[EL] ELB News and Commentary 4/4/18

Wed Apr 4 09:32:36 PDT 2018

“Keynote Address: Judging the Political and Political Judging: Justice Scalia as Case Study”<http://electionlawblog.org/?p=98528>
Posted on April 4, 2018 9:29 am<http://electionlawblog.org/?p=98528> by Rick Hasen<http://electionlawblog.org/?author=3>

I have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3154845> on SSRN (forthcoming: Chicago-Kent Law Review). Here is the abstract:

This Address builds upon ideas first presented in Richard L. Hasen, After Scalia: The Future of United States Election Law, 17 AMERIKA HŌ 1 (Koji Higashikawa trans., 2017) (Japan), and RICHARD L. HASEN, THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION (2018). It is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law.

It considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance, on the one hand, to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. In this context, I argue that the defects in the political process he sometimes flagged appeared to do little work, and that his decisions are better understood by his ideological commitments to what Chicago-Kent Professor Steven Heyman calls “conservative libertarianism.”[1] Scalia’s views on self-dealing appeared to reflect rather than drive his legal analysis.

Part II describes Justice Scalia’s contradictory approaches on questions of self-dealing and incumbency. Part III argues that, the contradictions lined up with the Justice’s ideological and partisan commitments, and that this is hardly unique to Justice Scalia. Finally, Part IV offers three lessons to be learned from this case study for the interaction of the Court, the political branches, and election law.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

Did Justice Scalia Display Anti-Gay Animus?<http://electionlawblog.org/?p=98526>
Posted on April 4, 2018 9:25 am<http://electionlawblog.org/?p=98526> by Rick Hasen<http://electionlawblog.org/?author=3>

Ed Whelan, defender of all things Scalia and author of the “This Day in Liberal Judicial Activism” feature on National Review, is in the midst of a multi-post critique of my book (here<https://www.nationalreview.com/bench-memos/richard-hasen-book-antonin-scalia-flawed/>, here<https://www.nationalreview.com/bench-memos/richard-hasens-jumble-of-confusions-part-2/> and here).<https://www.nationalreview.com/bench-memos/richard-hasen-book-antonin-scalia-defective-arguments/>

I’m still mulling whether to take up Ed’s offer<https://twitter.com/EdWhelanEPPC/status/980951232981471237> to potentially post a response on Bench Memos (my inclination is to let the book speak for itself), but I did want to take up a topic that Ed raises in his latest post: Whether Scalia had anti-gay animus. Ed writes:

Hasen contends that Scalia’s dissent in Lawrence v. Texas (2003) was “full of language seen as strongly anti-gay.” (P. 88 (emphasis added).) But there are many folks who seem to find it empowering to see things, or at least to feign to see things, that don’t exist. Here’s the supposedly deeply offensive passage from Lawrence:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

What Hasen and others overlook is that the adjective “so-called” operates to disparage the label “homosexual agenda.” So far from embracing that label, Scalia is distancing himself from it. (If Scalia had instead written that the justices in the majority had “joined forces with the so-called gay-rights movement,” his critics would surely have complained about that phrase.) In other words, while the phrase “the so-called homosexual agenda” may well have been ill-advised (if only because it gave some folks a predictable if weak excuse to rant), it’s reckless hyperbole to characterize it as “harsh anti-gay rhetoric.”

I struggled a lot in the book about how to understand whether Scalia had anti-gay animus, and I discuss the issue in detail on pages 86-91 of the book. But given Ed’s selective reading, I would point readers to this passage on page 90, which notes that in 2012, at a book event at Princeton, he was confronted by a gay student who said he was offended by Scalia’s statements in earlier cases comparing homosexual acts to bestiality and murder. Justice Scalia responded: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise.”

I’d also point to these two tweets which shows how comments like “homosexual agenda” are treated by those in the LGBT community:
[https://pbs.twimg.com/profile_images/940412943535091712/DnqO1XRP_normal.jpg]<https://twitter.com/AnthonyMKreis>
<https://twitter.com/AnthonyMKreis>
Anthony Michael Kreis<https://twitter.com/AnthonyMKreis>
✔@AnthonyMKreis<https://twitter.com/AnthonyMKreis>

16h<https://twitter.com/AnthonyMKreis/status/981327349806444546>

Using the term “homosexual agenda” is inherently anti-gay given the term’s history— it is pejorative. Using it is a tacit endorsement of the term, even if “so-called” was inserted for “distancing.” That Scalia was okay criminalizing gay people suggests to me @rickhasen<https://twitter.com/rickhasen> is right. https://twitter.com/edwhelaneppc/status/981313770088747009 …<https://t.co/KoI4otY5CB>
[https://pbs.twimg.com/profile_images/970142737688297472/VOTaS2p6_normal.jpg]<https://twitter.com/Sam_Rubinstein>
<https://twitter.com/Sam_Rubinstein>
Sam Rubinstein at Sam_Rubinstein<https://twitter.com/Sam_Rubinstein>

<https://twitter.com/Sam_Rubinstein/status/981358975374495744>

To read Scalia’s dissent in Lawrence and not feel the stinging homophobia in it is to be incapable of empathy and ignorant of the history of LGBT people in America.
7:33 PM - Apr 3, 2018<https://twitter.com/Sam_Rubinstein/status/981358975374495744>
·         <https://twitter.com/intent/like?tweet_id=981358975374495744>
27<https://twitter.com/intent/like?tweet_id=981358975374495744>
·         <https://twitter.com/Sam_Rubinstein>
See Sam Rubinstein's other Tweets<https://twitter.com/Sam_Rubinstein>
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

Review of My Book in The American Prospect: “The Scalia Problem: It Wasn’t Originalism or Textualism — It Was Trumpism”<http://electionlawblog.org/?p=98524>
Posted on April 4, 2018 9:14 am<http://electionlawblog.org/?p=98524> by Rick Hasen<http://electionlawblog.org/?author=3>

Simon Lazarus reviews<http://the%20scalia%20problem:%20It%20Wasn%E2%80%99t%20Originalism%20or%20Textualism%20--%20It%20Was%20Trumpism/> my book<https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643/ref=sr_1_1?ie=UTF8&qid=1516904231&sr=8-1&keywords=richard+l.+hasen> for The American Prospect.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“Issue One and Campaign Legal Center file IRS complaint against major ‘dark money’ group”<http://electionlawblog.org/?p=98522>
Posted on April 4, 2018 9:06 am<http://electionlawblog.org/?p=98522> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<https://www.issueone.org/issue-one-and-campaign-legal-center-file-irs-complaint-against-major-dark-money-group/>

Today, Issue One<https://www.issueone.org/> and the Campaign Legal Center<http://www.campaignlegalcenter.org/> called on the Internal Revenue Service (IRS) to enforce penalties against Americans for Job Security<https://www.issueone.org/wp-content/uploads/2018/04/Complaint-Against-Americans-for-Job-Security.pdf> — one of the top spenders of political “dark money” in recent years — for failing to file three years’ worth of mandatory tax returns. For this, Americans for Job Security could be punished with the loss of its tax-exempt status as well as monetary fines.

A tax-exempt business league under Section 501(c)(6) of the tax code, Americans for Job Security has spent more than $20 million<https://www.fec.gov/data/committee/C90011669/?cycle=2012> on political ads that overtly called for the election or defeat of federal candidates since the U.S. Supreme Court’s Citizens United v. Federal Election Commission decision in 2010.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Maine: “Judge orders state to use ranked-choice voting for June primaries”<http://electionlawblog.org/?p=98520>
Posted on April 4, 2018 9:04 am<http://electionlawblog.org/?p=98520> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<https://www.pressherald.com/2018/04/04/judge-orders-state-to-use-ranked-choice-voting-for-june-primaries/> from Maine.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“Charitable Giving by Corporations Is Also About Getting, a New Study Finds”<http://electionlawblog.org/?p=98518>
Posted on April 4, 2018 9:03 am<http://electionlawblog.org/?p=98518> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/04/03/business/economy/charitable-giving-corporations.html>

Sifting through the donations to charity from 1998 to 2015 by foundations set up by the largest companies in the United States — those in the Fortune 500 or the Standard & Poor’s 500-stock index — Marianne Bertrand of the University of Chicago’s Booth School of Business; Matilde Bombardini and Francesco Trebbi of the University of British Columbia; and Raymond Fisman of Boston University detected a pattern of contributions to 1,087 charities linked to 451 members of Congress.

Turns out that the spending is a little more self-serving than companies would have us believe. Some of the charitable giving looks a lot like corporate lobbying. Because companies get a break for such giving, it amounts to political spending at taxpayers’ expense. “Firms deploy their charitable foundations as a form of tax-exempt influence seeking,” the researchers write.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“What Has 25 Years of Racial Gerrymandering Doctrine Achieved?”<http://electionlawblog.org/?p=98516>
Posted on April 4, 2018 9:00 am<http://electionlawblog.org/?p=98516> by Rick Hasen<http://electionlawblog.org/?author=3>

Mike Pitts has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3147931> on SSRN (forthcoming, UC Irvine Law Review). Here is the abstract:

In 1993, Shaw v. Reno created a doctrine of racial gerrymandering that has now been in existence for 25 years. This Article examines the doctrine’s impact over that time—whether it has achieved the goals the Court set out for the doctrine in Shaw and whether it has had other consequences. This Article examines the doctrine’s impact through the lens of the place where the doctrine first took root and has been most heavily litigated over the last 25 years—North Carolina’s congressional districts. This Article also draws upon the existing empirical literature in its assessment of the doctrine’s impact. In doing so, this Article represents the first comprehensive assessment of the doctrine. Ultimately, the Article concludes that while more research could and should be done in this realm, racial gerrymandering doctrine does not appear to have achieved the goals the Court set out for it. In addition, the doctrine has likely had little additional impact other than to make districts more compact and cost state governments money for litigation and compliance. For these reasons, the Article concludes that the doctrine should be abandoned absent additional research documenting a systematically meaningful positive impact on American democracy.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Beyond Repair: FEC Reform and Deadlock Deference”<http://electionlawblog.org/?p=98514>
Posted on April 4, 2018 8:58 am<http://electionlawblog.org/?p=98514> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Tokaji has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3145191> on SSRN (forthcoming, Democracy by the People). Here is the abstract:

Composed of six commissioners, three aligned with each major party, the Federal Election Commission (“FEC”) consistently stalemates on critical questions of campaign finance law. Party-line deadlocks have become increasingly common over the past decade, reflecting the larger phenomenon of partisan polarization that infects the American political system. FEC critics have thus proposed replacing it with an odd-numbered body. The problem with this proposal is that it would allow the dominant political party to enforce campaign finance laws in a way that systematically disadvantages its chief competitor. There is a better solution: give tie breaking authority to the federal courts, which now defer to FEC non-enforcement decisions even when they result from a party-line split. This chapter argues that this practice of “deadlock deference” should be abandoned because it is wrong as a matter of law and harmful as a matter of policy. Abandoning deadlock deference would not only conform to recent Supreme Court precedent regarding Chevron deference, but also help remedy the worsening problem of party-line stalemates on the FEC. Because Article III judges rather than partisan commissioners would break the tie, ending deadlock deference would prevent one party from manipulating campaign finance law to the disadvantage of the other.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“Partisan Gerrymandering and the Constitutionalization of Statistics”<http://electionlawblog.org/?p=98512>
Posted on April 4, 2018 8:55 am<http://electionlawblog.org/?p=98512> by Rick Hasen<http://electionlawblog.org/?author=3>

Jacob Eisler has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3145191> on SSRN (forthcoming, Emory Law Journal). Here is the abstract:

Data analysis has transformed the legal academy, and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. Statistical thresholds have thus been enshrined as constitutional protections, and courts have recast themselves as agents of discretionary policy.

This Article describes how this revolutionary change subverts the judicial role and undermines the rule of law. Constitutional law ensures that government conduct respects principles of neutrality. Government action is unconstitutional when it has intentionality that violates these principles. In other words, constitutional rights are ‘input-monitoring’, whereas data analysis can only produce informational outputs. Because quantitative methods cannot identify the inputs that violate principles, they are inadequate to define constitutional wrongs. The only appropriate role of metrical analysis is to provide evidence of any rights-violating intentionality. If quantitative outcomes are used to define rights, courts act as quasi-regulatory entities that compete with democratically elected branches.

The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage.

This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Stingl: Milwaukee’s longest-serving chief poll inspector runs a tight but friendly ship”<http://electionlawblog.org/?p=98510>
Posted on April 4, 2018 8:42 am<http://electionlawblog.org/?p=98510> by Rick Hasen<http://electionlawblog.org/?author=3>

The Journal-Sentinel reports.<https://www.jsonline.com/story/news/columnists/jim-stingl/2018/04/03/stingl-milwaukees-longest-serving-chief-poll-inspector-runs-tight-but-friendly-ship/481946002/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“17 States, 7 Cities Sue To Remove Citizenship Question From 2020 Census”<http://electionlawblog.org/?p=98508>
Posted on April 3, 2018 3:04 pm<http://electionlawblog.org/?p=98508> by Rick Hasen<http://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2018/04/03/599159295/17-states-7-cities-sue-to-remove-2020-census-citizenship-question>

New York state is leading a group of 17 states, seven cities and the U.S. Conference of Mayors in a lawsuit against the Census Bureau and Commerce Department to try to remove a new citizenship question from the 2020 Census questionnaire. It comes more than a week after California filed a similar lawsuit in San Francisco federal court against Commerce Secretary Wilbur Ross, who oversees the bureau, and Census Bureau officials.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Federal judge: Texas is violating national voter registration law”<http://electionlawblog.org/?p=98506>
Posted on April 3, 2018 3:03 pm<http://electionlawblog.org/?p=98506> by Rick Hasen<http://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2018/04/03/federal-judge-hands-texas-loss-voter-registration-lawsuit/>

Handing the state another voting rights loss, a federal judge has sided with a civil rights groups that claimed the state violated federal law by failing to register Texans to vote when they updated their drivers’ license information online.

In a court order<http://texascivilrightsproject.org/wp-content/uploads/2018/04/msj-dps.pdf> made public on Tuesday, U.S. District Judge Orlando Garcia of San Antonio ruled that Texas was in violation of the federal National Voter Registration Act. A portion of that law requires states to give residents the opportunity to register to vote at the same time that they apply for or renew their driver’s licenses.

It wasn’t immediately clear how Garcia will direct the state to comply with the law; Garcia indicated he will provide more details in the next two weeks. But the Texas Civil Rights Project, which represents several Texas voters in the case, said the state would “soon be forced” to change its voter registration policies — and possibly introduce its first mechanism for online voter registration.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, voter registration<http://electionlawblog.org/?cat=37>

“Montana Democrats want Green Party off ballot, saying they didn’t get enough valid signatures”<http://electionlawblog.org/?p=98504>
Posted on April 3, 2018 12:49 pm<http://electionlawblog.org/?p=98504> by Rick Hasen<http://electionlawblog.org/?author=3>

Independent Record on what seems like a battle between Democrats and Republicans with the Greens stuck in the middle:<http://helenair.com/news/government-and-politics/montana-democrats-want-green-party-off-ballot-saying-they-didn/article_d98209f2-8bb0-55f1-804c-f186279d5ade.html#tracking-source=home-top-story-1>

The Montana Democratic Party is claiming the Montana Green Party didn’t have enough signatures to qualify for running candidates in this fall’s election and wants the Green Party’s candidates removed from the ballot.

In a complaint filed Monday in Helena District Court, the Montana Democratic Party argues the Montana Green Party submitted invalid signatures that were used to certify the party for the ballot….

The complaint also argues that some of the signature gatherers’ efforts seem unrealistic. Gatherers averaged 500 signatures a day, and one reported collecting in a single day more than 90 signatures from Cascade County and more than 50 from Yellowstone County, “despite the more than four-hour driving distance between the two counties,” according to the complaint.

The complaint also says at least one Green Party candidate, Tim Adams, who is running for the U.S. Senate seat, has “long-standing affiliations” with the Montana Republican Party. Adams has been on the Montana GOP’s payroll<http://helenair.com/news/government-and-politics/green-party-candidate-for-u-s-senate-was-once-a/article_d0f98cc1-9777-5ad2-81f5-460600ff2374.html> in the past.

Candidates like Adams are “seeking the Green Party’s nomination to act as ‘spoiler’ candidates rather than to advance the Green Party’s stated principles and values,” the complaint claims.

Neither Pope nor Rogers have returned previous calls for comment. The Democrats did not announce the filing until after 6 p.m. Monday, and the Montana Green Party and the Secretary of State’s office could not be reached for comment.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“How Trump’s Citizenship Question May Hurt the G.O.P.”<http://electionlawblog.org/?p=98502>
Posted on April 3, 2018 12:45 pm<http://electionlawblog.org/?p=98502> by Rick Hasen<http://electionlawblog.org/?author=3>

Justin Levitt NYT oped:<https://www.nytimes.com/2018/04/03/opinion/trump-census-citizenship-question.html>

Its intrusion into the census could well have unanticipated consequences for the long-term distribution of power and money. Census results drive both political representation and funding — for large groups of people in broad areas. This means the decision to roll loaded dice on enumeration does not merely impact undocumented individuals, or permanent residents or minority citizens. Everyone in an area that loses numbers also loses clout and cash.

Yes, an undercount affects urban minorities — but also conservative rural agricultural communities dependent on farmworkers, and plenty of areas in between.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Public Support for Campaign Finance Reform: The Role of Policy Narratives, Cultural Predispositions, and Political Knowledge in Collective Policy Preference Formation”<http://electionlawblog.org/?p=98500>
Posted on April 3, 2018 12:43 pm<http://electionlawblog.org/?p=98500> by Rick Hasen<http://electionlawblog.org/?author=3>
Paul D. Jorgensen<https://onlinelibrary.wiley.com/action/doSearch?ContribAuthorStored=Jorgensen%2C+Paul+D> , Geoboo Song, and  <https://onlinelibrary.wiley.com/action/doSearch?ContribAuthorStored=Song%2C+Geoboo> Michael D. Jones have writen <https://onlinelibrary.wiley.com/action/doSearch?ContribAuthorStored=Jones%2C+Michael+D> this article<https://onlinelibrary.wiley.com/doi/full/10.1111/ssqu.12357#.WsO8RXh2OMM.email> for Social Science Quarterly. Here is the abstract:
Objective

We use the variation in public support for campaign finance reform (CFR) to determine factors important to collective policy preference formation.

Methods

Using a national survey, we factor analyze the latent dimensions of various reforms, and rely on an experimental design to explain the role policy narratives, cultural theory (CT), and political knowledge play in preference formation.

Results

The reform debate groups along three dimensions: (1) strengthening limitations and regulations, (2) deregulating campaign finance, or (3) ending the dependence on private money altogether. We show policy narratives are most influential, and CT has more explanatory value, among those with higher levels of political knowledge. Certain policy narratives tend to increase support for CFR across all cultural types, including those who most oppose reforms that seek to end the dependence on private money.

Conclusion

As awareness of campaign finance increases, and as particular narratives become salient, we would expect increasing support for public financing, free media time, and/or public matching funds among those with higher levels of general political knowledge.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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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