[EL] ELB News and Commentary 3/7/15

Fri Mar 6 20:28:32 PST 2015

    “North of Selma, black leaders ‘fighting the same battle’”
    <http://electionlawblog.org/?p=70828>

Posted onMarch 6, 2015 8:24 pm 
<http://electionlawblog.org/?p=70828>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/politics/south-of-selma-black-leaders-fighting-the-same-battle/2015/03/06/117922d2-c372-11e4-9271-610273846239_story.html>:

    There will be no party here this weekend. While thousands are
    gathering just an hour or so south in Selma to remember one of the
    high marks of the civil rights movement, black leaders say there is
    nothing to celebrate.

    Political leaders, including President Obama, and foot soldiers of
    the movement are in Selma to observe the 50th anniversary of the
    “Bloody Sunday” march that helped to propel the passage of the
    Voting Rights Act.

    But this is Shelby County, a rural cluster of small towns, modest
    homes and farmland. It was here in 2013 that local officials won a
    major victory when the Supreme Court struck down a key provision of
    the federal law that resulted from those historic marches in Selma,
    especially the first, on March 7, 1965, when peaceful protesters at
    the Edmund Pettus Bridge were beaten and tear-gassed.

    “Shelby County has become the new Selma,” said the Rev. Kenneth
    Dukes, who has spent all 47 of his years in the county, leads the
    local NAACP branch and on weekdays drives a school bus for the
    Montevallo school district. “Not because of the brutality; we aren’t
    being beaten. But because we’re still here fighting for the same
    things, fighting the same battle.”

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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>

    “Colorado Court of Appeals Urged to Overturn Ruling Allowing State
    Republican Party to Run Super PAC and Take Unlimited Contributions”
    <http://electionlawblog.org/?p=70826>

Posted onMarch 6, 2015 8:13 pm 
<http://electionlawblog.org/?p=70826>byRick Hasen 
<http://electionlawblog.org/?author=3>

Press release. 
<http://www.campaignlegalcenter.org/news/press-releases/colorado-court-appeals-urged-overturn-ruling-allowing-state-republican-party-run>

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

    “What is Corruption, How Should We Define It, and Why Is It Bad?”
    <http://electionlawblog.org/?p=70819>

Posted onMarch 6, 2015 3:02 pm 
<http://electionlawblog.org/?p=70819>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here’s the video<https://vimeo.com/121507894>from today’s Fordham 
conference of a panel featuring Larry Lessig, Zephyr Teachout, and me, 
moderated by Claire Huntington. It was an interesting discussion. Larry 
and I came closer in our positions on the problem of campaign money than 
we ever have before. The panel starts at the 25 minute mark in the video.

I appeared via Skype, because weather-related flight cancellations kept 
me in LA (where it is 86 degrees).

UPDATE: The keynote, by U.S. attorney Preet Bharara ishere. 
<http://t.co/dEvDHCZZPh>

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

    Supreme Court to Consider WI Voter ID Cert Petition at March 20
    Conference <http://electionlawblog.org/?p=70817>

Posted onMarch 6, 2015 2:59 pm 
<http://electionlawblog.org/?p=70817>byRick Hasen 
<http://electionlawblog.org/?author=3>

Docket 
<http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-803.htm>.

The North Carolina 
case<http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-780.htm>is 
a bit further behind, with the opposition brief from the League of Women 
Voters due today.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,Supreme Court 
<http://electionlawblog.org/?cat=29>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>

    Divided 10th Circuit Rejects Rehearing En Banc in Citizens United v.
    Gessler Campaign Finance Case <http://electionlawblog.org/?p=70814>

Posted onMarch 6, 2015 2:49 pm 
<http://electionlawblog.org/?p=70814>byRick Hasen 
<http://electionlawblog.org/?author=3>

Order 
<http://electionlawblog.org/wp-content/uploads/CU-v.-Gessler-Order-Denying-Rehearing-Rehearing-En-Banc03062015.pdf>.

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

    “Feds prepare criminal corruption charges against Senator Bob
    Menendez” <http://electionlawblog.org/?p=70812>

Posted onMarch 6, 2015 2:46 pm 
<http://electionlawblog.org/?p=70812>byRick Hasen 
<http://electionlawblog.org/?author=3>

CNN 
<http://www.cnn.com/2015/03/06/politics/robert-menendez-criminal-corruption-charges-planned/>: 
“The Justice Department is preparing to bring criminal corruption 
charges against New Jersey Sen. Robert Menendez, a Democrat, alleging he 
used his Senate office to push the business interests of a Democratic 
donor and friend in exchange for gifts.”

I guess it was a bad day for me to present my draft paper, Why Isn’t 
Congress More Corrupt?

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

    “Court hears one more challenge to congressional district maps”
    <http://electionlawblog.org/?p=70810>

Posted onMarch 6, 2015 1:52 pm 
<http://electionlawblog.org/?p=70810>byRick Hasen 
<http://electionlawblog.org/?author=3>

Miami Herald 
<http://www.miamiherald.com/news/state/florida/article12525914.html>:

    Florida’s congressional redistricting maps should be rejected
    because they are the product of a shadowy process infiltrated by
    Republican political operatives in violation of the law against
    partisan gerrymandering, lawyers argued before the Florida Supreme
    Court on Wednesday.

    The plaintiffs in the case, a coalition of voters and the League of
    Women Voters, want the court to adopt an alternative map because,
    they said, Leon County Circuit Court Judge Terry Lewis erred when he
    ruled that the entire map had been infiltrated by operatives but
    then asked lawmaker to redraw only two of the districts.

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Posted inredistricting <http://electionlawblog.org/?cat=6>

    Call for Presenters <http://electionlawblog.org/?p=70808>

Posted onMarch 6, 2015 1:47 pm 
<http://electionlawblog.org/?p=70808>byRick Hasen 
<http://electionlawblog.org/?author=3>

The following announcement arrived via email:

    /Cleveland State Law Review/Spring Symposium: Speaker Solicitation

    Cleveland-Marshall College of Law and the/Cleveland State Law
    Review/are proud to host Professor Lawrence Lessig from Harvard
    University on April 17, 2015. Professor Lessig will be giving an
    address titled “How Money (in politics) Matters.” The/Cleveland
    State Law Review/would like to tie in Professor Lessig’s talk with
    scholarly debate concerning the effects of money in politics, and in
    particular, the effects of/Citizens United v. FEC/.

    *We are soliciting presenters to participate in our symposium prior
    to Professor Lessig’s keynote address.*

    Interested presenters should provide a written proposal that
    includes the following information:

    1. Proposed title and speaker’s name, title, organization, complete
    address, telephone number, fax and email address

    2. One page description of the presentation

    3. Your biography along with your professional headshot

    /Presenters responding to this solicitation are responsible for
    their own travel and lodging expenses./

    How Speakers are chosen:

    The/Cleveland State Law Review/will evaluate proposals based on the
    following criteria:

     Clearly stated learning objectives and purpose

     Potential for audience interactive participation

     Speaker presentation skills and experience

     Speaker subject matter knowledge and expertise

     Overall quality of the written proposal

     Practical application of material

     Technical accuracy

     Context of the issues including real-world case studies, examples
    and stories

    If you are interested in presenting at the/Cleveland State Law
    Review/Spring Symposium, please follow the instructions provided and
    submit a response via email with the subject line “Spring Symposium
    – Call for Speakers Response” by March 17, 2015 to clevstlrev at gmail.com.

    For questions or more information, please contact Patrick Rahill at
    p.rahill at cmlaw.csuohio.edu.

    Cleveland-Marshall College of Law

    2121 Euclid Ave., LB 138

    Cleveland, Ohio 44115

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

    “Honor Selma by Honoring Voting Rights”
    <http://electionlawblog.org/?p=70806>

Posted onMarch 6, 2015 1:44 pm 
<http://electionlawblog.org/?p=70806>byRick Hasen 
<http://electionlawblog.org/?author=3>

Bloomberg View editorial. 
<http://www.bloombergview.com/articles/2015-03-06/march-beyond-selma-for-universal-voting-rights>

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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>,VRAA 
<http://electionlawblog.org/?cat=81>

    “Obama Returns To Selma For 50th Anniversary Of Historic March”
    <http://electionlawblog.org/?p=70804>

Posted onMarch 6, 2015 10:45 am 
<http://electionlawblog.org/?p=70804>byRick Hasen 
<http://electionlawblog.org/?author=3>

NPR reports. 
<http://www.npr.org/2015/03/06/391217903/obama-returns-to-selma-for-50th-anniversary-of-historic-march?utm_source=twitter.com&utm_campaign=politics&utm_medium=social&utm_term=nprnews>

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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>

    “David Schleicher to Join Yale Law School Faculty in July as
    Associate Professor of Law” <http://electionlawblog.org/?p=70802>

Posted onMarch 6, 2015 10:27 am 
<http://electionlawblog.org/?p=70802>byRick Hasen 
<http://electionlawblog.org/?author=3>

Congrats <http://www.law.yale.edu/news/19407.htm>to David and Yale!

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Posted inelection law biz <http://electionlawblog.org/?cat=51>

    “Assignment America: Selma” <http://electionlawblog.org/?p=70800>

Posted onMarch 6, 2015 10:22 am 
<http://electionlawblog.org/?p=70800>byRick Hasen 
<http://electionlawblog.org/?author=3>

Gay Talese reflects 
<http://www.nytimes.com/2015/03/07/us/selma-gay-talese.html>for the NYT.

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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>

    Senator Tim Scott Calls for “De-Coupling” Voting Rights Legislation
    and Selma Commemoration <http://electionlawblog.org/?p=70798>

Posted onMarch 6, 2015 9:32 am 
<http://electionlawblog.org/?p=70798>byRick Hasen 
<http://electionlawblog.org/?author=3>

WOW 
<http://www.mcclatchydc.com/2015/03/05/258821/lawmakers-obama-civil-rights-leaders.html>:

    Sen. Tim Scott, R-S.C., an honorary co-chairman of the Selma trip
    and the only African-American Republican in the Senate, said voting
    rights and the commemoration of Selma should be “de-coupled.”

    “The issue of voting rights legislation and the issue of Selma, we
    ought to have an experience that brings people together and not make
    it into a political conversation,” Scott said.

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Posted inpolitical parties <http://electionlawblog.org/?cat=25>,Voting 
Rights Act <http://electionlawblog.org/?cat=15>

    “GOP leaders to skip Selma event; ‘They’ve lost an opportunity to
    show the American people that they care,’ one black lawmaker says”
    <http://electionlawblog.org/?p=70796>

Posted onMarch 6, 2015 9:12 am 
<http://electionlawblog.org/?p=70796>byRick Hasen 
<http://electionlawblog.org/?author=3>

Politico 
<http://www.politico.com/story/2015/03/gop-leaders-to-skip-selma-event-115801.html#ixzz3TbsOpbUl>:

    Scores of U.S. lawmakers are converging on tiny Selma, Alabama, for
    a large commemoration of a civil rights anniversary. But their ranks
    don’t include a single member of House Republican leadership — a
    point that isn’t lost on congressional black leaders.

    None of the top leaders — House Speaker John Boehner, Majority
    Leader Kevin McCarthy or Majority Whip Steve Scalise, who was once
    thought likely to attend to atone for reports that he once spoke
    before a white supremacist group — will be in Selma for the
    three-day event that commemorates the 1965 march and the violence
    that protesters faced at the hands of white police officers. A
    number of rank-and-file Republicans have been aggressively lobbying
    their colleagues to attend, and several black lawmakers concurred.

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Posted inpolitical polarization 
<http://electionlawblog.org/?cat=68>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>

    “Selma and Voting Rights: Commemoration or legislation?”
    <http://electionlawblog.org/?p=70794>

Posted onMarch 6, 2015 9:06 am 
<http://electionlawblog.org/?p=70794>byRick Hasen 
<http://electionlawblog.org/?author=3>

Facing South 
<http://www.southernstudies.org/2015/03/selma-and-voting-rights-commemoration-or-legislati.html>.

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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>

    “Continuing Constitutional Difficulties in Implementing the Voting
    Rights Act” <http://electionlawblog.org/?p=70792>

Posted onMarch 6, 2015 8:56 am 
<http://electionlawblog.org/?p=70792>byRick Hasen 
<http://electionlawblog.org/?author=3>

Ilya Shapiro 
<http://www.cato.org/blog/continuing-constitutional-difficulties-implementing-voting-rights-act>:

    Sue Evenwel is a citizen of the United States and of the state of
    Texas. She is a registered voter in Titus County and regularly votes
    in local and state elections. How is it, then, that Ms. Evenwel’s
    vote in a Texas state senate race is worth only about half that of
    certain other voters? The answer lies somewhere at the intersection
    of bad law and even worse politics that the modern Voting Rights Act
    has become.

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting 
Rights Act <http://electionlawblog.org/?cat=15>

    “With a nod and a wink, Republicans build 2016 campaign machines”
    <http://electionlawblog.org/?p=70790>

Posted onMarch 6, 2015 8:50 am 
<http://electionlawblog.org/?p=70790>byRick Hasen 
<http://electionlawblog.org/?author=3>

Reuters 
<http://www.reuters.com/article/2015/03/06/us-usa-election-republicans-idUSKBN0M20EM20150306>:

    Asked last week about his agenda if elected, presumptive Republican
    presidential candidate Scott Walker began: “Should I choose to be a
    candidate…”

    Then he added with a grin: “My lawyers love it when I say that.”

    Like the other would-be Republican candidates who took the
    stage over three days in Washington at the Conservative Political
    Action Conference, the Wisconsin governor studiously avoided
    mentioning any plans for the 2016 presidential election.

    The pantomime is crucial – it allows candidates to work closely with
    their funding organizations to rake in big money donations without
    breaking campaign finance laws. Once they launch their campaign or
    even say they are “testing the waters”, they face far tighter
    restrictions on their fundraising.

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

    “The Supreme Court and the Power of the People”
    <http://electionlawblog.org/?p=70788>

Posted onMarch 6, 2015 8:44 am 
<http://electionlawblog.org/?p=70788>byRick Hasen 
<http://electionlawblog.org/?author=3>

Michael Li: 
<http://www.huffingtonpost.com/michael-li/the-supreme-court-and-the_b_6811912.html>

    A good advocate tries to make things simple, and sitting through
    Monday’s U.S. Supreme Court hearing over the constitutionality
    ofArizona’s independent redistricting commission
    <https://www.brennancenter.org/legal-work/arizona-state-legislature-v-arizona-independent-redistricting-commission>,
    it was clear — if there had been any doubt — that former U.S.
    Solicitor General Paul Clement is one very good advocate. For
    Clement, who was representing the Arizona Legislature in its
    challenge to the commission, the whole of the case turned on a
    single word: legislature. Because the Constitution says that the
    “times, places, and manner” of federal elections should be decided
    in each state by the “legislature thereof,” he told the Justices
    that meant Arizona voters had no right to use a ballot initiative to
    pass the law creating the commission in 2000. But for all the
    superficial simplicity of Clement’s argument, the history of the
    Founding Era and the years since suggests the Court should not be so
    quick to relegate the people to bystanders.

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Posted indirect democracy <http://electionlawblog.org/?cat=62>,Elections 
Clause <http://electionlawblog.org/?cat=70>,redistricting 
<http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>

    “I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get
    There” <http://electionlawblog.org/?p=70786>

Posted onMarch 6, 2015 8:42 am 
<http://electionlawblog.org/?p=70786>byRick Hasen 
<http://electionlawblog.org/?author=3>

Sue Bell 
Cobb<http://www.politico.com/magazine/story/2015/03/judicial-elections-fundraising-115503_Page2.html#.VPnXa4F4p4h>writes 
for /Politico /magazine.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>,judicial elections 
<http://electionlawblog.org/?cat=19>

    “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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-- 
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
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