Let me ask a hypothetical question...suppose Wisconsin
officials had told Right to Life that the law would be
enforced against them, even though it had been
declared unconstitutional?
The reason I ask, is that there is an analogous
situation with Arkansas ballot access. In 1996 a US
District Court ruled the number of signatures needed
for a new party to be unconstitutional. Citizens to
Establish a Reform Party v Priest, 970 F Supp 690.
The state did not appeal. In that decision,
"conclusion of law number 18" specifically says the
number of signatures is unconstitutionally high.
Notwithstanding that, the Arkansas legislature refuses
to change the law and the Secretary of State says he
will not obey the court decision. He says the
legislature improved the petition deadline, and
therefore that's all the state has to do (the court
had also found the deadline to be too early in a
separate number paragraph "conclusion of law").
--- Marty Lederman <marty.lederman@comcast.net> wrote:
The Seventh Circuit actually got this one right.
The panel noted that the earlier district court
decision does not prevent the State from enforcing
the law against nonparties to that earlier
litigation, and that a district court's
"declaration" that a statute is unconstututional
does not wipe that law from the books, or render it
inoperative as to nonparties. The court rejected
Wisconsin Right to Life's suit not because of the
earlier district court decision, but because the
State thereafter conceded that the statute is
unconstitutional and will not be enforced. Without
the threat of prosecution by the state, there's no
justiciable case or controversy. See, e.g., Poe v.
Ullman, 367 U.S. at 507 (plurality); Sanger v. Reno,
966 F. Supp. 151 (EDNY 1997).
----- Original Message -----
From: JJ Gass
To: election-law@majordomo.lls.edu
Sent: Tuesday, April 27, 2004 8:54 PM
Subject: 7th Circuit justiciability opinion
As many list members probably know, a federal
district judge struck down a Wisconsin campaign
finance statute in 2002. The offending provision,
in the district court's words, "prohibits any
independent group from making a communication
featuring a candidate within 30 days of an election
unless it has filed a report detailing 'the name of
each candidate who will be supported or whose
opponent will be opposed and the total disbursements
to be made.'" Because the statute contained an
express nonseverability clause, the rest of it was
voided as well. The state did not appeal.
Today, the Seventh Circuit affirmed the dismissal
of a subsequent case challenging the statute,
holding that the voiding of thte statute in the
first case meant that there was no case or
controversy, even though (a) the statute has not
been repealed and (b) the plaintiff in the second
case was not a party to the first case and thus not
a beneficiary of the injunction against enforcement
of the statute entered in that case.
This case brings up some interesting
post-McConnell questions regarding the status of
statutes that have been found facially
unconstitutional but that remain on the books.
Though McConnell doesn't seem to "revive" the
statute in this case, there may be statutes around
the country that were struck down on grounds that
now appear to be erroneous, e.g., because of a
mistaken belief that the only independent ads that
can be regulated are those containing express
advocacy. The Seventh Circuit's discussion of the
Wisconsin statute's status sheds some light on what
it means when a court declares a statute
unconstitutional and under what circumstances a
plaintiff can reasonably feel threatened with
enforcement of a statute that has been "voided" in
someone else's case.
The opinion, in pdf format, can be found at
http://caselaw.lp.findlaw.com/data2/circs/7th/033128p.pdf.
The case is Wisconsin Right to Life, Inc. v.
Schober.
J. J. Gass
Associate Counsel, Democracy Program
212-998-6281
jj.gass@nyu.edu
Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas, 12th Floor
fax 212-995-4550
www.brennancenter.org
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