[EL] ELB News and Commentary 2/15/16
Rick Hasen
rhasen at law.uci.edu
Mon Feb 15 07:49:44 PST 2016
“The battle over replacing Justice Scalia is just the start of a war
over the Supreme Court” <http://electionlawblog.org/?p=79965>
Posted onFebruary 15, 2016 7:48 am
<http://electionlawblog.org/?p=79965>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis piece
<https://www.washingtonpost.com/news/wonk/wp/2016/02/15/the-battle-over-replacing-justice-scalia-is-just-the-start-of-a-war-over-the-supreme-court/>for
Washington Post’s Wonkblog. It begins:
It is tempting to think of the fight to replace Justice Antonin
Scalia on the Supreme Court as/*the*/battle defining the future of
the Supreme Court for the next generation. In fact, it is simply the
first major battle in a larger war over the future of the Court and
our nation.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Voter fraud is more believable when your candidate loses”
<http://electionlawblog.org/?p=79963>
Posted onFebruary 15, 2016 7:46 am
<http://electionlawblog.org/?p=79963>byRick Hasen
<http://electionlawblog.org/?author=3>
LSE Blog:
<http://blogs.lse.ac.uk/usappblog/2016/02/11/voter-fraud-is-more-believable-when-your-candidate-loses/>
/Recent years have seen many red states introduce new voter
identification laws, with politicians often citing the need to
maintain public confidence in the voting process as a justification.
But is public confidence in voting driven by other, more subjective
factors? In new research using election polling,/*Michael W. Sances
<http://wp.me/p3I2YF-4R1#Author>*/and/*Charles Stewart
<http://wp.me/p3I2YF-4R1#Author>*/find that voters are more likely
to believe that elections have been fair if their candidate wins and
less so if when their favored candidate loses./
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Posted inelection administration <http://electionlawblog.org/?cat=18>
Revised Version of Paper on Election Law at the Roberts Court
<http://electionlawblog.org/?p=79961>
Posted onFebruary 15, 2016 7:45 am
<http://electionlawblog.org/?p=79961>byRick Hasen
<http://electionlawblog.org/?author=3>
I have now posted a revised version of Election Law’s Path in the
Roberts Court’s First Decade: A Sharp Right Turn but with Speed Bumps
and Surprising Twists
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902>,
forthcoming /Stanford Law Review/(2016). Though revised, the revision
was completed before Justice Scalia’s death. Here is the abstract:
The first decade of election law cases at the Supreme Court under
the leadership of Chief Justice Roberts brought election law down a
strong conservative path. Citizens United v. Federal Election
Commission freed corporate money in U.S. candidate elections and
opened up a deregulatory era increasingly dominated by nominally
independent “Super PACs.” Shelby County v. Holder eviscerated the
congressional regime codified in Section 5 of the Voting Rights Act
under which Congress required states and localities with a history
of racial discrimination in voting to obtain federal permission
before making a change in voting rules by proving that the change
would not make minority voters worse off. In its wake,
previously-covered jurisdictions have adopted a number of election
changes which no doubt have made minority voters worse off. In
Crawford v. Marion County Election Board the Court gave the green
light for state voter identification laws, despite a lack of
evidence that such laws are necessary to deter fraud or instill
voter confidence. Republican states have increasingly tightened
voting rules in Crawford’s wake. Finally, the Court will soon
consider whether to place new restrictions on application of the one
person, one vote rule which would hurt Latino representation and
strengthen rural and Republican power. The Court took the case,
Evenwel v. Abbott, despite having apparently resolved the legal
question it presents in 1966.
Nonetheless, the Roberts Court, while dominated by a majority of
five conservative Justices, has not gone as far right as it could
have or as some, including I, had predicted. In the campaign finance
arena, the Court has thus far refused to take cases to strike down
the ban on direct corporate contributions to candidates, or to
reopen the ability of political parties to take large “soft money”
contributions. It has not eliminated individual contribution limits,
even as Super PACs and other campaign groups undermine them. In the
voting rights arena, the Court so far has declined cases which would
further limit the scope of, or find unconstitutional, Section 2 of
the Voting Rights Act, a key remaining protection for minority
voters, and it has revived the racial gerrymandering cause of action
in a way which can help minority plaintiffs fight Republican
gerrymanders. Most recently, the Court surprisingly rejected the
opportunity to use the Elections Clause to kill independent
commission-based congressional redistricting and other electoral
reforms, and it upheld against First Amendment challenge a rule
barring judicial candidates from personally soliciting campaign
contributions.
In this Essay I describe the path of election law jurisprudence in
the Roberts Court and then consider two questions. First, what
explains why the Court, while shifting in a strongly conservative
direction, has not moved more extremely to the right? Second, what
options has the Court left for election reformers who are unhappy
with the strongly conservative, although not maximally conservative,
status quo?
On the first question, a combination of factors appears to explain
the trajectory and speed of the Roberts Court’s election law
decisions. The Roberts Court is fundamentally conservative, but for
jurisprudential, temperamental, or strategic reasons Justices
holding the balance of power appear to prefer incrementalism to
radical change. Mandatory appellate jurisdiction appears the best
way to force the Roberts’ Court’s hand, and it often but not always
leads to a conservative result. Nearly half of the Roberts Court’s
election cases came on mandatory jurisdiction. Progressives
meanwhile have limited the number of cases they present for Court
review to avoid adverse precedent. Finally, the five conservative
Justices are not monolithic in their views and are capable of
surprise, as evidenced by the recent Arizona redistricting decision,
in which Justice Kennedy joined with the Court’s liberals, and the
recent judicial elections case, in which Chief Justice Roberts
joined with the Court’s liberals.
On the second question, the Court has left very limited space for
reform in certain areas, such as campaign finance. Where the Court
has greatly constrained choice, only minor improvements are possible
absent a change in the Supreme Court’s personnel. In these areas,
the problem is not that reformers have a “romanticized” vision of
democracy; it is that the structural impediments erected by the
Court have hobbled meaningful reform efforts. In contrast, in areas
in which the Court has mostly left room for decentralized election
law approaches, such as in the arena election administration,
election fights are becoming both legal and political. Polarization
and decentralization have led to the emergence of “red state
election law” and “blue state election law,” with voting
restrictions increasingly enacted in many Republican-leaning states
but not Democratic-leaning states or states with mixed control.
Part I briefly describes the path of election law in the Roberts era
across key election law areas including campaign finance, voting
rights, and election administration. Part II explains why the
Roberts Court is deeply conservative but not consistently
maximalist. Part III considers the space for election reform in the
Roberts Court era and beyond.
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Posted incampaign finance
<http://electionlawblog.org/?cat=10>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
John Oliver Takes on The Voting Wars
<http://electionlawblog.org/?p=79959>
Posted onFebruary 15, 2016 7:43 am
<http://electionlawblog.org/?p=79959>byRick Hasen
<http://electionlawblog.org/?author=3>
Watch. <https://www.youtube.com/watch?v=rHFOwlMCdto&feature=youtu.be>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Plutocrats United Book Tour to Philly and Boston (Cambridge) This
Week <http://electionlawblog.org/?p=79955>
Posted onFebruary 14, 2016 4:36 pm
<http://electionlawblog.org/?p=79955>byRick Hasen
<http://electionlawblog.org/?author=3>
This week <http://electionlawblog.org/?p=77845> on thePlutocrats United
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/> tour:
*February 18*, Philadelphia, PA, National Constitution Center (with Ned
Foley and Judge Jeremy Fogel) (12 pm event) (details and rsvp
<http://constitutioncenter.org/calendar/voting-in-america-how-campaign-finance-and-election-laws-threaten-democracy>)
*February 18*, Philadelphia PA, University of Pennsylvania Law School
(4:30 pm event) (details <http://electionlawblog.org/?p=79350>)
*February 19,*Boston/Cambridge, Harvard Law School (lunchtime event)
(details <http://electionlawblog.org/?p=79526>)
*February 19*, Cambridge, Scholars Strategy Network (details
<http://www.scholarsstrategynetwork.org/scholar-spotlight/book-talk-rick-hasen>;
*“*Seats limited. RSVP to events at scholarsstrategynetwork.org
<mailto:events at scholarsstrategynetwork.org>)
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Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>
“Scalia’s death could have quick impact on NC redistricting case”
<http://electionlawblog.org/?p=79953>
Posted onFebruary 14, 2016 2:57 pm
<http://electionlawblog.org/?p=79953>byRick Hasen
<http://electionlawblog.org/?author=3>
Anne Blythe reports
<http://www.newsobserver.com/news/politics-government/article60375981.html>for
the News and Observer.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
That Time Scalia Endorsed Political Equality for Campaign Finance
Limits, Sorta <http://electionlawblog.org/?p=79950>
Posted onFebruary 14, 2016 2:51 pm
<http://electionlawblog.org/?p=79950>byRick Hasen
<http://electionlawblog.org/?author=3>
As I noted in this commentary
<http://www.politico.com/magazine/story/2016/02/antonin-scalia-death-campaign-finance-reform-213633>for
Politico magazine, Justice Scalia first voiced his opposition to
campaign finance limits in the /Austin/case, in a passionate and
well-argued (if ultimately wrong-headed)dissent
<https://scholar.google.com/scholar_case?case=3609582225306729508&hl=en&as_sdt=6&as_vis=1&oi=scholarr>.
But before that, when Scalia was a young Justice, things were different.
As I explained in my 2003 book, The Supreme Court and Election Law
<http://www.amazon.com/Supreme-Court-Election-Law-Equality/dp/0814736912/ref=la_B0089NJCR2_1_12?s=books&ie=UTF8&qid=1455490031&sr=1-12>,
the/Austin/rationale started as dicta by Justice Brennan in the
/MCFL/case of 1986, advancing the idea that for profit political
spending should not be disproportionate to the public’s support for the
corporation’s political ideas. Both Justice Powell, who rejected
spending limits in /Buckley/, and Justice Scalia//joined in that
opinion. I remember finding a note in the case file at the Library of
Congress signed “Nino” to that effect:
Screen Shot 2016-02-14 at 2.48.33 PM
<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2016-02-14-at-2.48.33-PM.png>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Justice Scalia and Election Law” <http://electionlawblog.org/?p=79948>
Posted onFebruary 14, 2016 2:43 pm
<http://electionlawblog.org/?p=79948>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Douglas blogs.
<http://prawfsblawg.blogs.com/prawfsblawg/2016/02/justice-scalia-and-election-law.html#more>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
--
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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