[EL] ELB News and Commentary 1/11/17

Wed Jan 11 07:59:26 PST 2017

"Supreme Court Blocks Special Elections in North Carolina"<http://electionlawblog.org/?p=90428>
Posted on January 11, 2017 7:57 am<http://electionlawblog.org/?p=90428> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports. <https://www.nytimes.com/2017/01/10/us/politics/supreme-court-blocks-special-elections-in-north-carolina.html?ref=politics&_r=0>

My earlier analyses are here<http://electionlawblog.org/?p=90413> and here<http://electionlawblog.org/?p=90417>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

"Franken Stumps Sessions on Trump's Crazy Voter-Fraud Tweet"<http://electionlawblog.org/?p=90426>
Posted on January 11, 2017 7:52 am<http://electionlawblog.org/?p=90426> by Rick Hasen<http://electionlawblog.org/?author=3>

Ed Kilgore blogs.<http://nymag.com/daily/intelligencer/2017/01/franken-stumps-sessions-on-trumps-crazy-voter-fraud-tweet.html>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, Department of Justice<http://electionlawblog.org/?cat=26>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

"'Soft Money' Challenge Heads to Supreme Court"<http://electionlawblog.org/?p=90424>
Posted on January 11, 2017 7:47 am<http://electionlawblog.org/?p=90424> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<https://www.bna.com/soft-money-challenge-n73014449540/>

The Supreme Court has been asked<http://www.jamesmadisoncenter.org/cases/files/republican-louisiana-v-fec/jurisdictional-statement.pdf> formally to review a challenge to restrictions on "soft money" contributions to political parties-the last remaining major element of the McCain-Feingold campaign finance law passed in 2002.

The filing of a "jurisdictional statement" appealing to the high court had been expected since a lower court ruling last fall, which rejected the soft money challenge launched by the Republican Party of Louisiana. The party committee sued the Federal Election Commission, the agency that enforces restrictions on campaign money to national, state and local parties.....

How DOJ handles this case under the administration of President-elect Donald Trump could provide an early indication of whether the new administration is prepared to uphold and enforce campaign finance restrictions, which many Republicans have criticized in the past.

See my Nov. 7, 2016 post, Three-Judge Court Rejects Challenge to McCain-Feingold Soft Money Issues, Teeing Up Issue for (New) Supreme Court<http://electionlawblog.org/?p=88945> and my August 2015 NLJ oped, The McCain-Feingold Act May Doom Itself<http://www.nationallawjournal.com/id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

"Philanthropy Roundtable petitions Supreme Court to uphold donor privacy"<http://electionlawblog.org/?p=90422>
Posted on January 11, 2017 7:39 am<http://electionlawblog.org/?p=90422> by Rick Hasen<http://electionlawblog.org/?author=3>

Philanthropy Daily:<https://www.philanthropydaily.com/philanthropy-roundtable-petitions-supreme-court-to-uphold-donor-privacy/>

The Philanthropy Roundtable filed an amicus brief<http://s3.amazonaws.com/acrwordpress/wp-content/uploads/2017/01/10083655/Amicus-Brief-of-The-Philanthropy-Roundtable-Independence-Institute-v.-FEC.pdf> Monday in the case Independence Institute v. Federal Election Commission urging the Supreme Court of the United States  to uphold donor privacy and free speech for 501(c)3 charities.

"Many philanthropists value the freedom to keep their giving private for important religious, historical, cultural, and practical reasons," said Sean Parnell, vice president for public policy at the Roundtable. "The Philanthropy Roundtable urges the Supreme Court to preserve this freedom and reject efforts to pry open the donor lists of nonprofits that are not engaged in election-related speech."
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

7th Circuit Cancels Oral Argument in Both WI Voter ID Cases<http://electionlawblog.org/?p=90420>
Posted on January 11, 2017 7:37 am<http://electionlawblog.org/?p=90420> by Rick Hasen<http://electionlawblog.org/?author=3>

In both Frank v. Walker and One Wisconsin now, this order with no explanation of if/when argument will be rescheduled:
ORDER: The court, on its own motion, ORDERS that oral argument in this appeal set for Tuesday, 01/17/2017 is VACATED. CF [6810237] [16-3003, 16-3052] (RS)

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>

Will the Supreme Court Put NC Special Elections Back for 2017? Not Likely<http://electionlawblog.org/?p=90417>
Posted on January 10, 2017 9:00 pm<http://electionlawblog.org/?p=90417> by Rick Hasen<http://electionlawblog.org/?author=3>

Earlier today, I blogged<http://electionlawblog.org/?p=90413> about the surprise order of the Supreme Court today putting a hold on 2017 special elections in North Carolina legislative districts ordered by a three judge court after a finding that the districts were unconstitutional racial gerrymanders.

I noted that the order could be short-lived, because the Court could take up whether to hear the underlying appeal of the case at its January 19 conference. This story<http://www.newsobserver.com/news/politics-government/state-politics/article125682109.html> in the News &  Observer incorrectly states that the order lasts only until a decision on the underlying appeal, which could come as soon as the Jan. 19 conference. In fact, the order itself <https://www.supremecourt.gov/orders/courtorders/011017zr_k5gm.pdf> contemplates that North Carolina will file a separate appeal on the question of the special elections, and the stay remains in place until the Court rules on that appeal.

So let's game this out. It is possible (but not likely, for reasons I'll explain) that the Court will issue an order soon after the Jan. 19 conference simply affirming the lower court ruling that NC engaged in an unconstitutional racial gerrymander. If the Court does that, then it would be hard to win an appeal on the setting of the special elections in 2017 (but still possible, as the Court may believe that too disruptive.)  If the Court decides to note jurisdiction and hear the underlying ruling, then this gets dragged out and it will be too late to set elections in 2017, which would end up coming too close to 2018 elections.

So here's why it is unlikely the Court will simply affirm the lower court in the NC case: already before the Court (as I've noted in earlier posts) is another North Carolina case as well as a Virginia case raising questions about how to determine what constitutes an unconstitutional racial gerrymander. It seems quite possible that the Court holds all the other cases raising this same issue until those NC and VA cases are resolved. The Court would then send the held cases back to be reconsidered under the new standards. This suggests the Court either holds this case or notes jurisdiction (and potentially schedules briefing).

Further, when cases come up on appeal from a three-judge court rather than a cert petition, the Court is more likely to agree to hear the full case (because a decision not to hear an appeal (unlike a cert petition) counts as a decision that the lower court got its ruling right).

For all of these reasons, it is unlikely that this gets resolved soon after Jan. 19, and the special election put back on for 2017.

But this case has already surprised me....so let's see what happens.

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Breaking: #SCOTUS Halts NC Special Elections Ordered after Finding of Racial Gerrymandering<http://electionlawblog.org/?p=90413>
Posted on January 10, 2017 1:05 pm<http://electionlawblog.org/?p=90413> by Rick Hasen<http://electionlawblog.org/?author=3>

In (what I consider to be) a surprising development, the Supreme Court has issued this order <https://www.supremecourt.gov/orders/courtorders/011017zr_k5gm.pdf> calling off special elections in North Carolina which had been ordered by a three-judge court following a finding of racial gerymandering. It is possible this order will be short-lived, as the Court will consider whether to take up the underlying appeal in the case at a conference in just 9 days. <https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-649.htm>

As I explained in this initial post <http://electionlawblog.org/?p=90201> on the motion, back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.

The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered<http://electionlawblog.org/?p=89590> that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.

The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. As that is pending, the state filed this emergency motion<http://electionlawblog.org/wp-content/uploads/2016-12-30-Covington-Stay-Application-FINAL.pdf> with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.

The Court granted that motion today. Why is this surprising? It should take five Justices to grant a stay, and on the racial gerrymandering cases in the most recent case (from Alabama) Justice Kennedy sided with the four liberal Justices in holding that the Alabaman legislature, in some districts, appeared to make race the predominant factor in drawing lines, without adequate justification for doing so. There is another case from North Carolina (involving congressional districts) and one from Virginia raising similar issues this term.  If the Court divides in those cases along similar lines, and if this North Carolina case is like the other North Carolina case, then NC would have a hard time winning on the merits (and therefore would not be entitled to a stay on appeal). Even without Kennedy, on an 8-Justice Court, if the Court divides 4-4 along ideological lines, there would be no stay issued.

So what happened?  Maybe after conference in the other North Carolina case, the Court is poised to side for the state, and they expect the same thing will happen in this case.  Reading the transcript<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1262_l537.pdf> of the earlier North Carolina case, Justice Breyer seemed to be struggling. So maybe it was Justice Breyer and the conservatives who are ready to pull back here.  I'm not sure.

But I did not expect this ruling, especially given the fact that there has already been such a delay in getting relief in this case.

UPDATE: See my follow up post: Will the Supreme Court Put NC Special Elections Back for 2017? Not Likely<http://electionlawblog.org/?p=90417>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

"Group appeals lawsuit challenging Alaska campaign finance laws"<http://electionlawblog.org/?p=90409>
Posted on January 10, 2017 9:22 am<http://electionlawblog.org/?p=90409> by Rick Hasen<http://electionlawblog.org/?author=3>

Alaska Daily News:<https://www.adn.com/politics/2017/01/09/group-appeals-lawsuit-challenging-alaska-campaign-finance-laws/>

A group of Republicans trying to loosen campaign contribution limits in Alaska - following key decisions by the U.S. Supreme Court in recent years - is appealing a ruling <https://www.adn.com/politics/2016/11/07/federal-judge-rejects-lawsuit-challenging-alaskas-limits-on-campaign-donations/> by a federal judge in November that upheld the state's strict limits.

Kevin Clarkson, attorney for the plaintiffs, said on Monday that the ruling by U.S. District Judge Timothy Burgess, an appointee of George W. Bush, came as no surprise. Burgess is bound to follow case law established by the 9th U.S. Circuit Court of Appeals that represents nine Western states, including Alaska, Clarkson said.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Read the Plaintiffs' #SCOTUS Response to NC Attempt to Stop 2017 Special Elections Ordered Because of Racial Gerrymandering<http://electionlawblog.org/?p=90407>
Posted on January 10, 2017 9:04 am<http://electionlawblog.org/?p=90407> by Rick Hasen<http://electionlawblog.org/?author=3>

Following up on this post<http://electionlawblog.org/?p=90201>, Plaintiffs' response is here.<http://pulse.ncpolicywatch.org/wp-content/uploads/2017/01/16A646_Response-in-Opposition.pdf>

North Carolina might file a reply, and then I expect the Chief Justice will refer the matter to the full court for decision.

Interestingly, the petition for appeal itself is on the Court's distribution list <https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-649.htm> for January 19.  The Court could  hold it until then. [This has been corrected from a reference to a cert. petition.]

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--
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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