[EL] Scalia/consequentialism
Rick Hasen
rhasen at law.uci.edu
Sun Feb 14 14:39:34 PST 2016
I send out my blog posts to the list, and they certainly can be fodder
for listerv discussions. It is just that I have found those discussions
related to campaign finance counterproductive and unpleasant.
And to the extent we are talking about the role of the Supreme Court in
constitutional law generally, I don't think this listserv is a great
venue for that discussion.
On 2/14/16 2:35 PM, Smith, Brad wrote:
> This was not a missive on the merits of campaign finance. I certainly
> expect your right not to discuss it, although it seems odd to start a
> thread on it with that approach in mind.
>
> /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:* Rick Hasen [rhasen at law.uci.edu]
> *Sent:* Sunday, February 14, 2016 5:33 PM
> *To:* Smith, Brad; law-election at UCI.edu
> *Subject:* Scalia/consequentialism
>
> 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
--
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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