[EL] Scalia/consequentialism
Rick Hasen
rhasen at law.uci.edu
Sun Feb 14 14:33:02 PST 2016
We can talk about it a week from Friday at the Brooklyn Law School First
Amendment conference:
https://www.brooklaw.edu/newsandevents/events/2016/02-26-2016?
My short answer is that when it comes to constitutional law today
practiced by the Supreme Court, it is all consequentialism and about
political power. But, as I've said, I've pretty much given up debating
the merits of campaign finance on the listserv, which gives me
indigestion and does little to convince anyone of anything. (I have
received requests to have a listserv function to have all the campaign
finance rantings we sometimes see excluded from listserv subscriptions.
Alas, there is no functionality for that.)
So you'll excuse me if I don't respond to further missives on this.
On 2/14/16 2:25 PM, Smith, Brad wrote:
> states challenge /Citizens United/ before a new justice is confirmed.
> If Obama’s nominees are blocked (Senate Majority leader Mitch
> McConnell has already said he does not think there should be a
> confirmation in Obama’s remaining months), all is not lost. A brave
> federal circuit court or state Supreme Court might do what the Montana
> Supreme Court did soon after /Citizens United/: uphold corporate
> spending limits in state elections. The Supreme Court in a short
> opinion on a 5-4 vote smacked down
> <http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf> the
> Montana Supreme Court, but it could not do the same today. A 4-4 tie
> in the Supreme Court keeps the lower court opinion in place, and that
> could, at least in some states, restore us to the pre-/Citizens
> United/ era.
>
> Would you have urged this course for conservatives if it was Ginsburg
> who had passed, and they wanted a "brave" lower court to defy
> precedent and uphold a state's gay marriage ban, or strike down
> Obamacare as unconstitutional?
>
> Or is this just consequentialist reasoning?
>
> /Bradley A. Smith/
>
> /Josiah H. Blackmore II/Shirley M. Nault/
>
> / Professor of Law/
>
> /Capital University Law School/
>
> /303 E. Broad St./
>
> /Columbus, OH 43215/
>
> /614.236.6317/
>
> /http://law.capital.edu/faculty/bios/bsmith.aspx/
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] on behalf of Rick
> Hasen [rhasen at law.uci.edu]
> *Sent:* Sunday, February 14, 2016 5:02 PM
> *To:* law-election at UCI.edu
> *Subject:* [EL] ELB News and Commentary 2/14/16
>
>
> “How Scalia’s Death Could Shake Up Campaign Finance; It might be
> the opening reformers have been waiting for”
> <http://electionlawblog.org/?p=79944>
>
> Posted onFebruary 14, 2016 2:00 pm
> <http://electionlawblog.org/?p=79944>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> I have writtenthis commentary
> <http://www.politico.com/magazine/story/2016/02/antonin-scalia-death-campaign-finance-reform-213633>for
> Politico magazine. Here’s a snippet:
>
> How did Scalia eventually get his way on the question of how to
> balance First Amendment rights of free speech against strong
> government interests like preventing corruption or promoting
> political equality? It was not through a formal constitutional
> amendment, which would have required a supermajority vote in
> Congress and approval by three-fourths of the states. Instead, in
> 2006, the meaning of the Constitution changed in 2006 when Justice
> Sandra Day O’Connor, the crucial fifth vote to uphold reasonable
> campaign finance limits, retired and was replaced by Justice
> Samuel Alito. Alito, like Scalia, has never voted in favor of a
> campaign finance limit inhis 10 years on the Court
> <http://www.usatoday.com/story/news/politics/2016/02/12/supreme-court-justice-samuel-alito-conservative-oconnor/79770058/>.
>
> And just as the meaning of the Constitution turned on a dime with
> Alito’s confirmation, there are three ways it can do so again to
> allow reasonable limits on campaign money.
>
> First, Obama nominates a new justice who gets Senate approval. The
> president has said he will nominate someone to replace Scalia.
> Anyone the president nominates, if confirmed, will likely vote the
> way his past nominees, Justices Sonia Sotomayor and Elena Kagan,
> have voted: in favor of reasonable limits.
>
> Second, states challenge/Citizens United/before a new justice is
> confirmed. If Obama’s nominees are blocked (Senate Majority leader
> Mitch McConnell has already said he does not think there should be
> a confirmation in Obama’s remaining months), all is not lost. A
> brave federal circuit court or state Supreme Court might do what
> the Montana Supreme Court did soon after/Citizens United/: uphold
> corporate spending limits in state elections. The Supreme Court in
> a short opinion on a 5-4 votesmacked down
> <http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf>the
> Montana Supreme Court, but it could not do the same today. A 4-4
> tie in the Supreme Court keeps the lower court opinion in place,
> and that could, at least in some states, restore us to the
> pre-/Citizens United/era.
>
> Third, the country elects a Democratic president—or maybe Trump.
> Campaign finance is an issue in the presidential election like it
> has never been before. Democratic candidates Clinton and Sanders
> have said overruling/Citizens United/will be a litmus test for
> their appointees to the Court. You can bet future Supreme Court
> nominees of Democratic presidents will be vetted closely on this
> issue.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79944&title=%26%238220%3BHow%20Scalia%E2%80%99s%20Death%20Could%20Shake%20Up%20Campaign%20Finance%3B%20It%20might%20be%20the%20opening%20reformers%20have%20been%20waiting%20for%26%238221%3B&description=>
> Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
> 1st Effect of Scalia’s Loss May Be on #SCOTUS Shadow Docket, But
> We May Not Know It <http://electionlawblog.org/?p=79942>
>
> Posted onFebruary 14, 2016 1:53 pm
> <http://electionlawblog.org/?p=79942>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> One of the first ways that Justice Scalia’s absence will be felt in
> Court decisions is on emergency motions and stay request which make
> its way to the Supreme Court on an expedited basis, what Prof. Will
> Baude calls the Supreme court’s “shadow docket.
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545130>” Already
> the practices here are opaque. The Court often rules without giving
> reasons, or it gives cryptic reasons, and sometimes it is not even
> clear which standard of review the Court applies. I’ve delved into
> this a bit because the Court seems to have adopted a special rule for
> emergency election law cases, which I’ve dubbed thePurcell principle
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>, which
> counsels against judicial changes to election rules in the period just
> before the election.
>
> In fact, the Court has a pending emergency motion in an election law
> case before it right now. It is a North Carolina congressional
> redistricting case. A special three-judge district court held that two
> of the congressional districts were unconstitutional “racial
> gerrymanders” (more on the substance of such a claimhere)
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601459>. The
> district court ordered lines to be redrawn within two weeks by the NC
> Legislature. But absentee balloting is already underway. The state,
> raising the Purcell principle, argues for the Supreme Court to stay
> the order, in effect allowing the 2016 elections to go forward under
> the old lines.
>
> Suppose (we don’t know this) that the Court would have been 5-4 in
> favor of granting a stay, with Justice Scalia in the majority and the
> Court dividing on conservative-liberal lines. Now imagine that with
> Scalia’s loss, the Court is 4-4. Then the Court would deny the stay.
> The Court likely would issue an order denying the stay without giving
> the vote—that is its usual practice. But a denial could also mean the
> vote was 3-5, or even 0-8. We just won’t know what Scalia’s loss means.
>
> And think of the unprecedented order the Court issued a few weeks ago
> in the power plant case, where the Court stopped the environmental
> rule from going into effect even before the DC Circuit has had a
> chance to rule on the question. That vote /was/5-4. If the vote came
> this week, that power plant rule would still be in effect. I think it
> would be bad form for the SG to ask for rehearing on that stay order,
> but on the merits, the Court would be dividing 4-4.
>
> So much more goes on behind the scenes at the Court that we never see,
> because the Court is the least transparent branch of government, by far.
>
> Justice Scalia’s loss then already may be having great effects that we
> cannot measure.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79942&title=1st%20Effect%20of%20Scalia%26%238217%3Bs%20Loss%20May%20Be%20on%20%23SCOTUS%20Shadow%20Docket%2C%20But%20We%20May%20Not%20Know%20It&description=>
> Posted inSupreme Court <http://electionlawblog.org/?cat=29>
>
>
> Donald Trump Likely Has Standing To Contest Cruz’s Eligibility.
> Trump Should Lose on the Merits, If Courts Reach the Merits
> <http://electionlawblog.org/?p=79940>
>
> Posted onFebruary 14, 2016 12:51 pm
> <http://electionlawblog.org/?p=79940>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> The lawsuits filed so far in federal court to get Ted Cruz kicked off
> the ballot as a natural born citizen likely have an insurmountable
> standing problem. “Voters” as a class generally do not have enough of
> a concrete stake in the proceedings to have the case heard in federal
> court. (Federal courts under Article III of the Constitution can
> decide only cases or controversies, and standing is one of those
> doctrines to make sure there is enough at stake for such a case to be
> heard.) Recently, Donald Trump tweeted that he would have standing to
> sue to try to get Cruz kicked off the ballot. Is that true? First,
> let’s clear the brush.
>
> 1. To begin with, Cruz would almost certainly have standing if a
> local election official refused to put Cruz on the ballot ruling
> him ineligible because he is not a natural born citizen. But so
> far I’m not aware of any elected official that has so ruled.
> 2. I also don’t know enough about state standing rules etc. to know
> how a Trump or other case would fare in /state/court, rather than
> federal court. Each state’s rules on standing are different.
> 3. There may be other doctrines besides standing that could keep a
> federal court for deciding the question. For example, a court may
> say that this is a non-justiciable political question, which is
> committed to state legislatures (which pick the rules for choosing
> presidential electors) on Congress (which counts electoral college
> votes).
>
> So here’s the case for Trump’s standing (as I alluded to in anearlier
> post <http://electionlawblog.org/?p=79892>): competitive standing.
> Here’s a 2008 federal district court case,Hollander v. McCain
> <http://moritzlaw.osu.edu/electionlaw/litigation/documents/Hollander-Order-7-24-08.pdf>,
> involving a voter challenge to McCain’s eligibility to run for president:
>
> To be sure, courts have held that a candidate or his political
> party has standing to challenge the inclusion of an allegedly
> ineligible rival on the ballot, on the theory that doing so hurts
> the candidate’s or party’s own chances of prevailing in the
> election. See, e.g., Tex. Dem. Party v. Benkiser, 459 F.3d 582,
> 586-87 & n.4 (5th Cir. 2006); Schulz v. Williams, 44 F.3d 48, 53
> (2d Cir. 1994); Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir.
> 1990). But that notion of “competitive standing” has never been
> extended to voters challenging the eligibility of a particular
> candidate. See Gottlieb v. Fed. Elec. Comm’n, 143 F.3d 618, 622
> (D.C. Cir. 1998).
>
> And here’s a 9th Circuit case which recognizes the doctrine as applied
> to real candidates for office,Drake v. Obama
> <http://cdn.ca9.uscourts.gov/datastore/general/2011/12/22/0956827.pdf>, involving
> a challenge to Obama’s eligibility to run for president:
>
> The remaining plaintiffs were political candidates and a certified
> elector during the 2008 general election. Plaintiffs Alan Keyes
> and Wiley S. Drake were the Presidential and Vice Presidential
> candidates, respectively, of the American Independent Party on the
> California ballot in the 2008 Presidential Election. Plaintiff
> Gail Lightfoot, a member of California’s Libertarian Party, was an
> official write-in Vice Presidential candidate in California in
> 2008. Plaintiff Markham Robinson was a certified California
> elector for, and Chairman of, the American Independent Party.
>
> These plaintiffs argue that they have standing because, as
> candidates running against Obama in the 2008 election, they had an
> interest in having a fair competition for the positions they
> sought to obtain. If Obama entered the presidential race without
> meeting the requirements for the office, they contend, the
> candidates did not have a fair opportunity to obtain votes in
> their favor. Plaintiffs further argue that Robinson, as an
> elector, also had an interest in a fair competition between
> eligible candidates, including those for whom he had pledged to vote.
>
> Plaintiffs cite a case from the District of New
> Hampshire,/Hollander v. McCain/
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2016612304&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>,
> for the proposition that “a candidate or his political party has
> standing to challenge the inclusion of an allegedly ineligible
> rival on the ballot, on the theory that doing so hurts the
> candidate’s or party’s own chances of prevailing in the
> election.”566 F.Supp.2d 63, 68 (D.N.H.2008)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2016612304&pubNum=4637&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&fi=co_pp_sp_4637_68&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_4637_68>.
> This notion of “competitive standing” has been recognized by
> several circuits./See, e.g.,//Tex. Democratic Party v.
> Benkiser,/459 F.3d 582, 586–87 & n. 4 (5th Cir.2006)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2009654461&pubNum=506&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&fi=co_pp_sp_506_586&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_506_586>(political
> party has standing because “threatened loss of [political] power
> is still a concrete and particularized injury sufficient for
> standing purposes”);/Schulz v. Williams,/44 F.3d 48, 53 (2d
> Cir.1994)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995020609&pubNum=506&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&fi=co_pp_sp_506_53&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_506_53>(political
> party representative has standing because his party may “suffer a
> concrete, particularized, actual injury—competition on the ballot
> from candidates that … were able to avoid complying with the
> Election Laws and a resulting loss of votes”) (internal quotation
> marks omitted);/Fulani v. Hogsett,/917 F.2d 1028, 1030 (7th
> Cir.1990)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1990160829&pubNum=350&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&fi=co_pp_sp_350_1030&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_350_1030>(third-party
> presidential candidate had standing because the allegedly improper
> placement of the major-party candidates on the ballot resulted in
> “increased competition” that required “additional campaigning and
> outlays of funds” and resulted in lost opportunities to obtain
> “press exposure” and win the election).
>
> We, too, have upheld the notion of “competitive standing.” In/Owen
> v. Mulligan,/
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981111588&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>we
> held that the “potential loss of an election” was an
> injury-in-fact sufficient to give a local candidate and Republican
> party officials standing.640 F.2d 1130, 1132–33 (9th Cir.1981)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981111588&pubNum=350&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&fi=co_pp_sp_350_1132&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_350_1132>.
> In that case, the candidate for local office sued the Postal
> Service for giving his rival a preferential mailing rate, in
> violation of its own regulations and of its representations to the
> court regarding procedures implemented in response to a previous
> injunction./Id./at 1132.
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981111588&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>The
> candidate and party officials sought “to prevent their opponent
> from gaining an unfair advantage in the election process through
> abuses of mail preferences which arguably promote his electoral
> prospects.”/Id./at 1133
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981111588&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>(internal
> quotation marks and citations omitted). We rejected the Postal
> Service’s argument that the potential loss of an election due to
> an unfair advantage for the opponent was an “injury [that was] too
> remote, speculative and unredressable to confer standing.”/Id./at
> 1132
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981111588&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>(internal
> quotation marks omitted).^3
> <http://electionlawblog.org/#co_footnote_B00332026724498_1>
>
> Here, the District Court assumed, without deciding, that only
> those plaintiffs who were political candidates in 2008 could
> potentially satisfy the injury-in-fact requirement of standing
> because they had a competitive interest in running against a
> qualified candidate. The District Court then turned to the
> redressability requirement of standing.
>
> The District Court was mistaken in assuming, however, that the
> political candidates still had an interest in a fair competition
> at the time the complaint was filed. The original complaint was
> filed on January 20, 2009, at 3:26 p.m. Pacific Standard Time,
> after President Obama was officially sworn in as President. The
> First Amended Complaint was filed on July 14, 2009.**784*Whichever
> complaint is considered, the 2008 general election was over when
> it was filed. Once the 2008 election was over and the President
> sworn in, Keyes, Drake, and Lightfoot were no longer “candidates”
> for the 2008 general election. Moreover, they have not alleged any
> interest in running against President Obama in the future.
> Therefore, none of the plaintiffs could claim that they would be
> injured by the “potential loss of an election.”/Owen,/640 F.2d at
> 1132.
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981111588&pubNum=350&originatingDoc=I93188a942cd911e18da7c4363d0963b0&refType=RP&fi=co_pp_sp_350_1132&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_350_1132>Plaintiffs’
> competitive interest in running against a qualified candidate had
> lapsed.^4
> <http://electionlawblog.org/#co_footnote_B00442026724498_1>Similarly,
> Robinson’s interest as an elector—derived from the competitive
> interest of his preferred candidates—was extinguished by the time
> the complaint was filed.
>
> For the foregoing reasons, the political candidates failed to
> establish redressability sufficient to establish standing. They
> cannot claim competitive standing because they were no longer
> candidates when they filed their complaint.
>
> And here’s a recent federal district court case,/Grinois v. Electoral
> College, /explaining /Drake:/
>
> Several Circuits, including the Ninth Circuit, have recognized a
> “competitive standing” theory./See, e.g.,//Owen v. Mulligan,/640
> F.2d 1130, 1132–33 (9th Cir.1981)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981111588&pubNum=350&originatingDoc=Ida81325ec6b011e28501bda794601919&refType=RP&fi=co_pp_sp_350_1132&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Folder*cid.bb4514af34b24b87a651aca1877ce4f0*oc.Keycite%29#co_pp_sp_350_1132>;/Tex.
> Dem.//Party v. Benkiser,/459 F.3d 582, 586–87 (5th Cir.2006)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2009654461&pubNum=506&originatingDoc=Ida81325ec6b011e28501bda794601919&refType=RP&fi=co_pp_sp_506_586&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Folder*cid.bb4514af34b24b87a651aca1877ce4f0*oc.Keycite%29#co_pp_sp_506_586>;/Schulz
> v. Williams,/44 F.3d 48, 53 (2d Cir.1994)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995020609&pubNum=506&originatingDoc=Ida81325ec6b011e28501bda794601919&refType=RP&fi=co_pp_sp_506_53&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Folder*cid.bb4514af34b24b87a651aca1877ce4f0*oc.Keycite%29#co_pp_sp_506_53>;/Fulani
> v. Hogsett,/917 F.2d 1028, 1030 (7th Cir.1990)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1990160829&pubNum=350&originatingDoc=Ida81325ec6b011e28501bda794601919&refType=RP&fi=co_pp_sp_350_1030&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Folder*cid.bb4514af34b24b87a651aca1877ce4f0*oc.Keycite%29#co_pp_sp_350_1030>.
> The Ninth Circuit has explained that “a candidate or his political
> party has standing to challenge the inclusion of an allegedly
> ineligible rival on the ballot, on the theory that doing so hurts
> the candidate’s or party’s own chances of prevailing in the
> election.”/Drake v. Obama,/664 F.3d 774, 782 (9th Cir.2011)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2026724498&pubNum=506&originatingDoc=Ida81325ec6b011e28501bda794601919&refType=RP&fi=co_pp_sp_506_782&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Folder*cid.bb4514af34b24b87a651aca1877ce4f0*oc.Keycite%29#co_pp_sp_506_782>(quoting/Hollander,/566
> F.Supp.2d 63, 68 (D.N.H.2008)
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2016612304&pubNum=4637&originatingDoc=Ida81325ec6b011e28501bda794601919&refType=RP&fi=co_pp_sp_4637_68&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Folder*cid.bb4514af34b24b87a651aca1877ce4f0*oc.Keycite%29#co_pp_sp_4637_68>).
> For the competitive standing theory to apply, however, a
> competitor must have a “chance of prevailing in the
> election.”/Drake,/664 F.3d at 782
> <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2026724498&pubNum=506&originatingDoc=Ida81325ec6b011e28501bda794601919&refType=RP&fi=co_pp_sp_506_782&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Folder*cid.bb4514af34b24b87a651aca1877ce4f0*oc.Keycite%29#co_pp_sp_506_782>.
> A chance is “the possibility of a particular outcome in an
> uncertain situation.” (Merriam–Webster’s Dictionary, m-w.com.)
> Other courts have emphasized that a political candidate must be a
> “competitor” or “rival” to demonstrate the particularized injury
> element of competitive standing….
>
> It looks like Trump would satisfy the /Drake/test. He’s a serious
> candidate, who faces a potential loss of election to Cruz. He’s not a
> write-in candidate who’s just trying to conjure up standing. He faces
> a real injury. I’m perplexed by JoshDouglas’s statement
> <http://prawfsblawg.blogs.com/prawfsblawg/2016/02/does-donald-trump-have-standing-to-keep-ted-cruz-off-of-the-ballot.html>that it
> would be hard to show that Trump faces additional expenses having to
> run against Cruz and therefore he does not have enough at sake for
> standing. Of course he has to spend more to run against Cruz. As
> candidates drop out, he can spend less to fight against each of them.
>
> Now just because Trump would likely have standing, at least for a suit
> in the Ninth Circuit, does not mean he’d win. There may be political
> question issues, as I’ve mentioned. His suit may come too late, and be
> barred by laches.
>
> But what if the courts reach the merits? As I’ve argued inthis NLJ
> piece <https://t.co/Vn1qVlUt2V>, at that point courts should rule that
> Cruz should win:
>
> It is easy for liberals to latch onto the_Donald Trump-fueled
> theory
> <http://www.nytimes.com/2016/01/19/us/politics/it-may-be-time-to-resolve-the-meaning-of-natural-born.html>_that
> Sen. Ted Cruz is ineligible to be president because he is not a
> “natural born” citizen. The argument allows progressives to call
> Cruz a hypocrite given his preferred originalist method of
> constitutional interpretation. And it gives conservative
> Republicans a taste of the noxious birther medicine that’s been
> used against President Barack Obama.
>
> But liberals should embrace an interpretation of the Constitution
> that maximizes the voter choice and enfranchisement of voters, one
> that would minimize the reach of an archaic constitutional
> provision suggesting that only those born on U.S. soil are
> qualified to be president. Fight Cruz on his ideas, not his
> eligibility for office.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79940&title=Donald%20Trump%20Likely%20Has%20Standing%20To%20Contest%20Cruz%26%238217%3Bs%20Eligibility.%20Trump%20Should%20Lose%20on%20the%20Merits%2C%20If%20Courts%20Reach%20the%20Merits&description=>
> Posted incampaigns <http://electionlawblog.org/?cat=59>
>
>
> Seth Tillman Says Obama Recess Appointment to SCOTUS Could
> Backfire on Democrats <http://electionlawblog.org/?p=79938>
>
> Posted onFebruary 14, 2016 12:11 pm
> <http://electionlawblog.org/?p=79938>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Interesting
> <http://reformclub.blogspot.ie/2016/02/a-quick-thought-on-presidential-recess.html>.
>
> I don’t expect there will be a sufficiently long recess before next
> January in any case to give the President an opportunity.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79938&title=Seth%20Tillman%20Says%20Obama%20Recess%20Appointment%20to%20SCOTUS%20Could%20Backfire%20on%20Democrats&description=>
> Posted inSupreme Court <http://electionlawblog.org/?cat=29>
>
>
> “Presidential Candidates Pledge To Undo Citizens United. But Can
> They?” <http://electionlawblog.org/?p=79936>
>
> Posted onFebruary 14, 2016 10:17 am
> <http://electionlawblog.org/?p=79936>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Peter Overby reports for NPR
> <http://www.npr.org/2016/02/14/466668949/presidential-candidates-pledge-to-undo-citizens-united-but-can-they>.
>
> I’ll have more on this question soon.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79936&title=%26%238220%3BPresidential%20Candidates%20Pledge%20To%20Undo%20Citizens%20United.%20But%20Can%20They%3F%26%238221%3B&description=>
> Posted incampaign finance <http://electionlawblog.org/?cat=10>
>
>
> “U.S. Supreme Court vacancy upends presidential race”
> <http://electionlawblog.org/?p=79934>
>
> Posted onFebruary 14, 2016 9:58 am
> <http://electionlawblog.org/?p=79934>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Reuters reports.
> <http://www.reuters.com/article/usa-scalia-election-vacancy-judge-idUSKCN0VN06U>
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79934&title=%26%238220%3BU.S.%20Supreme%20Court%20vacancy%20upends%20presidential%20race%26%238221%3B&description=>
> Posted incampaigns <http://electionlawblog.org/?cat=59>,Supreme Court
> <http://electionlawblog.org/?cat=29>
>
>
> Talking Justice Scalia on MSNBC with Joy Reid, Mark Alexander, and
> Katon Dawson <http://electionlawblog.org/?p=79932>
>
> Posted onFebruary 14, 2016 9:53 am
> <http://electionlawblog.org/?p=79932>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Watch.
> <http://www.msnbc.com/msnbc-news/watch/the-new-era-in-supreme-court-nominations-622817859697>
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79932&title=Talking%20Justice%20Scalia%20on%20MSNBC%20with%20Joy%20Reid%2C%20Mark%20Alexander%2C%20and%20Katon%20Dawson&description=>
> Posted inSupreme Court <http://electionlawblog.org/?cat=29>
>
>
> “Scalia’s Supreme Court Seat and the Next Frontier in Political
> Hardball” <http://electionlawblog.org/?p=79930>
>
> Posted onFebruary 14, 2016 9:52 am
> <http://electionlawblog.org/?p=79930>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Emily Bazelon
> <http://www.nytimes.com/2016/02/14/magazine/scalias-supreme-court-seat-and-the-next-frontier-in-political-hardball.html?_r=0> for
> NYT Magazine:
>
> If Mr. Obama nominated a moderate and the Republicans who control
> the Senate refused to confirm him, would the country find itself
> in the throes of a constitutional crisis? I did a quick poll of
> five constitutional law professors on Saturday night, and the
> consensus was no. “The world won’t crumble,” as Bruce Ackerman, a
> Yale law professor, put it.
>
> The government will still function in the interim, even if it is a
> long interim. The court can still decide cases. If it splits 4-4
> (as it does every once in a while when one justice or another sits
> out a case), then the lower court ruling is upheld. That is likely
> in one major case this term. The court recently heard arguments in
> asignificant challenge to the labor movement
> <http://www.nytimes.com/2016/01/09/us/politics/union-fees-friedrichs-v-california-teachers-association.html>over
> the collection of dues by public-sector unions, and itlooked like
> the plaintiffs would prevail
> <http://www.nytimes.com/2016/01/12/us/politics/at-supreme-court-public-unions-face-possible-major-setback.html>;
> a tie, without Scalia, would keep the current system intact. Even
> a run of 4-4 rulings will not create chaos. The outcomes would be
> more likely to preserve the status quo, especially because the
> court could wait to take cases until it can resolve them with a
> clear majority.
>
> But even if a Republican refusal to confirm a nominee by Mr. Obama
> would not bring the government to a stop, it would still be a
> major political struggle — a “stress test for our system of
> separation of powers,” said Richard Hasen, a University of
> California, Irvine, law professor and author of the new book
> “Plutocrats United
> <http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453>.”
> In 2004, Mark Tushnet, a Georgetown University law professor,
> wrote an article about “constitutional hardball
> <http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1557&context=facpub>,”
> which he defines as legal and political moves that are “within the
> bounds of existing constitutional doctrine and practice but that
> are nonetheless in some tension with existing/pre/-constitutional
> understandings.”
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79930&title=%26%238220%3BScalia%E2%80%99s%20Supreme%20Court%20Seat%20and%20the%20Next%20Frontier%20in%20Political%20Hardball%26%238221%3B&description=>
> Posted inSupreme Court <http://electionlawblog.org/?cat=29>
>
>
> Justice Scalia, The Most Sarcastic Justice
> <http://electionlawblog.org/?p=79928>
>
> Posted onFebruary 13, 2016 6:29 pm
> <http://electionlawblog.org/?p=79928>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Last year I wrote a piece for the Green Bag called “The Most Sarcastic
> Justice <http://www.greenbag.org/v18n2/v18n2_ex_post_hasen.pdf>.”
> Adam Liptak did anice writeup about it
> <http://www.nytimes.com/2015/01/20/us/scalia-lands-at-top-of-sarcasm-index-of-justices-shocking.html>in
> the NY Times, andZach Goldfarb
> <https://www.washingtonpost.com/news/wonk/wp/2016/02/13/the-snarky-lines-that-made-justice-scalia-the-king-of-supreme-court-sarcasm/>has
> highlights now at WaPo’s Wonkblog. The article begins:
>
> Justice Scalia is the most sarcastic justice on the Supreme Court.
> He has been for at least the last thirty years, and there is good
> reason to believe no other Justice in history has come close to
> his level of sarcasm. Now your first reaction to this claim, if
> you are a (sarcastic) Supreme Court aficionado or reader of the
> Green Bag (the two categories overlap almost perfectly), is
> probably: “Well, duh!” And your second reaction is likely: “Oh
> really? Well how can you prove that?”
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79928&title=Justice%20Scalia%2C%20The%20Most%20Sarcastic%20Justice&description=>
> Posted inSupreme Court <http://electionlawblog.org/?cat=29>
>
>
> What Will Happen with the North Carolina Redistricting Case?
> <http://electionlawblog.org/?p=79925>
>
> Posted onFebruary 13, 2016 6:08 pm
> <http://electionlawblog.org/?p=79925>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> I’ve been predicting a stay from the Supreme Court of the district
> court order, which would stop the current election (already begun with
> absentees) and have the state quickly redistrict and hold new
> elections with new district lines. With Justice Scalia’s death, a stay
> is now less likely, if the Court divides along liberal-conservative
> lines, although it could well be that Justice Breyer and others would
> agree with the state of North Carolina that under thePurcell
> Principle,
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>this
> change simply comes too late with voting already begun.
>
> We will see.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79925&title=What%20Will%20Happen%20with%20the%20North%20Carolina%20Redistricting%20Case%3F&description=>
> Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
> Justice Scalia’s Death and Implications for the 2016 Election, the
> Supreme Court and the Nation <http://electionlawblog.org/?p=79915>
>
> Posted onFebruary 13, 2016 2:29 pm
> <http://electionlawblog.org/?p=79915>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Justice Antonin Scaliahas died in Texas
> <http://www.politico.com/story/2016/02/breaking-news-supreme-court-justice-antonin-scalia-dead-at-the-age-of-79-219246#ixzz405b9iFAQ> at
> the age of 79. Let me begin with condolences to his family, friends,
> and former clerks who were fiercely loyal to him (and he to them).
> Whatever you thought of Justice Scalia’s politics and jurisprudence,
> he was an American patriot, who believed in the greatness of the
> United States and in the strength of American courts to protect the
> Constitution’s values as he has seen them. He also wrote the most
> entertaining and interesting opinions of any Justice on the Court.
>
> I was just in the early stages of a project to evaluate Justice
> Scalia’s legacy, and I will have much to say later on about Justice
> Scalia’s impact on the judiciary where his views on constitutional
> originalism and new textualist statutory interpretation have have
> played a key role in the development of American jurisprudence and
> argumentation in the federal courts.
>
> But let’s begin here with the implications for the Court’s current
> term, its impact on the 2016 election, and on the Nation as a whole.
>
> /*The Court’s current term. */The Supreme Court has been divided in
> recent years between liberals and conservatives, and more recently
> between Republican-appointed Justices (all conservative) and
> Democratic-appointed Justices (all liberal). There are a number of key
> cases coming to the Court where the Court was expected to divide 5-4
> on issues ranging from abortion, to affirmative action, to labor union
> power, to the President’s power over immigration and energy policy, to
> voting rights. While there is a vacancy on the Court, many of those
> cases would now be expected to divide 4-4, which would lead the Court
> perhaps to dismiss the cases by an equally divided court, leaving
> lower court opinions standing—whether than opinion pointed in a
> liberal or conservative direction. Some of those cases could perhaps
> be delayed for appointment of a new Justice, a Justice that could
> potentially swing the Court from a 5-4 conservative majority to a 5-4
> liberal majority. But that assumes that President Obama could nominate
> a liberal who could get confirmed by the Republican Senate. I think
> that’s fairly unlikely. Let me turn to that point.
>
> /*A replacement by President Obama*//*?*/**It would be good for the
> Court as an institution to have a full complement of Justices, so that
> it does not divide 4-4 and can get the people’s business done.
> However, President Obama is coming toward the end of his term, and
> would need to get an appointee through the Senate Judiciary Committee.
> In the best of times, this is a process that takes months. But this is
> not the best of times. This is a highly polarized time, and strong
> conservatives will fight VERY hard to have Republicans block a liberal
> appointment to the Court. So the Obama administration faces something
> of a choice. Nominate a hard-core liberal who could be filibustered by
> a Republican Senate, or nominate someone more moderate (Judge
> Garland?) who could PERHAPS get confirmed if enough Republicans would
> be willing to go along. That’s no sure thing at all. One reason for
> nominating a strong liberal would be to make the issue more salient in
> the Presidential election. So let me now turn to that.
>
> /*The Supreme Court as a 2016 Presidential campaign issue*/*. *A few
> months ago, before the death of Justice Scalia, I wrote the following
> atTalking Points Memo
> <http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause>:
>
> The future composition of the Supreme Court is the most important
> civil rights cause of our time. It is more important than racial
> justice, marriage equality, voting rights, money in politics,
> abortion rights, gun rights, or managing climate change. It
> matters more because the ability to move forward in these other
> civil rights struggles depends first and foremost upon control of
> the Court. And control for the next generation is about to be up
> for grabs, likely in the next presidential election, a point many
> on the right but few on the left seem to have recognized.
>
> When the next President of the United States assumes office on
> January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84,
> Justices Antonin Scalia and Anthony Kennedy will be over 80, and
> Justice Stephen Breyer will be 78. Although many Justices have
> served on the Court into their 80s and beyond, the chances for all
> of these Justices remaining through the next 4 or 8 years of the
> 45th President are slim. Indeed, the next president will likely
> make multiple appointments to the Court.
>
> The stakes are high. On non-controversial cases, or cases where
> the ideological stakes are low, the Justices often agree and are
> sometimes unanimous. In such cases, the Justices act much like
> lower court judges do, applying precedents, text, history, and a
> range of interpretative tools to decide cases. In the most
> controversial cases, however—those involving issues such as gun
> rights, affirmative action, abortion, money in politics, privacy,
> and federal power—the value judgments and ideology of the Supreme
> Court Justices, and increasingly the party affiliation of the
> president appointing them, are good predictors of each Justice’s vote.
>
> A conservative like Justice Scalia tends to vote to uphold
> abortion restrictions, strike down gun restrictions, and view the
> First Amendment as protecting the right to spend unlimited sums in
> elections. A liberal like Justice Ginsburg tends to vote the
> opposite way: to strike down abortion restrictions, uphold gun
> laws, and view the government’s interest in stopping undue
> influence of money in elections as justifying some limits on money
> in politics. This to not to say it is just politics in these
> cases, or that these Justices are making crassly partisan
> decisions. They’re not. It is that increasingly a Justice’s
> ideology and jurisprudence line up with one political party’s
> positions or another because Justices are chosen for that very reason.
>
> Especially if Senate Republicans block a liberal appointee to the
> Supreme Court, this has the potential to inject this issue into the
> Presidential campaign. And it will work both ways. You can bet that
> Ted Cruz will be running on a platform to replace Scalia with more and
> more Scalias. This could finally be the election that brings the
> Supreme Court into national focus much more (it has not been mentioned
> so far in any of the presidential debates I’ve seen). You can listen
> to UCI Law Dean Erwin Chemerinsky discuss the implications of the
> changing Supreme Court with Dahlia Lithwick onSlate’s Amicus podcast.
> <http://www.slate.com/articles/podcasts/amicus/2016/02/the_supreme_court_and_the_2016_presidential_elections.html>
>
> /*The Implications for the Nation of a changing Supreme Court*/*.
> *There is so much at stake concerning the Supreme Court for the next
> few years. As I wrote in /Plutocrats United/,
> <http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/>the
> easiest way to amend the Constitution to deal with campaign finance
> disasters like the Supreme Court’s opinion in Citizens United is not
> to formally amend the Constitution, but instead to change the
> composition of the Supreme Court. Regardless of what happens with
> Justice Scalia’s replacement, there will be likely at least three
> other Justices to be appointed over the next 4-8 years of the next
> President’s term. The stakes on all the issues people care about—from
> abortion to guns, from campaign finance and voting rights to
> affirmative action and the environment, depend upon 9 unelected
> Justices who serve for life.
>
> Ed Whelan (a strong conservative, and former Scalia clerk) and I will
> be doing a webcast onThe Supreme Court and the 2016 Elections
> <http://www.law.uci.edu/events/election-law/scotus-elections-2016feb22.html>on
> Feb. 22. I’m sure these issues will be hotly debated, as moderated by
> my colleague (and former LA Times legal correspondent Henry Weinstein).
>
> The kind of battles we will see over the fate of our Nation, enacted
> in the polarized Congress and in a polarized nation, will be epic. The
> stakes are high, and as I explain in Plutocrats United, depending on
> conditions we could see a vacant Supreme Court for a while (look for
> conservatives to argue over that) and likely the end of the filibuster
> for Supreme Court nominees (look for that if there is unified control
> of the Presidency and Senate, but without a filibuster proof majority.)
>
> As I said at TPM, this is the moment. It is the beginning of the most
> important civil rights debate of our time.
>
> [This post has been updated.]
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79915&title=Justice%20Scalia%26%238217%3Bs%20Death%20and%20Implications%20for%20the%202016%20Election%2C%20the%20Supreme%20Court%20and%20the%20Nation&description=>
> Posted inPlutocrats United
> <http://electionlawblog.org/?cat=104>,Supreme Court
> <http://electionlawblog.org/?cat=29>
>
>
> “Does Donald Trump Have Standing to Keep Ted Cruz off of the
> Ballot?” <http://electionlawblog.org/?p=79913>
>
> Posted onFebruary 13, 2016 1:00 pm
> <http://electionlawblog.org/?p=79913>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Josh Douglas blogs
> <http://prawfsblawg.blogs.com/prawfsblawg/2016/02/does-donald-trump-have-standing-to-keep-ted-cruz-off-of-the-ballot.html>.
> I hope to find time to respond soon.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79913&title=%26%238220%3BDoes%20Donald%20Trump%20Have%20Standing%20to%20Keep%20Ted%20Cruz%20off%20of%20the%20Ballot%3F%26%238221%3B&description=>
> Posted incampaigns <http://electionlawblog.org/?cat=59>
>
>
> NYU Law Review: Testing the Constitution
> <http://electionlawblog.org/?p=79911>
>
> Posted onFebruary 13, 2016 12:57 pm
> <http://electionlawblog.org/?p=79911>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Some very interesting articles, some related to election law, inthis
> special symposium
> issue<http://www.nyulawreview.org/issues/volume-90-number-4>of the NYU
> Law Review.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79911&title=NYU%20Law%20Review%3A%20Testing%20the%20Constitution&description=>
> Posted inUncategorized <http://electionlawblog.org/?cat=1>
>
>
> “Progressives’ anti-free speech itch”
> <http://electionlawblog.org/?p=79909>
>
> Posted onFebruary 13, 2016 12:53 pm
> <http://electionlawblog.org/?p=79909>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> George Will column
> <https://www.washingtonpost.com/opinions/progressives-anti-free-speech-itch/2016/02/12/387c1522-d0e8-11e5-b2bc-988409ee911b_story.html?hpid=hp_no-name_opinion-card-c%3Ahomepage%2Fstory>.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79909&title=%26%238220%3BProgressives%E2%80%99%20anti-free%20speech%20itch%26%238221%3B&description=>
> Posted incampaign finance <http://electionlawblog.org/?cat=10>
>
>
> “Super PAC moves to ramp up financial firepower for Clinton”
> <http://electionlawblog.org/?p=79907>
>
> Posted onFebruary 13, 2016 12:39 pm
> <http://electionlawblog.org/?p=79907>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> WaPo
> <https://www.washingtonpost.com/politics/democratic-groups-move-to-ramp-up-financial-firepower-for-clinton/2016/02/12/23ca8e00-d1b1-11e5-abc9-ea152f0b9561_story.html?hpid=hp_rhp-top-table-main_demmoney902pm:homepage/story>:
>
> Two powerful organizations within the Democratic establishment
> announced steps Friday that have the potential to provide
> substantial financial firepower to presidential contender Hillary
> Clinton by drawing on the support of wealthy donors and corporate
> interests.
>
> While providing a likely boost to Clinton, both developments also
> give rival Bernie Sanders fresh fodder to highlight her
> relationship with Wall Street and other special interests at a
> time when the two candidates are locked in an intense nomination
> fight.
>
> Priorities USA Action, the main super PAC supporting
> Clinton,unleashed a $5 million infusion of spending on her behalf
> <https://www.washingtonpost.com/politics/super-pac-makes-big-play-to-lift-hillary-clinton-in-primary-states/2016/02/11/39aca8dc-d019-11e5-abc9-ea152f0b9561_story.html>,
> upending plans to hold its fire until the general election. The
> move calls attention to growing concern within the party’s
> leadership that her campaign may be in trouble, and it underscores
> how crucial several upcoming contests have become in Clinton’s
> battle with Sanders, a senator from Vermont.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79907&title=%26%238220%3BSuper%20PAC%20moves%20to%20ramp%20up%20financial%20firepower%20for%20Clinton%26%238221%3B&description=>
> Posted incampaign finance
> <http://electionlawblog.org/?cat=10>,campaigns
> <http://electionlawblog.org/?cat=59>
>
>
> Pity the Billionaires Dep’t <http://electionlawblog.org/?p=79905>
>
> Posted onFebruary 12, 2016 5:23 pm
> <http://electionlawblog.org/?p=79905>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> “it’s frustrating,”
> <http://www.politico.com/story/2016/02/gop-megadonors-fundraising-freeze-219228>one
> megadonor tells Ken Vogel, that billionaires so far have not gotten
> their way in the Republican presidential race.
>
> I wonder if they can imagine what it feels like for the rest of us who
> don’t have the millions to throw around in these races.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79905&title=Pity%20the%20Billionaires%20Dep%26%238217%3Bt&description=>
> Posted incampaign finance
> <http://electionlawblog.org/?cat=10>,Plutocrats United
> <http://electionlawblog.org/?cat=104>
>
>
> “When it comes to voting rights, North Carolina the new Selma”
> <http://electionlawblog.org/?p=79901>
>
> Posted onFebruary 12, 2016 4:01 pm
> <http://electionlawblog.org/?p=79901>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> David Goodman oped
> <http://www.newsobserver.com/opinion/op-ed/article60113846.html>in the
> News and Observer:
>
> In the summer of 1964, the Ku Klux Klan murdered my brother,
> Andrew Goodman, along with fellow civil rights advocates James
> Chaney and Michael Schwerner, for having the temerity to try to
> register black voters in Mississippi. One year later, Congress
> passed the Voting Rights Act to protect voting rights, once and
> for all. Case closed. Right?
>
> Unfortunately, the case is not closed….
>
> Unbeknownst to many Americans, John Roberts has campaigned against
> the Voting Rights Act for years. I challenge his assertion that
> the forces that led to the murder of my brother and others are no
> longer a threat. Racial hatred and prejudice continue to linger in
> our society. Case in point: the mass killings in South Carolina
> last year. Another case in point: the continued glorification of
> the confederacy and the values that it promoted.
>
> The forces that once worked to suppress the rights of
> African-Americans are still alive and well. Political
> marginalization continues today. There is, however, a big
> difference between 1964 and 2016. Today, the marginalized citizens
> are not only include African-Americans, but also the poor, the
> young, the elderly and the formerly incarcerated.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79901&title=%26%238220%3BWhen%20it%20comes%20to%20voting%20rights%2C%20North%20Carolina%20the%20new%20Selma%26%238221%3B&description=>
> Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
> Rights Act <http://electionlawblog.org/?cat=15>
>
>
> EAC’s Brian Newby Sued for Citizenship Form Decision
> <http://electionlawblog.org/?p=79898>
>
> Posted onFebruary 12, 2016 3:24 pm
> <http://electionlawblog.org/?p=79898>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Release:
>
> U.S. Election Assistance Commission Executive Director Brian D.
> Newby’s action to allow three states to require documentary proof
> of citizenship on the federal voter registration form is illegal,
> argued the League of Women Voters of the United States, along with
> its Alabama, Georgia, and Kansas state Leagues, and others in a
> suitfiled today
> <http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91806&qid=7957011>in
> federal court.
>
> Civil rights groups the Georgia NAACP, the Georgia Coalition for
> the People’s Agenda, and Project Vote, along with Marvin Brown and
> JoAnn Brown, also join the suit against the U.S. Election
> Assistance Commission (EAC).
>
> “Voters should not have to face an obstacle course in order to
> participate in our democracy,” said*Elisabeth MacNamara*, national
> League president. “We had hoped that a reconstituted EAC would
> focus on improving election administration. This action by the
> executive director would make the election system worse. His
> action challenges the impartiality of the Commission.”
>
> In 2013, the Supreme Court ruled that Arizona could not require
> documentary proof of citizenship on the federal registration form
> without EAC approval. Kansas implemented a law similar to
> Arizona’s the same year, and both states put proof of citizenship
> requirements into effect for voters using their state forms.
> Subsequently, the EAC and a federal court ruled it invalid for the
> federal form. Alabama and Georgia, which passed similar provisions
> in 2011 and 2009, respectively, had not implemented their laws.
> Research shows7 percent of voters
> <http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91800&qid=7957011>do
> not have documentary proof of citizenship, andtens of thousands of
> Kansans
> <http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91801&qid=7957011>have
> been blocked from registering to vote in the state.
>
> On January 29, 2016, Newby sent letters to the secretaries of
> state of Alabama, Georgia, and Kansas stating, without further
> explanation, that he would allow the three states to require
> citizenship documents for applicants using the federal
> registration form. If the documents, such as birth certificates or
> passports, are not provided, Americans will be denied the
> fundamental right to vote. The federal form is designed to
> guarantee a “simple means of registering to vote
> <http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91802&qid=7957011>,”
> and already requires applicants to swear that they are U.S.
> citizens under penalty of perjury.
>
> The executive director did not have authority to allow the three
> states to enforce documentary proof of citizenship requirements on
> the federal form, and doing so violated both EAC policy and
> federal law, according to a complaint submitted today by the
> Brennan Center for Justice at NYU School of Law
> <http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91803&qid=7957011>with
> pro bono counsel at Stroock & Stroock & Lavan LLP; the Lawyers’
> Committee for Civil Rights Under Law and the American Civil
> Liberties Union with pro bono counsel Steptoe & Johnson LLP; and
> Project Vote with pro bono counsel Arnold & Porter LLP.
>
> Documentary proof of citizenship requirements undermine the
> groups’ efforts to increase civic participation and make it more
> difficult for individuals to vote, according to the court filing.
>
> “This change was unauthorized and illegal, and is hugely
> detrimental to voters in Alabama, Georgia, and Kansas,” said*Wendy
> Weiser*, director of the Brennan Center’s Democracy program and
> representation for the Leagues in this case. “With presidential
> primaries fast approaching, these citizens deserve clarity on how
> — or if — they can register to vote. This will bring unneeded
> confusion and uncertainty during this presidential election year.”
>
> “Stroock is proud to be part of the team challenging this highly
> troubling move, which would implement unnecessary requirements
> already ruled illegal by a federal court and the Election
> Assistance Commission itself,” said*Michael Keats*of Stroock &
> Stroock & Lavan LLP, which also represents the Leagues. “We are
> confident this unlawful action will not be allowed to stand.”
>
> “Documentary proof of citizenship requirements have caused havoc
> for Kansas elections,” said *Marge Ahrens*, co-president of the
> Kansas League. “Already, the League is scrambling to help the tens
> of thousands of eligible Kansans caught up in this ill-advised
> regulation, and complicating the federal form in this manner will
> make the problem even worse.”
>
> “Making eligible Alabamians show citizenship documents when
> registering to vote would seriously undercut our efforts to sign
> up voters,” said*Anne Permaloff*, president of the Alabama League.
> “Such an abrupt change would also interfere with our efforts to
> educate the electorate on how to navigate existing obstacles to
> voting, which are already significant.”
>
> “We are concerned this change will further complicate what should
> be a straightforward process,” said*Elizabeth Poythress*,
> president of the Georgia League. “This additional burden on the
> voter registration process is unnecessary, unreasonable, and could
> effectively deny the right to vote to thousands of Georgia
> citizens who are otherwise eligible and entitled by law to vote.”
>
> “We have successfully litigated two cases where we defeated
> attempts to require unnecessary and burdensome proof of
> citizenship for Federal Form applicants,” stated*Jon Greenbaum*,
> chief counsel for the Lawyers’ Committee for Civil Rights Under
> Law. “We expect to prevail a third time in this case.”
>
> “As an organization that has been registering citizens to vote for
> over 25 years, it is important that barriers to citizen
> participation be removed,” said*Helen Butler,*Executive Director
> of the Georgia Coalition for the Peoples’ Agenda. “We believe the
> requirement to provide proof of citizenship to register to vote is
> an unnecessary barrier, especially for communities of color.”
>
> “This is a part of our ongoing post-Shelby election administration
> monitoring across Georgia,” said*Francys Johnson*, Statesboro
> civil rights attorney and Georgia NAACP state president. “This
> case is illustrious of the insidious tricks, subterfuge, and
> attacks eviscerating the gains achieved under the VRA and the
> NVRA. The NAACP will mortgage every asset we have to defend the
> unfettered access to the ballot. It was paid for with the blood,
> sweat and tears of our ancestors — it’s sacred.”
>
> “Brian Newby’s decision to unilaterally change the instructions on
> the federal form to add new hurdles to voter registration is an
> outrage. He did so without legal authority, without public notice,
> and in direct opposition to the Election Assistance Commission’s
> repeated rejection of such changes. His abuse of power is
> unacceptable and illegal,” said*Dale Ho,*director of the ACLU’s
> Voting Rights Project.
>
> “Mr. Newby’s decision is an abrupt and outrageous reversal of the
> EAC’s previous position, which was already upheld by a federal
> appeals court,” said*Michelle Kanter Cohen*, election counsel for
> Project Vote. “We will continue to fight against documentary proof
> of citizenship requirements, which are designed to cripple
> community voter registration drives and limit who gets to have a
> say in our democracy.”
>
> The suit is brought in response to Executive Director Newby’s
> sudden and unexplained decision to allow three states to require
> applicants using the federal registration form to show documents
> proving their citizenship.
>
> Nearly identical requests from Arizona and Kansas have already
> been rejected by the EAC multiple times. Last June, the U.S.
> Supreme Courtturned down a petition
> <http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91804&qid=7957011>from
> Arizona and Kansas to hear/Kobach v. United States Election
> Assistance Commission/
> <http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91805&qid=7957011>,
> thereby letting stand a 10th Circuit ruling that the states may
> not force applicants using the federal voter registration form to
> show documents.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79898&title=EAC%26%238217%3Bs%20Brian%20Newby%20Sued%20for%20Citizenship%20Form%20Decision&description=>
> Posted inelection administration
> <http://electionlawblog.org/?cat=18>,Election Assistance Commission
> <http://electionlawblog.org/?cat=34>,The Voting Wars
> <http://electionlawblog.org/?cat=60>
>
>
> “Can the Courts End Racial Gerrymandering?”
> <http://electionlawblog.org/?p=79896>
>
> Posted onFebruary 12, 2016 3:04 pm
> <http://electionlawblog.org/?p=79896>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> To the Point:
> <http://www.kcrw.com/news-culture/shows/to-the-point/can-the-courts-end-racial-gerrymandering>
>
> The Constitution requires that the boundaries of congressional
> districts be re-drawn every 10 years, according to the latest
> census. In 2010, Republicans won control of legislatures all over
> the country—and those GOP lawmakers then collectively increased
> their Party’s power in Congress. When President Obama re-visited
> the Illinois Capitol in Springfield this week, he said it’s time
> for a change. The President’s talking about what’s called
> Gerrymandering, a practice as old as the nation itself.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79896&title=%26%238220%3BCan%20the%20Courts%20End%20Racial%20Gerrymandering%3F%26%238221%3B&description=>
> Posted inredistricting <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
--
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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