[EL] more news 6/29/15
Rick Hasen
rhasen at law.uci.edu
Mon Jun 29 12:11:05 PDT 2015
“Mindlessly Literal Reading Loses Again; This Supreme Court decision
is a dig at Bush v. Gore.” <http://electionlawblog.org/?p=73862>
Posted onJune 29, 2015 12:08 pm
<http://electionlawblog.org/?p=73862>byRick Hasen
<http://electionlawblog.org/?author=3>
Here’smy piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/06/arizona_supreme_court_decision_redistricting_ruling_undermines_bush_v_gore.html>at
Slate on today’s AZ redistricting ruling from the Supreme Court. It begins:
The Supreme Court ended its term Monday with another major rejection
of conservative attempts to use wooden,textualist
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/d_c_circuit_and_4th_circuit_obamacare_rulings_the_perils_of_following_scalia.html>arguments
to upset sensible policies. The result in/Arizona State Legislature
v. Arizona Independent Redistricting Commission/
<http://electionlawblog.org/wp-content/uploads/az.pdf>/,/which
upheld the use of independent commissions to draw Arizona’s
congressional districts, is a big win for election reformers and
supporters ofdirect democracy
<http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2015/03/arizona_state_legislature_and_redistricting_commission_arguments_supreme.html>.
The/Arizona/decision also undermines the strongest conservative
argument in favor of George W. Bush in/Bush v. Gore/, the case that
handed him the 2000 presidential election.
Monday’s 5–4 decision has much in common with last week’s
blockbuster Obamacare ruling. In a 6–3 decision in/King v. Burwell/
<http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf>, the
Supreme Courtupheld the availability of federal subsidies
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_2015_the_obamacare_ruling_is_a_bigger_victory_than_anyone.html>for
those signed up for Obamacare despite language in the health care
law that could have been interpreted to give those subsidies only to
those on state exchanges. The court rejected a narrow reading of the
term “such exchanges” in the health care case because it saw its job
not to read the text out of context but to follow broad
congressional purpose. As Chief Justice John Roberts wrote for
the/King/majority: “Congress passed the Affordable Care Act to
improve health insurance markets, not to destroy them.”
But while Roberts was willing to be less than literal in the
Obamacare case in order to further the obvious purposes of the
statute, he was not so flexible in the/Arizona/case. At issue
in/Arizona/was whether Arizona voters could take away the power to
draw congressional districts from the self-interested and partisan
Arizona Legislature and put it in the hands of an independent
redistricting commission. The Constitution’s Elections Clause vests
in each state’s “Legislature” the power to set the rules for
congressional elections, subject to congressional override. In some
earlier cases, the Supreme Court had rejected narrow readings of the
word/legislature/, for example by letting the people use a
referendum to review congressional redistricting plans from a
legislature. Roberts said today that cutting the legislature out
entirely violated the Constitution. “What chumps!” he declared
sarcastically of those who believed the word/legislature/should be
interpreted literally.
But the majority, in an opinion by Justice Ruth Bader Ginsburg
joined by the court’s other liberals and Justice Anthony Kennedy,
rejected Roberts’ narrow reading. Ginsburg said the purpose of the
Elections Clause was to make sure that Congress could override state
legislatures if they were too self-interested; the purpose was not
to empower legislatures over their own people. And she wrote that
the initiative provides an important way for voters to deal with
partisan gerrymandering and other problems where legislators pass
rules to benefit themselves and their parties rather than the
democratic process as a whole. The ruling was especially important
because the court, thanks to the vote of Kennedy, won’t directly
police partisan gerrymandering.
Kennedy joined in this decision likely in large part because of his
experience as a native of California, where he had seen the
initiative process work to bypass legislative self-interest. His
endorsement came as somewhat of a surprise because he seemed to be
attracted to the textualist argument at oral argument. Likely by the
time of writing the decision, he realized that a narrow textualist
ruling would be a disaster for the democratic process.
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Posted inBush v. Gore reflections
<http://electionlawblog.org/?cat=5>,Elections Clause
<http://electionlawblog.org/?cat=70>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“California redistricting commission safe after Supreme Court
upholds Arizona’s” <http://electionlawblog.org/?p=73860>
Posted onJune 29, 2015 11:55 am
<http://electionlawblog.org/?p=73860>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Richman reports
<http://www.mercurynews.com/nation-world/ci_28400778/justices-uphold-arizonas-system-congressional-redistricting>for
the /San Jose Mercury News./
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Supreme Court’s Redistricting Ruling Averts 2016 Chaos—But Will It
End Gerrymandering?” <http://electionlawblog.org/?p=73858>
Posted onJune 29, 2015 11:53 am
<http://electionlawblog.org/?p=73858>byRick Hasen
<http://electionlawblog.org/?author=3>
Sahil Kapur reports
<http://www.bloomberg.com/politics/articles/2015-06-29/supreme-court-s-redistricting-ruling-averts-2016-chaos-but-will-it-end-gerrymandering->for
Bloomberg.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Ned Foley on the AZ Redistricting Decision
<http://electionlawblog.org/?p=73856>
Posted onJune 29, 2015 11:47 am
<http://electionlawblog.org/?p=73856>byRick Hasen
<http://electionlawblog.org/?author=3>
At Moritz: <http://moritzlaw.osu.edu/election-law/article/?article=13151>
“The majority contends that its counterintuitive reading of ‘the
Legislature’ is necessary to advance the ‘animatingng principle’ of
popular sovereignty.” With this sentence in his dissent (at page
14), Chief Justice Roberts gets to the heart of the debate in
today’s 5-4 decision in theArizona redistricting case
<http://www.supremecourt.gov/opinions/14pdf/13-1314_kjfl.pdf>.
Roberts undoubtedly is correct that the much more straightforward
reading of the term “Legislature” is to say that it means the
institutional entity that consists of representative lawmakers
elected by the citizenry, rather than to encompass the citizenry
itself when it engages in a direct lawmaking capacity through the
device of a referendum or ballot initiative. This more
straightforward reading, as Roberts points out, sits more easily
with other uses of the term “Legislature” in the U.S. Constitution,
most especially the provision—subsequently superseded by the
Seventeenth Amendment—that gave the power to elect U.S. Senators to
the “Legislature” of each state, rather than to the citizenry.
But this straightforward reading would have the pernicious
consequence of prohibiting the states from attempting to curb the
evil of partisan gerrymanders by taking the power to draw
congressional districts away from state legislatures and putting
this power instead in the hands of independent redistricting
commissions designed to be nonpartisan. As today’s opinion for the
Court (written by Justice Ginsburg) observed on its very first page,
partisan gerrymandering has no legitimate defense in a
democracy; it’s only a question of what means are available under
the Constitution to combat it.
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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>
Tom Mann On the AZ Redistricting Decision
<http://electionlawblog.org/?p=73854>
Posted onJune 29, 2015 11:42 am
<http://electionlawblog.org/?p=73854>byRick Hasen
<http://electionlawblog.org/?author=3>
At Brookings
<http://www.brookings.edu/blogs/fixgov/posts/2015/06/29-arizona-redistricting-commission-mann>:
The Court has upheld the right of those states to legislate
electoral rules through a popular vote. Had the minority position
prevailed, state laws governing many aspects of the electoral
process would have been subject to constitutional challenge. And an
important safety value available to the people of the states for
responding to abuses of power by those in public office has been
preserved.
This should not be read more broadly as a triumph of direct
democracy over representative government. Many scholars who provided
expert opinion supporting the majority opinion retain serious
concerns about the overuse and misuse of initiatives and
referendums. Instead, the decision strengthens the legitimacy of
representative democracy by reinforcing the essential link between
republican government and popular sovereignty.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Is Justice Scalia Losing It? <http://electionlawblog.org/?p=73852>
Posted onJune 29, 2015 11:24 am
<http://electionlawblog.org/?p=73852>byRick Hasen
<http://electionlawblog.org/?author=3>
ReadDahlia Lithwick
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/scalia_in_glossip_v_gross_supreme_court_decision_oklahoma_may_kill_using.html>.
I don’t mean this facetiously.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“No Guarantee That Redistricting Verdict Will Help Democrats”
<http://electionlawblog.org/?p=73850>
Posted onJune 29, 2015 11:07 am
<http://electionlawblog.org/?p=73850>byRick Hasen
<http://electionlawblog.org/?author=3>
Nate Cohn
<http://www.nytimes.com/2015/06/30/upshot/no-guarantee-that-redistricting-verdict-will-help-democrats.html?abt=0002&abg=0>for
NYT’s The Upshot.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Dark Money’s Deepening Power” <http://electionlawblog.org/?p=73848>
Posted onJune 29, 2015 9:46 am
<http://electionlawblog.org/?p=73848>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT editorial.
<http://www.nytimes.com/2015/06/29/opinion/dark-moneys-deepening-power.html?partner=rssnyt&emc=rss&_r=2>
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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
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