[EL] ELB News and Commentary 2/18/16
Rick Hasen
rhasen at law.uci.edu
Thu Feb 18 07:47:53 PST 2016
“NC begins special session on redistricting”
<http://electionlawblog.org/?p=80075>
Posted onFebruary 18, 2016 7:45 am
<http://electionlawblog.org/?p=80075>byRick Hasen
<http://electionlawblog.org/?author=3>
WNCN
<http://wncn.com/2016/02/18/nc-holds-special-session-on-redistricting/>:
The proposed congressional redistricting map would put two
incumbents in the same district.
Redistricting leader Rep. David Lewis (R-Harnett) said Republican
U.S. Rep. George Holding of the 13th and Democratic Rep. David Price
of the 4th would live in the same proposed district. The snake-like
shape of the 12th District would be eliminated, replaced with a more
compact district.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Attention Redistricting Geeks <http://electionlawblog.org/?p=80073>
Posted onFebruary 18, 2016 7:43 am
<http://electionlawblog.org/?p=80073>byRick Hasen
<http://electionlawblog.org/?author=3>
Here’
<https://docs.google.com/spreadsheets/d/1l4RQl2XHim6SYPFVGn_8hM6Onq_kkP5PcelOqGE_2-w/edit#gid=1125322254>s
the NC congressional redistricting proposal (viaStephen Wolf
<https://twitter.com/PoliticsWolf/status/700343420112474114>)
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Racial Gerrymandering in North Carolina”
<http://electionlawblog.org/?p=80071>
Posted onFebruary 18, 2016 7:41 am
<http://electionlawblog.org/?p=80071>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT editorial.
<http://www.nytimes.com/2016/02/18/opinion/racial-gerrymandering-in-north-carolina.html?_r=0>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Scalia: the Most Influential Justice Without Influence in Supreme
Court History” <http://electionlawblog.org/?p=80069>
Posted onFebruary 18, 2016 7:38 am
<http://electionlawblog.org/?p=80069>byRick Hasen
<http://electionlawblog.org/?author=3>
Read David Cole
<http://www.thenation.com/article/scalia-the-most-influential-justice-without-influence-in-supreme-court-history/>in
The Nation.
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80069&title=%26%238220%3BScalia%3A%20the%20Most%20Influential%20Justice%20Without%20Influence%20in%20Supreme%20Court%20History%26%238221%3B&description=>
Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Republican Redistricting Criteria Violates Voting Rights Act”
<http://electionlawblog.org/?p=80067>
Posted onFebruary 18, 2016 7:31 am
<http://electionlawblog.org/?p=80067>byRick Hasen
<http://electionlawblog.org/?author=3>
Rep. Butterfield press release.
<https://butterfield.house.gov/media-center/press-releases/republican-redistricting-criteria-violates-voting-rights-act>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Blacks See Bias in Delay on a Scalia Successor”
<http://electionlawblog.org/?p=80065>
Posted onFebruary 17, 2016 7:29 pm
<http://electionlawblog.org/?p=80065>byRick Hasen
<http://electionlawblog.org/?author=3>
Must
read<http://www.nytimes.com/2016/02/18/us/politics/blacks-see-bias-in-delay-on-antonin-scalia-successor.html?ref=politics>Haberman/JMart
in the NYT.
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Posted incampaigns <http://electionlawblog.org/?cat=59>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Why Justice Scalia was staying for free at a Texas resort”
<http://electionlawblog.org/?p=80063>
Posted onFebruary 17, 2016 7:23 pm
<http://electionlawblog.org/?p=80063>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<https://www.washingtonpost.com/news/post-nation/wp/2016/02/17/justice-scalias-death-and-questions-about-who-pays-for-supreme-court-justices-to-visit-remote-resorts/?hpid=hp_rhp-top-table-main_scalia-resort-925am%3Ahomepage%2Fstory>
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Posted inconflict of interest laws
<http://electionlawblog.org/?cat=20>,Supreme Court
<http://electionlawblog.org/?cat=29>
How Slowly Would a Liberal Supreme Court Move on Cases Like Citizens
United? <http://electionlawblog.org/?p=80061>
Posted onFebruary 17, 2016 7:12 pm
<http://electionlawblog.org/?p=80061>byRick Hasen
<http://electionlawblog.org/?author=3>
Thoughtful exploration
<http://prawfsblawg.blogs.com/prawfsblawg/2016/02/the-new-supreme-court-and-the-jurisprudence-in-exile.html#more>from
Richard Re.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Scalia’s absence could shape election rules”
<http://electionlawblog.org/?p=80059>
Posted onFebruary 17, 2016 7:08 pm
<http://electionlawblog.org/?p=80059>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Gerstein
<http://www.politico.com/story/2016/02/antonin-scalia-voting-rights-219409>for
Politico:
Justice Antonin Scalia’s death is certain to have an impact on the
political debate in this year’s elections, but it could also have a
far more direct effect on the elections themselves.
There are numerous challenges to Republican-led congressional
redistricting plans and new voter ID laws likely to come under
Supreme Court scrutiny. Scalia had been a reliable vote for allowing
such redistricting plans and voting rules.
A new justice nominated by President Barack Obama and confirmed by
the Senate would almost certainly shift the court in the direction
of stricter voting rights enforcement and a greater willingness to
take account of race when considering redistricting and election law
matters
But the more likely scenario in the near term — deadlock over
Scalia’s replacement — could have a similar effect by leaving the
court less likely to come up with the five votes required to set
precedents on such matters and to issue emergency stays in
challenges to last-minute voter ID and election-law changes coming
up from lower courts.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,The Voting
Wars <http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
On @CNN, I Talked the Battle to Nominate a Scalia Successor
<http://electionlawblog.org/?p=80057>
Posted onFebruary 17, 2016 4:42 pm
<http://electionlawblog.org/?p=80057>byRick Hasen
<http://electionlawblog.org/?author=3>
Watch here.
<http://beta.criticalmention.com/app/#clip/view/20982337?token=00bd843c-3934-437c-8c72-d9c83ba0b71b>
Share
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Kasich denies cutting voting access was partisan move”
<http://electionlawblog.org/?p=80055>
Posted onFebruary 17, 2016 4:26 pm
<http://electionlawblog.org/?p=80055>byRick Hasen
<http://electionlawblog.org/?author=3>
MSNBC
<http://www.msnbc.com/msnbc/kasich-denies-cutting-voting-access-was-partisan-move>:
Ohio Gov. John Kasich denied he acted out of partisanship when he
signed a bill that reduced access to voting in the crucial swing state.
Pressed by MSNBC’s Chris Matthews, Kasich, who is seeking the
Republican presidential nomination, said he backed thecontroversial
2014 bill
<http://www.msnbc.com/msnbc/ohio-restricts-the-right-vote>, which
eliminated the week in which Ohioans could register and vote on the
same day, because local election officials supported it as a way to
simplify the voting process.
“Whenever people who run this voting system say we need to have more
order, that’s fine,” said Kasich, who has sought to portray himself
as a more inclusive type of Republican. “Then I have to listen to them.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“FAN 98 (First Amendment News) The Roberts Court’s 5-4 First
Amendment Rulings — Will They Survive?”
<http://electionlawblog.org/?p=80053>
Posted onFebruary 17, 2016 3:55 pm
<http://electionlawblog.org/?p=80053>byRick Hasen
<http://electionlawblog.org/?author=3>
Ron Collins blogs
<http://concurringopinions.com/archives/2016/02/fan-98-first-amendment-news-the-roberts-courts-5-4-first-amendment-rulings-will-they-survive.html>.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Campaign Money, Congress, and Perceptions of Corruption”
<http://electionlawblog.org/?p=80051>
Posted onFebruary 17, 2016 3:09 pm
<http://electionlawblog.org/?p=80051>byRick Hasen
<http://electionlawblog.org/?author=3>
Shaun Bowler and Todd Donovan have writtenthis article
<http://apr.sagepub.com/content/44/2/272.abstract>for American Politics
Research. Here is the abstract:
Many Americans think campaign money has a corrupting influence on
Congress. Yet how they think about money in politics is a relatively
unexplored topic. This article investigates how the public reasons
about campaign money and corruption. Our survey experiments
demonstrate that attitudes about campaign money are structured by
partisan interest and are also driven by information about sources
of campaign money and the amount spent (particularly for large
independent expenditures made possible by/Citizens United/), the
method of delivery, and about what the money is spent on. Mass
perceptions about corruption of Congress, furthermore, may reflect
aversion to negative campaigns as well as attitudes about campaign
financiers having undue influence over representatives. These
findings not only provide a more nuanced picture of attitudes about
campaign money but also have consequences for how we assess reform
proposals relating to money and politics.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Groups Ask Court for Immediate Halt of Voting Restrictions”
<http://electionlawblog.org/?p=80049>
Posted onFebruary 17, 2016 2:54 pm
<http://electionlawblog.org/?p=80049>byRick Hasen
<http://electionlawblog.org/?author=3>
Release
<http://www.brennancenter.org/press-release/groups-ask-court-immediate-halt-voting-restrictions>:
A federal judge should immediately block 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, according to a motionfiled today
<https://www.brennancenter.org/sites/default/files/legal-work/Motion_for_TemporaryRestrainingOrder.pdf>by
the League of Women Voters of the United States, along with its
Alabama, Georgia, and Kansas state Leagues, and others. The motion
follows a lawsuitfiled Friday
<https://www.brennancenter.org/sites/default/files/legal-work/EAC_complaint_021216.pdf>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 joined the motion against the U.S. Election Assistance
Commission (EAC).
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>,The Voting Wars
<http://electionlawblog.org/?cat=60>
How Would Trump Do in SC If We Had Ranked Choice Voting?
<http://electionlawblog.org/?p=80047>
Posted onFebruary 17, 2016 10:17 am
<http://electionlawblog.org/?p=80047>byRick Hasen
<http://electionlawblog.org/?author=3>
Fairvote analysis
<http://www.fairvote.org/the_south_carolina_republican_primary_is_trump_the_majority_choice>andinfographic
<https://infogr.am/ppp_data_feb_16th>.
Share
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Posted inalternative voting systems
<http://electionlawblog.org/?cat=63>,campaigns
<http://electionlawblog.org/?cat=59>
“Whose Votes Will Count? The State of Voting Rights and the 2016
Election” <http://electionlawblog.org/?p=80044>
Posted onFebruary 17, 2016 10:10 am
<http://electionlawblog.org/?p=80044>byRick Hasen
<http://electionlawblog.org/?author=3>
This ABA event
<http://electionlawblog.org/wp-content/uploads/Voting-Rights-and-the-2016-Election.pdf>in
DC on Feb. 29 looks great. Speakers include Kristen Clark, Marc Elias,
and Julie Fernandes, moderated by Jason Abel.
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“HBO Prepping Campaign Finance Reform Film from Alexandra Pelosi”
<http://electionlawblog.org/?p=80041>
Posted onFebruary 17, 2016 8:25 am
<http://electionlawblog.org/?p=80041>byRick Hasen
<http://electionlawblog.org/?author=3>
Hollywood Reporter exclusive.
<http://www.hollywoodreporter.com/news/hbo-prepping-campaign-finance-reform-864295>
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“In Battle Over Scalia Replacement, Obama Takes Advantage of
Far-Flung Senate” <http://electionlawblog.org/?p=80038>
Posted onFebruary 17, 2016 8:22 am
<http://electionlawblog.org/?p=80038>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports.
<http://www.nytimes.com/politics/first-draft/2016/02/17/in-battle-over-scalia-replacement-obama-takes-advantage-of-far-flung-senate/?ref=politics&_r=0>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“The New Wild West: Money and the 2016 US Presidential Election”
<http://electionlawblog.org/?p=80036>
Posted onFebruary 17, 2016 8:07 am
<http://electionlawblog.org/?p=80036>byRick Hasen
<http://electionlawblog.org/?author=3>
Watch video
<http://livestream.com/TheNewSchool/politics-and-policy-the-new-wild-west>of
this event at The New School.
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80036&title=%26%238220%3BThe%20New%20Wild%20West%3A%20Money%20and%20the%202016%20US%20Presidential%20Election%26%238221%3B&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Bernie Sanders’ Litmus Test for a Supreme Court Nominee”
<http://electionlawblog.org/?p=80034>
Posted onFebruary 17, 2016 8:01 am
<http://electionlawblog.org/?p=80034>byRick Hasen
<http://electionlawblog.org/?author=3>
Listen
<http://www.bloomberg.com/politics/videos/2016-02-17/bernie-sanders-litmus-test-for-a-supreme-court-nominee?cmpid=BBD021716_POL> (Hint:
it’s Citizens United)
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Justice Scalia and Campaign Finance: A Puzzle”
<http://electionlawblog.org/?p=80032>
Posted onFebruary 17, 2016 7:57 am
<http://electionlawblog.org/?p=80032>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs
<http://www.moresoftmoneyhardlaw.com/2016/02/justice-scalia-campaign-finance-one-puzzle/>….with
a cliffhanger!
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Scalia’s Death Throws North Carolina’s Upcoming Election Into
Confusion” <http://electionlawblog.org/?p=80030>
Posted onFebruary 17, 2016 7:47 am
<http://electionlawblog.org/?p=80030>byRick Hasen
<http://electionlawblog.org/?author=3>
Alice Ollstein writes
<http://thinkprogress.org/politics/2016/02/17/3749891/north-carolina-gerrymander/>for
Think Progress.
Share
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“The future of politics and regulation”
<http://electionlawblog.org/?p=80028>
Posted onFebruary 17, 2016 7:46 am
<http://electionlawblog.org/?p=80028>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Jossey writes
<http://thehill.com/blogs/congress-blog/presidential-campaign/269640-the-future-of-politics-and-regulation>at
The Hill.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Tokaji: Is Ted Cruz Eligible to Be President? Let’s Find Out
<http://electionlawblog.org/?p=80026>
Posted onFebruary 17, 2016 6:00 am
<http://electionlawblog.org/?p=80026>byDan Tokaji
<http://electionlawblog.org/?author=5>
Donald Trump has revived the question whether Senator Ted Cruz is
ineligible to serve as President due to his birth in Canada. Arecent
Trump Tweet
<https://twitter.com/realDonaldTrump/status/698231571594276866>asserts
that Trump has standing and threatens to sue if Senator Cruz doesn’t
stop “cheating” and “doing negative ads.”
Trump is right about one thing: whether Senator Cruz is constitutionally
eligible to serve as President is unsettled. The issue cries out for
judicial resolution, but it’s not clear whether a federal court could or
would decide the question. Although Trump probably satisfies the
constitutional requirements for standing, there are sound prudential
reasons why a federal court might decide not to intervene.
Fortunately, there’s another way of adjudicating the issue. An action
could be brought in state court, challenging Senator Cruz’s eligibility
and seeking his removal from the state’s primary ballot. There’s at
least one state – Pennsylvania – where the deadline for filing hasn’t
yet expired, but if skeptics of Cruz’s eligibility want to sue there
they must act quickly, no later than Tuesday. Litigating the case
through the courts of Pennsylvania or another state would tee up the
issue for Supreme Court review, which would be helpful in resolving the
recurrent question of what it means to be a “natural born Citizen”
eligible to serve as President.
*The Constitutional Question Is Unsettled*
Before getting into the mechanics of federal and state court lawsuits,
it’s worth taking a moment to review the Cruz eligibility question and
to consider why a prompt judicial resolution is desirable. Article II of
the Constitution says that only a “natural born Citizen” or someone who
was a citizen at the time of the Constitution’s adoption is eligible to
be President. Since no one in the latter category still walks the earth,
one must be a “natural born Citizen” to be President.
What does that term mean? Legal scholars disagree. Some maintain that
Senator Cruz is eligible to serve, even though he was born in Canada,
because his mother was a U.S. citizen. Neal Katyal and Paul Clement make
this argument in aHarvard Law Forum piece
<http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/>,
relying on colonial-era British statutes which made people British
subjects if born abroad to British subjects.
Not so fast, says legal historianMary Brigid MacNamanon
<https://www.washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-be-president/2016/01/12/1484a7d0-b7af-11e5-99f3-184bc379b12d_story.html>.
She claims that these statutes were a stark departure from the
common-law rule that only those born in the U.S. were considered natural
born citizens at the founding. According to MacNamanon, Cruz wasn’t a
natural-born U.S. citizen but rather naturalized at birth, an argument
she develops inthis article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2444766>.
Laurence Tribetakes an in-between position
<http://www.theguardian.com/us-news/2016/jan/11/laurence-tribe-ted-cruz-donald-trump-citizen-president>,
arguing that the answer depends on how we think the Constitution should
be interpreted. If one is an originalist, he claims, then Cruz isn’t
eligible because he wouldn’t have been considered a natural born citizen
at the founding. If one believes that the Constitution’s meaning changes
over time, however, then Cruz should be deemed eligible according to Tribe.
The one thing that’s clear from this debate is that the question is
unsettled, asRandy Barnett notes
<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/06/tribe-v-balkin-on-whether-ted-cruz-is-a-natural-born-citizen/>.
The Supreme Court hasn’t ruled on the meaning of the term “natural born
Citizen,” including its applicability to someone born outside the U.S.
to a U.S. citizen parent. Nor is there a settled practice establishing
that someone like Senator Cruz is or isn’t eligible.
*Prompt Judicial Resolution Is Desirable*
Just because there’s no settled answer to the question
doesn’t/necessarily/mean that a court should intervene. There are
non-judicial entities that might consider the question asDerek Muller
has explained <http://electionlawblog.org/?p=78791>. On the other hand,
there are serious problems with the most obvious non-judicial ways of
resolving the question.
One possibility would be a statute or congressional resolution providing
that Senator Cruz (or someone in his position) is a natural born
Citizen. The Senate issued such a resolution in 2008,declaring
<https://www.govtrack.us/congress/bills/110/sres511/text>that Senator
McCain satisfied this requirement. But Majority Leader Mitch McConnell
has said the Senate doesn’t plan to do the same for Senator Cruz. Even
if it did, it’s ultimately the courts’ responsibility to “say what the
law is.” Congress’s opinion on whether Senator Cruz satisfies the
Constitution’s eligibility requirement wouldn’t bind the Supreme Court
or lower courts.
That isn’t to say that Congress is powerless when it comes to
determining a potential President’s eligibility. The Constitution vests
Congress with responsibilities at the back end of the presidential
selection process, which could include declaring a President-Elect
ineligible. The constitutional requirements appear in Article II,
Section 1, as modified by the Twelfth and Twentieth Amendments. After
the presidential electors meet in their respective states, the states’
vote certificates are sent to Congress for counting. There’s also a
statute, the Electoral Count Act of 1887, which regulates this process
and allows objections to a President-Elect’s eligibility.
Article II and the Electoral Count Act offer a second extra-judicial
means of deciding Senator Cruz’s eligibility. If he winds up winning the
general election but Congress thinks him ineligible, it could decline to
count the votes for him and make someone else President. Needless to
say, this is not a desirable way of deciding what “natural born Citizen”
means, much less choosing a President. It would be a nightmare for
voters to elect someone President, only for Congress to override the
voters’ choice by declining to count that candidate’s electoral votes.
If that weren’t enough, there are also constitutional questions
surrounding the Electoral Count Act, as I’vepreviously noted
<http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1087&context=mlr_fi>_._
There’s a third extra-judicial possibility. The judgment whether Senator
Cruz is eligible to serve might be made by voters themselves in
primaries, caucuses, and the general election. The idea of letting the
people decide has intuitive appeal, but serious problems. Ordinary
citizens aren’t and can’t reasonably be expected to become
constitutional experts. Judges are much better suited to determine what
the Constitution means. Leaving it to the people could also lead to
unfair attacks by an opponent – just what some people think Trump is now
doing to Cruz. If Senator Cruz really is constitutionally eligible, then
it would be unfair to deny him votes due to the specter of his candidacy
ultimately being invalidated. And if he isn’t eligible, then it would be
better for voters to make their choice solely from the pool of eligible
candidates.
For all these reasons, the extra-judicial means of resolving the
question of Senator Cruz’s eligibility are unsatisfactory. It would be
better to have a court decide the question. And it would be best to get
that judicial resolution promptly, before too many people decide whether
to vote for someone who might or might not be eligible.
*State Court Is the Best Forum*
In what court should a lawsuit be filed? Given that the question of
Senator Cruz’s eligibility arises under federal law, the most obvious
answer is federal court. Sure enough, voters have filed federal lawsuits
this election cycle in Utah and Texas challenging Senator Cruz’s
eligibility. We also saw federal lawsuits eight years ago challenging
Obama’s and McCain’s eligibility to serve. Those cases were dismissed,
properly in my opinion, for lack of standing. There are also good
reasons why federal courts might stay out again this time, especially in
lawsuits brought by voters.
To have standing to sue in federal court, one must satisfy both
constitutional and prudential constraints on the federal courts’ power
to decide cases. Article III of the Constitution has been understood to
impose three requirements for standing: (1) an/injury in fact/, one that
is real and immediate rather than conjectural or hypothetical,
(2)/causation/, meaning that the injury is fairly traceable to
defendants’ conduct, and (3)/redressability/, meaning that a favorable
court decision would remedy the claimed injury. In addition to these
constitutional constraints, there are also prudential standing
requirements, constraints that federal courts have imposed on
themselves. It’s doubtful that an ordinary voter would have standing to
challenge Senator Cruz’s eligibility, as I explainedhere
<http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1087&context=mlr_fi>.
What if Trump sued, as his tweet threatens? There’s a more plausible
argument that he has standing, but it’s not completely clear. There are
prudential reasons why a federal court should hesitate to get involved.
To start with, consider what a federal lawsuit by Trump would look like.
He would presumably seek injunctive relief against Senator Cruz
(enjoining him from running for President) and election officials
(requiring that they remove Cruz from the ballot). Trump would probably
seek declaratory relief as well, in the form of a declaration that
Senator Cruz isn’t constitutionally eligible.
Trump probably satisfies Article III standing requirements, asRick Hasen
explains <http://electionlawblog.org/?p=79940>. He could assert a
competitive injury, arising from the potential loss of presidential
delegates and therefore his opportunity to win the Republican nomination
due to a constitutionally ineligible opponent running. The injury is
traceable to defendants’ conduct (Cruz in running for President and
state election officials allowing him on the ballot), and would be
redressed by the relief he can be expected to seek.
Trump’s hypothetical lawsuit is shakier is on
the/prudential/requirements for a federal court to decide a case. These
are somewhat mushier, making it difficult to predict the outcome, but
one requirement for prudential standing is the general bar against
federal courts deciding a “generalized grievance.” The grievance here is
quintessentially generalized, in that all U.S. citizens have a shared
and equal interest in not having a President who is constitutionally
ineligible to serve.
The rationale for prudential standing also tends to support a federal
court staying out. The Court has explained that prudential standing
arises from the concern that “courts would be called upon to decide
abstract questions of wide public significance even though other
government institutions may be more competent to address the questions
and even though judicial intervention may be unnecessary to protect
individual rights.” There are no “individual rights” at stake in the
sense that the term is usually used. This isn’t, for example, an
individual’s claim that she’s been discriminated against or that her
right to vote has been denied, but a structural harm.
The question is whether some other “government institution[]” is more
competent to address the question. Turns out there is: state court.
That’s the forum in which a candidate would ordinarily seek to have a
competitor excluded from the ballot if he or she failed to satisfy the
requirements for that office. The fact that state courts are usually the
ones that decide whether or not to disqualify a candidate would probably
make a federal court reluctant to issue this form of relief. While it
might seem strange to have a state court deciding a question of federal
law, they commonly do just that under our federalist system.
The arguments for a state court adjudicating the dispute are especially
strong when it comes to presidential elections, given that Article II of
the Constitution grants the states – specifically the “state
Legislature” – authority over the manner in which its presidential
electors are appointed. As I’ll now explain, there are state laws that
provide judicial procedures through which a candidate’s eligibility can
be challenged.
*Sue in Pennsylvania, Then Take It Up*
While there may be multiple states in which Senator Cruz’s eligibility
could be challenged, I’ve looked at two. The first is Ohio, which has
its primary on March 15. Ohio law allows for a written protest against a
candidate who seeks to run in a primary, which may be filed by any
qualified voter who is a member of the candidate’s party. ORC 3513.05. A
protest may seek to have a candidate’s name removed from the ballot on
the ground that “the candidate’s candidacy or the petition violates ….
any requirement established by law.” ORC 3501.39. This language is broad
enough to encompass both federal and state law. The problem is that
Ohio’s deadline for filing a protest is 74 days before the primary –
that is, early January. ORC 3513.05. It’s therefore too late to sue in Ohio.
Fortunately for skeptics of Senator Cruz’s eligibility, there’s at least
one state where a challenge could still be brought. Pennsylvania will
hold its primary on April 26. The last day for candidates to file
nominating petitions was yesterday, February 16. Seehere
<https://www.pavoterservices.state.pa.us/Pages/Petition%20Instructions.pdf>andhere
<http://www.dos.pa.gov/VotingElections/CandidatesCommittees/RunningforOffice/Documents/2016%20Election%20Calender.pdf>.
Under Pennsylvania law, a candidate’s nominating petition must include
an affidavit affirming eligibility for the office sought. See 25 P.S.
2870;/In re Pippy/, 711 A.2d 1048 (1998). A registered elector of the
party has standing, and state courts may rule on the eligibility of
candidates for federal as well as state office./In re Duncan/, 102 Pa.
Comwlth 99 (1982). Someone objecting to a candidate must file a petition
within one week of the due date for nominating papers, 25 P.S. 2937 –
that is, by February 23.
One of the grounds for objection is that the candidate’s nominating
papers contain false statements./In re Cianfrani/, 359 A.2d 383 (1976).
A candidate’s statement that he is eligible when in fact he is not would
be false, rendering the candidate’s nomination invalid and requiring a
court to set it aside./Pippy/, 711 A.2d at 1051. In Pennsylvania as in
Ohio, this procedure may be used to challenge a candidate’s
qualifications for office./See, e.g., DeNome Election/, 3 Pa. D. & C.3d
583 (1977). Pennsylvania state courts would thus seem to provide an
appropriate forum for litigating the question of Senator Cruz’s
eligibility – but only if an objection is filed by Tuesday.
One might understandably worry that it would be desirable to get a
ruling from a federal court, ideally the Supreme Court. I agree. The
meaning of the “natural born Citizen” clause is a question of federal
law, after all, one that has arisen with respect to three presidential
candidates in the past three election cycles. A state court ruling would
be helpful, but only a Supreme Court ruling could dispel the uncertainty
surrounding its meaning.
The good news is that review of a state court decision on Cruz’s
eligibility could be sought in the U.S. Supreme Court. The Supreme
Court’s jurisdiction to review federal law questions is broader than
that of lower federal courts. In particular, the Supreme Court can
review a state court’s erroneous interpretation of federal law, even if
standing would have been lacking had the lawsuit originally been brought
in a federal district court./See ASARCO v. Kadish/, 490 U.S. 605 (1989).
This means that the Supreme Court could review the decision of
Pennsylvania’s courts on the meaning of the “natural born Citizen”
clause, if a timely state court action is brought and litigated through
that state’s system, resulting in a judgment on the merits. It would be
helpful for the Supreme Court to rule on the issue, whatever the outcome
in state court, so we can get a definitive ruling on who’s a “natural
born Citizen” for this and future presidential elections. Fortunately,
it’s a clean issue of law, which should facilitate expedited review.
In my view, it would be a public service for someone to bring an action
challenging Senator Cruz’s eligibility in Pennsylvania or another state
court, to clarify what “natural born Citizen” means. Counterintuitive
though it might seem, state court is the most promising forum for such
an action. The issue could then be litigated up to the U.S. Supreme
Court, which would be well-advised to grant certiorari so we know who is
and isn’t eligible to serve as President, an important federal question
if there ever was one.
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80026&title=Tokaji%3A%20Is%20Ted%20Cruz%20Eligible%20to%20Be%20President%3F%20Let%E2%80%99s%20Find%20Out&description=>
Posted incampaigns <http://electionlawblog.org/?cat=59>
“If Donald Trump wants to sue Ted Cruz for being born in Canada, he
better do it soon” <http://electionlawblog.org/?p=80023>
Posted onFebruary 16, 2016 9:35 pm
<http://electionlawblog.org/?p=80023>byRick Hasen
<http://electionlawblog.org/?author=3>
Business Insider reports.
<http://www.businessinsider.com/donald-trump-sue-ted-cruz-time-running-out-supreme-court-2016-2>
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80023&title=%26%238220%3BIf%20Donald%20Trump%20wants%20to%20sue%20Ted%20Cruz%20for%20being%20born%20in%20Canada%2C%20he%20better%20do%20it%20soon%26%238221%3B&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>
Talking to Madeline Brand About Campaign Finance Post-Scalia,
Plutocrats United <http://electionlawblog.org/?p=80020>
Posted onFebruary 16, 2016 8:17 pm
<http://electionlawblog.org/?p=80020>byRick Hasen
<http://electionlawblog.org/?author=3>
Listen to the interview onKCRW’s Press Play
<http://www.kcrw.com/news-culture/shows/press-play-with-madeleine-brand/campaign-finance-porter-ranch-kendrick-lamar-clinton/campaign-finance-post-scalia>:
The fallout from Supreme Court Justice Antonin Scalia’s death is
being felt on the campaign trail. One of the most controversial
decisions he backed was Citizens United, the 2010 case that gave
corporations and unions unlimited spending power in political
campaigns. This is expected to be the most expensive presidential
race in history. Candidates on both sides are talking about campaign
finance reform. But do they have any real power to make changes? We
hear from the author of a new book on money in politics.
Guests:
Rick Hasen <http://www.kcrw.com/people/rick-hasen>, University of
California, Irvine (@rickhasen <http://twitter.com/@rickhasen>)
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80020&title=Talking%20to%20Madeline%20Brand%20About%20Campaign%20Finance%20Post-Scalia%2C%20Plutocrats%20United&description=>
Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>,Supreme Court
<http://electionlawblog.org/?cat=29>
Listen to Podcast with Avi Green on Plutocrats United
<http://electionlawblog.org/?p=80018>
Posted onFebruary 16, 2016 8:13 pm
<http://electionlawblog.org/?p=80018>byRick Hasen
<http://electionlawblog.org/?author=3>
Avi talks to me about money in politics and the Supreme Court for the
Scholars’ Strategy Network podcast, “No Jargon.” Listen to “Episode 21:
Big Money, Big Power
<https://itunes.apple.com/us/podcast/scholars-strategy-networks/id1053581711?mt=2>.”
*/Episode 21: Big Money, Big Power/
February 15, 2016*
ProfessorRick Hasen
<http://www.scholarsstrategynetwork.org/scholar/richard-l-hasen>explores
why a few wealthy Americans have most of the influence in U.S.
politics – and how changing the Supreme Court is the best way to fix
that. Hasen is a Professor of Law and Political Science at
University of California, Irvine.
Learn more in Hasen’s new book,/Plutocrats United
<http://yalebooks.com/book/9780300212457/plutocrats-united>/, or in
his/New York Times
<http://www.nytimes.com/roomfordebate/2016/01/26/could-michael-bloomberg-and-his-millions-save-us-from-ourselves/radically-revise-campaign-laws-to-give-people-not-billionaires-a-voice>/article.
Read his take on Justice Scalia’s passing on the/Election Law Blog
<http://electionlawblog.org/?p=79915>/. Follow him on
Twitter at RickHasen
<https://twitter.com/rickhasen?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor>and
on his podcast, the/ELB Podcast <https://electionlawblog.org/?cat=116>/.
For more on money in politics, readWhy Campaign Finance Reforms That
Weaken U.S. Parties Promote Extreme and Unresponsive Politics
<http://www.scholarsstrategynetwork.org/brief/why-campaign-finance-reforms-weaken-us-parties-promote-extreme-and-unresponsive-politics>andMaking
Sense of the Koch Network
<http://www.scholarsstrategynetwork.org/brief/making-sense-koch-network>,
or listen to our very first/No Jargon/episode, “The Kochs, Americans
For Prosperity, and The Right
<https://itunes.apple.com/us/podcast/episode-1-kochs-americans/id1053581711?i=355763722&mt=2>.”
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80018&title=Listen%20to%20Podcast%20with%20Avi%20Green%20on%20Plutocrats%20United&description=>
Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>
“Erwin Chemerinsky and Rick Hasen on the Passing of Supreme Court
Justice Antonin Scalia and the Future of the Supreme Court”
<http://electionlawblog.org/?p=80016>
Posted onFebruary 16, 2016 8:09 pm
<http://electionlawblog.org/?p=80016>byRick Hasen
<http://electionlawblog.org/?author=3>
Erwin and I had a really interesting discussion on theUCI Law Talks
podcast. <http://www.law.uci.edu/podcast/episode13.html>
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80016&title=%26%238220%3BErwin%20Chemerinsky%20and%20Rick%20Hasen%20on%20the%20Passing%20of%20Supreme%20Court%20Justice%20Antonin%20Scalia%20and%20the%20Future%20of%20the%20Supreme%20Court%26%238221%3B&description=>
Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Without Scalia, Supreme Court Could Tie in Three Major Cases”
<http://electionlawblog.org/?p=80014>
Posted onFebruary 16, 2016 8:00 pm
<http://electionlawblog.org/?p=80014>byRick Hasen
<http://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy blogs.
<http://www.brennancenter.org/blog/without-scalia-supreme-court-could-tie-three-major-cases>
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80014&title=%26%238220%3BWithout%20Scalia%2C%20Supreme%20Court%20Could%20Tie%20in%20Three%20Major%20Cases%26%238221%3B&description=>
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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