[EL] ELB News and Commentary 3/31/17

Thu Mar 30 07:26:04 PDT 2017

“How States Could Force Trump to Release His Tax Returns”<http://electionlawblog.org/?p=91865>
Posted on March 30, 2017 7:22 am<http://electionlawblog.org/?p=91865> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece<http://www.politico.com/magazine/story/2017/03/donald-trump-tax-returns-release-214950> for Politico. A snippet:
Now, though, a band of state lawmakers is attempting to succeed where so many others have failed. In at least 24 states<https://apnews.com/732e876c30f045209b1c91aa0f8b8019>, legislators have introduced bills that would force Trump (and all other presidential candidates) to disclose their tax returns in order to qualify for their states’ ballots in 2020.
There’s one big obstacle, though: Requiring presidential candidates to release their taxes as a condition of ballot access may not be constitutional. And even if it is, the Democrats sponsoring such legislation run the risk of major retaliatory measures being taken in Republican states…..
The idea of using ballot access to force politicians to do something they don’t want to do is not new—nor is the fight over the move’s constitutionality. The Supreme Court’s 1995 ruling in U.S. Term Limits v. Thornton<https://scholar.google.com/scholar_case?case=17556563688641585277&hl=en&as_sdt=6&as_vis=1&oi=scholarr> held that Arkansas could not deny ballot access to congressional candidates who had served more than three terms or to Senate candidates who served more than two terms—measures the state had enacted to create congressional term limits. The Court held that the Constitution set the exclusive qualifications for running for federal office (including age and citizenship requirements), and that allowing individual states to impose addition qualifications “would erode the structure designed by the Framers to form a ‘more perfect Union.’” So while states can set reasonable conditions for presidential candidates to get on the ballot, such as requiring a certain number of petition signatures to be listed, they cannot go further and set substantive conditions for who can run.
In light of such precedent, what could possibly be the basis for upholding a state law barring ballot access for presidential candidates who decline to release their tax returns? After all, Article II<https://www.law.cornell.edu/constitution/articleii> of the Constitution includes exclusive qualifications for the office of the president: The president must be a natural-born citizen who is at least 35 years old and has resided in the United States for at least 14 years.
The answer lies in another part of Article II—the part that received some important attention in Bush v. Gore, the Supreme Court decision that Democrats love to hate. Famously, the 2000 case between Republican nominee George W. Bush and Democratic nominee Al Gore effectively handed the election to Bush when it ended the Florida recount….

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Posted in ballot access<http://electionlawblog.org/?cat=46>, campaigns<http://electionlawblog.org/?cat=59>

Sen. McCaskill, in Secret Recording, Agrees Democrats Should Hold Filibuster for Loss of Ginsburg, Kennedy or Breyer<http://electionlawblog.org/?p=91863>
Posted on March 30, 2017 6:59 am<http://electionlawblog.org/?p=91863> by Rick Hasen<http://electionlawblog.org/?author=3>
KC Star:<http://www.kansascity.com/news/politics-government/article141651189.html>
McCaskill made a distinction between using the filibuster to block Gorsuch, who would replace Scalia, arguably the court’s most conservative justice during his tenure, and using it to block a nominee if one of the court’s more liberal or centrist justices dies or retires.
“So they move it to 51 votes and they confirm either Gorsuch or they confirm the one after Gorsuch,” she continued. “They go on the Supreme Court and then, God forbid, Ruth Bader Ginsburg dies, or (Anthony) Kennedy retires or (Stephen) Breyer has a stroke or is no longer able to serve. Then we’re not talking about Scalia for Scalia, which is what Gorsuch is, we’re talking about Scalia for somebody on the court who shares our values. And then all of a sudden the things I fought for with scars on my back to show for it in this state are in jeopardy.”
McCaskill acknowledged that many members of the party’s base want Democrats to fight any Trump nominee after Republicans refused to even hold a hearing for President Barack Obama’s nominee, federal Judge Merrick Garland.
I made this argument here<http://electionlawblog.org/?p=91762>.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Huge North Carolina Voting Case, and Motion to Withdraw Cert. Petition, Taken Off #SCOTUS Conference Docket Again<http://electionlawblog.org/?p=91860>
Posted on March 30, 2017 6:44 am<http://electionlawblog.org/?p=91860> by Rick Hasen<http://electionlawblog.org/?author=3>
Super interesting.<http://electionlawblog.org/?p=91359> Second time it is being rescheduled.  I explained what was supposed to happen tomorrow here<http://electionlawblog.org/?p=91625>. The governor and AG of North Carolina want to withdraw the petition and the Legislature does not.
Something is going on behind the scenes, because maybe the Court wants the state to resolve this somehow.
(I first suggested the withdrawal of the cert. petition, which would preserve an important voting rights precedent, in this Slate piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html>).
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Trump can’t stop the Freedom Caucus. He has GOP gerrymandering to blame”<http://electionlawblog.org/?p=91858>
Posted on March 30, 2017 6:38 am<http://electionlawblog.org/?p=91858> by Rick Hasen<http://electionlawblog.org/?author=3>
David Daley<https://www.washingtonpost.com/posteverything/wp/2017/03/29/trump-cant-stop-the-freedom-caucus-he-has-gop-gerrymandering-to-blame/?utm_term=.fbc16d48fe11> for WaPo’s Post Everything.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“The Democrats Should Not Filibuster Gorsuch”<http://electionlawblog.org/?p=91856>
Posted on March 30, 2017 6:36 am<http://electionlawblog.org/?p=91856> by Rick Hasen<http://electionlawblog.org/?author=3>
Eric Segall<http://www.thedailybeast.com/articles/2017/03/30/the-democrats-should-not-filibuster-gorsuch.html> in the Daily Beast.
I would have been in favor of the Senate Democrats boycotting the hearings and the vote altogether in protest of what happened to Merrick Garland. But it is too late to play that card. Therefore, the only remaining question is how Democrats should play the current hand to maximize leverage and chances of success in the future. This is an issue of strategy not principle. The answer is to put the filibuster card back in the deck. That decision does not guarantee it will work next time but the players both at the table and away from the table may be very different the next time a vacancy arises. Sometimes the best strategy is simply to leave the table and come back to play another day.
My earlier thoughts on this (linked by Eric) are here<http://electionlawblog.org/?p=91762>.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“D.C. Circuit Judges Wary of Challenge to Campaign Contribution Limits”<http://electionlawblog.org/?p=91854>
Posted on March 29, 2017 8:26 pm<http://electionlawblog.org/?p=91854> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=108214851&vname=mpebulallissues&jd=a0m1h5a4q8&split=0>
A constitutional challenge to per-election limits on campaign contributions faced skeptical questioning from nearly all the judges of the federal appeals court in Washington during a March 29 hearing.
Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit repeatedly asked attorney Allen Dickerson whether a decision in favor of the challengers in the case, known as Holmes v. Federal Election Commission (D.C. Cir., No. 14-05281, argued 3/29/17), could threaten the whole structure of campaign contribution limits, which has been in place for decades at the federal level and in most states.
Garland, whose nomination last year to the Supreme Court by President Barack Obama was never considered by the Senate, led the questioning in the D.C. Circuit hearing. The case is being considered by an en banc panel of 11 active D.C. Circuit judges. One judge, Karen LeCraft Henderson, was absent from the oral argument.
Defending the current structure of contribution limits was FEC attorney Erin Chlopak, who faced fewer questions than Dickerson from the appellate judges. Chlopak argued that the existing contribution- limit system should be easy for the court to uphold because a series of Supreme Court decisions, including the landmark 1976 case Buckley v. Valeo and other rulings, have consistently upheld the constitutionality of contribution limits.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Kentucky Law Journal Publishes Election Law Symposium<http://electionlawblog.org/?p=91852>
Posted on March 29, 2017 8:22 pm<http://electionlawblog.org/?p=91852> by Rick Hasen<http://electionlawblog.org/?author=3>
Here it is:<http://www.kentuckylawjournal.org/index.php/2017/03/14/volume-104-issue-4/>
Print Archive: Volume 104, Issue 4 (2015-2016)
Articles
104 KY. L. J. 547<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/Douglas-Forward.pdf> | A Pivotal Movement for Election Law, Foreword | Joshua A. Douglas
104 KY. L. J. 561<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/Fuentes-Rohwer-Article-Final.pdf> | Who’s Afraid of the Hated Political Gerrymander | Luis Fuentes-Rohwer
104 KY. L. J. 583<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/Daniels-Article-Final.pdf> | Voting Realism | Gilda R. Daniels
104 KY. L. J. 607<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/Ellis-Article-Final.pdf> | Economic Precarity, Race, and Voting Structures | Atiba R. Ellis
104 KY. L. J. 631<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/Pitts-Article-Final.pdf> | Judicial Enforcement of a Grand Election Bargain | Michael J. Pitts
104 KY. L. J. 651<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/104KyLJ651.pdf> | Aggregate Corruption | Michael D. Gilbert, Emily Reeder
104 KY. L. J. 671<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/Solimine-Article-Final.pdf> | Judicial Review of Direct Democracy: A Reappraisal | Michael E. Solimine
104 KY. L. J. 699<http://www.kentuckylawjournal.org/wp-content/uploads/2017/03/Green-Article-Final.pdf> | Arbitrating Ballot Battles | Rebecca Green
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“CLC, D21 Lawsuit Calling for FEC Enforcement Moves Forward”<http://electionlawblog.org/?p=91850>
Posted on March 29, 2017 1:45 pm<http://electionlawblog.org/?p=91850> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.campaignlegalcenter.org/news/press-releases/clc-d21-lawsuit-calling-fec-enforcement-moves-forward>
A federal district court today refused to throw out a lawsuit Campaign Legal Center and Democracy 21 filed against the Federal Election Commission (FEC). CLC and D21 filed the suit<http://www.campaignlegalcenter.org/sites/default/files/CLC%20v%20%20FEC_LLC%20Complaint_Final%204.22.2016.pdf> in the United States District Court for the District of Columbia after the FEC failed to act on five complaints calling on the agency to investigate donors who broke disclosure laws by hiding behind opaque corporate entities like Limited Liability Companies (LLCs) to anonymously make contributions to super PACs.
In response to the lawsuit, the FEC called on the court to dismiss the case, on the ground that CLC and D21 failed to show standing, or the right to sue. The court disagreed as to the majority of the FEC complaints and now the case will be heard on the merits.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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