Opeds on new potential FEC nominee Roll Call offers this editorial and this oped by Norm Ornstein.

More recall news and commentary Stories in the San Diego Union-Tribune (and here); the San Jose Mercury News (noting that so far 123 Californians have taken out nomination papers); the Sacramento Bee; and the Contra Costa Times (and here on Audie Bock and here on Democrats trying to draft Dianne Feinstein). The Los Angeles Times offers "Record Does Not Support All of Candidate Issa's Claims" and "2 Democrats In Congress Urge Feinstein to Enter Recall Race."

The next likely recall related lawsuit? Use of punch card voting in only some California counties See this New York Times report (on second page of article).

Press report: Shelley will not appeal San Diego recall case See this San Francisco Chronicle article. I wonder whether someone else might try to intervene to get the Ninth Circuit to involve itself in this case and delay things. Perhaps that is too cynical. UPDATE: The Times article quoted in the post above this one also indicates that the state will not appeal the San Diego ruling.

Severability and McCain-Feingold Michael D. Shumsky has posted "Severability, Unseverability. and the Rule of Law," forthcoming in the Harvard Journal on Legislation. Here's the abstract:

Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution's separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight.

Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court's current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement.

With McCain-Feingold poised to arrive shortly at the Supreme Court - and with a sharp division over severability among the special panel's judges - the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development.

-- 
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
(213)380-3769 - fax
rick.hasen@lls.edu
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http://electionlaw.blogspot.com