[EL] ELB News and Commentary 4/5/17

Wed Apr 5 08:05:27 PDT 2017

7th Circuit En Banc Decision in Hively, on Sexual Orientation Discrimination under Title VII, Great Statutory Interpretation Teaching Case<http://electionlawblog.org/?p=91970>
Posted on April 5, 2017 8:03 am<http://electionlawblog.org/?p=91970> by Rick Hasen<http://electionlawblog.org/?author=3>
The opinion in Hively is here<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D04-04/C:15-1720:J:Wood:aut:T:fnOp:N:1942256:S:0>, Howard rounds up<http://howappealing.abovethelaw.com/040517.html#071175> the coverage, and Joshua Matz<http://takecareblog.com/blog/a-landmark-victory-for-lgbt-rights-and-the-path-ahead> explains its substantive significance to antidiscrimination law (and why the Court is likely to take the case, and with a new Justice Gorsuch, could well reverse).
But I just wanted to point out that this is an excellent teaching case for a Legislation course. You have a majority opinion by Judge Wood that uses the kind of usual tools of interpretation, an opinion by Judge Posner that is provocative and rejects textualist and purposivist understandings in favor of dynamic statutory interpretation, and a dissent by Judge Sykes buying into textualist/originalist type ideology (and no doubt signalling to the Trump Administration that she’d be a great SCOTUS pick).
Here’s the Posner paragraph that could frame an entire day’s class debate:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.

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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

“Senate plunges toward historic rules change in Supreme Court standoff”<http://electionlawblog.org/?p=91968>
Posted on April 5, 2017 7:50 am<http://electionlawblog.org/?p=91968> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/powerpost/debate-on-neil-gorsuch-begins-with-no-signs-filibuster-showdown-will-be-avoided/2017/04/04/b15cb804-193d-11e7-bcc2-7d1a0973e7b2_story.html?utm_term=.f7da99bc4cbc>
The Senate plowed Tuesday toward a historic and bitter showdown over President Trump’s Supreme Court nominee, with a parade of lawmakers taking to the Senate floor to deliver politically charged speeches for and against the president’s pick as a final vote neared.
There was no sign of compromise as the chamber formally opened debate on Judge Neil Gorsuch, who Senate Majority Leader Mitch McConnell (R-Ky.) predicted will be confirmed on Friday before senators leave town for the two-week Easter recess.
In a speech on the Senate floor, McConnell faulted Democrats for “hurtling toward the abyss” and “trying to take the Senate with them.” He urged them to “reconsider” their tactics.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

“If Republicans Blow Up the Filibuster Over Gorsuch, Is Legislation Next?”<http://electionlawblog.org/?p=91966>
Posted on April 5, 2017 7:48 am<http://electionlawblog.org/?p=91966> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/04/05/us/politics/filibuster-gorsuch-nomination-republicans.html?ref=politics&_r=0>
Senate Republicans are preparing to abolish the final vestige of power that the minority has to block presidential nominations, worrying many senators in both parties that the final and biggest domino — the power to filibuster<http://topics.nytimes.com/top/reference/timestopics/subjects/f/filibusters_and_debate_curbs/index.html?inline=nyt-classifier> legislation — will be next.
In recent years, as partisanship has escalated, the Senate has required a 60-vote majority for almost any controversial legislation to overcome a filibuster. Gone, for the most part, are bipartisan quorums that used to pass large and complex laws with simple majorities.
But as both parties have moved to do what was once unthinkable — eliminating the filibuster for judicial and cabinet nominees, known as the nuclear option — senators are now forced to consider if the final step could be in the offing, one that would fundamentally alter the character of the Senate and make it indistinguishable from the House in a crucial way.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

UPDATED: “Vermont’s campaign finance law survives legal challenge”<http://electionlawblog.org/?p=91948>
Posted on April 5, 2017 7:22 am<http://electionlawblog.org/?p=91948> by Rick Hasen<http://electionlawblog.org/?author=3>
[updated and bumped to the top.]
AP:<http://www.washingtontimes.com/news/2017/apr/3/vermonts-campaign-finance-law-survives-legal-chall/>
Dean Corren<http://www.washingtontimes.com/topics/dean-corren/>, an unsuccessful candidate for lieutenant governor, sued the state in Vermont’s federal district court for violating his First Amendment rights, alleging that a restriction on fundraising for publicly-financed candidates is unconstitutional. The court issued its decision Tuesday.
The opinion does not yet appear to be on PACER. If anyone has it please send it along.
UPDATE: It appears this AP story is not quite right. What happened is the following. On March 29, the court issued an order<http://electionlawblog.org/wp-content/uploads/vt-reconsider.pdf> denying attorneys fees and a motion for reconsideration of an earlier ruling.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“How To Protect The Next Election From Hacking”<http://electionlawblog.org/?p=91960>
Posted on April 5, 2017 7:17 am<http://electionlawblog.org/?p=91960> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler<http://www.npr.org/2017/04/05/522690562/how-to-protect-the-next-election-from-hacking?utm_source=twitter.com&utm_medium=social&utm_campaign=morningedition&utm_term=nprnews&utm_content=20170405> for NPR:
The federal government has declared elections to be part of the country’s critical infrastructure. That has election officials, who are very protective of how they do things now, extremely nervous.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Right-Wing Billionaires Are Buying Themselves a New Constitution”<http://electionlawblog.org/?p=91957>
Posted on April 5, 2017 7:07 am<http://electionlawblog.org/?p=91957> by Rick Hasen<http://electionlawblog.org/?author=3>
Fusion<http://fusion.net/right-wing-billionaires-are-buying-themselves-a-new-con-1793960357?utm_medium=sharefromsite&utm_source=Fusion_twitter> on the efforts to get Congress to call an Article V constitutional convention.  It is closer than you might think.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

NC: “Lawmakers revive plan for combined state elections, ethics board”<http://electionlawblog.org/?p=91955>
Posted on April 4, 2017 9:23 pm<http://electionlawblog.org/?p=91955> by Rick Hasen<http://electionlawblog.org/?author=3>
WRAL: <http://www.wral.com/lawmakers-revive-plan-for-combined-state-elections-ethics-board/16625802/>

A little more than two weeks after a three-judge panel threw out a new state law combining oversight of state elections and ethics enforcement, leading Republican House members are pushing a revised version of the plan.
The House Elections and Finance committees on Tuesday approved a committee substitute for Senate Bill 68<http://www.wral.com/news/state/nccapitol/document/16625996/> less than 18 hours after Rep. David Lewis<http://wral.com/14549734/?ncga_id=36>, R-Harnett, stripped out the bill’s original half-page of language calling for student attendance recognition programs in local school districts and replaced it with 15 pages of policies and procedures for the proposed Bipartisan State Board of Elections and Ethics Enforcement.
Lewis, the chairman of the powerful House Rules Committee, beat back an effort by Democratic members of the committee to delay voting on the new bill, saying the House needed to take a floor vote on it before lawmakers take time off for Easter late next week.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Time To Filibuster, Buster!”<http://electionlawblog.org/?p=91953>
Posted on April 4, 2017 1:21 pm<http://electionlawblog.org/?p=91953> by Rick Hasen<http://electionlawblog.org/?author=3>
I spoke with Alex Wise<http://www.cchange.net/2017/04/04/buster/> of Sea Change radio about whether it is in Democrats’ self interest to filibuster.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

The WI Gerrymandering Case and the Costs of Mandatory Jurisdiction<http://electionlawblog.org/?p=91947>
Posted on April 4, 2017 8:59 am<http://electionlawblog.org/?p=91947> by Richard Pildes<http://electionlawblog.org/?author=7>
The 2-1 federal court decision striking down Wisconsin’s redistricting plans for the state legislature as an unconstitutional partisan gerrymander, Whitford v. Gil, is without doubt the most significant lower federal court decision on partisan gerrymandering the lower courts have ever issued.  The case will also come to the Court in the Supreme Court’s mandatory, appellate jurisdiction — which now exists only for a tiny sliver of cases, including challenges to statewide redistricting plans.
The normal route through which cases come to the Court is via petitions for certiorari.  In those cases, the Court has complete discretion to decide whether to hear a particular case.  But for cases in the mandatory appellate jurisdiction, the Court has only two options:  summarily affirm the decision below or hear the case.  One of the policy aims Congress had in mind in deploying mandatory jurisdiction for federal challenges to statewide redistricting plans was to get these cases resolved more quickly, given the time sensitivity of these kind of cases.  But that policy objective conflicts with other policy concerns about the timing of Supreme Court review, and the WI case brings to the surface these conflicts.
In striking down a statewide redistricting plan as an unconstitutional partisan gerrymander, the WI decision is the first of its kind.  In addition, the court relies in some part on a new statistical measure, the Efficiency Gap (EG), which is designed to help determine the extent of partisan gerrymandering in election maps.  I do not want to overstate the extent to which the court relies on the Efficiency Gap; the court essentially uses the EG to corroborate the findings on partisan intent and effect it has otherwise reached.  But in terms of both doctrinal development and methodology, the decision does break new ground.
If this case were coming to the Court in its certiorari jurisdiction, the Court would be able to decide whether to postpone review until other federal courts had had an opportunity to respond to the WI decision.  If lower courts accepted the general approach of the WI court, what would this mean about how narrowly or expansively a partisan gerrymandering doctrine with teeth would be in application?  As lower courts grappled with arguments about the EG  in the specific contexts of different districting plans, what conclusions would they come to about the relevance and usefulness of this measure?  In the language of Supreme Court practice, the Court could bypass review in the WI case, the first of its kind, and wait for the issues to “percolate” in the lower courts.  The Court would then have a richer reservoir of judicial experience on which to draw in deciding the appropriate doctrinal response.
With mandatory appellate jurisdiction, the Court loses the ability to consider any of these factors.  The Court either has to summarily affirm (a high threshold to get over for lower court decisions involving novel doctrinal and methodological developments in important areas) or jump in on the merits the first time a three-judge federal court breaks new ground in a case that falls, as the WI case does, within the Court’s mandatory appellate jurisdiction.

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Posted in political parties<http://electionlawblog.org/?cat=25>, redistricting<http://electionlawblog.org/?cat=6>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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