BCRA opinion tomorrow? The conventional wisdom (from court watchers,
journalists and others) was that the opinion would be out 24-48 hours after
the three judge court set up the special listserv for issuing its opinion.
It is now after 5 pm on the East Coast. So the best guess is that the opinion
will be out tomorrow, but don't be surprised to see it go to next week. After
all, it is already 3 months after the expected due date.
As an historical sidebar, the Supreme Court issued its opinion in Buckley
v. Valeo on January 30, 1976. I recently published an article on the
drafting history of the opinion based upon my review of the papers of Justices
Brennan, Marshall, and Powell. (The article, The Untold Drafting History
of Buckley v. Valeo, 2 Election Law Journal 241 (2003), just became available
on Westlaw to those readers who have it.) According to the papers, after
Justice Brennan circulated a memo noting that the opinion would likely come
out on January 30, Justice Powell wrote to the other Justices that "[i]t
is important to make that date if possible. The Act directs us to 'expedite'
this case. It sounds more 'expeditious' for the record to show we brought
the case down in January rather than February!"
More on Kentucky governor woes The Lexington
Herald-Leader offers this
report. (Thanks to Ed Feigenbaum for the pointer.)
New Issacharoff draft Anyone remember Bush
v. Gore? Legal Theory reports
on this new scholarship up on SSRN:
Samuel Issacharoff (Columbia) posts The
Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications
for Contested Presidential Elections, forthcoming in the Texas Law
Review. Here is a taste:
This article explores the preconditions for the transfer of power within
democratic regimes. Invariably, constitutional discussion of the necessary
preconditions for a successful, peaceful transition to power focuses primarily
on rights guarantees to the defeated minority. The minority must be assured
of the ability to proclaim its views in the future, the ability to assemble
and to organize itself, the ability to be secure in their person and property—in
short, much of the formation of rights associated with democratic liberties.
But just as surely as the rights domain is necessary for a rudimentary formulation
of democratic legitimacy, it is also incomplete. Just as central are the structural
protections, which include the obligation to stand for election anew at some
fixed or relatively fixed interval, the limitations on the powers of office,
and the accountability of the governors to the structures of office, as exemplified
in this country by the divisions of powers among coordinate branches of power.
This article focuses on the structural components of constitutionalism as
a necessary constraint on democratic politics. This precommitment necessarily
thwarts or limits deliberative choices after constitutional enactment, yet
serves as a precondition for the functioning of democratic politics. The article
focuses on the work of political theorists Jon Elster and Stephen Holmes
to argue that current constitutional scholarship underestimates the importance
of constitutional obduracy. The article concludes with a reexamination of
the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment
of ex ante constitutional procedures.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com