Sorry.  At the end of a traveling day I had e-mails in the hundreds and read that one too quickly.  Whatever else one thinks of what the Florida court did, I'd say it's pretty hard to characterize them as politically motivated.
 
 
          Best,
 
          Daniel Lowenstein
          UCLA Law School
          405 Hilgard
          Los Angeles, California 90095-1476
          310-825-5148

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Hasen
Sent: Thu 3/23/2006 8:52 PM
To: Rick Hasen
Cc: election-law
Subject: Re: message from Dan Lowenstein re Florida single subject case



A correction of fact regarding Dan's post: the Florida Supreme Court
*allowed* the marriage measure to go forward today over single subject
objections.
Rick

Rick Hasen wrote:

(If you are wondering why Dan could not post this directly, it is
because he used the word sub-scribe in his post, and that always
causes the list to bounce the message, thinking it is a request to
take that action. -- Rick)

Dan Lowenstein writes:

Perhaps there are no judges in the U.S. who can reasonably be
described as hard-left jurists.  But I'd be surprised to find someone
who believes there are such jurists who does not include the majority
of the Florida Supreme Court in their number.

       I had the same question as Mr. Johnson as to what Common Cause
thinks the political motivation was.  Certainly, there are many
liberals who do not sub-scribe to the "reform" orthodoxy on
districting.  The liberals on the Florida Supreme Court might be
old-fashioned believers in politics.  But as Mr. Johnson points out,
Florida is not the most likely state in which to find liberals holding
fast to such a belief in the context of districting.

       Nevertheless, I think Common Cause could well be right that the
decision is politically motivated.  The explanation would lie in the
court's other decision today, striking down the anti-same-sex marriage
initiative.  That will be the infinitely more salient decision
politically, and striking down the "liberal" districting initiative on
the same day might provide a bit of political coverage for the court. 
To put it differently, imagine yourself in the position of a
reasonable liberal trying to defend the court if it had struck down
the marriage initiative but upheld the redistricting initiative.  The
thought of trying to do that is almost enough to make me want to
return to grading student papers.

       Although I think that political motivation is very plausible,
it is not necessarily correct.  Or, while political motivation may be
a sufficient, it may not be a necessary explanation.  The Florida
court's general view of the initiative process has been: if it moves,
it violates the single subject rule.  The only thing that can be said
for this decision is that it is consistent with the Florida court's
view that the single subject rule entitles it to veto initiative
proposals at will.  No one is likely to mistake me for a friend to
these redistricting "reform" initiatives.  But when the California
Supreme Court removed one of them from the ballot in 2000 in a
decision contradicting its own otherwise reasonable single subject
doctrine, I criticized them sharply (in the first issue of the
Election Law Journal).  The Florida court is at least a consistent
usurper of power.


         Best,

         Daniel Lowenstein
         UCLA Law School
         405 Hilgard
         Los Angeles, California 90095-1476
         310-825-5148

--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org