[EL] ELB News and Commentary 7/1/15
Rick Hasen
rhasen at law.uci.edu
Tue Jun 30 19:31:28 PDT 2015
“Redistricting litigation persists in key states despite court
ruling” <http://electionlawblog.org/?p=73954>
Posted onJune 30, 2015 7:29 pm
<http://electionlawblog.org/?p=73954>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico
<http://www.politico.com/story/2015/06/redistricting-litigation-persists-in-key-states-despite-court-ruling-119622.html>:
The Supreme Court may have knocked out the best-known challenge to
existing congressional districts in a number of states on Monday,
but maps still remain in flux for 2016 in three important, large
battleground states: Florida, North Carolina and Virginia.
Continued redistricting litigation — spearheaded mostly by
Democrats, who were in the legislative minority in the three states
after the 2010 Census, and their allies — involves 51 of the
nation’s 435 congressional districts and could allow Democrats to
make a dent in the GOP’s near-historic House majority in next year’s
elections.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Redistricting Commission has been largely a flop”
<http://electionlawblog.org/?p=73952>
Posted onJune 30, 2015 7:26 pm
<http://electionlawblog.org/?p=73952>byRick Hasen
<http://electionlawblog.org/?author=3>
Robert Robb AZ Republic column.
<http://www.azcentral.com/story/robertrobb/2015/06/30/redistricting-commission-a-flop/29535857/>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
What the Heck is Going On in Arizona Redistricting?
<http://electionlawblog.org/?p=73946>
Posted onJune 30, 2015 5:18 pm
<http://electionlawblog.org/?p=73946>byJustin Levitt
<http://electionlawblog.org/?author=4>
Justin here. And with all of the action in Arizona redistricting over
the past few days, I thought I’d throw up just a little update, to help
sort out what’s what — I’d have written a shorter post, but I didn’t
have the time. Old SCOTUS
<http://redistricting.lls.edu/cases-AZ.php#AZ>,new SCOTUS
<http://redistricting.lls.edu/cases-AZ.php#AZHarris>,non-SCOTUS
<http://redistricting.lls.edu/cases-AZ.php#AZLeach>, all up after the break.
In most states, the default body to draw district lines for state and
federal office is the legislature. Arizona is one of afew states
<http://redistricting.lls.edu/who-state.php>to change this default; in
2000, Arizona citizens passed a ballot initiative giving control over
the state’s legislative and congressional lines to anindependent
commission <http://redistricting.lls.edu/states-AZ.php#institution>. The
state’s independent body for nominating appellate judges selects a pool
of Republicans, Democrats, and individuals not registered in either
major party; each member of the legislative leadership chooses one
commissioner from the pool (generally Republicans or Democrats), and
those four choose a fifth who is not registered with either major party.
The bigSCOTUS case
<http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/>on
Monday <http://redistricting.lls.edu/cases-AZ.php#AZ>was about whether
this commission could draw_congressional_lines. The
Constitution’sElections Clause
<https://www.law.cornell.edu/constitution/articlei>says that rules for
federal elections “shall be prescribed in each state by the legislature
thereof,” except when Congress says otherwise. The Court held
<http://www.scotusblog.com/2015/06/independent-redistricting-commission-survives-challenge-in-plain-english/#more-230012>that
both the Constitution and Congress allow states to determine their
law-making processes for themselves. That is, the Court upheld the use
of the Arizona commission (and ballot initiatives elsewhere) to regulate
federal elections. (Disclosure: I’d worked on anamicus brief
<http://redistricting.lls.edu/files/AZ%20leg%2020150123%20scholars.pdf>construing
the1911 federal statute
<https://www.law.cornell.edu/uscode/text/2/2a>along the same lines as
the Court. The brief also laid out alist of the questions
<http://redistricting.lls.edu/files/AZ%20leg%2020150123%20scholars.pdf#page=34>–
and potential chaos – awaiting a Court decision in the other direction.)
That was Monday. This morning, the Court went right back to the well,
announcing that it would hear argument inanother Arizona redistricting
case <http://redistricting.lls.edu/cases-AZ.php#AZHarris>(Harris v.
AIRC). As with the last round, this case comes up on appeal to SCOTUS
directly from athree-judge federal trial court
<https://www.law.cornell.edu/uscode/text/28/2284>,an unusual procedure
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1543&context=jcl>mostly
reserved for redistricting and campaign finance cases.
The new case,/Harris/, is about the_state legislative_lines the
commission drew. There was a bittercontroversy
<http://redistricting.lls.edu/states-AZ.php>over the alleged
partisanship of the commission’s chair (including an impeachmentlater
invalidated <http://redistricting.lls.edu/cases-AZ.php#AZBrewer>by the
state’s Supreme Court). The new SCOTUS case claims (in part) that
partisanship bleeded over into the state lines as well. It alleges that
the lines are systematically unequally populated, to favor Democrats and
disfavor Republicans. (Though district populations can vary a bit for
good reasons, it seems they cannot vary for bad ones: in a 2004 decision
namedCox v. Larios
<https://law.resource.org/pub/us/case/reporter/US/542/542.US.947.03-1413.html>,
SCOTUS summarily affirmed a decision striking down Georgia districts as
unconstitutional because they were systematically unequally populated to
favor Democrats.)
A splinteredthree-judge trial court
<http://redistricting.lls.edu/files/AZ%20harris%2020140429%20order.pdf>in/Harris/found
that the lines were unequally populated because of the Voting Rights
Act, not because of partisanship. The court found that the lines were
drawn as they were in order to preserve the number of majority-minority
and coalition districts in which cohesive minority populations had the
ability to elect candidates of choice in a polarized political
environment, under section 5 of the Act. An additional question for
SCOTUS is whether underpopulation is permissible for this purpose. (And
because/Shelby County
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>/left section
5 no longer applicable, there’s still another question: even if it was
once permissible, is it still?)
The case is superficially related to/Evenwel
<http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/>, /one of
the other big districting cases at SCOTUS next Term. But really, the
cases are quite different:/Evenwel/is about/who/counts in determining
district size;/Harris/is about the justifications that may support small
size differences. The case is another avenue for the Court to argue
about whether partisanship is a problem in drawing district lines (and
if so, under what circumstances). And it could lead to some curious
alignments. The lead plaintiff, Wesley Harris, is aTea Party
<http://www.npr.org/2012/07/12/156673878/arizona-tea-party-activists-say-they-re-back>activist
seeking to overturn a map he claims favors Democrats with relatively
small population deviations. But he may be looking for help from the
leftish wing of the Court,more sympathetic
<https://scholar.google.com/scholar_case?case=16656282825028631654&hl=en&as_sdt=6&as_vis=1&oi=scholarr>to
claims of partisan manipulation; moreover, Justice Scaliawrote
specifically
<https://law.resource.org/pub/us/case/reporter/US/542/542.US.947.03-1413.html> in/Cox
v. Larios/to express his skepticism that such claims make
out constitutional wrongs for the courts to hear. I’ve said before that
I think SCOTUS lineups aremore ideological than partisan
<http://ssrn.com/abstract=2239491>; this case will be yet another test.
For those keeping score,/Harris/is the third redistricting case at the
Court next Term (after/Evenwel
<http://redistricting.lls.edu/cases-TX.php#TXother>/and/Shapiro
<http://redistricting.lls.edu/cases-MD.php#MD>/).26 cases
<http://redistricting.lls.edu/cases.php#sct>affecting statewide
redistricting this cycle have sought SCOTUS review.
And there’s life beyond SCOTUS as well. Arizona hasanother case pending
<http://redistricting.lls.edu/cases-AZ.php#AZLeach>: a challenge (/Leach
v. AIRC/) in state court to the congressional maps that has been held
pending Monday’s disposition. Beyond Arizona, there are25 other live
cases <http://redistricting.lls.edu/cases.php>in seven other states.
And just six years to go before it all starts over again…
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This entry was posted inredistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>byJustin Levitt
<http://electionlawblog.org/?author=4>. Bookmark thepermalink
<http://electionlawblog.org/?p=73946>.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Nationwide Implications Of A Supreme Court Ruling On
Gerrymandering” <http://electionlawblog.org/?p=73944>
Posted onJune 30, 2015 4:22 pm
<http://electionlawblog.org/?p=73944>byRick Hasen
<http://electionlawblog.org/?author=3>
Set to be onTuesday’s Diane Rehm Show
<http://thedianerehmshow.org/shows/2015-07-01/nationwide-implications-of-a-supreme-court-ruling-on-gerrymandering> talking
SCOTUS AZ redistricting with Stu Rothenberg, Jan Baran, and Colleen Mathis.
Tune in.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Congrats to Peter Miller, Bernie Grofman, and UCI Law Review
<http://electionlawblog.org/?p=73939>
Posted onJune 30, 2015 3:50 pm
<http://electionlawblog.org/?p=73939>byRick Hasen
<http://electionlawblog.org/?author=3>
Peter and Bernie’s article
<http://www.law.uci.edu/lawreview/vol3/no3/miller_grofman.pdf>in the UCI
Law Reviewsymposium I organized
<http://www.law.uci.edu/lawreview/issuearchive/vol3no3.html>on
nonpartisanship in election administration, campaign financing and
redistricting was cited by the Supreme Court in theAZ redistricting
case. <http://www.supremecourt.gov/opinions/14pdf/13-1314_kjfl.pdf>
I expect this is the first of many citations to UCI Law’s new law review
in Supreme Court opinions.
(Disclosure, Bernie and I, along with Marty Wattenberg, sat on Peter’s
dissertation committee.)
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Posted inelection law biz <http://electionlawblog.org/?cat=51>
Election Law Academics Update <http://electionlawblog.org/?p=73937>
Posted onJune 30, 2015 3:35 pm
<http://electionlawblog.org/?p=73937>byRick Hasen
<http://electionlawblog.org/?author=3>
Here’s my yearly roundup of election law academic hires, promotions
moves, visits, accolades.
Barry Burden <https://faculty.polisci.wisc.edu/bcburden/>has
been appointed the inaugural Director of theElections Research Center
<https://elections.wisc.edu/>at the University of Wisconsin-Madison.
Yasmin Dawood
<http://www.law.utoronto.ca/faculty-staff/full-time-faculty/yasmin-dawood>received
tenure and was promoted to associate professor at the Faculty of Law,
University of Toronto
Michael Dimino<http://harrisburglaw.widener.edu/faculty/detail/13>has
been promoted to Professor of Law at Widener-Harrisburg.
Jim Gardner
<http://www.law.buffalo.edu/faculty/facultyDirectory/GardnerJames.html>has
been named interim dean at Buffalo.
Beth Garrett
<http://www.news.cornell.edu/stories/2014/09/elizabeth-garrett-usc-provost-named-president-cornell>was
named president-elect of Cornell University.
Thad
Kousser<https://polisci.ucsd.edu/about-our-people/faculty/kousser.html>was
promoted to Professor at UC San Diego, and served as the 2015 Fulbright
Flinders University Distinguished Chair in American Political Science in
Adelaide, Australia.
Michael McDonald<http://polisci.ufl.edu/michael-mcdonald/>moved to the
University of Florida.
David Schleicher <http://www.law.yale.edu/news/19407.htm>will move to
Yale Law School in July.
David Schultz <http://www.hamline.edu/faculty-staff/david-schultz/>of
Hamline University and the University of Minnesota was the 2013 winner
of the Leslie A. Whittington Excellence in Teaching Award. This
national teaching award, given to one professor per year by the Network
of Schools of Public Policy, Affairs, and Administration (NASPAA),
recognizes professors who make outstanding contributions to public
policy education.
Congratulations all!
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Posted inelection law biz <http://electionlawblog.org/?cat=51>
“Prison inmate forms super PAC; Cyber stalker worked as Romney,
Gingrich campaign intern” <http://electionlawblog.org/?p=73935>
Posted onJune 30, 2015 3:22 pm
<http://electionlawblog.org/?p=73935>byRick Hasen
<http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2015/06/30/17601/prison-inmate-forms-super-pac>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“In Search of Qualified FEC Commissioners”
<http://electionlawblog.org/?p=73933>
Posted onJune 30, 2015 2:56 pm
<http://electionlawblog.org/?p=73933>byRick Hasen
<http://electionlawblog.org/?author=3>
Larry Noble blogs.
<http://www.campaignlegalcenter.org/news/blog/clc-blog-search-qualified-fec-commissioners>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
Why No Liberal Concurrences in Kennedy’s Obergefell Case?
<http://electionlawblog.org/?p=73931>
Posted onJune 30, 2015 2:55 pm
<http://electionlawblog.org/?p=73931>byRick Hasen
<http://electionlawblog.org/?author=3>
Jason Mazzone nails it.
<http://balkin.blogspot.com/2015/06/the-kennedy-problem.html>
Would have been nice to have a more logical and coherent analysis in
Obergefell.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“A court of one: Anthony Kennedy” <http://electionlawblog.org/?p=73929>
Posted onJune 30, 2015 1:18 pm
<http://electionlawblog.org/?p=73929>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis oped
<http://www.latimes.com/opinion/op-ed/la-oe-0702-hasen-kennedy-court-20150630-story.html>for
the LA Times. It begins:
Forget the debate over whether the Supreme Court has taken a liberal
turn. It is not a liberal court or a conservative court. It’s a
Kennedy court. On major constitutional and statutory questions,
Justice Anthony M. Kennedy’s views matter more than anything else.
Liberals do have more to celebrate this term than in the recent
past, from the same-sex marriage and Obamacare decisions, to a major
housing discrimination case, to a surprising win for minority
plaintiffs in a voting rights lawsuit. In all of those cases,
Kennedy was in the majority, and all but one — Obamacare — were
decided 5-4.
But there were some victories for conservatives as well. The court
blocked a key environmental rule on mercury pollution. It upheld
Oklahoma’s lethal injection method. And it rejected an attempt to
put a Texas voter identification law on hold even after a federal
court found that the legislature intended to discriminate against
minority voters. Kennedy was in the majority in these rulings.
It concludes:
Driven by feeling over theory, Kennedy also has the frustrating
habit of taking nondefinitive positions as he makes up his mind.
He’s skeptical of racial preferences, but not so skeptical that he’s
willing to completely jettison affirmative action. And so the law
remains uncertain. He’s troubled by partisan gerrymandering, but is
reluctant to police legislatures. And so the law remains uncertain.
It’s crazy to have major social and public policy questions depend
so much on Kennedy’s whim, not to say what he had for breakfast. But
it could be worse. As much as liberals would love to see Kennedy
retire and be replaced by another Elena Kagan or Sonia Sotomayor,
depending on the next election, we could get another Samuel A. Alito
Jr. or Antonin Scalia. Then we’ll be pining for the days when
Kennedy ruled America.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Michael Morley on the SCOTUS AZ Redistricting Decision
<http://electionlawblog.org/?p=73927>
Posted onJune 30, 2015 1:16 pm
<http://electionlawblog.org/?p=73927>byRick Hasen
<http://electionlawblog.org/?author=3>
Here is a guest post fromMichael Morley
<https://www.barry.edu/law/future-students/faculty/staff/mmorley.html>,
whosearticle on the Elections Clause issue
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2515096>was cited by
Chief Justice Roberts in his AZ dissent:
Yesterday, the Supreme Court upheld the use of independent
redistricting commissions to redraw congressional district lines, by
a bare 5-4 majority, in/Arizona State Legislature v. Arizona
Independent Redistricting Commission/. The Elections Clause of the
U.S. Constitution grants the power to regulate federal elections
specifically to the “Legislature” of each state, rather than to the
state as a whole. Arizona voters had enacted an initiative amending
their state constitution transferring the state legislature’s
authority to determine congressional district boundaries to a
bipartisan independent commission. While the Court’s endorsement of
such commissions is the opinion’s most immediate impact, there are
other important aspects of the ruling that bear exploring.
*/First/*, and perhaps least surprisingly, the Court expressly
affirmed that legislatures may delegate their power to regulate
federal elections to other entities. Slip op. at 25. Interestingly,
the only authority cited for this proposition is a concession by
Petitioners’ counsel at oral argument./See id/. (citing Tr. of Oral
Arg. 15-16). Nevertheless, this holding makes it more difficult for
plaintiffs to challenge regulations, policies, or decisions
regarding federal elections made by state or local officials on the
grounds that the Elections Clause requires the legislature itself to
make the determination (at least if the legislature has delegated
authority to promulgate rules or make certain decisions). At most,
perhaps state legislatures acting under the Elections Clause may be
bound by the same nondelegation doctrine, such as it is, that
ostensibly limits Congress in the exercise of its Article I, § 8 powers.
*/Second/*, the majority’s ruling represents a dramatic expansion of
precedent because it not only allows entities other than a state’s
institutional legislature to redraw congressional districts, but it
permits the institutional legislature to be completely excluded from
the process. Prior cases such as/Ohio ex rel. Davis v. Hildebrant/,
241 U.S. 565 (1916), and/Smiley v. Holm/, 285 U.S. 355 (1932), had
adopted a broad construction of the term “legislature,” as including
any entities that exercise a state’s legislative authority. Neither
of those precedents, however, allowed an institutional legislature
to be completely excluded from regulating any aspects of federal
elections. Under the majority’s approach, a state is free to decide
that its “legislature” for purposes of the Elections Clause does not
include its actual institutional legislature. The majority may have
done better to adopt a compromise position, in which entities such
as independent commissions may participate in the congressional
redistricting process, but not to the complete exclusion of the
institutional legislature (for example, by allowing the
institutional legislature to veto the commission’s redistricting
plan by a 2/3 or 3/4 vote).
*/Third/*, the majority’s opinion contains no limiting principle.
While this case concerned only redistricting commissions, the
Court’s reasoning appears to apply equally to all aspects of federal
election law. In other words, the majority opinion appears to permit
a state—whether through state constitutional amendment, public
initiative or referendum, or even traditional legislative action—to
vest complete authority over the rules governing federal elections
in some entity other than the institutional legislature. In short,
independent redistricting commissions may be just the beginning.
Under the majority’s view, it seems that power to determine a
state’s rules concerning voter registration, voter identification,
voter list maintenance and updating, voter challenges, poll
watchers, polling place locations and hours, and the complete host
of other issues relating to federal elections may be completely
vested in an ostensibly nonpartisan or bipartisan entity other than
the institutional legislature.
*/Fourth/*, almost in passing, the majority disavows the
“independent state legislature doctrine” that the Court had
endorsed, albeit in/dicta/, in/McPherson v. Black/, 146 U.S. 1, 25
(1892), and that had been adopted and followed by numerous state
supreme courts throughout the nation’s history, as well as both
Houses of Congress. The doctrine provides that a state constitution
may not impose substantive restrictions or limits on a legislature’s
authority to regulate federal elections, since the legislature
derives this power directly and exclusively from the Elections
Clause of the U.S. Constitution. Thus, in a clash between a state
constitutional provision regulating federal elections and a state
law enacted by the legislature, the state law generally has
prevailed, even in situations where the outcome of an election
hinged on the issue./See/Michael T. Morley,/Rethinking the Right to
Vote Under State Constitutions/, 67 Vand. L. Rev. En Banc 189,
198-204 (2014) (citing cases). The/Arizona Independent
Redistricting/majority dismisses this doctrine, declaring: “Nothing
in [the Elections] Clause instructs, nor has this Court ever held,
that a state legislature may prescribe regulations on the time,
place, and manner of holding federal elections in defiance of
provisions of the State’s constitution.” Slip op. at 28. The Court
did not mention, much less discuss, the state supreme court rulings
on this issue it was overturning. This holding—perhaps the most
significant and underappreciated side effect of the majority
opinion—allows plaintiffs to continue raising state constitutional
challenges to federal election laws, as Professor Josh Douglas has
ably advocated./See/Joshua A. Douglas,/The Right to Vote Under State
Constitutions/, 67 Vand. L. Rev. 89 (2014).
*/Finally/*, although the Justices’ votes largely broke down along
traditional partisan lines, with Justice Kennedy siding with the
liberal Justices, the Court’s ruling is unlikely to systematically
benefit either Democrats or Republicans in the short term.
Independent commissions strip legislatures of their power to engage
in partisan gerrymandering, and they exist in states with both
Democrat- and Republican-controlled legislatures.
In the long run, however, the opinion might be most beneficial for
Republicans. The Court’s interpretation of the Elections Clause
likely would apply,/in pari materia/, to Article II’s Presidential
Electors Clause, which permits the “Legislature” of each state to
determine how presidential electors shall be chosen. California
voters have a history of adopting initiatives that would never pass
the Democrat-controlled legislature. The majority’s ruling keeps the
door open for an initiative to allocate California’s electoral votes
on a district-by-district basis (as Nebraska and Maine presently
do), or based on the proportion of votes each presidential candidate
receives statewide, rather than on a winner-take-all basis. This
would break up California’s monolithic bloc of 54 electoral votes
that are virtually guaranteed for the Democratic Presidential
candidate and allow Republican candidates to realistically vie for a
portion of them. One initiative to do so, the Make Our Vote Count
Act, was proposed this election cycle, but failed to gain enough
signatures to appear on the ballot. Should such a measure be
adopted, we might see some of the liberal groups that
filed/amicus/briefs ardently embracing direct democracy under the
Article I Elections Clause take a much dimmer view of it in the
Article II context.
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Posted inElections Clause <http://electionlawblog.org/?cat=70>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Kobach lost but voting hurdles remain”
<http://electionlawblog.org/?p=73925>
Posted onJune 30, 2015 12:16 pm
<http://electionlawblog.org/?p=73925>byRick Hasen
<http://electionlawblog.org/?author=3>
Wichita Eagle editorial.
<http://www.kansas.com/opinion/editorials/article25794838.html>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“‘Jiggery-Pokery': The Justices Have A Punny Way With Words”
<http://electionlawblog.org/?p=73923>
Posted onJune 30, 2015 12:12 pm
<http://electionlawblog.org/?p=73923>byRick Hasen
<http://electionlawblog.org/?author=3>
NPR reports.
<http://www.npr.org/sections/itsallpolitics/2015/06/30/418645881/jiggery-pokery-the-justices-have-a-punny-way-with-words>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Supreme Court Tacks Left, With Push From Disciplined Liberals”
<http://electionlawblog.org/?p=73921>
Posted onJune 30, 2015 11:22 am
<http://electionlawblog.org/?p=73921>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam Liptak assessment
<http://www.nytimes.com/2015/07/01/us/supreme-court-tacks-left-with-push-from-disciplined-liberals.html?hp&action=click&pgtype=Homepage&module=first-column-region®ion=top-news&WT.nav=top-news>of
the term.
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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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