| Subject: Electionlawblog news and commentary 5/10/06 |
| From: Rick Hasen |
| Date: 5/10/2006, 8:16 AM |
| To: election-law |
I earlier noted the 2d Circuit's recent decision in Hayden v. Pakaki holding that section 2 of the Voting Rights Act does not reach felon disenfranchisement claims. The en banc decision featured 10 opinions, and I have now had a chance to read it. The case will be of considerable interest not only to election law scholars (for obvious reasons) but also to students of statutory interpretation. There is--in my view--a very questionable use of the absurdity exception to plain meaning used in the majority opinion to reach the conclusion that section 2 of the Act does not reach felon disenfranchisement claims despite apparent clear language that it does. The majority opinion also does not make what I consider the strongest argument (and it is one that appears in other opinions): that the avoidance canon should be applied to avoid the Boerne issue (something I've written about in the felon disenfranchisement context here). Judge Calabresi also makes some very interesting points on both dynamic statutory interpretation (this Congress's views vs. the views of Congress that passed the statute).
For more commentary on the case see these posts at ACS
Blog and at Demos's
Democracy Dispatches.
Ned Foley offers this
comment at the OSU election law site. It begins: "So many things
can--and do--go wrong with the administration of elections that it is
important to distinguish the serious problems from the relatively minor
inconveniences."
See here
for information on "PAY-TO-PLAY: THE NEW RULES OF THE GAME."
Over at CLC Blog, Paul Ryan writes Federal Court Denies Preliminary Injunction in Christian Civic League of Maine v. FEC. It begins: "A three-judge panel of the U.S. District Court for the District of Columbia today denied the Christian Civic League of Maine’s (CCL) motion for preliminary injunction in CCL v. FEC. The CCL sought to enjoin the enforcement of BCRA’s prohibition on the use of corporate general treasury funds to pay for 'electioneering communications,' arguing that its proposed ad constitutes 'grass roots lobbying†and may not constitutionally be regulated.'" The order is here.
David has just been promoted to full professor at American
University. Great news!
The Arizona Republic offers this
report. And, out of Missouri, AP offers Political
showdown emerges on voter photo ID requirement.
Yesterday I appeared before the Senate Judiciary Committee to testify about the Voting Rights Act reauthorization, along with Chandler Davidson, Ted Shaw, Laughlin McDonald, and Sam Issacharoff. The committee has posted witness statements here but they are not in a user-friendly format. An easier to read version of my comments are here, and I invite other participants in this hearing (and others before the Senate) to send me their files for uploading. Today's hearing is taking place now, and there's a link to the live judiciary committee feed of the hearing on the website. I don't think the hearing has been on C-SPAN yet. If I find out it is, I'll provide a link.
My impression of the hearing is this. This was a really substantive discussion of the issues of constitutionality and potential changes to section 5. Much of the questioning was predictable: Democratic Senators tended to ask questions only of those witnesses who believe that there are no serious questions with the constitutionality of a renewed section 5 and who believe that the Act should be renewed in almost precisely the same form as it is today; Republicans asked questions of Sam and of me, who are more skeptical on both of these points--especially on the constitutional point given the new makeup on the Supreme Court (Sam nicely talked about Justice Kennedy as the median Justice on the Boerne question). But despite this predictability, Sen. Specter, chairman of the committee, appeared genuinely interested in the constitutional questions and in finding ways to strengthen the Act to prevent the courts from striking it down. I think whether or not the current "deal" that is on the table goes through as is or is subject to the close scrutiny it deserves will depend upon what Sen. Specter does.
Hearings continue through next week at least. Soon I'll have the guest law professor bloggers continuing the discussion on VRA renewal.
I have found one news story covering yesterday's hearing. The Birmingham News offers Sessions Advises VRA Caution.
A reader writes:
The en banc court granted review of Hayden before the 3-judge panel heard the appeal. It did so by consolidating the case with Muntaqim, another VRA challenge in which the panel (Cabranas) had ruled that the VRA did not apply to felon disenfranchisement statutes. It turned out after consolidation, however, that Muntaqim didn't have standing. So the en banc court dismissed Muntaqim and ruled only on Hayden.
Unlike Muntaqim, the Hayden case (brought by the NAACP) also included a 14th Amendment intentional discrimination claim. The district court dismissed that claim, a holding that Hayden also appealed. The matter had been briefed for a 3-judge panel when the case was consolidated with Muntaqim.
While Cabranes's en banc opinion wasn't clear about the matter (it remanded the case to the district court), I would think that the next step in Hayden is back to a 3-judge panel for a ruling on the constitutional claim. And then possibly back to the district court.
While the Supreme Court might accept an immediate appeal, the usual prudential reasons suggest that it would allow Hayden to work its way through to a final decision before considerig an appeal of the en banc decision.
-- 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