[EL] Scalia/consequentialism

[Robin Chand]

Some of the comments on this listserv are caustic, petty and unhelpful.

One would expect more maturity than a lot of tenured professors and armchair scholars.

Folks - let's try to govern our actions accordingly and politics aside, remember the solemnity of what's occurred this weekend.

Sent from my iPhone

> On Feb 14, 2016, at 5:35 PM, Smith, Brad <BSmith at law.capital.edu> 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 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”
>> Posted on February 14, 2016 2:00 pm by Rick Hasen
>> I have written this commentary 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.
>> 
>> 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 vote smacked down 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.
>> 
>>  
>> 
>> <ATT00001.png>
>> Posted in campaign finance, Supreme Court
>> 1st Effect of Scalia’s Loss May Be on #SCOTUS Shadow Docket, But We May Not Know It
>> Posted on February 14, 2016 1:53 pm by Rick Hasen
>> 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.” 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, 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 claim here). 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.
>> 
>> <ATT00001.png>
>> Posted in Supreme Court
>> Donald Trump Likely Has Standing To Contest Cruz’s Eligibility. Trump Should Lose on the Merits, If Courts Reach the Merits
>> Posted on February 14, 2016 12:51 pm by Rick Hasen
>> 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.
>> 
>> 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.
>> 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.
>> 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 an earlier post): competitive standing. Here’s a 2008 federal district court case, Hollander v. McCain, 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, 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, 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). 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) (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) (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) (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, 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). 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. 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 (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 (internal quotation marks omitted).3
>> 
>> 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. Plaintiffs’ competitive interest in running against a qualified candidate had lapsed.4 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); Tex. Dem. Party v. Benkiser, 459 F.3d 582, 586–87 (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). 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) (quoting Hollander, 566 F.Supp.2d 63, 68 (D.N.H.2008)). 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. 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 Josh Douglas’s statement 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 in this NLJ piece, at that point courts should rule that Cruz should win:
>> 
>> It is easy for liberals to latch onto the Donald Trump-fueled theory 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.
>> 
>> <ATT00001.png>
>> Posted in campaigns
>> Seth Tillman Says Obama Recess Appointment to SCOTUS Could Backfire on Democrats
>> Posted on February 14, 2016 12:11 pm by Rick Hasen
>> Interesting.
>> 
>> I don’t expect there will be a sufficiently long recess before next January in any case to give the President an opportunity.
>> 
>> <ATT00001.png>
>> Posted in Supreme Court
>> “Presidential Candidates Pledge To Undo Citizens United. But Can They?”
>> Posted on February 14, 2016 10:17 am by Rick Hasen
>> Peter Overby reports for NPR.
>> 
>> I’ll have more on this question soon.
>> 
>> <ATT00001.png>
>> Posted in campaign finance
>> “U.S. Supreme Court vacancy upends presidential race”
>> Posted on February 14, 2016 9:58 am by Rick Hasen
>> Reuters reports.
>> 
>> <ATT00001.png>
>> Posted in campaigns, Supreme Court
>> Talking Justice Scalia on MSNBC with Joy Reid, Mark Alexander, and Katon Dawson
>> Posted on February 14, 2016 9:53 am by Rick Hasen
>> Watch.
>> 
>> <ATT00001.png>
>> Posted in Supreme Court
>> “Scalia’s Supreme Court Seat and the Next Frontier in Political Hardball”
>> Posted on February 14, 2016 9:52 am by Rick Hasen
>> Emily Bazelon 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 a significant challenge to the labor movementover the collection of dues by public-sector unions, and it looked like the plaintiffs would prevail; 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.” In 2004, Mark Tushnet, a Georgetown University law professor, wrote an article about “constitutional hardball,” 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.”
>> 
>> <ATT00001.png>
>> Posted in Supreme Court
>> Justice Scalia, The Most Sarcastic Justice
>> Posted on February 13, 2016 6:29 pm by Rick Hasen
>> Last year I wrote a piece for the Green Bag called “The Most Sarcastic Justice.”  Adam Liptak did anice writeup about it in the NY Times, and Zach Goldfarb 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?”
>> 
>> <ATT00001.png>
>> Posted in Supreme Court
>> What Will Happen with the North Carolina Redistricting Case?
>> Posted on February 13, 2016 6:08 pm by Rick Hasen
>> 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 the Purcell Principle, this change simply comes too late with voting already begun.
>> 
>> We will see.
>> 
>> <ATT00001.png>
>> Posted in redistricting, Supreme Court
>> Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation
>> Posted on February 13, 2016 2:29 pm by Rick Hasen
>> Justice Antonin Scalia has died in Texas 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 at Talking Points Memo:
>> 
>> 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.
>> 
>> 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, 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 on The Supreme Court and the 2016 Elections 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.]
>> 
>> <ATT00001.png>
>> Posted in Plutocrats United, Supreme Court
>> “Does Donald Trump Have Standing to Keep Ted Cruz off of the Ballot?”
>> Posted on February 13, 2016 1:00 pm by Rick Hasen
>> Josh Douglas blogs. I hope to find time to respond soon.
>> 
>> <ATT00001.png>
>> Posted in campaigns
>> NYU Law Review: Testing the Constitution
>> Posted on February 13, 2016 12:57 pm by Rick Hasen
>> Some very interesting articles, some related to election law, in this special symposium issue of the NYU Law Review.
>> 
>> <ATT00001.png>
>> Posted in Uncategorized
>> “Progressives’ anti-free speech itch”
>> Posted on February 13, 2016 12:53 pm by Rick Hasen
>> George Will column.
>> 
>> <ATT00001.png>
>> Posted in campaign finance
>> “Super PAC moves to ramp up financial firepower for Clinton”
>> Posted on February 13, 2016 12:39 pm by Rick Hasen
>> WaPo:
>> 
>> 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, 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.
>> 
>> <ATT00001.png>
>> Posted in campaign finance, campaigns
>> Pity the Billionaires Dep’t
>> Posted on February 12, 2016 5:23 pm by Rick Hasen
>> “it’s frustrating,” 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.
>> 
>> <ATT00001.png>
>> Posted in campaign finance, Plutocrats United
>> “When it comes to voting rights, North Carolina the new Selma”
>> Posted on February 12, 2016 4:01 pm by Rick Hasen
>> David Goodman oped 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.
>> 
>> <ATT00001.png>
>> Posted in Supreme Court, Voting Rights Act
>> EAC’s Brian Newby Sued for Citizenship Form Decision
>> Posted on February 12, 2016 3:24 pm by Rick Hasen
>> 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 suit filed today 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 shows 7 percent of voters do not have documentary proof of citizenship, and tens of thousands of Kansans 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,” 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 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,” statedJon 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 Court turned down a petition from Arizona and Kansas to hear Kobach v. United States Election Assistance Commission, thereby letting stand a 10th Circuit ruling that the states may not force applicants using the federal voter registration form to show documents.
>> 
>> <ATT00001.png>
>> Posted in election administration, Election Assistance Commission, The Voting Wars
>> “Can the Courts End Racial Gerrymandering?”
>> Posted on February 12, 2016 3:04 pm by Rick Hasen
>> To the Point:
>> 
>> 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.
>> 
>> <ATT00001.png>
>> Posted in redistricting
>> 
>> -- 
>> 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
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
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