| Subject: news of the day 5/18/04 |
| From: Rick Hasen |
| Date: 5/18/2004, 7:42 AM |
| To: election-law |
See this
very interesting report in The Hill,
which begins: "The one-vote defeat of an extension of unemployment
benefits last week has sparked fear among Democrats that Republicans
have developed a legislative model that will cast Sen. John Kerry
(D-Mass.) repeatedly in a bad light before the election. The extension
needed 60 votes to pass in the Senate, and 12 Republicans made sure the
final tally was 59-40, with only one absentee, presidential candidate
Kerry."
A.P. offers this
report,
which begins: "A federal appeals court rejected a lawsuit filed by
supporters of former Rep. Cynthia McKinney, who claimed her loss in the
2002 Democratic primary resulted from wide-scale Republican crossover
voting." The opinion itself is here.
James Kilpatrick offers this
oped, which ends, "Will pigs fly?"
Yesterday the Supreme Court decided the important federalism case, Tennessee v. Lane. The case is the latest in a series of cases setting forth the limits of Congressional power to enforce rights under section 5 of the Fourteenth Amendment.
The constricting of congressional power by the Supreme Court in
recent years has called into question whether a renewed Section 5 of
the Voting Rights Act would be constitutional. I have written an
article on this topic (draft is here
on SSRN) forthcoming in the Ohio State Law Journal.
I'll need to revise my draft to take Lane into account. Lane
is potentially important for two reasons. First, the Court seems to
have dismantled the "congruence and proportionality" test in favor of a
more "as applied" test. Thus, rather than ask whether Title II of the
Americans with Disabilities Act is a permissible reach of congressional
power against the states in all applications, the Court narrowed the
inquiry to whether it was within the permissible reach as applied to
access to the Courts. Second, in Justice Scalia's somewhat surprising
dissent, the Justice announced that he will henceforth apply a very
deferential standard to congressional legislation aimed at end racial
discrimination. I'll have to think about the implications of all of
this for a renewed section 5 of the VRA.
-- 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 http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org