[EL] ELB News and Commentary 4/16/16
Rick Hasen
rhasen at law.uci.edu
Fri Apr 15 17:20:31 PDT 2016
“Is Trump Right About ‘Rigged’ Election?”
<http://electionlawblog.org/?p=81931>
Posted onApril 15, 2016 5:15 pm
<http://electionlawblog.org/?p=81931>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis
oped<http://www.cnn.com/2016/04/15/opinions/is-trump-right-about-rigged-process-hasen/index.html>for
CNN (my preferred headline was: Donald Trump’s Whining a Teachable
Moment). It begins:
Each year on April Fools’ Day I intersperse some false but plausible
news stories among the real ones on myElection Law Blog
<http://electionlawblog.org/>. Last year, I got a number of
prominent election-law attorneys and activists to believe a false
reportthat a federal court <https://electionlawblog.org/?p=71438>,
relying on the Supreme Court’s controversial campaign finance
decision in Citizens United v. Federal Election Commission, held
that the First Amendment protects the right to literally bribe
candidates.
This year, among false posts,was one
<http://electionlawblog.org/?p=81406>in which I had Donald Trump
declaring that he would not abide by the results of the Electoral
College vote if he was the popular vote winner. The made-up story
had him plotting with his campaign manager Corey Lewandowski to
seize power in the event of a popular vote/electoral vote conflict.
Many people believed the post, and it even made aWashington Post
list
<https://www.washingtonpost.com/news/the-intersect/wp/2016/04/01/a-comprehensive-updating-and-upsetting-list-of-2016s-april-fools-day-hoaxes/>of
debunked April Fools’ stories that people fell for.
It’s not a surprise.Trump railed against
<http://mashable.com/2012/11/06/trump-reacts-to-election/#eighm.iU5iq3>what
he perceived as the unfairness of the Electoral College when
President Obama won re-election in 2012. And he has consistently
whined about what he perceives as unfairness in the electoral
process. Combine that with his inflammatory rhetoric, and the idea
of a Trump coup is not so crazy….
As a candidate, Trump’s complaints are laughable. If Trump is so
disorganized as a candidate that he can’t even assemble the team to
master the delegate and convention rules, how is he going to manage
to run the massive federal bureaucracy, not to mention to defeat
ISIS or build a multibillion dollar wall between the United States
and Mexico?
But Trump’s grousing serves an important purpose in educating our
democracy. Does it still make sense today to use party delegates and
conventions as mediating entities for choosing presidential
candidates? Or would it be better to have a system in which each
party’s presidential nominee is the person who gets the most votes
of members of the party?
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Verbatim fact check: Is hard money a larger share of political
spending than outside money?” <http://electionlawblog.org/?p=81929>
Posted onApril 15, 2016 5:10 pm
<http://electionlawblog.org/?p=81929>byRick Hasen
<http://electionlawblog.org/?author=3>
See here.
<https://ballotpedia.org/Verbatim_fact_check:_Is_hard_money_a_larger_share_of_political_spending_than_outside_money%3F>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Las Vegas trip could have put Gov. Robert Bentley on wrong side of
campaign finance law” <http://electionlawblog.org/?p=81927>
Posted onApril 15, 2016 5:07 pm
<http://electionlawblog.org/?p=81927>byRick Hasen
<http://electionlawblog.org/?author=3>
AL.com
<http://www.al.com/news/index.ssf/2016/04/las_vegas_trip_could_have_put.html#incart_river_home>:
Alabama Governor Robert Bentley’s office says that the Republican
Governors Association picked up the tab for a trip the governor and
staff took to the organization’s annual meeting last November.
However, the reimbursement scheme the governor’s office says it used
could put the governor afoul of Alabama campaign finance law.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Read the Democrats’ Complaint Against AZ for Election Administration
Issues <http://electionlawblog.org/?p=81925>
Posted onApril 15, 2016 5:03 pm
<http://electionlawblog.org/?p=81925>byRick Hasen
<http://electionlawblog.org/?author=3>
The
complaint<http://kjzz.org/sites/default/files/Feldman%20v%20Secretary%20of%20State%20Complaint.pdf>makes
a Voting Rights Act section 2 claim and raises various constitutional
claims as well.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Democratic voters refuse to believe the worst about Hillary
Clinton” <http://electionlawblog.org/?p=81923>
Posted onApril 15, 2016 4:57 pm
<http://electionlawblog.org/?p=81923>byRick Hasen
<http://electionlawblog.org/?author=3>
Smart Greg Sargent piece:
<https://www.washingtonpost.com/blogs/plum-line/wp/2016/04/15/democratic-voters-refuse-to-believe-the-worst-about-hillary-clinton/>
But my strong suspicion is that Clinton’s reliance on corporate
money and her Wall Street speeches are not actually deal-breakers,
in and of themselves, for many Democratic voters. Judging by the
fact that Clinton has won far more popular votes than Sanders has —
and appears to be on track to winning the nomination — many
Democratic voters believe Clinton when she claims her economic
policy positions are not directly shaped by Wall Street cash. Or
perhaps they agree with Clinton when she says that the next
president will also have to battle a host of other problems beyond
the plutocracy’s continued grip on our political system — such as
bigotry, discrimination, and the ideological entrenchment of the GOP
— and that she’s better equipped to do that.
Clinton would be well served if she more directly engaged on the
question of why she is immune to the corrupting potential of big
money that Democrats have long decried, and how she squares that
with her continued opposition to/Citizens United/. But right now, it
doesn’t look like this dispute will be enough to derail her.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Power Canons” <http://electionlawblog.org/?p=81921>
Posted onApril 15, 2016 4:53 pm
<http://electionlawblog.org/?p=81921>byRick Hasen
<http://electionlawblog.org/?author=3>
Lisa Heinzerlinghas posted
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757770>this draft
on SSRN (forthcoming, William and Mary Law Review). Here is the abstract:
With three recent decisions – UARG v. EPA, King v. Burwell, and
Michigan v. EPA – the Supreme Court has embraced a new trio of
canons of statutory interpretation. When an agency charged with
administering a long-existing statute asserts regulatory authority
it has not previously used, in a matter having large economic and
political significance, its interpretation will be met with
skepticism. When an agency charged with administering an ambiguous
statutory provision answers a question of large economic and
political significance, one central to the statutory regime, and the
Court believes the agency is not an expert in the matter, the Court
may ignore the agency’s interpretation altogether. And when an
agency charged with administering a statute interprets an ambiguous
provision to permit the agency not to consider costs before deciding
to regulate, the agency will likely lose as having acted
unreasonably. In each of these cases, the Court put Congress on
notice that it would need to speak clearly if it wanted to give
administrative agencies interpretive authority over certain kinds of
decisions. In each case, the Court took interpretive power from an
administrative agency, power that would normally have been the
agency’s due under Chevron, and kept it for itself. And in each
case, the Court’s seizure of power aligned with its basic distrust
of an active administrative state. I call the new canons the “power
canons.”
The power canons are both normative and new. They are normative
canons, not descriptive or linguistic canons, insofar as they are
not based on a meaningful assessment of what Congress likely
intended to accomplish by using particular statutory language. The
canons are also new. Although two of them draw upon previous
decisions alluding to the significance (in two different senses) of
an interpretive question as a factor in statutory interpretation,
the recent cases both resuscitate that factor after intervening
cases had signaled its demise and add new, distinctive parameters.
The third canon, on regulatory costs, is utterly new.
As normative canons, the power canons must be normatively justified,
and the justification must spring from something other than, and
more than, judges’ own political preferences. Yet the Supreme Court
made essentially no effort to lay normative foundations for its new
trio of canons. Borrowing from Professor Eskridge’s normative
framework for evaluating interpretive canons, I argue here that the
power canons undermine rather than uphold important normative
values. Their unpredictability and subjectivity upset rule-of-law
values. Indeed, the asymmetrical thrust of the power canons –
pushing statutory regimes away from responsiveness and dynamism, and
toward regulatory passivity – is, more than their dilution of
Chevron deference, their core problem. The blunt approach of the
power canons also ignores details of statutory history and design
and thus their application drives a wedge between legislative
objectives and judicial outcomes. They undermine the public values
of separation of powers and deliberation by enlarging the judicial
power at the expense of the legislative and executive branches and
by leaning hard against one side of the ongoing debate over the
appropriate scope of regulatory power. The Supreme Court should
renounce the power canons.
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Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,Supreme Court
<http://electionlawblog.org/?cat=29>
Tweet of the Day: Loving Super PAC Edition
<http://electionlawblog.org/?p=81919>
Posted onApril 15, 2016 4:43 pm
<http://electionlawblog.org/?p=81919>byRick Hasen
<http://electionlawblog.org/?author=3>
Husband of#MD06 <https://twitter.com/hashtag/MD06?src=hash>GOP
candidate at amieforcongress <https://twitter.com/amieforcongress>has
provided 99.95% of the $2.1M raised by super PAC supporting
herhttps://t.co/oJzanemDIb
— Michael Beckel (@mjbeckel)April 14, 2016
<https://twitter.com/mjbeckel/status/720720300682424321>
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Posted inUncategorized <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 92697-8000
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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