[EL] ELB News and Commentary 3/2017

Mon Mar 20 07:45:29 PDT 2017

"Does the First Amendment Protect Trump's Travel Ban?"<http://electionlawblog.org/?p=91706>
Posted on March 20, 2017 7:43 am<http://electionlawblog.org/?p=91706> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece <http://www.slate.com/articles/news_and_politics/jurisprudence/2017/03/the_9th_circuit_s_alex_kozinski_defends_trump_s_travel_ban_on_first_amendment.html> for Slate. It begins:

Late Friday afternoon, when few were paying attention, one of the smartest judges on the 9th U.S. Circuit Court of Appeals went out of his way to throw Donald Trump a lifeline. In a surprising and late dissent<http://cdn.ca9.uscourts.gov/datastore/general/2017/03/17/17-35105_Amd_Order.pdf> to the 9thCircuit's ruling on Trump's first travel ban, Alex Kozinski argued that it would violate the First Amendment to take Trump's campaign statements evincing anti-Muslim animus seriously (or literally). That claim may help save the administration's new executive order banning travel from six predominantly Muslim countries. It's an argument that just might attract the court's conservatives, including the soon-to-be-confirmed Neil Gorsuch, and lead them to reject constitutional challenges to the new executive order. And that would be a shame, not just for this case, but for all cases raising claims of government bias.

It concludes:

Kozinski went still further, suggesting such reliance to prove discriminatory motive runs afoul of the First Amendment rights of candidates to engage in political speech. Quoting from the 2014 Supreme Court opinion by Chief Justice John Roberts in McCutcheon v. FEC<https://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf> that struck down some federal campaign contribution limits, Kozinski said the reliance on campaign statements will "chill campaign speech, despite the fact that our most basic free speech principles have their 'fullest and most urgent application precisely to the conduct of campaigns for political office.' " He imagined "eager research assistants" mining the archives of campaign statements, engaged in a kind of "evidentiary snark hunt."

This is just the kind of argument that the Supreme Court's conservatives like. Kozinski, who clerked for Justice Anthony Kennedy many decades ago, knows this argument could resonate with the jurist who wrote the controversial 2010 opinion in Citizens United v. FEC that freed corporate money in candidate elections and extolled the value of free speech. If a case raising these issues gets to the Supreme Court after Judge Neil Gorsuch is confirmed, it will likely resonate with him, too. There's every reason to believe<http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/> he will be in the same First Amendment camp as Kennedy and the other conservatives.

But Kozinski's argument is a bad one on the merits, and it is likely to have negative consequences. Imagine a candidate for local prosecutor who promises to keep black people off juries. Should we not be allowed to consider such statements as proof of racial bias in jury selection out of fear of "chilling" campaign speech?

It's difficult to win cases requiring proof of discriminatory intent precisely because politicians are usually circumspect when they have discriminatory views. Trump is the rare candidate who speaks his mind, and he told us why he wanted to keep Muslims out of the U.S.

Candidates tend to keep their promises. If voters can rely on discriminatory statements in deciding who to vote for, so should those who later challenge the discrimination that flows after the season of campaign promises. Candidates who make these statements are not "poor shlubs." They are being held to account for what they say.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

"Why Gorsuch could lead court in wrong direction"<http://electionlawblog.org/?p=91703>
Posted on March 20, 2017 7:36 am<http://electionlawblog.org/?p=91703> by Rick Hasen<http://electionlawblog.org/?author=3>

Re-upping my CNN Opinion piece<http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/> with the Gorsuch hearings beginning:
Unfortunately, this approach obscures the fact that keeping the steady course with a conservative replacement for Scalia will be bad enough across a range of topics important to many Americans, from environmental protection to immigration law to the ability of labor unions to collect dues from their members. Even though Gorsuch is not a Scalia clone, things are likely to be pretty bad on these key issues, because Gorsuch is likely to vote like Scalia, and the court with Scalia already was moving in a very bad direction.
Consider how things will likely get worse in two areas that are the focus of my work, campaign finance and voting rights.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

"Justices Won't Hear Menendez Appeal in Corruption Case"<http://electionlawblog.org/?p=91700>
Posted on March 20, 2017 7:31 am<http://electionlawblog.org/?p=91700> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<https://www.apnews.com/0bf1713c3ec74191915e862c2deb0d48/Justices-won't-hear-Menendez-appeal-in-corruption-case?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP_Politics>

-The U.S. Supreme Court on Monday declined to hear New Jersey Sen. Bob Menendez's appeal of his corruption indictment, setting the stage for a federal trial in the fall.

The justices let stand a lower court ruling that refused to dismiss charges including conspiracy, bribery and fraud against the Democratic lawmaker.

Senator Menendez's lawyers have managed to stretch this out for a long time, but I'm thinking that we may have a new Senator from New Jersey at some point in the not too distant future.
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Posted in bribery<http://electionlawblog.org/?cat=54>, Supreme Court<http://electionlawblog.org/?cat=29>

"The important money-in-politics questions to ask Judge Gorsuch"<http://electionlawblog.org/?p=91698>
Posted on March 20, 2017 7:20 am<http://electionlawblog.org/?p=91698> by Rick Hasen<http://electionlawblog.org/?author=3>

Trevor Potter oped <http://thehill.com/blogs/pundits-blog/the-judiciary/324626-the-important-money-in-politics-questions-we-must-ask-judge> for The Hill.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

"A Contest to Design New York City's Next 'I Voted' Sticker"<http://electionlawblog.org/?p=91696>
Posted on March 19, 2017 6:58 pm<http://electionlawblog.org/?p=91696> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2017/03/19/nyregion/new-york-city-i-voted-sticker-design-contest.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

"A Texas Woman 'Voted Like a U.S. Citizen.' Only She Wasn't."<http://electionlawblog.org/?p=91694>
Posted on March 19, 2017 12:33 pm<http://electionlawblog.org/?p=91694> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Wines<https://www.nytimes.com/2017/03/18/us/voter-fraud-fort-worth-trial-rosa-marie-ortega.html> for the NYT.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

"Legislative Underwrites"<http://electionlawblog.org/?p=91691>
Posted on March 18, 2017 6:01 pm<http://electionlawblog.org/?p=91691> by Rick Hasen<http://electionlawblog.org/?author=3>

This paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2932473> on Leib and Brudney looks to be very good (forthcoming, Virginia Law Review):

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by "downstream" statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence-notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable.
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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

"The Reclusive Hedge-Fund Tycoon Behind the Trump Presidency"<http://electionlawblog.org/?p=91688>
Posted on March 18, 2017 2:11 pm<http://electionlawblog.org/?p=91688> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read Jane Mayer<http://www.newyorker.com/magazine/2017/03/27/the-reclusive-hedge-fund-tycoon-behind-the-trump-presidency> on Robert Mercer for The New Yorker:

Mercer strongly supported the nomination of Jeff Sessions to be Trump's Attorney General. Many civil-rights groups opposed the nomination, pointing out that Sessions has in the past expressed racist views. Mercer, for his part, has argued that the Civil Rights Act, in 1964, was a major mistake. According to the onetime Renaissance employee, Mercer has asserted repeatedly that African-Americans were better off economically before the civil-rights movement. (Few scholars agree.) He has also said that the problem of racism in America is exaggerated. The source said that, not long ago, he heard Mercer proclaim that there are no white racists in America today, only black racists. (Mercer, meanwhile, has supported a super pac, Black Americans for a Better Future, whose goal is to "get more Blacks involved in the Republican Party.")
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

"Colorado Amends Law After Win in Pillar Ballot Selfie Free Speech Case"<http://electionlawblog.org/?p=91686>
Posted on March 18, 2017 1:05 pm<http://electionlawblog.org/?p=91686> by Rick Hasen<http://electionlawblog.org/?author=3>

Steve Klein:<https://www.pillaroflaw.org/index.php/blog/entry/colorado-amends-ballot-selfie-law-after-win-in-pillar-free-speech-case>

Colorado Governor John Hickenlooper signed House Bill 1014<http://leg.colorado.gov/bills/hb17-1014> yesterday, amending the state's election law to allow voters to take and share photographs of their own marked ballots, an activity known as taking a "ballot selfie." The bill followed a preliminary injunction in the case Hill v. Williams<https://www.pillaroflaw.org/index.php/blog/entry/pillar-of-law-institute-wins-preliminary-injunction-in-colorado-ballot-selfie-case> in November, which ruled that the previous version of the law-which prohibited ballot selfies-was unconstitutional. Pillar of Law Institute attorney Stephen Klein serves as co-counsel for the plaintiffs in the case<https://www.pillaroflaw.org/index.php/blog/entry/pillar-of-law-institute-challenges-colorado-ballot-selfie-ban>.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

"Texas Needs a Remedial Lesson on Voting Rights"<http://electionlawblog.org/?p=91684>
Posted on March 18, 2017 1:03 pm<http://electionlawblog.org/?p=91684> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT editorial. <https://www.nytimes.com/2017/03/17/opinion/texas-needs-a-remedial-lesson-on-voting-rights.html?ref=opinion>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

"In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary"<http://electionlawblog.org/?p=91682>
Posted on March 18, 2017 1:01 pm<http://electionlawblog.org/?p=91682> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2017/03/18/us/politics/neil-gorsuch-supreme-court-conservatives.html?_r=0>

"The Supreme Court needs to be an institution that helps to undergird limited constitutional government," said Mr. Leo, 51, whose cerebral, unassuming demeanor belies the enormous clout he has developed in Washington.

It is a worldview that has brought Mr. Leo and his allies together with a range of conservative players. In addition to major corporate backers<https://www.documentcloud.org/documents/3520072-ConservativeDonors-DocCloud.html> such as Google and Chevron, the Federalist Society's supporters include well-known industry-oriented and libertarian-minded business leaders like Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family<https://www.documentcloud.org/documents/3520072-ConservativeDonors-DocCloud.html#document/p13/a344564>, which gave significantly to Mr. Trump's presidential campaign and helped start Breitbart News<https://www.nytimes.com/2016/08/19/us/politics/robert-mercer-donald-trump-donor.html?_r=0>....

The scale and sophistication of the right's judicial confirmation efforts would seem to portend a dark period ahead for the left, which, despite having made great strides under Mr. Obama, finds itself outmaneuvered....

But an examination of the Judicial Crisis Network's operations and financial records suggests that the group, in fact, has an incredibly narrow base. In 2015, the last year that tax records were available, the Judicial Crisis Network's entire budget of $5.7 million appears to have come from a single donor, an organization called the Wellspring Committee, based in Manassas, Va., that describes its mission as advancing "limited government and free markets." Judicial Crisis and a sister organization, the Judicial Education Project<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-354bsac_-13-356tsac-Judicial-Education-Project.pdf>, reported in tax returns that they had a total of only two employees and no volunteers, and instead largely relied on outside consultants, like CRC Public Relations<http://www.crcpublicrelations.com/>, a Virginia firm that also lists the Federalist Society and other conservative groups as clients.

Ms. Severino, asked whether her group was simply a shell to secretly move money on behalf of others, said the Judicial Crisis Network should not be judged based on the size of its staff.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

NC Court Relies on "Unitary Executive Branch" Principle to Block Changes to State Board of Elections<http://electionlawblog.org/?p=91677>
Posted on March 18, 2017 6:41 am<http://electionlawblog.org/?p=91677> by Richard Pildes<http://electionlawblog.org/?author=7>

In holding that the NC legislature's post-election changes to the design of the State Board of Elections violates the NC Constitution, see here<https://electionlawblog.org/?p=91663>, the state courts held that the Governor must be able to have effective control over this Board.   Because the Governor, under the law struck down, could only appoint four of the eight Board members and could not remove all eight members, the Governor's right to control the Board was violated.

The constitutional principle being applied here is a state-constitutional version of the "unitary executive branch" theory of government.  The court first decided a State Board of Elections inherently carries out executive functions primarily. Taking the view that the NC Constitution embodies the unitary executive branch principle (without the court using that language explicitly), the court then held that the Governor must have effective control of such a Board to be able to execute the laws faithfully.

In the federal system, the "unitary executive branch" theory is, politically, most associated in recent years with the administration of George W. Bush.  And this theory is the basis for the current constitutional challenge to the design of the Consumer Financial Protection Bureau.

States can structure their own separation of powers systems differently, of course, from the federal system.  I thought it was interesting to see, though, that the basis for this major election-law decision from the NC courts was the unitary executive branch principle.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

"A backstory on the Texas redistricting ruling"<http://electionlawblog.org/?p=91674>
Posted on March 17, 2017 8:53 pm<http://electionlawblog.org/?p=91674> by Rick Hasen<http://electionlawblog.org/?author=3>

Rick Casey i<http://www.mysanantonio.com/opinion/commentary/article/A-backstory-on-the-Texas-redistricting-ruling-11010221.php>n the San Antonio Express-News.
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Posted in 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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