[EL] ELB News and Commentary 3/23/17

Wed Mar 22 21:36:19 PDT 2017

J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him<http://electionlawblog.org/?p=91762>
Posted on March 22, 2017 9:26 pm<http://electionlawblog.org/?p=91762> by Rick Hasen<http://electionlawblog.org/?author=3>
I have no doubt that a Justice Gorsuch will be awful for progressives on the issues that they care the most about: abortion, affirmative action, campaign finance, voting rights, environmental protection, gun rights, and everything else. I’m even more convinced watching the hearings that Judge Gorsuch fancies himself an originalist and textualist in the mold of Justice Scalia. This means he is likely to be more conservative than Chief Justice Roberts, and could be as conservative if not more conservative than Justices Alito and Thomas. (I wrote about where he is likely to stand on campaign finance and voting rights in this CNN piece<http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/> and this blog post<http://electionlawblog.org/?p=91744>. I also think we need a bit more clarification on his views. based on misstatements at the hearing<http://electionlawblog.org/?p=91730>.)
So should Democrats try to filibuster him? Right now it takes 60 votes to bring Gorsuch’s nomination to the floor. If Democrats hang together, they could filibuster him. That would likely cause Senator McConnell to trigger the nuclear option for Supreme Court appointees (just like Senator Reid, for the Democrats, went nuclear a few years ago for all appointees aside from the Supreme Court). He may have some reluctant Republicans to do that, but my bet is he’d get it through.
So why shouldn’t Democrats do it now, to get attention and to protest the shameful failure of Republicans to consider Judge Merrick Garland for the Supreme Court when nominated by President Obama? I’ve struggled with it but now think it better not to filibuster.
Democrats hold a pair of twos.  They don’t have much they can do. Triggering a fight over the filibuster will gain attention, but Democrats can only do it once. The Gorsuch nomination restores the balance of power on the Court to the position it was in before Justice Scalia’s death.
Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressive now they can get much, much worse.
Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure. At that point, the left will perhaps realize what they lost when they lost the 2016 election and how bad things will be.
Another thing. Lots of Trump state Democratic Senators are coming up for reelection in 2018. Democrats need to hold those seats. Democrats and their allies have not done a good enough job painting Judge Gorsuch as a danger to the rights and issues people care about in those states. They would be put to tough votes if they are put in the position to filibuster. They may not do it, and if they do it could make the more vulnerable in 2018.
So while I’ve vacillated, I now don’t think Democrats should trigger the filibuster now.
The future is uncertain. It won’t buy much now. It might buy more in the future. Maybe in the future Democrats will have better than a pair of twos.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

In Time for Fall Classes: New 6th Edition of Election Law, Cases and Materials<http://electionlawblog.org/?p=91760>
Posted on March 22, 2017 9:08 pm<http://electionlawblog.org/?p=91760> by Rick Hasen<http://electionlawblog.org/?author=3>
I’m delighted to announce that the Sixth edition of our casebook<http://www.cap-press.com/books/isbn/9781531004729/Election-Law-Sixth-Edition>, with new co-author Nick Stephanopoulos, will be available in time for fall classes. (For orders now, the ISBN is 978-1-5310-0472-9). There will be a revised teacher’s manual as well.
We’ve sent the manuscript to the printer for production, and I’m very excited about it, especially the revamped materials on redistricting and voting rights.  I hope you’ll consider adopting it.  Here are the details:
Election Law
Cases and Materials
Sixth Edition
by Daniel Hays Lowenstein<http://www.cap-press.com/authors/118/Daniel-Hays-Lowenstein>, Richard L. Hasen<http://www.cap-press.com/authors/396/Richard-L.-Hasen>, Daniel P. Tokaji<http://www.cap-press.com/authors/899/Daniel-P.-Tokaji>, Nicholas Stephanopoulos<http://www.cap-press.com/authors/2666/Nicholas-Stephanopoulos>
Forthcoming 2017
ISBN

978-1-5310-0472-9

e-ISBN

978-1-53100-473-6

2017 Teacher’s Manual forthcoming
Tags: Election Law<http://www.cap-press.com/ms/30/Election-Law>
________________________________
The new streamlined and student-friendly Sixth Edition of Election Law: Cases and Materials fully covers developments in election law through the 2016 election season, including extensive coverage campaign finance cases in the Citizens United era; emerging issues in voting rights and redistricting, including recent partisan and racial gerrymandering challenges; and challenges to new voter identification laws and other voting restrictions. It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well.
________________________________
[omplimentary Copy Request]<http://www.cap-press.com/compform.php?booknum=8166>If you are a professor teaching in this field you may request a complimentary copy<http://www.cap-press.com/compform.php?booknum=8166>.
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Posted in pedagogy<http://electionlawblog.org/?cat=23>

“Federal elections commissioner wants Trump to back up his allegations of voter fraud”<http://electionlawblog.org/?p=91758>
Posted on March 22, 2017 8:56 pm<http://electionlawblog.org/?p=91758> by Rick Hasen<http://electionlawblog.org/?author=3>
LAT:<http://www.latimes.com/politics/washington/la-na-essential-washington-updates-for-president-trump-those-allegations-1490221728-htmlstory.html>
A member of the Federal Election Commission has accused President Trump of threatening democracy with his unproven allegations of voter fraud and asked him to show evidence if he has any.
Ellen Weintraub, a Democratic commissioner at the agency, sent him a scathing letter Wednesday, calling on the president to produce evidence that illegal ballots were cast in last year’s election.
“This allegation of a vast conspiracy … has deeply disturbed citizens throughout America,” she wrote<http://www.fec.gov/members/weintraub/statements/2017-03-22_ELW_Letter_to_POTUS_re_Voter_Fraud_Allegations.pdf>. “Our democracy depends on the American people’s faith in our elections. Your voter fraud allegations run the risk of undermining that faith.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, federal election commission<http://electionlawblog.org/?cat=24>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

Plutocrats Divided: “Koch Network Spending Millions to Stop GOP Health Care Bill”<http://electionlawblog.org/?p=91756>
Posted on March 22, 2017 8:47 pm<http://electionlawblog.org/?p=91756> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://www.nytimes.com/aponline/2017/03/22/us/politics/ap-us-koch-health-overhaul.html?_r=0>
The conservative Koch network is promising to spend millions of dollars to defeat the health care overhaul<http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html?inline=nyt-classifier> backed by President Donald Trump and top House Republicans.
The network’s leading organizations, Americans for Prosperity and Freedom Partners, announced late Wednesday the creation of a special fund to support House members who vote against the health care bill.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>, tax law and election law<http://electionlawblog.org/?cat=22>

Brad Smith and Robbin Stewart on Hasen on Gorsuch on Campaign Finance<http://electionlawblog.org/?p=91754>
Posted on March 22, 2017 8:39 pm<http://electionlawblog.org/?p=91754> by Rick Hasen<http://electionlawblog.org/?author=3>
Brad Smith<http://www.campaignfreedom.org/2017/03/22/hasen-on-gorsuch-on-citizens-united/> (responding to this post<http://electionlawblog.org/?p=91730>)
Robbin Stewart<http://ballots.blogspot.com/2017/03/hasen-on-gorsuch-on-dislosure.html> (responding to this post<http://electionlawblog.org/?p=91744>)
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Voting Rights Advocates Vow to Continue Fight Against Kemp Despite Dismissal”<http://electionlawblog.org/?p=91752>
Posted on March 22, 2017 8:31 pm<http://electionlawblog.org/?p=91752> by Rick Hasen<http://electionlawblog.org/?author=3>
Daily Report:<http://www.dailyreportonline.com/home/id=1202781804303/Voting-Rights-Advocates-Vow-to-Continue-Fight-Against-Kemp-Despite-Dismissal?slreturn=20170222232501>
Georgia Secretary of State Brian Kemp is cheering a federal judge’s dismissal of a voting rights lawsuit filed against him by the Georgia NAACP and Common Cause, but his opponents say he’s celebrating too soon.
U.S. District Judge Timothy Batten Sr. of the Northern District of Georgia granted Kemp’s motion to dismiss in a March 17 order. Kemp released a statement Tuesday saying he “applauds Judge Batten’s order,” particularly the holding that “the maintenance of accurate voter rolls is a substantial government interest.”
 The fight is over the Georgia law that allows the state to remove people from the rolls if they haven’t voted recently and don’t respond to a mailed verification request.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“Textualism and Statutory Precedents”<http://electionlawblog.org/?p=91748>
Posted on March 22, 2017 8:59 am<http://electionlawblog.org/?p=91748> by Rick Hasen<http://electionlawblog.org/?author=3>
Anita Krishnakumar has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2724077> on SSRN (forthcoming, Virginia Law Review).  Here is the abstract:
This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: The Court’s textualist Justices—or at least some subset of them—have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct; Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices’ brazen willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism’s core aims of promoting clarity and stability in the law?
This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the “motivating factor” test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., “labor” means “manual labor”). More specifically, textualist jurists regard what I call “implementation test” precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test exception” to the heightened stare decisis protection normally afforded statutory precedents. Second, the Article links textualist Justices’ proclivity to overrule to an oft-unspoken predicate assumption of textualism—i.e., that there is a singular “correct answer” to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order—including outmoded precedents reached through the use of illegitimate, atextual interpretive resources.
Ultimately, the Article both supports and critiques textualist Justices’ approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists’ attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation.
Can’t wait to read this!
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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

“Nevada Governor Vetoes AVR, Voters To Decide”<http://electionlawblog.org/?p=91746>
Posted on March 22, 2017 8:56 am<http://electionlawblog.org/?p=91746> by Rick Hasen<http://electionlawblog.org/?author=3>
A ChapinBlog.<http://editions.lib.umn.edu/electionacademy/2017/03/22/nevada-governor-vetoes-avr-voters-to-decide/>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter registration<http://electionlawblog.org/?cat=37>

Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?<http://electionlawblog.org/?p=91744>
Posted on March 22, 2017 7:49 am<http://electionlawblog.org/?p=91744> by Rick Hasen<http://electionlawblog.org/?author=3>
The Supreme Court has long upheld the constitutionality of requiring disclosure of the money behind elections, lobbying, and many political activities. In the 1976 Buckley v. Valeo case, the Court held that such disclosure, while implicating First Amendment rights, served three important government interests: deterring corruption, providing voters with valuable information, and helping to enforce other laws (such as the ban on foreign money in US elections).
Although the Court has repeatedly upheld disclosure laws against First Amendment challenge, Justice Thomas has taken the position that there is a constitutional right to anonymity, and Justice Alito has been moving in that direction (as in his Doe v. Reed concurrence), suggesting that disclosure laws can chill activity. Justice Scalia, an originalist like Justice Thomas, disagreed that the original meaning of the First Amendment required anonymity, famously writing in Doe:
For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
 There has been a continued push by campaign deregulationists to get the Court to water down corruption on First Amendment grounds—not to throw it out entirely as to campaigns, but to allow outside groups to mask their donors. (It is already now pretty easy to do this under federal law, but that’s a political, not legal, problem. Congress needs to rewrite the laws to make disclosure work).
So where would a Justice Gorsuch be on this? Would he be with a majority that has upheld disclosure, or would he be with J. Thomas and, likely Justice Alito, believing that the “chill” of compelled disclosure requires constitutional anonymity?
If you watch the exchange with Senator Whitehouse from yesterday’s hearing, <http://www.slate.com/blogs/the_slatest/2017/03/21/whitehouse_grills_gorsuch_on_dark_money_and_citizens_united.html> I believe there is a good chance Gorsuch will be in the Thomas/Alito camp. He spoke of the “chill” and did not really give any reason why disclosure might be valuable. He never suggested, for example, that the public might have an interest in knowing who is spending millions to support his campaign. From Slate:
And because of our lax disclosure laws, it is often very difficult to determine who is spending money and how. For example, Whitehouse said, someone is spending $10 million to get Gorsuch confirmed.
“Hypothetically,” he continued, it could be “your friend Mr. Anschutz. We don’t know because it is dark money<https://en.wikipedia.org/wiki/Dark_money>.” He asked Gorsuch why someone thought it was worth $10 million to get him confirmed.
“You’d have to ask them,” a frustrated Gorsuch responded.
“I can’t,” Whitehouse said, “because I don’t know who they are. It’s just a front group.”
What does it matter, if he’s only a second or third vote? Because we can look to the future, 10 years from now, and there could well be more Gorsuch’s on the Court.
It makes me worried.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme 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
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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