| Subject: Electionlawblog news and commentary 5/15/06 |
| From: Rick Hasen |
| Date: 5/15/2006, 7:28 AM |
| To: election-law |
In response to my post on
the Maine campaign finance case (linking to his earlier post
on the same case), Lyle Denniston of SCOTUSblog emails along the
following comments:
I note you suggest the Court will not take the case at this point, and that you expect the Court to deny a request for a prelim. injunction.
A couple of things to note:
There is no request here for a preliminary injunction; this is a direct appeal, on the merits, and the Court can only act on it with full Court consideration. This is not a request to a single Justice (here, it would be CJ Roberts), as it was when WRTL was denied a prelim. inj. pending appeal by Rehnquist in September 2004.
The Court does not have the option of simply denying review. It
must
either note jurisdiction, and proceed to decide the case on the merits;
or, if it could muster five votes, it could act summarily -- but the
only summary options open to it are to affirm the DCt or to reverse it.
Since an affirmance would be to decide an issue that the Court, in the
WRTL case, has sent back to DCt to try), it may be doubtful that the
Court wants to do that summarily. It could dismiss, again it would take
five votes to do so, either for want of jurisdiction (but, since it
took the WRTL case, it clearly has jurisdiction over these kinds of
cases under BCRA), or it could dismiss it "for want of a substantial
federal question," or dismiss without saying why. But the summary
decision in WRTL on January 23 made it quite clear that the Court
thinks there is a substantial federal question in as-applied challenges
on this part of BCRA.
If there is another way it can brush it aside, and perhaps one might be
devised, I frankly do not know what it would be.
Bopp's request for expedition, as he notes in the juris. statement, is to note jurisdiction, to expedite the appeal, have only one round of briefing, and rule on the merits. He probably would be content with a prelim. injunction, because the League could then go ahead with its ads between now and the Maine primary next month, but he did not ask for one, presumably because granting it would essentially decide the case his way, and the Court very likely is not inclined to do that, and denying it would take the ads off the air up through the primary. It looks to me as if he has done the most he can to maxmize the League's chances of getting some resolution.
Regards,
Lyle
Eliza Newlin Carney's Rules of the Game column
for National Journal
discusses the risk that the GOP is taking by including 527 reform in
the lobbying reform package: She writes that "the GOP 527 strategy is
controversial, risky and politically weak. The immediate risk is that
GOP leaders, by pushing what amounts to a big government bill, will
aggravate rising tensions within the Republican coalition. Already, an
influential group of conservative activists has banded together to
lobby aggressively against 527 restrictions."
Stuart Taylor writes this provocative National Journal column on VRA renewal. It begins: "When conservative Republicans such as House Speaker Dennis Hastert and Senate Majority Leader Bill Frist jointly sponsor Voting Rights Act amendments with such liberal Democrats as Rep. John Conyers and Sen. Edward Kennedy, be suspicious."
Two more snippets:
Second, many Republicans also believe -- perhaps incorrectly -- that drawing so-called "majority-minority" urban districts for black and Hispanic Democrats will "bleach" the surrounding suburban districts and thus help Republicans beat white, moderate Democrats there. That was the result of the racial gerrymanders of the 1990s: The number of (very liberal) black and Hispanic Democrats in the House went up; the number of (more moderate) white Democrats went down -- and this helped Republicans take and keep control of the House. This was good for black and Hispanic politicians. It was not so good for black and Hispanic voters.
And:
Dena Bunis writes this
column in the OC Register
on last week's falied attempt to amend section 203 of the Voting Rights
Act in the House Judiciary Committee's consideration of the VRA
provisions coming up for renewal.
You can find it here.
The Commission did not make any recommendations regarding the scope of
VRA renewal, prompting two commissioners (Yaki and Melendez) to dissent
and one (Thernstrom) to issue a concurrence. These latter documents
(appearing near the end of the 108 page pdf) make for some interesting
reading.
First off, thanks to Rick for providing this forum. As Heather and Dan and Rick's posts make clear, this is a most useful venue for thought-provoking discussion. At the moment, though, I'd like to move us away from Dan and Rick and Heather's discussion of the schism between academia and the civil rights community and instead focus on the portion of the extension bill that reverses Georgia v. Ashcroft.
There are certainly plenty of reasons that have been proffered both for and against reversing Ashcroft. Some of these reasons relate to the continuing constitutionality of Section 5, other reasons relate to the great debate over which is better, substantive or descriptive representation, and still other reasons relate to the debate over clear rules versus fuzzy standards (and the closely related possibility that Ashcroft's fuzzy standard allows for more partisanship in DOJ's administration of Section 5).
On this latter point, I'd like to toss out the following intentionally provocative question to think about: If a problem with Ashcroft is that it does not provide a clear rule for DOJ to administer, isn't the lack of a clear rule for DOJ to administer also a reason not to reverse Bossier Parish II? Put differently, isn't unconstitutional discriminatory purpose a murky totality of the circumstances test in the same vein that Ashcroft is a murky totality of the circumstances test?
Of course, there could be some basic distinctions to be made. For instance, one might argue that there is more precedent (both from DOJ objections and federal court decisions) in the realm of unconstitutional discriminatory purpose and that these precedents will serve to cabin discretion by DOJ. One might also argue that the benefits of objecting to changes that are unconstitutionally discriminatory in purpose far outweigh the costs of using a murky standard. Perhaps these distinctions (and there are sure to be others) are ultimately convincing. But, at least at first blush it would appear that the consequence of reversing both Ashcroft and Bossier II is that Section 5 will continue to contain a murky totality of the circumstances standard that could give partisan politicians the ability to act like, well, partisan politicians.
Lest this post be misunderstood, I'd like to make clear that I think it makes sense and is eminently defensible for Congress to reverse Bossier II. I'm merely wondering out loud whether the same argument about clear rules and murky standards that has been used to criticize Ashcroft could apply in the context ofBossier II.
More on Ashcroft to come...
-Mike Pitts-- 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