Regular Blogging to Resume Monday

I'll be leaving early tomorrow morning to attend the conference on "Influencing Congress: Scandals, Rules, Ethics, Politics" at the UCDC Washington Center. Blogging may be light until Monday.

"Georgia ID Fight Heads Back to Court"

Dan Tokaji has these thoughts at Equal Vote.

Voter ID Debate in Missouri

St. Louis Today has this item, which begins: "U.S. Rep. William Lacy Clay, D-St. Louis, sent a letter today to each of the 197 members of the Missouri Legislature (163 House members, and 34 in the state Senate). In it, he lays out his opposition to the voter ID bill, which the Senate approved Monday. Clay -- who earlier served in the state House and state Senate -- has said that he will go to court to fight the measure, which he says violates the national Voting Rights Act."

"527s Back in Lobby Bill"

Roll Call offers this report, which begins: "A measure to curb the independent political groups known as 527s will be included in the House version of a lobbying bill that is slated for a vote this week, senior GOP aides said Tuesday." Meanwhile the newspaper editorializes Bogus "Reform" (paid subscription required). Meanwhile, The Hill reports "Panel takes aim at lobby reform bill," which begins: "Republicans on the House Appropriations Committee have threatened to kill the pending lobbying-reform bill unless leaders expand earmark reform to apply to tax and authorization legislation."

Do We Need a Delay Between the Election of the President and Inauguration Day?

Writing at Balkanization, Sandy Levinson has this post using the television show "West Wing' to demonstrate "the way that we are disserved by a system that allows a true lame-duck [President] to make very important decisions that can well prove albatrosses around their successors necks." He advocates that we "become like almost all other serious countries in the world and devise an election-inauguration process that limited the length of the hiatus."

In theory, Sandy is surely right. But in practice, I would worry that shortening the time between election and inauguration would increase the chances of social instability caused by failure to fully resolve a close presidential election. Until our voting mechanics and voting laws are in order, the more time between the two events, the safer we are from electoral meltdown leading to social instability. (More on that here.)

Solum on the Jurisprudence of Stewart v. Blackwell (and Bush v. Gore)

Writing on the Legal Theory Blog, Larry Solum has posted Hasen on the Sixth Circuit on Hasen on Bush v. Gore and the Theory of Horizontal Stare Decisis. Within this jurisprudential tour de force is this conclusion:

So how does all of this apply to Bush v. Gore and Hasen's view that the decision is likely to be confined to its facts? I think it exposes a certain tension or contradiction within the prevailing legal conception of constitutional stare decisis. On the one hand, the doctrine of vertical stare decisis is formalist: Supreme Court decisions are binding on the lower courts. On the other hand, horizontal stare decisis within the Supreme Court is realist--the court does not consider itself bound by its own prior decisions and yet feels free to issue legislative holdings that purport to establish binding rules. This puts lower courts in a bit of a bind. On the one hand, they are required to follow Bush v. Gore, to treat it as a binding decision of the Supreme Court. On the other hand, the lower courts know that Bush v. Gore may not be treated as a binding decision by the Supreme Court itself and hence that (in some sense) the decision does not make law except in the narrow sense of "law of the case" on remand. So what the lower courts to do? Either they ignore Bush v. Gore in contravention of their duty to treat Supreme Court decisions as binding, or they follow it, and make decisions that in reality will be out of sync with the law in some larger and more realistic sense. To me, it is not surprising that the Sixth Circuit panel was split and that the disagreement was heated. That's simply a symptom of corrupting influence of realism on the Supreme Court's doctrine of horizontal stare decisis.