| Subject: news of the day 9/14/04 |
| From: Rick Hasen |
| Date: 9/14/2004, 6:37 AM |
| To: election-law |
I have written an oped, Nov. 2 Debacle in the Making, for today's Los Angeles Times. Here is some additional analysis on the Article II issue that did not make it into the newspaper:
No doubt, opponents of Amendment
36
will argue that the initiative, a piece of legislation to be passed by
the voters of Colorado and not the Colorado Legislature, likewise
violates Article II. There is a 1916
Supreme Court case out of Ohio (though somewhat challenged in a 1920
case)
interpreting the word “Legislature” to include the initiated
legislation, which would seem to preclude an Article II challenge to
Amendment II.
But the 1916 authority predates the revival of the Article II argument
by at least three members of the Supreme Court in the Florida
controversy. How would the Supreme Court handle the issue if it arises,
again in the context of a disputed presidential election where time
will necessarily be of the essence?
Just last June, Rehnquist, Scalia, and Thomas had a chance to write
about this issue yet again, in a case,
ironically, emanating from Colorado. The question before the Court was
whether the Colorado Supreme Court usurped the power of the Colorado
Legislature to set the terms for congressional elections by ruling that
the Colorado Constitution permits redistricting only once per decade.
A majority of the Supreme Court declined to hear the case, but the
Chief Justice, and Justices Scalia and Thomas embraced their theory
from Bush v. Gore and voted to hear the case. And along the way, the
Justices distinguished that 1916 case, finding Colorado’s system of
legislative power to be different from Ohio’s.
Would at least two other Justices be willing to consider finding
Amendment 36 a violation of Article II, in the context of deciding yet
another presidential election? There is no way to tell. One hopeful
sign, for those who do not want to see Supreme Court intervention again
so soon and so prominently, is that the Court declined to hear a
similar challenge a few years back, when the New Jersey Supreme Court held
that Democrats could replace the name of Robert Torricelli on the
ballot with Frank Lautenberg, after Torricelli withdrew close to
election day.
The Journal editorializes here
about Ralph Nader and the ballot access lawsuits and offers an article here
on non-citizen voting in school board elections. Thanks to Steven Sholk
for the links.
Bob Bauer writes this Roll
Call oped, responding to Norm Ornstein's column on 527s last
week. A snippet:
Roll Call offers this
report,
which begins: "Reps. Marty Meehan (D-Mass.) and Christopher Shays
(R-Conn.), with help from the same legal team that successfully
defended their campaign finance reforms before the Supreme Court, will
file suit against the Federal Election Commission today, claiming that
the agency has acted negligently by failing to rein in the independent
campaign-related groups known as 527s."
See this
A.P. report and this
Reuter's report.
The
American Association of Law Schools' annual meeting will feature a
workshop on Democratic Governance. See pages 4 and 5 of the online brochure.
-- 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