Prop 8 Invalid Because California Initiative Process Violates California State Constitution? [Corrected title]

My former Horvitz and Levy colleague Jon Eisenberg has filed this amicus brief in the 9th Circuit asking for certification of a question about the constitutionality of the initiative process to be certified to the California Supreme Court. In an article about the brief in the National Law Journal, Dan Lowenstein says: "The prospects of the Supreme Court ruling that the initiative is a revision after it has been in effect for 99 years are somewhat between nil and zero...This is really nonsense."

UPDATE and CORRECTION: The blogging is fast and furious just before the election, and in writing the original headline for the piece, I incorrectly said that the Eisenberg brief raised a guarantee clause challenge to Prop. 8. That was based upon too quick a reading of the linked NLJ piece. The argument instead, from the brief, is the following:

In Strauss v. Horton, 46 Cal. 4th 364 (2009), the California Supreme Court determined that Proposition 8 fell on the "amendment" side of the revision/amendment divide. Strauss left unanswered, however, the more fundamental question whether the initiative process itself could properly have been enacted as an amendment," rather than a "revision" to the State Constitution. In Strauss, the California Supreme Court carefully reviewed the revision/amendment dichotomy and all the Court's prior decisions analyzing the distinction between these two methods of altering the California Constitution. Id. at 412-440. After analyzing the prior cases, the Court explained that a change to the Constitution must be enacted by the process for "revision," and not mere "amendment," if it amounts to "a change in the basic plan of the California government," that is, "a change in [the] fundamental [governmental] structure or the foundational powers of its branches." Id. at 438 (quoting Legislature v. Eu, 54 Ca1. 3d 492, 508-509 (1991)); see also Strauss, 46 Cal. 4th at 427, 430).

October 28, 2010

President Obama Mentions Lobbying Reform, the Need for Redistricting Reform, During His "Daily Show" Interview

Watch at about the 4:30 minute mark in Part 3 of the interview (lobbying), then at the 6:30 minute mark (discussing filibuster, redistricting):

[click on 08:59 AM link below, which will take you to the blog, to watch the clip]

Posted by Rick Hasen at 08:59 AM

Very Curious Alaska Supreme Court Order in Murkowski Write-In Case, Leading Potentially to a Major Post-Election Litigation Issue After Election Day

Yesterday I reported that an Alaska state supreme court judge had barred the division of elections from providing a list of certified write-in candidate to voters, ruling that this was contrary to Alaska state law and would be a deviation from past practice. (This was seen as a blow to Sen. Murkowski, who is now apparently leading in polls--if voters can get their intent across adequately on write-in ballots).

As reported by the Anchorage Daily News, the Alaska Supreme Court issued this order staying that trial court ruling, ordering that the write-in information (of candidate names, but not party affiliation) be provided to voters, and then ordering, if feasible, elections officials to segregate the ballots of those voters who voted after requesting the write-in information.

It seems to me that if this is a razor-thin election, which will depend upon the counting of those ballots, this segregation is setting up a major fight over those ballots. It also presents the very difficult kind of clash that I described in my recent Stanford Law Review article, The Democracy Canon. On the one hand, providing voters with information so that they could cast a ballot that is more likely to be counted consistent with voter intent seems supported by the canon: if the Alaska statutes and regulations plausibly could be construed to allow for the provision of this information (I have not yet examined these statutes and regulations), the canon suggests they should. But I offer the canon in my article with a big caveat: it may violate the Due Process Clause of the United States Constitution to change the rules for the counting and casting of ballots---even in reliance on the canon-- during the course (or right after) the election. Key cases here are Roe v. Alabama and the Franken-Coleman dispute. The upshot: if it is a razor-thin race whose outcome depends upon the counting of those segregated ballots, do not be surprised to see the anti-Murkowski forces (be they Democrats or Republicans) running to federal court arguing that the counting of the ballots would be unconstitutional. We may even see parties go to federal court now, before the election, raising such an issue.

Posted by Rick Hasen at 08:50 AM

Prop 8 Invalid Because California Initiative Process Violates the Guarantee Clause?

My former Horvitz and Levy colleague Jon Eisenberg has filed this amicus brief in the 9th Circuit asking for certification of a question about the constitutionality of the initiative process to be certified to the California Supreme Court. In an article about the brief in the National Law Journal, Dan Lowenstein says: "The prospects of the Supreme Court ruling that the initiative is a revision after it has been in effect for 99 years are somewhat between nil and zero...This is really nonsense."

Posted by Rick Hasen at 08:31 AM

"Tea Party Candidate to Appeals Court: Let Me Circulate My Own Petitions"

That's currently the top press release at the James Madison Center website.

Posted by Rick Hasen at 08:22 AM

"On Road to Unrestricted Campaign Donations, Social Groups Pave the Way"

The Washington Independent reports.

Posted by Rick Hasen at 08:19 AM

"Gillespie: Secret Campaign Money Spent By Outside Groups Resulted From BCRA"

BNA reports.

Posted by Rick Hasen at 08:13 AM

"Nearly 20 court-related items on Nov. 2 state ballots"

The National Center for State Courts has issued this backgrounder.

Posted by Rick Hasen at 08:08 AM

Divided Sixth Circuit Panel Rejects Challenge to Tennessee Felon Voting Restoration Statute Conditioning Vote on Payment of Restitution and Child Support

Jonathan Adler blogs about this new decision.

Posted by Rick Hasen at 08:05 AM

October 27, 2010

"Judicial races on next week's ballot...but does anybody care?"

I did an interview with KPCC about this topic, which also briefly discusses and links to the Slate piece on judicial elections which Dahlia Lithwick and I wrote.

Posted by Rick Hasen at 05:52 PM

Forging Voter Signatures on Ballot is Illegal Even if the Measure Doesn't Qualify

News from Oregon.

Posted by Rick Hasen at 04:30 PM

"Daytona Beach Commissioner Arrested On Fraud Charges"

This story begins: "Daytona Beach City Commissioner Derrick Henry and his campaign manager, Genesis Robinson, were arrested Wednesday, charged with committing absentee ballot fraud during Henry's 2010 re-election campaign, the Volusia County Sheriff's Office said. According to his Facebook page, Henry is nonpartisan, which means he has no party affiliation."

Posted by Rick Hasen at 02:46 PM

In the Election Law Mailbag

With the crazy election season, I've let new books and articles pile up on my desk. I can't see my students anymore, so here's the list to clear my desk. I hope to turn to these items after the election.

Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion (this one I'll be reading right away, as Steve will be speaking here at Loyola on the book next Friday)

Eskridge, Frickey and Garrett (eds), Statutory Interpretation Stories

Jay Weiner, This is Not Florida: How Al Franken Won the Minnesota Recount

James Roger Sharp, The Deadlocked Election of 1800:L Jefferson, Burr, and the Union in the Balance

Lorraine Minnite, The Myth of Voter Fraud (I read parts of this in draft; highly, highly recommended)

Council of Europe, Supervising Electoral Processes

Chris Goodman, Examining 'Voter Intent' Behind Proposition 209: Why Recruitment, Retention, and Scholarship Privileges Should Be Permissible Under Article I, Section 3, 27 Chicana/o -Latino/o Law Review 59 (2008), and (M)Ad Men: Using Persuasion Factors in Media Advertisements to Prevent a 'Tyranny of the Majority' on Ballot Propositions, 32 Com/Ent 247 (2010).

Posted by Rick Hasen at 02:42 PM

"Voter Groups Go To Court To Fight For Voting Rights of Students"

See this press release out of New Jersey from the ACLU.

Posted by Rick Hasen at 02:06 PM

"Group claiming voter fraud benefited from Angle contribution"

The Las Vegas Sun reports.

Posted by Rick Hasen at 01:14 PM

"The Ethics of Justice O'Connor's Robo-Calls"

Fascinating.
UPDATE: Jess Bravin reports on the response of the campaign using the ads.

Posted by Rick Hasen at 01:00 PM

"Disclosing a Dem Double Standard"

Allison Hayward has written this piece from NRO, which uses some of Bob Bauer's earlier writings about disclosure against current Democratic arguments.

Posted by Rick Hasen at 11:53 AM

-- 
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

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-- 
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