"Reed Sides With GOP Before Court"
The Seattle Times offers this
report.
Greene on Bush v. Gore
Abner Greene has posted Is
There a First Amendment Defense for Bush v. Gore? (forthcoming, Notre
Dame Law Review) on SSRN. The abstract:
The Supreme Court's ruling in Bush v. Gore attracted an
enormous outpouring of critical response. But there is a defense for
the merits holding of Bush v. Gore that has not received adequate
attention. In a well-established line of free speech and press cases,
the Court has insisted that state law carefully circumscribe the
discretion of local officials to pass on applications for parade
permits and the like. The "Lovell doctrine," named after the first case
in this line, permits facial challenges to such laws, to ward off the
risk of administrative bias that might be too difficult to show on a
case by case basis. Similarly, the Florida statutory provisions asking
local county officials to determine "voter intent" when manually
recounting ballots may be thought to vest too much discretion in
officials who are highly subject to the tugs of partisan political
connections. Just as rights of political participation are at stake in
the Lovell doctrine cases, so were they at stake in the 2000
presidential election, whether seen as the rights of the candidates or
the voters. This Article develops the analogy between the Lovell
doctrine and the Florida election law that the Court confronted in Bush
v. Gore. It provides a detailed account of the Lovell line cases and a
critique of the scholarship in the area. It builds a prima facie case
for importing the Lovell doctrine into the election law setting, and
responds to several objections to so doing. It also responds to two
challenges raised by Justice Stevens in his Bush v. Gore dissent, both
involving the possibility that objective ballot counting rules could
have been set and applied in a disinterested fashion by state judges.
If we accept the application of this long line of First Amendment
caselaw to the setting of ballot counting, then we can read Bush v.
Gore as a narrow but powerful precedent, limiting the power that States
may delegate to local officials to determine what counts as a vote, but
not extending to other, mechanical differences that might exist within
a State.
"U.S. Begins Shelley Probe"
The Sacramento Bee offers this
report.
Linking Redistricting and Loosening of Term Limits
The Sacramento Bee reports
that a member of the California state assembly is proposing to place
redistricting reform and a loosening of term limits together as a
package to be adopted by voters in a special election in California in
2005.
I have serious doubts that combining both proposals in a single
proposed constitutional amendment is permissible under the California
Constitution. Although legislatively proposed constitutional amendments
are not covered by the "single subject" rule, they are covered by the
"separate vote" requirement. I looked into that requirement (including
its original 1849 adoption) as a member of the Proposition 62 legal
team challenging the placement on the ballot of Proposition 60, which
was to enshrine party primaries andto require the state to sell certain
surplus property. I believe the separate vote requirement bars the
legislature from placing two distinct constitutional changes
(particularly measures that would amend different provisions of the
California Constitution) in a single proposed amendment. Although
Proposition 62 was defeated at the polls, litigation over Proposition
60 and the separate vote requirement is pending at the California
Supreme Court.
On the topic of redistricting reform, this PPIC Survey
(see question 30, page 24) includes the following question:
30. A legislative redistricting reform measure that requires
an independent panel of three retired judges, instead of
the state legislature and governor, to adopt a new
redistricting plan. Would you vote yes or no?
44% yes
41 no
15 don't know
Finally, Joshua Spivak offers
this
oped in the
Los Angeles Daily Journal (paid subscription
required) supporting redistricting reform.