[EL] ELB News and Commentary 3/6/15
Rick Hasen
rhasen at law.uci.edu
Thu Mar 5 20:52:12 PST 2015
“Fifty years after ‘Bloody Sunday’ march, struggles endure in Selma”
<http://electionlawblog.org/?p=70784>
Posted onMarch 5, 2015 8:50 pm
<http://electionlawblog.org/?p=70784>byRick Hasen
<http://electionlawblog.org/?author=3>
Extensive WaPo report.
<http://www.washingtonpost.com/politics/fifty-years-after-bloody-sunday-march-struggles-linger-in-selma/2015/03/05/8ed7a9c6-c348-11e4-ad5c-3b8ce89f1b89_story.html>
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Cuts to Voting Rights Act calls for protest, trumps Selma
celebration, Rev. Jesse Jackson says”
<http://electionlawblog.org/?p=70782>
Posted onMarch 5, 2015 8:47 pm
<http://electionlawblog.org/?p=70782>byRick Hasen
<http://electionlawblog.org/?author=3>
Al.com reports
<http://www.al.com/news/index.ssf/2015/03/cuts_to_voting_rights_act_call.html>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
Federalism and the burden of textual clarity on the challengers in
King v. Burwell <http://electionlawblog.org/?p=70780>
Posted onMarch 5, 2015 7:47 pm
<http://electionlawblog.org/?p=70780>byAbbe Gluck
<http://electionlawblog.org/?author=15>
I have a new piece at/Politico/that follows up on the federalism
arguments in/King v. Burwell/, the challenge to the Obamacare subsidies
heard by the Court this week. Here is an excerpt andlink
<http://www.politico.com/magazine/story/2015/03/king-vs-burwell-states-rights-115813.html?ml=m_u1_1#.VPkfxE0o_Dc>to
the full piece:
Federalism comes into play here because, properly understood, the case
at the big picture level is all about the nature of the state-federal
relationship Congress designed when it wrote the ACA. But federalism is
also relevant at the nitty gritty level of legal doctrine and the
parsing of the words of the statute, because, as the amicusbrief
<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/14-114_amicus_resp_merrill.authcheckdam.pdf>I
co-authored in the case details, the court has a set of doctrines that
tell it how to interpret statutory text when a federalism question is at
issue. Those doctrines prohibit the court from reading a statute to
intrude on the states or to impose a drastic condition or consequence on
the states unless the statute is crystal clear. The relevance of these
doctrines to/King/, and the textual interpretation question at the heart
of the case, is obvious: For the challengers to win, the drastic penalty
their reading would impose on the states must be absolutely clear in the
statute.
The ACA comes nowhere close to meeting this requisite standard of
clarity. As Justice Kagan noted at the oral argument, “This took a year
and a half for anybody to even notice this language.” In fact, the four
conservative dissenting justices in the 2012 ACA opinion themselves
alsodescribed the statute as allowing the subsidies.
<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/14-114_amicus_resp_merrill.authcheckdam.pdf>So
how could it be, as the challengers now argue, that the subsidies are
denied in the statute with crystal clarity, if no one, not even the
court, read the statute that way until this case was cooked up? It is
also irrelevant if states/now/understand the possibility of the penalty
after the case has received so much attention. The court’s federalism
doctrines are about the clarity of statutory text/at the time
of//enactment/. Why? Because, as law professor Michael Dorf alsonoted
<http://www.dorfonlaw.org/2015/03/chevron-or-dole-in-king-v-burwell.html>today,
the only way states can protect themselves in the political process—and
the way that federally elected officials can best protect the states—is
for the states to be on notice of what a potential statute requires so
that they can object before it becomes a law. It is unfathomable that,
if this penalty really were written into the statute, no state,
politician, blogger or insurer would have objected to it in the two
years of the ACA’s intense pre-enactment scrutiny. It simply is too
drastic and too controversial to have gone unnoticed if it was in there
as clearly as the challengers claim.
That should be the end of the matter. Without that requisite level of
clarity, the challengers’ reading cannot prevail. There is a lot of
post-argument talk on legal blogs about whether or not the Affordable
Care Act, as the challengers would read it, coerces the states in ways
that may raise constitutional problems, and how the ACA’s insurance
exchange provisions compare to what the court found to be the coercive
nature of the ACA’s Medicaid expansion in 2012. (The brief I co-authored
does not address this question of potential coercion, butothers
<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/14-114_amicus_resp_jalsa.authcheckdam.pdf>do
<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/14-114_amicus_affirm_va.authcheckdam.pdf>).
But no one needs to answer those questions to decide this case, because
the statute cannot fairly be read—whether interpreted as a matter of
text, context or in light of the federalism doctrines’ high standard of
clarity—as the challengers would read it. Indeed, the court has applied
these federalism doctrines in many other cases to reject
state-unfriendly readings when the statutory text was miles clearer than
this.
Of course, if a justice has remaining doubts about the clarity of the
text, the potential constitutional question may indeed have relevance.
There is another black-letter doctrine that directs the court, when
faced with competing interpretations of a statute, one of which raises a
potential constitutional issue, to pick the other interpretation. That
doctrine of “constitutional avoidance” is grounded in principles of
separation of powers and judicial restraint: It safeguards against the
concern that judges will legislate.
But the potentially coercive nature of the consequences also has another
kind of relevance. The more dramatic the penalty, the more evident it is
that the statute lacked the requisite textual clarity. It is implausible
that no one would have noticed such a penalty, if it actually existed.
Even Justices Scalia and Alito on Wednesday, at oral argument, assumed
that if the court ruled for the challengers, Congress or the states
would have no choice but to quickly address the dramatic consequences of
the challengers’ interpretation. That very assumption—that the ACA can’t
function properly or even tolerably exist as read by the challengers—is
another nail in the coffin of the preposterous notion that it was
written, in crystal clear fashion no less, to fail.
Read
more:http://www.politico.com/magazine/story/2015/03/king-vs-burwell-states-rights-115813.html#ixzz3TZbGsXuB
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“A Note on Redistricting Initiatives, Legislatures and the Popular
Will” <http://electionlawblog.org/?p=70778>
Posted onMarch 5, 2015 3:27 pm
<http://electionlawblog.org/?p=70778>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs.
<http://www.moresoftmoneyhardlaw.com/2015/03/redistricting-initiatives-legislatures-popular-will/>
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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>
“From Selma to Ferguson: 50 Years in the Struggle for Voting Rights”
<http://electionlawblog.org/?p=70776>
Posted onMarch 5, 2015 3:12 pm
<http://electionlawblog.org/?p=70776>byRick Hasen
<http://electionlawblog.org/?author=3>
Dale Ho
<http://billmoyers.com/2015/03/05/selma-ferguson-50-years-struggle-voting-rights/>at
Bill Moyers.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Driving the Vote: Are States Complying with The Motor Voter
Requirements of the National Voter Registration Act?”
<http://electionlawblog.org/?p=70774>
Posted onMarch 5, 2015 3:10 pm
<http://electionlawblog.org/?p=70774>byRick Hasen
<http://electionlawblog.org/?author=3>
New Demos report.
<http://www.demos.org/publication/driving-vote-are-states-complying-motor-voter-requirements-national-voter-registration-a>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,NVRA (motor voter)
<http://electionlawblog.org/?cat=33>,voter registration
<http://electionlawblog.org/?cat=37>
“Democracy Initiative Organizations and Allies Release Statements
Commending Oregon State Legislature’s Passage of New Motor Law”
<http://electionlawblog.org/?p=70772>
Posted onMarch 5, 2015 3:08 pm
<http://electionlawblog.org/?p=70772>byRick Hasen
<http://electionlawblog.org/?author=3>
Big news
<http://www.democracyforus.org/news/pressreleasedemocracyinitiativeorganizationsandalliesreleasestatementscommendingoregonstatelegislaturespassageofnewmotorlaw>from
Oregon:
Today, members of the Democracy Initiative
<http://www.democracyinitiative.org/> released statements supporting
the passage of HB 2177, also known as the New Motor Voter. This
bill, expected to be signed by Governor Kate Brown, makes voter
registration simple and convenient for busy Oregon families, seniors
and students by using data the Department of Motor Vehicles (DMV)
currently collects to register eligible voters and update address
information for already registered voters.
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Posted invoter registration <http://electionlawblog.org/?cat=37>
“New Jersey: Retaliation in West Wildwood recall leads to $350,000
settlement” <http://electionlawblog.org/?p=70770>
Posted onMarch 5, 2015 3:05 pm
<http://electionlawblog.org/?p=70770>byRick Hasen
<http://electionlawblog.org/?author=3>
Recall Elections Blog
<http://recallelections.blogspot.com/2015/03/new-jersey-retaliation-in-west-wildwood.html>flags
“incredible story.”
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Posted inrecall elections <http://electionlawblog.org/?cat=11>
“Fifty Years After Bloody Sunday, Voting Rights Are Under Attack”
<http://electionlawblog.org/?p=70768>
Posted onMarch 5, 2015 12:37 pm
<http://electionlawblog.org/?p=70768>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman writes
<http://www.thenation.com/blog/200193/fifty-years-after-bloody-sunday-voting-rights-are-under-attack#>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Kris Kobach stands by remarks made to radio show caller”
<http://electionlawblog.org/?p=70766>
Posted onMarch 5, 2015 12:36 pm
<http://electionlawblog.org/?p=70766>byRick Hasen
<http://electionlawblog.org/?author=3>
KC Star
<https://www.google.com/search?q=Kris+Kobach+stands+by+remarks+made+to+radio+show+caller&oq=Kris+Kobach+stands+by+remarks+made+to+radio+show+caller&aqs=chrome..69i57j69i61&sourceid=chrome&es_sm=119&ie=UTF-8>:
Secretary of State Kris Kobach stands by his comments to a caller on
his weekly radio show Sunday that although he thought it unlikely,
it would not be “a huge jump” for the Obama administration to call
for an end to the prosecution of African-American suspects.
A caller to theKris Kobach
Show<http://www.kcmotalkradio.com/common/page.php?pt=Kris+Kobach+Podcasts&id=541&is_corp=0§ion_id=151>on
KCMO Talk Radio asked if Kobach thought that, based on President
Obama’s instruction against the enforcement of some immigration
laws, it would be possible that one day the president would announce
that “any black person accused of a crime, charged with a crime, is
not going to be prosecuted, regardless of the crime.”
The question prompted Kobach to refer to a controversy surrounding
the Justice Department’s decision to drop charges against members of
the New Black Panther Party accused of intimidating voters in
Philadelphia in 2008.
“Well, it’s already happened more or less in the case of civil
rights laws,” Kobach said. “So I guess it’s not a huge jump. I think
it’s unlikely, but you know, I’ve learned to say with this president
never say never.”
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Posted infraudulent fraud squad
<http://electionlawblog.org/?cat=8>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Measuring Political Power: Suspect Class Determinations and the
Poor” <http://electionlawblog.org/?p=70764>
Posted onMarch 5, 2015 11:41 am
<http://electionlawblog.org/?p=70764>byRick Hasen
<http://electionlawblog.org/?author=3>
Bertrall Ross and Su Li have postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2571756>on SSRN
(forthcoming, /California Law Review/). Here is the abstract:
Which classes are considered suspect under equal protection
doctrine? The answer determines whether courts will defer to
legislatures and other government actors when they single out a
group for special burdens, or intervene to protect that group from
such treatment. Laws burdening suspect classes receive the strictest
scrutiny possible — and under current doctrine, whether a class is
suspect turns largely on whether the court views the group as
possessing political power.
But how do courts know when a class lacks political power? A liberal
plurality of the Supreme Court initially suggested that political
power should be measured according to a group’s descriptive
representation in politics. Under that measure, the mostly white,
male, wealthy, straight makeup of most of the nation’s
decision-making councils would indicate that other groups lack
political power. But that measure never received majority support
from the Court. Instead, the Court consolidated around a different
measure of political power, one that focused on democratic actions
favorable to a group. If laws have been enacted protecting the group
from discrimination or otherwise advancing the group’s interest, the
Court assumes that the group can attract lawmakers’ attention and
therefore does not need judicial protection.
In the forty years since the Court introduced this standard, no
class has been found suspect under it. In fact, it is hard to
imagine any class ever meeting the standard of political
powerlessness under this measure. Even the most politically
marginalized groups (such as the poor, non-citizens, and felons)
have benefited from laws favoring their interests. Is favorable
democratic action really an accurate measure of political power?
Focusing on the poor, we advance the first empirical test of the
Supreme Court’s measure of political power. Our findings suggest
that legislators’ support for anti-poverty legislation is not
motivated by the political power of the poor — implying that
favorable democratic action does not always accurately indicate a
group’s political power. Given these findings, we argue that the
court should rely on a more holistic, and thus more reliable,
measure of political power. The measure should include favorable
legislative actions, but also indicators of lobbying activity,
political responsiveness, voter turnout, and descriptive
representation in politics.
This looks to be a very important piece!
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Why ‘Selma is Now’” <http://electionlawblog.org/?p=70761>
Posted onMarch 5, 2015 9:18 am
<http://electionlawblog.org/?p=70761>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis new essay
<http://billmoyers.com/2015/03/05/mean-selma-now/>for BillMoyers.com.
It begins:
When singer-songwriter John Legend recently declared “Selma is now
<http://electionlawblog.org/?p=70482>” at the Academy Awards, we
could perhaps chalk it up to poetic license. After all, states no
longer use literacy tests or poll taxes to stop African-Americans
from voting, black voter registration ratesequal or exceed
<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-1138_np_amcu_profs-rkg-etal.authcheckdam.pdf>those
of whites even in Alabama and racial violence at the voting place is
thankfully rare throughout the United States.
But Legend, who won the Oscar with the artist Common for their
song/Glory/from the film/Selma/, is right: the promise of the Selma
marches 50 years ago, chronicled in the film and which helped spur
passage of the Voting Rights Act (VRA), remains partially
unfulfilled. And unfortunately, we can no longer count on either
Congress or the Supreme Court to fully protect voting rights. The
new battlegrounds are state legislatures, local governments and the
public square.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
Rights Act <http://electionlawblog.org/?cat=15>,VRAA
<http://electionlawblog.org/?cat=81>
“(Ex-) Director’s Note: When going gets tough, the tough get geeky”
<http://electionlawblog.org/?p=70759>
Posted onMarch 5, 2015 9:14 am
<http://electionlawblog.org/?p=70759>byRick Hasen
<http://electionlawblog.org/?author=3>
Doug Chapin
<http://www.electionline.org/index.php/electionline-weekly>leads off
this week’s Electionline Weekly.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Can Cute Kids Dressed as Dinosaurs Stop Gerrymandering?
<http://electionlawblog.org/?p=70757>
Posted onMarch 5, 2015 9:13 am
<http://electionlawblog.org/?p=70757>byRick Hasen
<http://electionlawblog.org/?author=3>
I
guess<http://www.capitalgazette.com/videogallery/82957813/News/Pterodactyls-Against-Gerrymandering-Video>it
didn’t hurt to try.
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Posted inelection law "humor"
<http://electionlawblog.org/?cat=52>,redistricting
<http://electionlawblog.org/?cat=6>
--
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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