http://electionlawblog.org/archives/004068.html
Supreme Court Election Law Preview
The Supreme Court currently has no oral arguments scheduled in
election law cases, but that could soon change. At least four
significant cases are working their way toward consideration by the
Court. Here is a summary and some predictions:
Vermont Republican State Committee v. Sorrell
(formerly Landell v. Sorrell) (docket; Second
Circuit opinion; cert
petition; Response
of Respondents/Intervenors). This case considers the
constitutionality of Vermont's spending limits for legislative races.
It is on the conference for today, but if it is a close vote it will
probably be put over so that Chief Justice Roberts can vote on the
petition. Here is what I wrote in an earlier post,
questioning the strategy of the winners in the 2d Circuit to support
the petition for cert (see the original post for the hyperlinks):
You can find six amicus briefs supporting the winning side of the
Second Circuit Sorrell case here. Usually, of course, the side that
wins in the Court of Appeals opposes a grant of cert. But for years it
has been the mission of some of the amici, such as NVRI, to try to get
the Supreme Court to reconsider that aspect of Buckley v. Valeo
striking down spending limits as violating the First Amendment rights
of speech and association. Here's a chance, the argument must be, to
push the issue, by noting the circuit split, and lining up some heavy
hitters (current and former Senators, state Secretaries of State, state
judges, and attorneys general) on the winning side to support review to
revisit this issue in a high profile case.
On reflection, I think this strategy could well backfire. I had
predicted a cert denial in the earlier 10th circuit spending limits
case, Homans, because I doubted that the Supreme Court would grant
review to upset the settled law that spending limits violate the First
Amendment under Buckley. And the Court denied cert.
Now I've been predicting a cert. grant, except noting the odd
procedural posture: the Second Circuit has remanded for additional
findings, and there's a chance that this issue goes away after the case
comes back to the Second Circuit after remand. For this reason, Tom
Goldstein concluded that it is "very, very unlikely" that cert. is
granted.
After Tom posted his comment, I started thinking about why I am more
confident (though far from certain) about a cert grant. And the reason
is this: it is hard for me to imagine that Justices Kennedy, Scalia,
Thomas and the Chief (four votes for cert, assuming no retirements)
would want to allow a Second Circuit opinion holding that spending
limits may be constitutional to remain on the books for the year to two
years likely before the case returns to the Second Circuit. So the
impetus for cert. granting is going to be coming from those who would
reverse the holding of the Second Circuit. We can never be sure where
O'Connor's vote would be, but she has been a supporter of the entire
Buckley framework (maybe the last real supporter on the Court), and if
I were Justice Breyer or Ginsburg (or Stevens or Souter), I wouldn't be
betting that she'd vote to allow spending limits at this point. So
those who might be more sympathetic to the arguments of the Vermont
plaintiffs should want to vote to deny cert., so things can percolate
in the lower courts and there can be some experimentation, at least in
the Second Circuit, with spending limits.
So in the end this strikes me as a big gamble. Plaintiffs should be
careful what they wish for: a decision to grant cert now might mean a
losing decision down the line, whereas waiting this out for another
half decade or so, depending upon the composition of the Court, could
have been a wiser strategy.
I wrote this, of course, before the death of Chief Justice Rehnquist
and the nomination of Judge Roberts. I expect that Justices Kennedy,
Scalia and Thomas might want to put off the decision here, ideally
until President Bush nominates someone to fill Justice O'Connor's seat.
I think it is likely that whomever the President nominates will be
someone opposed to the constitutionality of spending limits challenged
under the First Amendment. Once these Justices are convinced that the
nominee fits that bill, I think it is likely that cert. will be granted
so as to reverse the Second Circuit.
Wisconsin Right to Life v. FEC (docket; Jurisdictional
statement; three-judge-court
opinion (pages 41-52 of pdf)). This case, another campaign finance
case, is an appeal that is on today's conference list. WRTL
involves an as-applied challenge to the electioneering communications
provisions of BCRA. The gist of the case is that BCRA's ban on
broadcast ads paid for with corporate funds cannot apply to a
corporation that is running a genuine issue ad not intended to
influence the outcome of an election. On page 55 of my recent University
of Pennsylvania Law Review article on McConnell v. FEC,
I express doubts that an as-applied challenge like WRTL's challenge
will succeed. You can find other commentary by Bob Bauer and Marty
Lederman and Lyle Denniston of SCOTUSBlog linked here. I
predict a summary affirmance of the lower court, and I don't think the
vote of Chief Justice Roberts will be determinative. Even though
Justices Scalia, Kennedy, and Thomas would likely disagree with the
three-judge court ruling, it is hard for me to see two other Justices
willing to wade into these McCain-Feingold waters again so soon. I
think a much more likely case for a hearing is Sorrell, where
there will almost certainly see a majority for reversal if cert is
granted.
Johnson v. Bush (docket;
Petition
for cert.; Eleventh
Circuit en banc opinion) This case challenges Florida's felon
disenfranchisement rules as violating the United States Constitution
and section 2 of the Voting Rights Act. The response to the cert.
petition is due mid-October, and this should present the first (or one
of the first) opportunities for Chief Justice Roberts to vote on a
Voting Rights Act case. Here is what I wrote in an earlier post on this
topic:
Based on everything I have seen about Judge Roberts' views of section
2, I find it very difficult to believe he would interpret section 2 to
cover felon disenfranchisement absent evidence of discriminatory
purpose (though that issue is indeed presented in the Florida case). We
know he opposed the broad effects test from section 2, and, as I noted here, he
fought to have section 2 interpreted as narrowly as possible once it
was passed. As I noted:
In this
memorandum to Ken Starr (see page 2 of the pdf), Roberts
recommended that the DOJ intervene in a voting rights case in Chicago,
writing: "it is critical that the Department participate in the
developing process of giving meaning to the vague terms of the new
section 2, and help courts avoid the outcomes we argued against and
which the proponents of an amended section 2 assured us were never
intended."
The liberals on the Court could vote against cert. in this case, out of
fear of creating a national precedent that would narrow the reach of
section 2. A cert. denial at least keeps the Ninth Circuit's case alive
for now.
For more on the existing precedents and background to the decision
(including the Ninth Circuit case), see Lyle Denniston's excellent
SCOTUSblog post. Former Roberts' co-worker at the Reagan Justice
Department, Chuck Cooper, is representing Florida in this case.
Henderson v. Perry (Texas redistricting cases) (Docket; opinion
of the three judge court; Jurisdictional
Statement (Henderson) ) This is an direct appeal from a three-judge
court, meaning the Supreme Court will have to do something with this
case---summarily affirm (i.e., affirm without opinion), summarily
reverse (exceedingly unlikely) or note probable jurisdiction and set
the case for oral argument. Texas waived its right to respond to the
petition, likely expecting a quick summary affirmance. I think that
this is likely too, unless the Justice who is appointed to replace
Justice O'Connor would side with the four dissenters in the Vieth
partisan gerrymandering case from 2004 to hold such claims are
justiciable. This is not out of the question, because the issue is not
strictly a left-right issue (even though the four Vieth
dissenters are the most liberal members of the Court). As I explain here, if
Tenth Circuit Judge Michael McConnell were nominated to fill Justice
O'Connor's seat, there might indeed be five votes to give partisan
gerrymandering claims some teeth (even not knowing how Chief Justice
Roberts would vote).
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
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