[EL] ELB News and Commentary 3/1/18

Thu Mar 1 07:52:31 PST 2018

New Paper of Mine forthcoming in the Annual Review of Political Science: “Polarization and the Judiciary”<http://electionlawblog.org/?p=97943>
Posted on March 1, 2018 7:49 am<http://electionlawblog.org/?p=97943> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this draft paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3132088> for the Annual Review of Political Science (forthcoming 2019). Here is the abstract:

The period of increased polarization in the United States among the political branches and citizenry affects the selection, work, perception, and relative power of state and federal judges, including Justices of the United States Supreme Court. Polarization in the United States over the last few decades matters to the American judicial system in at least four ways. First, polarization affects judicial selection, whether the selection method is (sometimes partisan-based) elections or appointment by political actors. In times of greater polarization, governors and presidents who nominate judges, legislators who confirm judges, and voters who vote on judicial candidates are more apt to support or oppose judges based upon partisan affiliation or cues. Second, and driven in part by selection mechanisms, polarization may be reflected in the decisions that judges make, especially on issues that divide people politically, such as abortion, guns, or affirmative action. On the Supreme Court, for example, the Court often divides along party and ideological lines in votes in the most prominent and highly contested cases. Those ideological lines now overlap with party as we enter a period in which all the Court liberals have been appointed by Democratic Presidents and all the Court conservatives have been appointed by Republican Presidents. Third, increasingly polarized judicial decisions appear to be causing the public to view judges and judicial decision-making though a more partisan lens, at least when considering public attitudes about the United States Supreme Court. Fourth, polarization may affect the separation of powers, by empowering courts against polarized legislative bodies which sometimes cannot act thanks to legislative gridlock. The Article concludes by considering how increased polarization may interact with the judiciary and judicial branch going forward and suggesting areas for future research.

And here is one of the figures from the paper:

[http://electionlawblog.org/wp-content/uploads/unanimous.png]<http://electionlawblog.org/wp-content/uploads/unanimous.png>
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Posted in judicial elections<http://electionlawblog.org/?cat=19>, Supreme Court<http://electionlawblog.org/?cat=29>

“Maine secretary of state talks of ‘strange journey’ on Trump’s voter-fraud panel”<http://electionlawblog.org/?p=97941>
Posted on March 1, 2018 7:34 am<http://electionlawblog.org/?p=97941> by Rick Hasen<http://electionlawblog.org/?author=3>

SOS Dunlap says he’s no hero.<https://www.pressherald.com/2018/02/28/maine-secretary-of-state-talks-of-strange-journey-on-trumps-voter-fraud-panel/>

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Roundup of Stories on Yesterday’s Oral Argument at SCOTUS in the Minnesota Political Apparel Case<http://electionlawblog.org/?p=97939>
Posted on March 1, 2018 7:26 am<http://electionlawblog.org/?p=97939> by Rick Hasen<http://electionlawblog.org/?author=3>

Howard has it.<http://howappealing.abovethelaw.com/022818.html#074805>

Earlier I posted my thoughts<http://electionlawblog.org/?p=97933>.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>

“New Rule Bars Political Activity, Campaign Contributions by Federal Judiciary Employees”<http://electionlawblog.org/?p=97937>
Posted on March 1, 2018 7:17 am<http://electionlawblog.org/?p=97937> by Rick Hasen<http://electionlawblog.org/?author=3>

Tony Mauro:<https://www.law.com/nationallawjournal/2018/02/28/new-rule-bars-political-activity-campaign-contributions-by-federal-judiciary-employees/?kw=New%20Rule%20Bars%20Political%20Activity%2C%20Campaign%20Contributions%20by%20Federal%20Judiciary%20Employees&et=editorial&bu=National%20Law%20Journal&cn=20180301&src=EMC-Email&pt=Daily%20Headlines>

Starting on March 1, more than 1,000 employees of the federal judiciary will be subject to a policy that prohibits them from partisan political activity, including campaign contributions.

Judges and court employees have lived under similar rules for decades, but the new policy extends the restrictions to those who work at the Administrative Office of the U.S. Courts and the Federal Judicial Center, both based at the Thurgood Marshall Federal Judiciary Building in Washington, D.C.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Louisiana governor calls on top elections officer to resign”<http://electionlawblog.org/?p=97935>
Posted on February 28, 2018 1:57 pm<http://electionlawblog.org/?p=97935> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<https://www.apnews.com/b826a2f1b9a34cacbbf189016164052f>

Louisiana Gov. John Bel Edwards is urging his state’s top elections officer to step down after the man was accused of sexually harassing an employee.

The Democratic governor said Wednesday that Republican Secretary of State Tom Schedler “should immediately resign his position.”
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Posted in election law biz<http://electionlawblog.org/?cat=51>

Supreme Court Justices Grapple with Difficult Issues at Oral Argument in Minnesota Voters Alliance v. Mansky, the Political Apparel Case<http://electionlawblog.org/?p=97933>
Posted on February 28, 2018 11:04 am<http://electionlawblog.org/?p=97933> by Rick Hasen<http://electionlawblog.org/?author=3>

I have just had the chance to read the transcript<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1435_f2ag.pdf> in Minnesota Voters Alliance v. Mansky. As I indicated in my Slate piece yesterday,<https://slate.com/news-and-politics/2018/02/the-supreme-court-is-reconsidering-campaigning-at-the-ballot-box-in-minnesota-voters-alliance-v-mansky.html> the case is a difficult one, not because polling places should be places for political expression (I think Justice Scalia is right that they should not be) but because the broad ban on political words and insignias under Minnesota law is very broad, and it leaves room for arbitrary line drawing and discriminatory choices by local election officials. There seem to be a majority of Justices (including Justice Kennedy and maybe the Chief Justice) who believe it is constitutional to make polling places campaign free zones, but maybe not a majority comfortable with the administrative discretion in this case.

This exchange between Justice Alito and the state’s lawyer was particularly tough for the state:

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.

JUSTICE ALITO: How about a shirt that says “Parkland Strong”?

MR. ROGAN: No, that would — that would be — that would be allowed. I think - I think, Your Honor -

JUSTICE ALITO: Even though gun control would very likely be an issue? MR. ROGAN: To the extent -

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the — the - the line that we’re drawing is one that is - is related to electoral choices in a -

JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?

MR. ROGAN: The — the Parkland?

JUSTICE ALITO: Yeah.

MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, inMinnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -

JUSTICE ALITO: How about a shirt with the text of the Second Amendment? MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be - JUSTICE ALITO: How about the First Amendment? (Laughter.)

MR. ROGAN: No, Your Honor, I don’t - I don’t think the First Amendment. And, Your Honor, I -

CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?

MR. ROGAN: It would be allowed.

CHIEF JUSTICE ROBERTS: It would be?

But the challengers’ lawyer had a hard time too, because he didn’t really believe the state could even ban express advocacy in the polling place (like “Clinton 2016”) and he couldn’t then really defend his overbreadth argument:

JUSTICE KENNEDY: Well, if — if the Court is concerned about preserving the dignity and the decorum and the solemnity of the voting process, and the statute is as difficult as you say, isn’t that an argument for allowing good faith determination on a case-by-case basis by the polling officials?

MR. BREEMER: No, I wouldn’t say that, Your Honor, because in the meantime free speech would be chilled. All — all the conventional political expression in association that no reasonable person would see as a threat to the polling place would be chilled in the process, as it’s being chilled right now and will continue to be chilled unless this statute is invalidated. So I agree that it’s a possible line to draw at advocacy material, but, in any event, the statute would fail because it still sweeps in the rest of the conventional type -

JUSTICE KAGAN: If — if that were where we drew the line, I mean, what — what would be encompassed in advocacy material? Would it be only things that named a candidate’s name?

MR. BREEMER: Your Honor, I think it would be anything that said for or against a candidate or an issue directly on the ballot.

JUSTICE KAGAN: How about if it said “Resist”?

MR. BREEMER: I think that would be constitutionally permitted, and should be, and — and generalized slogans -

JUSTICE KAGAN: “Make America Great Again”?

MR. BREEMER: That type of slogan, too, I think that should be constitutionally permissible. Any — call it generalized - otherwise, you start to bleed over and pretty soon you have the problem that we have here of discretionary enforcement and you’re swallowing all this other legitimate speech when you’re trying to just stop that type of advocacy material.

JUSTICE KENNEDY: Why should there be speech inside the election booth at all, or inside the what you call the election room? Let’s — let’s say that it’s a small room. Why should there be any speech there at all? You’re there — you’re there to vote.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>

Justice Alito Asks for Response in Pa Redistricting Case<http://electionlawblog.org/?p=97931>
Posted on February 28, 2018 9:20 am<http://electionlawblog.org/?p=97931> by Rick Hasen<http://electionlawblog.org/?author=3>

The response is due Monday at 3 pm.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

In Case with Potential National Implications, Federal Court Strikes Political Party Ballot Qualifications Requirements in South Dakota<http://electionlawblog.org/?p=97929>
Posted on February 28, 2018 9:04 am<http://electionlawblog.org/?p=97929> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Winger:<http://ballot-access.org/2018/02/21/u-s-district-court-strikes-down-south-dakota-ballot-access-laws-for-minor-parties/>

The opinion says that the March 27 petition deadline is too early, especially given winter weather in South Dakota. It also says the 2.5% (of the last gubernatorial vote) is also too high, given the historical record of few minor parties qualifying. The Reform Party did not qualify in South Dakota in 1996; the Green Party has never qualified; the Natural Law Party never qualified; the New Alliance Party never qualified.

The state defended the March 27 deadline by saying that deadline is necessary to give new parties their own primary in June. But the opinion says there is no state interest in requiring new or small parties to nominate by primary. It says, “In our two-party dominant system, the Republican and Democratic Parties often have more than one candidate for each political office and thus need to run in a primary election where the registered voters of each party must choose their candidate. But Defendants have not explained why this rationale should apply to new political parties.”

In our very close elections, whether or not third parties can get on the ballot and compete in presidential (and other) election contests can make a real difference, even if these parties usually have little chance of winning.

You can find the court’s opinion in Libertarian Party of South Dakota v. Krebs at this link<https://www.scribd.com/document/372638688/South-Dakota-Ballot-Access>.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, political parties<http://electionlawblog.org/?cat=25>, third parties<http://electionlawblog.org/?cat=47>

--
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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