick Hasen
rhasen at law.uci.edu
Mon Jun 29 06:40:42 PDT 2015
Breaking: #SCOTUS Denies Cert in Kobach, Renzi Cases
<http://electionlawblog.org/?p=73829>
Posted onJune 29, 2015 6:34 am
<http://electionlawblog.org/?p=73829>byRick Hasen
<http://electionlawblog.org/?author=3>
The order list ishere
<http://www.supremecourt.gov/orders/courtorders/062915zor_4g25.pdf>.
This is a very big deal. Kobach had the potential to shift more power
away from the federal government in administering elections toward the
states. The question was whether the states of AZ and KS could force
the federal government to require citizenship documentation to accompany
the universal federal form for voter registration. This is a huge win
for those who want to see a greater federal role and uniformity in
elections. My earlier coverage of Kobach v. EAC ishere.
<http://electionlawblog.org/?p=72962>
The Renzi case was a serious test of the scope of the Speech or Debate
clause. At stake was the question whether that clause, which protects
legislators in what they say and do as legislators, could be used to
make it harder for federal authorities to investigate and prosecute
bribery and related offenses. My earlier coverage ishere
<http://electionlawblog.org/?p=73655>.
This takes two major potential election cases off next year’s docket,
leaving the major one person, one vote /Evenwel/case as the only one
right now on the Court docket. I wrote about /Evenwel,/and the AZ
redistricting case, which should be out any time,here at Slate.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html>
This post has been updated.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Justice Kennedy’s Brain <http://electionlawblog.org/?p=73826>
Posted onJune 28, 2015 12:51 pm
<http://electionlawblog.org/?p=73826>byRick Hasen
<http://electionlawblog.org/?author=3>
Jack Balkin deconstructs and reconstructs
<http://balkin.blogspot.com/2015/06/obergefell-and-equality.html>Justice
Kennedy’s equal protection argument in /Obergefell/, doing a much better
job than Justice Kennedy did.
One can fully support a Supreme Court decision recognizing a
constitutional right to same sex marriage while still seeing Justice
Kennedy’s opinion as intellectually weak. Jack goes a long way towards
its rehabilitation.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Is Chief Justice Roberts Really Consistent? Think Citizens United
and Shelby County <http://electionlawblog.org/?p=73824>
Posted onJune 28, 2015 11:34 am
<http://electionlawblog.org/?p=73824>byRick Hasen
<http://electionlawblog.org/?author=3>
Jeffrey Rosen
<http://www.nytimes.com/2015/06/28/opinion/john-roberts-the-umpire-in-chief.html?_r=0>makes
the case in the NYT Sunday Review, seeing a similar deference/minimalism
in deferring to the political branches in the same sex marriage and
Obamacare cases.
But what about his utter lack of deference in the campaign finance and
voting rights areas? Rosen says:
However, the chief justice’s commitment to judicial restraint and a
limited conception of the court’s institutional role is not
unvarying. He has written or joined opinions striking down federal
campaign finance laws and voting rights laws. Earlier last week, he
wrote an opinion for the court that removes one of the last New Deal
farm programs propping up price supports for raisins as a violation
of the Fifth Amendments prohibition on takings of property without
just compensation. In all of these cases, however, Chief Justice
Roberts identified a particular clause of the Constitution — the
First Amendment, the Fifth Amendment or the 14th Amendment — that he
believed invalidated the federal law in question. In the marriage
equality case, he concluded that no clause of the Constitution
clearly protected a right of marriage equality, which is why he
accused the majority of substituting its own policy preferences for
those of the people, as reflected in state legislation.
This is unconvincing because those clauses (First Amendment’s free
speech clause, or the equal protection clause, or for that matter the
15th amendment) are not self-defining or limited in thinking about the
role of the courts versus the role of the democratic process.
Indeed, I think my dean,Erwin Chemerinsky
<http://www.scotusblog.com/2015/06/symposium-a-landmark-victory-for-civil-rights/>,
has the better of the argument on this point:
The difference between the majority and the dissents, and between
the liberal and conservative commentators, is about the appropriate
role of the Supreme Court in a democratic society. Not
surprisingly, the four dissenting opinions all accuse the majority
of undue judicial activism and usurping the democratic process.
This is always the dissent’s charge when the majority strikes down a
law. Of course, none of the four dissenters seemed the least bit
concerned with deference to the political process or avoiding
judicial activism when two years ago they all were part of the
majority in striking down key provisions of the Voting Rights Act
that had been passed almost unanimously by Congress and signed into
law by President George W. Bush. In that case,/Shelby County v.
Holder
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>/,
it was not even possible to tell what constitutional provision the
majority thought was violated by the Voting Rights Act. None of the
four dissenters were the least bit concerned with deferring to the
political process when they declared unconstitutional key provisions
of the Bipartisan Campaign Finance Reform Act in/Citizens United v.
Federal Election Commission
<http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/>/.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“One-Third Of Congressional Districts Could Be Affected By Supreme
Court Ruling” <http://electionlawblog.org/?p=73822>
Posted onJune 28, 2015 11:28 am
<http://electionlawblog.org/?p=73822>byRick Hasen
<http://electionlawblog.org/?author=3>
NPR reports.
<http://www.npr.org/sections/itsallpolitics/2015/06/28/417530683/one-third-of-congressional-districts-could-be-affected-by-supreme-court-ruling>
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Posted inElections Clause
<http://electionlawblog.org/?cat=70>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Supreme Court Decision On Arizona’s Congressional District Maps
Coming Monday” <http://electionlawblog.org/?p=73820>
Posted onJune 28, 2015 11:27 am
<http://electionlawblog.org/?p=73820>byRick Hasen
<http://electionlawblog.org/?author=3>
I spoke withMark Brodie of KJZZ
<http://kjzz.org/content/158492/supreme-court-decision-arizonas-congressional-district-maps-coming-monday>about
the case expected to come down Monday.
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Posted inElections Clause <http://electionlawblog.org/?cat=70>,Supreme
Court <http://electionlawblog.org/?cat=29>
Latest Issue of NCSL’s The Canvass Now Available
<http://electionlawblog.org/?p=73818>
Posted onJune 26, 2015 2:49 pm
<http://electionlawblog.org/?p=73818>byRick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.ncsl.org/research/elections-and-campaigns/states-and-election-reform-the-canvass-june-2015.aspx>
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Posted inelection administration <http://electionlawblog.org/?cat=18>
Arizona on the Mind: A Response to Rick Pildes
<http://electionlawblog.org/?p=73813>
Posted onJune 26, 2015 12:49 pm
<http://electionlawblog.org/?p=73813>byBob Bauer, guest-blogger
<http://electionlawblog.org/?author=10>
My friend and NYU colleague Rick Pildes, anticipating the Supreme
Court’s ruling in the Arizona redistricting case,argues strongly
<http://electionlawblog.org/?p=73791>for the Court to let independent
redistricting commissions flourish. The question presented – – whether
“legislature” can be read to mean an independent, unelected body to
which complete redistricting authority is delegated – – strikes Rick as
somewhat beside the point.
The Framers could not have thought about this question, Rick writes, and
so could not have ruled out this institutional innovation. While “not
naïve about the risk that officeholders would try to aggrandize their
own power”, they “didn’t have in their mental toolbox the possibility
of the kind of specialized, relatively independent institutions that
later emerged for tasks like drawing election districts or regulating
other aspects of the democratic process.” Other democracies have worked
successfully with these institutions, and Rick contends that ours should
be able to do so as well, as an effective means of addressing partisan
self-interestedness in the drawing of district lines.
We will see Monday, of course, how all this goes. But Rick’s
interesting argument relies on a few assumptions that merit a close look.
Continue reading→ <http://electionlawblog.org/?p=73813#more-73813>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29> |Taggedredistricting
<http://electionlawblog.org/?tag=redistricting>,Supreme Court
<http://electionlawblog.org/?tag=supreme-court>
“Super Pacs and republication of campaign material”
<http://electionlawblog.org/?p=73810>
Posted onJune 26, 2015 10:23 am
<http://electionlawblog.org/?p=73810>byRick Hasen
<http://electionlawblog.org/?author=3>
David Keating
<http://www.campaignfreedom.org/2015/06/26/super-pacs-and-republication-of-campaign-material/>takes
issue with some recent National Journal coverage, linked to at this blog.
Seems like David is right.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Registration Now Open: All Star Line Up for UCI #SCOTUS Term in
Review Event July 13 <http://electionlawblog.org/?p=71881>
Posted onJune 26, 2015 9:50 am
<http://electionlawblog.org/?p=71881>byRick Hasen
<http://electionlawblog.org/?author=3>
[Bumped to the Top]
Wow this will be great
<http://www.law.uci.edu/events/supreme-court-term-review/2015.html>,
especially given the high profile cases this term:
5th Annual Supreme Court Term in Review
/Monday, July 13, 2015, 12:00–1:30 P.M.
UCI Student Center, Pacific Ballroom (Map
<http://www.studentcenter.uci.edu/files/map-directions-sc.pdf>)/
This exciting and entertaining program reviews the Supreme Court’s
key cases decided in the October 2014 term, with an all-star panel
of Supreme Court practitioners, journalists, and academics.
Panelists
* Erwin Chemerinsky
<http://www.law.uci.edu/faculty/full-time/chemerinsky/index.html>,
UCI Law
* Linda Greenhouse <http://www.law.yale.edu/faculty/7296.htm>,
Yale Law School/The New York Times
* Song Richardson
<http://www.law.uci.edu/faculty/full-time/richardson/index.html>, UCI
Law
* Kannon K. Shanmugam <https://www.wc.com/kshanmugam>, Williams &
Connolly LLP
* Hon. Jeffrey S. Sutton
<http://www.uscourts.gov/JudgesAndJudgeships/BiographicalDirectoryOfJudges.aspx>,
U.S. Court of Appeals for the Sixth Circuit
* Moderated byRick Hasen
<http://www.law.uci.edu/faculty/full-time/hasen/index.html>, UCI Law
The event will also be webcast, with viewers able to submit
questions via Twitter, using the hash tag*#ucilawscotus*at the end
of your question.
This event is approved for 1.5 hours of Minimum Continuing Legal
Education Credit by the State Bar of California.
UC Irvine School of Law is a State Bar-approved MCLE provider.
*Registration is now open.Click here to register
<https://ucisl.ejoinme.org/MyEvents/5thAnnualSupremeCourtTerminReview/tabid/694676/Default.aspx>*
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Texas Files Response to Emergency Stay Request in Key Abortion Case
<http://electionlawblog.org/?p=73805>
Posted onJune 26, 2015 9:18 am
<http://electionlawblog.org/?p=73805>byRick Hasen
<http://electionlawblog.org/?author=3>
Read it here
<http://electionlawblog.org/wp-content/uploads/14A1288-WWH-TX-Response.pdf>.
My earlier coverage of the timing issues with this case ishere.
<http://electionlawblog.org/?p=73668>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
CJ Roberts’ Empirical Prediction About Same Sex Marriage Acceptance
is Almost Certainly Wrong <http://electionlawblog.org/?p=73803>
Posted onJune 26, 2015 9:06 am
<http://electionlawblog.org/?p=73803>byRick Hasen
<http://electionlawblog.org/?author=3>
In his dissent inObergefell v. Hodges
<http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf> CJ Roberts
writes:
Stealing this issue from the people will for many cast a cloud over
same-sex marriage, making a dramatic social change that much more
difficult to accept.
That seems quite unlikely. Think of /Loving v. Va, /striking down bans
on interracial marriage, and laws barring de jure discrimination
generally. This has not led to /more/discrimination. It has led to less.
By the next generation, same sex marriage will be no big deal for almost
everyone in the country. Legality brings normalization, not the other
way around. The battle is over.
I find it hard to believe that Chief Justice Roberts actually believes
this. And one can buy the rest of his argument (about leaving it to the
democratic process) without this empirical prediction.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Four Key Unanswered Questions in Obergefell
<http://electionlawblog.org/?p=73800>
Posted onJune 26, 2015 8:54 am
<http://electionlawblog.org/?p=73800>byRick Hasen
<http://electionlawblog.org/?author=3>
Here is my list of the key unanswered questions inObergefell v. Hodges
<http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>.:
1. What level of scrutiny applies to claims of discrimination against
LGBTQ people unconnected to the marriage question?
2. How is the Court to resolve the clash of religious liberty and
marriage equality? The Court says almost nothing on this, other than a
paragraph recognizing the right of religions and religious people to
/teach/and /speak/against gay marriage?
3. What is the level of scrutiny to apply to laws that bar plural
marriage (polygamy, polyandry)?
4. Is there is fundamental right to plural marriage?
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Posted inSupreme 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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