[EL] Clarifying role of fair representation voting in Calera in the Shelby County case (was Re: ELB News and Commentary 3/7/15)
Rob Richie
rr at fairvote.org
Sat Mar 7 11:08:43 PST 2015
The Washington Post article below is an important one about Selma and the
Shelby County case. But, like much writing about the case, it skips a key
part of the story - that preclearance provisions led to Calera using a fair
representation alternative to winner-take-all elections, and that was key
to victory by the African American candidate who won easily in that
election with strong support from African American voters.
The Post reporter Wesley Lowery writes: "The federal agency refused to
certify the election results, and the city opted to scrap the election —
and their district map altogether — and hold a new election in 2009 for six
newly created at-large council seats. Montgomery, buoyed by the support of
black voters from all parts of the city, secured one of those seats."
With winner take all rules in place, those black voters would have not
elected a preferred candidates, however-- just as the political minority
these days can't win in more than two-thirds of states in presidential
elections and more than three in four open seat congressional elections.
For a fuller story and the key role of changing winner take all, see Drew
Spencer's blogpost in 2013:
http://www.fairvote.org/research-and-analysis/blog/the-role-of-fair-voting-systems-in-the-shelby-county-case/
-Rob
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Rob Richie
Executive Director, FairVote
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
rr at fairvote.org (301) 270-4616 http://www.fairvote.org
On Fri, Mar 6, 2015 at 11:28 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> “North of Selma, black leaders ‘fighting the same battle’”
> <http://electionlawblog.org/?p=70828>
> Posted on March 6, 2015 8:24 pm <http://electionlawblog.org/?p=70828> by Rick
> 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.”
>
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70828&title=%E2%80%9CNorth%20of%20Selma%2C%20black%20leaders%20%E2%80%98fighting%20the%20same%20battle%E2%80%99%E2%80%9D&description=>
> Posted in Voting 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 on March 6, 2015 8:13 pm <http://electionlawblog.org/?p=70826> by Rick
> 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>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70826&title=%E2%80%9CColorado%20Court%20of%20Appeals%20Urged%20to%20Overturn%20Ruling%20Allowing%20State%20Republican%20Party%20to%20Run%20Super%20PAC%20and%20Take%20Unlimited%20Contributions%E2%80%9D&description=>
> Posted in campaign 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 on March 6, 2015 3:02 pm <http://electionlawblog.org/?p=70819> by Rick
> 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 is here.
> <http://t.co/dEvDHCZZPh>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70819&title=%E2%80%9CWhat%20is%20Corruption%2C%20How%20Should%20We%20Define%20It%2C%20and%20Why%20Is%20It%20Bad%3F%E2%80%9D&description=>
> Posted in campaign 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 on March 6, 2015 2:59 pm <http://electionlawblog.org/?p=70817> by Rick
> 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.
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70817&title=Supreme%20Court%20to%20Consider%20WI%20Voter%20ID%20Cert%20Petition%20at%20March%2020%20Conference&description=>
> Posted in election 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 on March 6, 2015 2:49 pm <http://electionlawblog.org/?p=70814> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Order
> <http://electionlawblog.org/wp-content/uploads/CU-v.-Gessler-Order-Denying-Rehearing-Rehearing-En-Banc03062015.pdf>
> .
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70814&title=Divided%2010th%20Circuit%20Rejects%20Rehearing%20En%20Banc%20in%20Citizens%20United%20v.%20Gessler%20Campaign%20Finance%20Case&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>
> “Feds prepare criminal corruption charges against Senator Bob
> Menendez” <http://electionlawblog.org/?p=70812>
> Posted on March 6, 2015 2:46 pm <http://electionlawblog.org/?p=70812> by Rick
> 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?
>
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70812&title=%E2%80%9CFeds%20prepare%20criminal%20corruption%20charges%20against%20Senator%20Bob%20Menendez%E2%80%9D&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
> “Court hears one more challenge to congressional district maps”
> <http://electionlawblog.org/?p=70810>
> Posted on March 6, 2015 1:52 pm <http://electionlawblog.org/?p=70810> by Rick
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70810&title=%E2%80%9CCourt%20hears%20one%20more%20challenge%20to%20congressional%20district%20maps%E2%80%9D&description=>
> Posted in redistricting <http://electionlawblog.org/?cat=6>
> Call for Presenters <http://electionlawblog.org/?p=70808>
> Posted on March 6, 2015 1:47 pm <http://electionlawblog.org/?p=70808> by Rick
> 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
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70808&title=Call%20for%20Presenters&description=>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
> “Honor Selma by Honoring Voting Rights”
> <http://electionlawblog.org/?p=70806>
> Posted on March 6, 2015 1:44 pm <http://electionlawblog.org/?p=70806> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Bloomberg View editorial.
> <http://www.bloombergview.com/articles/2015-03-06/march-beyond-selma-for-universal-voting-rights>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70806&title=%E2%80%9CHonor%20Selma%20by%20Honoring%20Voting%20Rights%E2%80%9D&description=>
> Posted in Voting 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 on March 6, 2015 10:45 am <http://electionlawblog.org/?p=70804> by Rick
> 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>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70804&title=%E2%80%9CObama%20Returns%20To%20Selma%20For%2050th%20Anniversary%20Of%20Historic%20March%E2%80%9D&description=>
> Posted in Voting 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 on March 6, 2015 10:27 am <http://electionlawblog.org/?p=70802> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Congrats <http://www.law.yale.edu/news/19407.htm> to David and Yale!
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70802&title=%E2%80%9CDavid%20Schleicher%20to%20Join%20Yale%20Law%20School%20Faculty%20in%20July%20as%20Associate%20Professor%20of%20Law%E2%80%9D&description=>
> Posted in election law biz <http://electionlawblog.org/?cat=51>
> “Assignment America: Selma” <http://electionlawblog.org/?p=70800>
> Posted on March 6, 2015 10:22 am <http://electionlawblog.org/?p=70800> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Gay Talese reflects
> <http://www.nytimes.com/2015/03/07/us/selma-gay-talese.html> for the NYT.
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70800&title=%E2%80%9CAssignment%20America%3A%20Selma%E2%80%9D&description=>
> Posted in Voting 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 on March 6, 2015 9:32 am <http://electionlawblog.org/?p=70798> by Rick
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70798&title=Senator%20Tim%20Scott%20Calls%20for%20%E2%80%9CDe-Coupling%E2%80%9D%20Voting%20Rights%20Legislation%20and%20Selma%20Commemoration&description=>
> Posted in political 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 on March 6, 2015 9:12 am <http://electionlawblog.org/?p=70796> by Rick
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70796&title=%E2%80%9CGOP%20leaders%20to%20skip%20Selma%20event%3B%20%E2%80%98They%E2%80%99ve%20lost%20an%20opportunity%20to%20show%20the%20American%20people%20that%20they%20care%2C%E2%80%99%20one%20black%20lawmaker%20says%E2%80%9D&description=>
> Posted in political 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 on March 6, 2015 9:06 am <http://electionlawblog.org/?p=70794> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Facing South
> <http://www.southernstudies.org/2015/03/selma-and-voting-rights-commemoration-or-legislati.html>
> .
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70794&title=%E2%80%9CSelma%20and%20Voting%20Rights%3A%20Commemoration%20or%20legislation%3F%E2%80%9D&description=>
> Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
> “Continuing Constitutional Difficulties in Implementing the Voting
> Rights Act” <http://electionlawblog.org/?p=70792>
> Posted on March 6, 2015 8:56 am <http://electionlawblog.org/?p=70792> by Rick
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70792&title=%E2%80%9CContinuing%20Constitutional%20Difficulties%20in%20Implementing%20the%20Voting%20Rights%20Act%E2%80%9D&description=>
> Posted in Supreme 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 on March 6, 2015 8:50 am <http://electionlawblog.org/?p=70790> by Rick
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70790&title=%E2%80%9CWith%20a%20nod%20and%20a%20wink%2C%20Republicans%20build%202016%20campaign%20machines%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>
> “The Supreme Court and the Power of the People”
> <http://electionlawblog.org/?p=70788>
> Posted on March 6, 2015 8:44 am <http://electionlawblog.org/?p=70788> by Rick
> 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 of Arizona’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.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70788&title=%E2%80%9CThe%20Supreme%20Court%20and%20the%20Power%20of%20the%20People%E2%80%9D&description=>
> Posted in direct 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 on March 6, 2015 8:42 am <http://electionlawblog.org/?p=70786> by Rick
> 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.
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70786&title=%E2%80%9CI%20Was%20Alabama%E2%80%99s%20Top%20Judge.%20I%E2%80%99m%20Ashamed%20by%20What%20I%20Had%20to%20Do%20to%20Get%20There%E2%80%9D&description=>
> Posted in campaign 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 on March 5, 2015 8:50 pm <http://electionlawblog.org/?p=70784> by Rick
> 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 in Voting 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 on March 5, 2015 8:47 pm <http://electionlawblog.org/?p=70782> by Rick
> 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 in Voting 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 on March 5, 2015 7:47 pm <http://electionlawblog.org/?p=70780> by Abbe
> 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 and link
> <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 amicus brief
> <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 also described 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 also noted
> <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, but others
> <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 in Uncategorized <http://electionlawblog.org/?cat=1>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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