"Recall Backers Win Legal Point"

The San Gabriel Tribune offers this report, which for some reason I cannot now access. But it appears to be about the impact of the Ninth Circuit's withdrawal of the opinion in Padilla v. Lever and how that might affect the Rosemead recall litigation. I now understand that the oral argument in Padilla will take place in June, so that solves part of the mystery.

New Campaign Legal Center Blog

Back on March 23, I noted that "there's a great niche here for a reformer to start a blog to make the pro-regulation case, in case anyone is interested." Now it has happened. Check out the CLCBlog from the Campaign Legal Center. I'll be visiting regularly.

Center for Responsive Politics Seeks Executive Director

This could be a terrific opportunity for someone.

"Miss. gov helped company implicated in election dirty tricks"

AP offers this report, which begins: "A GOP telemarketing firm implicated in two criminal prosecutions involving election dirty tricks got its startup money from Mississippi Gov. Haley Barbour, financial records show."

"Are the Lines Really to Blame?"

Richard E. Cohen has written this article for National Journal (paid subscription required). A snippet: "The drawing of House districts by state governments has few vocal defenders. But whether redistricting is the chief culprit for a supposed breakdown in democracy, and whether the reformers' goal of imposing nonpartisan procedures on redistricting would make much difference, are highly debatable points"

California Supreme Court to Hear Election Law Case

The California Supreme Court has agreed to hear Vargas v. City of Salinas. From the Court of Appeal opinion: "This appeal follows the grant of a special motion to strike the plaintiffs' complaint as a strategic lawsuit against public participation. The complaint alleged improper government expenditures for communications concerning a local initiative election. Reviewing the matter de novo, we conclude that the defense motion was properly granted. We therefore affirm."

Two Legislation Papers by Staszewski

Glen Staszewski has posted on SSRN The Bait and Switch in Direct Democracy (Wisconsin Law Review). Here is the abstract:

This Article provides a case study of the bait-and-switch in direct democracy based on a ballot initiative that recently amended the Michigan Constitution to prohibit the legal recognition of same-sex marriage or similar union for any purpose. The bait-and-switch in direct democracy occurs when initiative proponents (1) qualify a particularly popular idea for the ballot; (2) draft the measure in sufficiently broad or ambiguous terms to create collateral consequences; (3) either evade questions about those collateral consequences during the election campaign or flatly deny that they were intended; and (4) establish the collateral consequences through litigation or by lobbying executive officials who are responsible for implementing the measure. The Article claims that structural flaws in the initiative process facilitate this technique and otherwise increase the risk that successful ballot measures will have collateral consequences that were not approved by the voters. The Article evaluates the ability to alleviate these problems through existing procedural safeguards or the adoption of interpretive techniques that narrowly construe ambiguous ballot measures to minimize collateral damage. While endorsing the latter solution, the Article contends that these problems could be attacked more directly by the adoption of structural reforms that have proven effective in other contexts. Finally, the Article explains that the shortcomings of candidate elections and the ordinary legislative process do not undermine the rationale for reform proposals of this nature because the ballot initiative process has a distinct capacity to combine passionate voting (by the electorate) and instrumental lawmaking (by initiative proponents and others) in a way that is especially prone toward divergence (based on inadequate structural safeguards). The bait-and-switch in direct democracy is so troubling because it capitalizes on precisely this state of affairs.

He has also posted Avoiding Absurdity (Indiana Law Journal). Here is the abstract:

American courts have always interpreted statutes contrary to their plain meaning to avoid absurd results. John Manning, a prominent new textualist scholar, has recently challenged the legitimacy of the absurdity doctrine on the grounds that it cannot be justified by legislative intent or squared with principles of constitutional law. His critique relies, however, upon deeply contested economic theories of the legislative process and constitutional structure that view lawmaking as a market in which self-interested participants compete for resources.

This Article provides a comprehensive theoretical defense of the absurdity doctrine that relies instead upon significant aspects of civic republican theory, as well as liberal and pragmatic values, to suggest that while American lawmakers have broad authority to regulate in the public interest, our constitutional republic also has a responsibility to avoid needless harm to the extent fairly possible. When courts interpret laws to avoid absurd results - or privilege a statute’s spirit over its letter - in circumstances that were unanticipated by the legislature, they are justifiably seeking to serve the common good that legislation is presumed to embody, rather than undermining a fragile compromise struck in back-room deals by economic theory’s proverbial rent-seekers. The absurdity doctrine also promotes specific constitutional norms of fairness and equal treatment in a manner that avoids most of the institutional concerns that would arise from more aggressive approaches to judicial review. Not only is Professor Manning’s critique of the absurdity doctrine therefore mistaken, but his apparent willingness to incorporate the same underlying principles into his kinder and gentler version of textualism demonstrates both the undeniable validity of those principles and the fundamental shortcomings of the economic theories of the legislative process and constitutional structure that underlie the new textualism.

President Bush on Voting Rights Act Renewal

From this press availability:

Q Mr. President, some have questioned your efforts in having every vote count in the station, especially after the April 22nd New Orleans election. Now with that, what are you looking to do with the three sections of the Voting Rights Act that are set to expire in 2007? How are you planning to enhance those sections, because we understand that you want to study it prior to any passing of a bill by the Senate.

THE PRESIDENT: I think I'm on record, as a matter of fact I'm pretty clearly on record, particularly at the Rosa Parks -- signing of the Rosa Parks bill, that I'm for the extension of the Voting Rights Act, right?

Q Yes, yes you are on record. But there is word that you want to enhance it, or people within your administration want to look at it to tweak it.

THE PRESIDENT: I wanted to make sure the Voting Rights Act is strong and capable. I'm not exactly sure what you're talking about. But my statement is my statement. The Voting Rights Act ought to be extended. The Voting Rights Act is a very important part of the civil rights legislation. Everybody ought to be encouraged to vote. Voting is a valuable part of democracy, and we want people voting.

Q Do you think it was valuable in April -- for the April 22nd elections in New Orleans?

THE PRESIDENT: I'm not going to second-guess the federal judge. I was just down there yesterday, I didn't hear much complaining about it, though, when I was there. And, obviously, it's a more difficult election with people scattered around, but the state worked very hard to encourage people to vote. And I was with Mayor Nagin and Governor Blanco, and the subject, frankly, didn't come up. That's not to say it's not on their minds. It's on Mayor Nagin's mind because he wants to win, he wants people voting.

But the state bent over backwards to encourage people to participate in the mayoral election, and it looked like the process, given the circumstances the city has been under, pretty smooth process, which is not necessarily a given.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org