| Subject: Electionlawblog news and commentary 3/14/06 |
| From: Rick Hasen |
| Date: 3/14/2006, 10:08 AM |
| To: election-law |
The Seattle Times offers this
report on expiring language provisions of the Voting Rights Act,
that are up for renewal next year.
The San Antonio Express=News offers this
commentary, which begins: "Texas Democrats and some liberal
interest groups have lately come to the conclusion that partisan
redistricting is a bad idea. Well, better later than never."
AP offers this
report, which begins: "Connecticut needs to tweak its new campaign
finance law to prevent legal challenges from blocking the new reforms,
experts warned Monday."
The Long Beach Press Telegram offers this report,
which begins: " It's a decision that candidates have been known to
agonize over for hours. The ballot designation. Three words or less to
describe who you are to voters. For some, it's as simple as listing
their occupation. But for others, it's not so straightforward."
Dan Tokaji has written this
post, which begins: "The Arizona Secretary of State is bristling at
the Election Assistance Commission's opinion letter from last Monday,
which I previously discussed here. That letter concluded that the state
may not impose stricter proof requirements at the registration stage
than those provided for by the federally approved form under the
National Voter Registration Act ('NVRA'). To the extent that Arizona's
Proposition 200, passed by voters in 2004, purports to require
additional proof of eligibility, the EAC concluded that those
state-imposed requirements must give way to federal law."
The New York Times offers this
editorial. A snippet: "There is an innovative new proposal for
states to take the lead in undoing the Electoral College. Legislatures
across the country should get behind it."
In Roll Call FEC Chair Michael Toner has written Congress
Should Pass Hensarling's Bill on Politics and the Internet and
Leslie Harris and John Morris have written Hensarling
Bill Would Do Too Little, and Too Much (paid subscription required
for both articles). Harris and Morris are from the Center for Democracy
and Technology, which has written a competing bill. Bob Bauer comments
on the opeds. See also Allison
Hayward.
Roll Call offers this
report (paid subscripton required), which begins: "Sen. John McCain
(R-Ariz.) has unveiled a proposal to limit donations to 527
organizations to $25,000 per person each year, or $50,000 each election
cycle, that if enacted could be a huge blow to the groups' hopes of
being a force in the 2006 elections. Those groups raised and spent more
than $500 million in the previous cycle, with many of the organizations
relying on multimillion-dollar donations from wealthy individuals to
fund their activities. McCain's initiative was submitted last Thursday
as an amendment to the lobbying reform package debated by the Senate
and is similar to a 527 proposal offered last year by Reps. Christopher
Shays (R-Conn.) and Marty Meehan (D-Mass.). While it was never formally
offered by McCain for consideration as part of the Senate's lobbying
reform legislation, the full text of McCain's amendment was included in
the Congressional Record on Friday."
Richard Briffault has posted Defining the Constitutional
Question in Partisan Gerrymandering (forthcoming in the Cornell
Journal of Law and Public Policy symposium on Vieth v. Jubelirer).
Here is the abstract:
The justices bounced back and forth between justiciability and the standards for proving gerrymandering without considering what constitutional harm gerrymandering poses.
This Article considers the question of why partisan gerrymandering
might be unconstitutional. It finds four
constitutional arguments against gerrymandering in judicial opinions
and the academic literature: (i) vote dilution in
violation of the equal protection clause; (ii) burdening of political
association in violation of the first amendment; (iii)
frustration of the competitiveness necessary for democratic elections;
and (iv) excessive pursuit of partisan or individual legislator
self-interest.
The Article contends that the first three arguments are likely to fail, in part because the theories they rely on are ultimately in tension with the use of districting to elect legislators. The fourth argument comes closest to capturing the constitutional harm posed by gerrymandering while remaining consistent with the use of districting. Of course, the fourth argument implicates the manageability concern that gives force to the argument against justiciability. Yet, the experience with Shaw v. Reno claims alleging excessive use of race in districting, suggests that the excessive partisanship/self-interest theory of partisan gerrymandering may also be judicially manageable - if the Court concludes that the harm posed by gerrymandering is serious enough to justify judicial intervention.
Following up on this post about Rep. Gallegly's withdrawal, a few readers have written to ask why the rules should be different here than they were for the withdrawal of Sen. Robert Torricelli (D-NJ), who was replaced by the Democratic Party of New Jersey with former Sen. Frank Lautenberg, who then went on to win the race.
The reason is simple: Article I, section 4 of the Constitution gives the state legislatures the power to set the rules for congressional elections, subject to override by Congress. New Jersey's rules provided that a party could replace a candidate for office who withdrew for any reason, provided that the withdrawal took place at least 51 days before the election (NJSA 19:13-20). California law, as I've detailed, is much stingier with its withdrawal rules.
The Torricelli situation was complicated because he tried to withdraw in fewer than 51 days before the election. The New Jersey statutes said nothing explicit about a withdrawal in the shorter period, and some (reasonably) interpreted that silence to mean that withdrawals in fewer than 51 days were not permitted. The New Jersey Supreme Court disagreed, relying upon earlier precedent (in my view, also reasonably), indicating that the 51 day period was for the convenience of election officials in administering the election. Absent proof that the election officials would be prejudiced, the substitution could go forward. New Jersey Democratic Party v. Samson, 814 A.2d 1025 (N.J. 2002).
Doug Forrester, the Republican candidate in that New Jersey Senate election, then sought cert. in the United States Supreme Court, arguing that the New Jersey Supreme Court usurped the power of the New Jersey legislature to set the rules for congressional elections. (You may recall that the Republicans made a similar argument in Bush v. Gore under Article II of the Constitution, which gives state legislatures the power to set the rules for choosing federal electors; the argument that the Florida Supreme Court usurped that power with its interpretations of Florida election rules garnered the votes of Chief Justice Rehnquist, and Justices Scalia and Thomas.) The Supreme Court denied cert, 537 U.S. 1083, and Lautenberg went on to defeat Forrester. For more on the case, see the Lowenstein and Hasen casebook at 138-39.
So....if a California court were asked to read the California elections code to allow withdrawal of Gallegly's candidacy and a reopening of the nomination period, I could imagine an opponent raising the Article I, Section 4 argument against such an interpretation, which would appear to go contrary to the California legislature's rules for withdrawals and vacancies.
UPDATE: Roll Call reports
that Gallegly will announce today his is back in the race. According to
the California statutes, he never left it. (See also this
LA Times report on a dropout on the Democratic side of the
race as well.)
The FEC has issued this
press release, FEC Seeks Comment on Political Advertising Data in
Coordination Rulemaking:
TNS Media Intelligence/CMAG is a leading provider of political advertising tracking. TNSMI/CMAG provides media analysis services to a wide variety of clients, including national media organizations, foundations, academics, and Fortune 100 companies. TNSMI/CMAG provided data to the Brennan Center in conjunction with its 2000 study Buying Time.
The SNPRM reopens the comment period for seven days from the date of publication in the Federal Register so that individuals and groups can submit comments on the data to the Commission. The Commission is scheduled to take a final vote on the coordination regulations on March 29, 2006.
On December 14, 2005, the FEC published its original Notice of Proposed Rulemaking (NPRM) to amend its current rules for determining whether a communication is a coordinated communication, and therefore an in-kind contribution to a campaign or a political party committee. That NPRM responded to Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (“Shays Appealâ€) in which the Court of Appeals invalidated part of the rule – that focuses primarily on communications aired within 120 days of an election – because the Court believed that the FEC had not provided an adequate explanation and justification for the rule. The Court ordered the FEC to consider carefully certain questions in promulgating new rules, including: “Do candidates in fact limit campaign-related advocacy to the four months surrounding elections, or does substantial election-related communication occur outside that window? Do congressional, senatorial, and presidential races – all covered by this rule – occur on the same cycle, or should different rules apply to each?†The SNPRM invites comment on the available data in order to address the Court’s questions.
The underlying data and the graphs are available on the FEC’s website at http://www.fec.gov/law/law_rulemakings.shtml#coordinated. The data, graphs, and explanatory material are also available at the FECs open meeting at 2 p.m. today in the Commission’s offices at 999 E Street N.W. in Washington, or by calling the FEC Public Records Office at (202) 694-1120 or (800) 424-9530.
Following up on this post,
the Los Angeles Times offers this
report, which begins: "A judge Friday ordered the city of Vernon to
hold its first election in a quarter-century, ruling that the tiny
industrial town acted illegally when it stripped three men's voter
registration and canceled the April election. The ruling marks a
milestone of sorts for the city south of downtown Los Angeles, which
has 93 residents and has long been criticized for its closed political
system. Most City Council members have served for three decades or more
and rarely face opposition."
I often receive private e-mails with queries about election law issues from non-academics. I help when I can, though it is clear to me that sometimes people are just fishing for pro bono representation. I also get a fairly frequent stream of emails from people doing academic research asking about leads on election law topics. Those are perfectly appropriate and welcome, especially on esoteric topics that are hard to track down.
But every once and a while I get e-mails like this one, that just
arrived (it was in bold print, original emphasis):
-- 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 http://electionlawblog.org