[EL] ELB News and Commentary 3/28/17

[Rick Hasen]

What's the Matter with Gorsuch?<http://electionlawblog.org/?p=91826>
Posted on March 28, 2017 7:37 am<http://electionlawblog.org/?p=91826> by Rick Hasen<http://electionlawblog.org/?author=3>

After watching Judge Gorsuch at his hearings last week, I came away much more worried about the kind of justice he would be on the bench: I saw a kind of arrogance, dismissiveness, and lack of depth that made me worry he would not only be sharply conservative but reflexively and shallowly so.  I tweeted <https://twitter.com/rickhasen/status/844565137629442048> about my impressions last week, and it generated a lot of comments on both sides.

As one SCOTUS observer told me off the record,

seems to me his sins are:
Pretending to have Roberts' brilliance
Pretending to have Kennedy's politeness
Pretending to have Scalia's witty writing
but he comes up short in all respects
while he thinks he's doing great

The excellent Joan Biskupic seemed to sum up the anxiety on the left about Judge Gorsuch in this must-read column<http://www.cnn.com/2017/03/28/politics/neil-gorsuch-supreme-court-testimony/index.html>:
In countless ways, the man President Donald Trump has chosen to succeed the late Justice Antonin Scalia downplayed the judicial branch and the importance of a single justice appointed to a lifetime seat.
But that message belies the many 5-4 rulings in recent years that have changed American life and the reality that judges cannot always look simply to the facts and relevant law to resolve a dispute.
The Constitution contains concepts, not clear-cut formulas. And while justices resist characterization based on ideology or politics, their voting patterns can suggest policy preferences. The current four justices appointed by Republican presidents vote, by and large, for conservative results; the four Democratic appointees vote generally for liberal outcomes.
Gorsuch's record on a Denver-based US appeals court indicates he would align with Scalia's views as a fifth conservative justice. That would return the court to the 5-4 posture that produced such decisions as the 2010 Citizens United v. Federal Election Commission, which lifted limits on corporate money in elections, and 2013 Shelby County v. Holder, which curtailed voting-rights protections for racial minorities and others who face discrimination at the polls....
For his part, Gorsuch refused to explain his views of congressional authority and separation of powers or constitutional due process and equality in his testimony before the Senate Judiciary Committee last week. He did not tip his hand on how he would resolve disputes over a woman's right to end a pregnancy, a key question for senators on both sides of the aisle.
To be sure, the 49-year-old federal appellate judge is not the first Supreme Court nominee to keep his views close to the vest, but he did it to a greater extent.
"What worries me," said the committee's ranking Democrat Dianne Feinstein, of California, "is that you have been very much able to avoid specificity like no one I have ever seen before."
I've explained here<http://electionlawblog.org/?p=91762> why I think a filibuster now would be counterproductive. But to be clear I think it is deserved on the merits.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91826&title=What%E2%80%99s%20the%20Matter%20with%20Gorsuch%3F>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>


Top Recent Downloads in Election Law on SSRN<http://electionlawblog.org/?p=91828>
Posted on March 28, 2017 7:36 am<http://electionlawblog.org/?p=91828> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:

RECENT TOP PAPERS for all papers first announced in the last 60 days [https://papers.ssrn.com/Images/rss_small.png]  <https://papers.ssrn.com/publicRss/rssManagerInc.cfm?journalId=991929>
27 Jan 2017 through 28 Mar 2017
Rank

Downloads

Paper Title

1

314

Essay: Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2912403>
Richard L. Hasen<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>
University of California, Irvine School of Law
Date posted to database: 7 Feb 2017
Last Revised: 10 Mar 2017

2

165

Alternative Facts and the Post-Truth Society: Meeting the Challenge<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2918456>
S.I. Strong<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=862300>
University of Missouri School of Law
Date posted to database: 15 Feb 2017
Last Revised: 13 Mar 2017

3

112

Originalism, Constitutional Construction, and the Problem of Faithless Electors<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2927464>
Keith E. Whittington<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=117569>
Princeton University - Department of Political Science
Date posted to database: 6 Mar 2017
Last Revised: 6 Mar 2017

4

105

Electoral Vulnerabilities in the United States: Past, Present, and Future<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2908509>
Charles Stewart III<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1329707>
Massachusetts Institute of Technology (MIT) - Department of Political Science
Date posted to database: 2 Feb 2017
Last Revised: 6 Mar 2017

5

88

>From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2916294>
Christopher S. Elmendorf<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345940>
University of California, Davis - School of Law
Date posted to database: 13 Feb 2017
Last Revised: 22 Feb 2017

6

58

The New Front in the Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General - And How it Might Be Checked<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2926223>
Eli Savit<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2594119>
University of Michigan Law School
Date posted to database: 3 Mar 2017
Last Revised: 3 Mar 2017

7

55

The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2919971>
Anthony J. Gaughan<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1697565>
Drake University Law School
Date posted to database: 21 Feb 2017
Last Revised: 24 Feb 2017

8

54

Party Funding, Competition Law and the Protection of Political Democracy<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2908675>
Arthur Guerra Filho<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2636129>
King's College London, Dickson Poon School of Law, Students
Date posted to database: 7 Feb 2017
Last Revised: 1 Mar 2017

9

51

One Nation Undecided: Clear Thinking About Five Hard Issues that Divide Us<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2933638>
Peter H. Schuck<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=101988>
Yale University - Law School
Date posted to database: 15 Mar 2017
Last Revised: 20 Mar 2017

10

45

Churches' Lobbying and Campaigning: A Proposed Statutory Safe Harbor for Internal Church Communications<https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2923385>
Edward A. Zelinsky<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=239302>
Yeshiva University - Benjamin N. Cardozo School of Law
Date posted to database: 24 Feb 2017
Last Revised: 4 Mar 2017

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91828&title=Top%20Recent%20Downloads%20in%20Election%20Law%20on%20SSRN>
Posted in pedagogy<http://electionlawblog.org/?cat=23>


"Judge midtrial throws out Pennsylvania pay-to-play case"<http://electionlawblog.org/?p=91824>
Posted on March 27, 2017 8:48 pm<http://electionlawblog.org/?p=91824> by Rick Hasen<http://electionlawblog.org/?author=3>

Morning Call:<http://www.mcall.com/news/breaking/mc-pa-pay-to-play-case-thrown-out-20170327-story.html>

A federal judge on Monday threw out a case in the FBI's wide-ranging pay-to-play investigation of Pennsylvania government, acquitting a wealthy investment adviser accused of bribing ex-state treasurer Rob McCord to get lucrative contracts to manage public dollars.

U.S. District Judge John E. Jones III took the rare step of dismissing the 79-count case against Richard Ireland in the middle of the trial. Jones agreed with defense lawyers that prosecutors had not proven that Ireland offered campaign contributions or his help in McCord's private business affairs in exchange for official favors from McCord.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91824&title=%E2%80%9CJudge%20midtrial%20throws%20out%20Pennsylvania%20pay-to-play%20case%E2%80%9D>
Posted in bribery<http://electionlawblog.org/?cat=54>


"Senate Committee approves Texas voter ID overhaul"<http://electionlawblog.org/?p=91821>
Posted on March 27, 2017 8:28 pm<http://electionlawblog.org/?p=91821> by Rick Hasen<http://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2017/03/13/senate-committee-approves-texas-voter-id-overhaul/>

Filed by Committee Chairwoman Joan Huffman<https://www.texastribune.org/directory/joan-huffman/>, Senate Bill 5<https://www.texasattorneygeneral.gov/files/epress/SB00005I.pdf?cachebuster%3A59=&utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=> would add options for Texas voters who say they cannot "reasonably" obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

Huffman's bill would allow voters older than 70 to cast ballots using expired but otherwise acceptable photo IDs. The bill would also require the Texas secretary of state to create a mobile program for issuing election identification certificates. ...

Celina Moreno, an attorney for the Mexican American Legal Defense and Educational Fund, testified Monday that Huffman's bill was a "major improvement" over the current law. But she pressed lawmakers to remove the felony penalties, calling them "voter intimidation."

Matthew Simpson, with the ACLU of Texas, suggested that a third-degree felony is often reserved for violent conduct.

More than 16,400 Texas voters signed "reasonable impediment" affidavits during the 2016 general election, according to a tally of documents provided by the Texas secretary of state's office. And an Associated Press analysis <http://bigstory.ap.org/article/b7b57fc61c5b462d871a942864c0afad/ap-exclusive-hundreds-texans-may-have-voted-improperly> published found at least 500 instances in which voters signed the affidavit - and didn't show photo ID - despite indicating that they owned one. Such voters could be harshly penalized under Huffman's bill. It's not clear how many of those questionable affidavits were submitted intentionally or out of confusion.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91821&title=%E2%80%9CSenate%20Committee%20approves%20Texas%20voter%20ID%20overhaul%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Derek Muller on Norm Ornstein on a Special Election for President<http://electionlawblog.org/?p=91818>
Posted on March 27, 2017 8:24 pm<http://electionlawblog.org/?p=91818> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://excessofdemocracy.com/blog/2017/3/no-congress-cant-pass-a-law-permitting-a-special-election-for-president>, at Excess of Democracy.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91818&title=Derek%20Muller%20on%20Norm%20Ornstein%20on%20a%20Special%20Election%20for%20President>
Posted in voting<http://electionlawblog.org/?cat=31>


"Court Allows Challenge to FEC Rule Shielding Nonprofit Donors"<http://electionlawblog.org/?p=91816>
Posted on March 27, 2017 8:22 pm<http://electionlawblog.org/?p=91816> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=108092610&vname=mpebulallissues&jd=a0m1f1n7e6&split=0>
A Federal Election Commission rule on "independent expenditures," which has allowed millions of dollars' worth of campaign ads to air without disclosure of the donors funding them, can be challenged in court, a federal judge ruled<http://www.bloomberglaw.com/public/document/CITIZENS_FOR_RESPONSIBILITY_AND_ETHICS_IN_WASHINGTON_et_al_v_FEDE/15>.
The FEC rule has been widely cited by nonprofit groups seeking to keep their donors secret while trying to influence federal elections through ads supporting or opposing candidates.
Numerous ad sponsors have responded to inquiries from the FEC by telling the agency that none of their donors had to be revealed because none gave money "for the purpose of furthering" a specific election-related expenditure. When this provision of its independent expenditure rule-11 C.F.R. Section 109.10(e)(1)(vi)-has been cited by ad sponsors, the FEC hasn't questioned them further.
The March 22 preliminary court ruling came in a lawsuit filed by the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) regarding the FEC's dismissal of an administrative enforcement action against Crossroads GPS, a conservative nonprofit that worked to elect Republicans. Judge Beryl Howell of the U.S. District Court for the District of Columbia denied an FEC motion to dismiss the challenge of its independent expenditure rule as time-barred.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91816&title=%E2%80%9CCourt%20Allows%20Challenge%20to%20FEC%20Rule%20Shielding%20Nonprofit%20Donors%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


Sen. Leahy Asked Judge Gorsuch About Apparent Error in His Testimony on Citizens United<http://electionlawblog.org/?p=91814>
Posted on March 27, 2017 1:31 pm<http://electionlawblog.org/?p=91814> by Rick Hasen<http://electionlawblog.org/?author=3>

I explained<http://electionlawblog.org/?p=91730> during the hearing about an apparent error in Judge Gorsuch's testimony on Citizens United.

Senator Leahy has now asked about it<https://twitter.com/asmith83/status/846458559533629443>, in the written questions to Judge Gorsuch, so we will get a better sense if the judge simply misspoke.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91814&title=Sen.%20Leahy%20Asked%20Judge%20Gorsuch%20About%20Apparent%20Error%20in%20His%20Testimony%20on%20Citizens%20United>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>


"The Holmes Case: Deceptively Dangerous for Campaign Contribution Limits"<http://electionlawblog.org/?p=91812>
Posted on March 27, 2017 1:23 pm<http://electionlawblog.org/?p=91812> by Rick Hasen<http://electionlawblog.org/?author=3>

Noah Lindell<http://www.campaignlegalcenter.org/news/blog/holmes-case-deceptively-dangerous-campaign-contribution-limits> for the CLC Blog:

On Wednesday, the full panel of judges at the D.C. Circuit Court of Appeals will hear oral argument in Holmes v. FEC<http://www.campaignlegalcenter.org/case/holmes-v-fec>. This is a seemingly minor case that could have major implications for campaign finance regulation.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91812&title=%E2%80%9CThe%20Holmes%20Case%3A%20Deceptively%20Dangerous%20for%20Campaign%20Contribution%20Limits%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>


"Williams-Yulee and the Anomaly of Campaign Finance Law"<http://electionlawblog.org/?p=91810>
Posted on March 27, 2017 1:17 pm<http://electionlawblog.org/?p=91810> by Rick Hasen<http://electionlawblog.org/?author=3>

Noah Lindell has written this comment<http://www.yalelawjournal.org/article/williams-yulee-and-the-anomaly-of-campaign-finance-law> for the Yale Law Journal. A taste:

This Comment enters an existing debate over how courts should analyze campaign finance laws and other election regulations. Judges and authors have noted that the Court has left campaign finance out of the jurisprudential framework for election law cases.12<http://www.yalelawjournal.org/article/williams-yulee-and-the-anomaly-of-campaign-finance-law#_ftnref12> Scholars have sparred over whether this situation should be changed and, if so, what campaign finance doctrine should look like.13<http://www.yalelawjournal.org/article/williams-yulee-and-the-anomaly-of-campaign-finance-law#_ftnref13> At least two authors have directly advocated for using some form of balancing analysis in campaign finance challenges, though neither proposes using the Burdick test.14<http://www.yalelawjournal.org/article/williams-yulee-and-the-anomaly-of-campaign-finance-law#_ftnref14> By explicitly arguing that the Court should fold campaign finance law into the Burdick test, this Comment adds a different perspective to a growing literature debating whether and how to unify the domains of election law. It also provides a new way to examine Williams-Yulee itself. As Williams-Yulee is a relatively new decision, it has not yet generated substantial academic scholarship. Several early commentators lamented the Court's approach to strict scrutiny analysis, but many of them simply argued that the Court should have decided the case the other way.15<http://www.yalelawjournal.org/article/williams-yulee-and-the-anomaly-of-campaign-finance-law#_ftnref15> This Comment, by contrast, situates Williams-Yulee in a broader framework, reexamining the divide between the campaign finance and election law doctrines.

This Comment proceeds in two Parts. Part I discusses the Court's ruling in Williams-Yulee and explores how the analysis developed to this point. It then discusses Williams-Yulee's potential to affect First and Fourteenth Amendment cases. Part II lays out an alternative jurisprudential path. It describes how campaign finance law diverged from the rest of election law, explains the modern Burdick test, and shows how the test's application would affect the analysis in Williams-Yulee and other campaign finance cases. Part II also addresses the most common theoretical arguments against using the Burdick test in this area.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91810&title=%E2%80%9CWilliams-Yulee%20and%20the%20Anomaly%20of%20Campaign%20Finance%20Law%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19>, Supreme Court<http://electionlawblog.org/?cat=29>


"Judicial Candidates' Right to Lie"<http://electionlawblog.org/?p=91808>
Posted on March 27, 2017 1:13 pm<http://electionlawblog.org/?p=91808> by Rick Hasen<http://electionlawblog.org/?author=3>

Nat Stern has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2939829> on SSRN (forthcoming Maryland Law Review). Here is the abstract:

A large majority of state judges are chosen through some form of popular election. In Republican Party of Minnesota v. White, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together these two holdings, along with the Court's wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states' ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges' responsibilities and still exists in many states. Given the provision's vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source - judicial elections themselves

If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process ... the First Amendment rights that attach to their roles.

[A] State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91808&title=%E2%80%9CJudicial%20Candidates%E2%80%99%20Right%20to%20Lie%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>, judicial elections<http://electionlawblog.org/?cat=19>


"Floridians can help put a stop to denying ex-felons the right to vote"<http://electionlawblog.org/?p=91806>
Posted on March 27, 2017 1:12 pm<http://electionlawblog.org/?p=91806> by Rick Hasen<http://electionlawblog.org/?author=3>

Frank Askin <http://www.miamiherald.com/Opinion/op-ed/article140235388.html> Miami-Herald oped:

Can Florida claim to be a democracy when one out of every 10 of adult citizens in the state are denied the right to vote because some time in their lives they were convicted of a felony? And 75 percent of those people are out of prison and otherwise living as free members of the community?

Florida is one of a handful of states that impose a lifetime voting ban on convicted felons. Their right to vote can only be restored on a case-by-case basis with the approval of the governor and two members of the Board of Executive Clemency - the cabinet - on a petition filed five years after release from prison. Since Scott's election in 2010, only 2,487 petitions have been granted. Only a few other states come even close to disenfranchising so many ex-felons.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91806&title=%E2%80%9CFloridians%20can%20help%20put%20a%20stop%20to%20denying%20ex-felons%20the%20right%20to%20vote%E2%80%9D>
Posted in felon voting<http://electionlawblog.org/?cat=66>


--
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170328/4f06ed9c/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170328/4f06ed9c/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 4443 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170328/4f06ed9c/attachment-0001.png>