Eugene writes that in an election/retention system, Judges should be
replaced when they "sufficiently badly misunderstand " the rights they are
interpreting. OK--what is that standard? That a Judge voted differently than
51 % of the electorate would have? That a judge voted differently than the
voter himself/herself would have on the issue? Does it make any difference
that the Judge has studied the Constitution and the briefing papers and
heard oral argument , and the voter may have no idea what the constitution
even says (a state of affairs polls tell us exists even with the federal bill of
rights)? It seems to me that if judges are to be something other than pure
elected representatives, the standard for reviewing their actions has to be
different too.
________________________________
From: election-law-bounces@mailman.lls.edu on behalf of Volokh, Eugene
Sent: Tue 11/2/2010 4:25 PM
To: election-law@mailman.lls.edu
Subject: Re: [EL] Voting out judges
Judges are supposed to enforce the rights of the people secured in the
Constitution. But the question, of course, is what those rights are -- and
what happens when the people disagree with the judges' interpretation of
the rights. It seems to me that in a system in which judges are elected, the
people may reasonably decide to replace their current servants with some
other set of servants, should they think that the servants sufficiently badly
misunderstand the rights that they're supposed to be enforcing.
As to what the judges ought to do, I think the answer is simple: They
should follow what they think the Constitution requires -- just as I think
legislators and executive officials should follow what they think the
Constitution requires (for instance, by vetoing or voting against laws that
they see as unconstitutional). Of course, if the people sufficiently disagree
with the judges' (or legislators' or executive officials') views, the people may
decide not to reelect the judges. And then the judges, God forbid, will
become highly paid and well-respected but not quite as powerful lawyers in
private practice.
Eugene
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Tuesday, November 02, 2010 12:35 PM
To: Volokh, Eugene; election-law@mailman.lls.edu
Subject: RE: [EL] Voting out judges
Noting that the systems are designed differently does not address the
deeper issue: in both state and federal systems, Justices are the
independent enforcement mechanism for the rights of the people secured
in
the Constitution ( since state constitutional rights are not always co-
terminus with federal ones). That was the situation in Iowa--the Justices
were interpreting rights guaranteed by the state constitution. Often those
rights are not popular--going back to Jim Bopp's earlier comments about
poll
results for federal first amendment rights. Often the people seeking to
exercise those rights are not popular either. In the federal system, we take
it
for granted that Justices can rule as they believe right to protect those
rights--but what is the proper standard for judging a Justice at the state
level
in a retention election.
In the Iowa article that started this discussion , a voter states he is voting
against retention because "The judges are supposed to follow the will of
the people." Is that what the standard should be when judges are
interpreting rights guaranteed by a state constitutional provision, and
usually protecting minorities from majorities? (If the rights were supported
by majorities there usually wouldn't be a court case--the legislature would
have acted in accord with the majorities' will) What are Judges supposed
to
do in a state whenthey conclude the "will of the people" is contrary to the
constitution and its protections of individual's rights?
________________________________
From: election-law-bounces@mailman.lls.edu on behalf of Volokh, Eugene
Sent: Tue 11/2/2010 1:51 PM
To: election-law@mailman.lls.edu
Subject: Re: [EL] Voting out judges
But why shouldn't it be OK for citizens to "engage in retribution
against"
powerful government officials who are exercising their (the officials')
discretion in ways the citizens oppose, if the relevant law authorizes the
citizens' to "vote the bums out"? If you're going to have elected judges,
then
it seems to me that considering the judges' exercise of their discretion at
election time is precisely one of the things the voters should be doing.
Now I realize that this doesn't answer the different question of
institutional design -- whether we should have elected judges or not. And
we could have an interesting debate about that question. But it seems to
me that Iowa voters can quite reasonably conclude that this question was
decided in Iowa, and act given that design decision.
And this is quite similar to the situation voters face in other places. In
many states, governors can be recalled; the President, however, can't be.
It
seems to me that voters may and should apply a different standard to the
question of deciding whether to recall a governor than to the question of
deciding whether to support the impeachment and conviction of a
President.
The constitutional text suggests that a President can't be impeached and
convicted just because you think his policies are bad for the nation. But if
a
state constitution provides for recall, then I see no reason why people
shouldn't recall a governor if they think his policies are bad for the state
(and if they think the likely replacement is likely to do a better job).
The same goes for judges. Rightly or wrongly, our federal system
deliberately insulates judges to a large extent from the voters; most state
systems deliberately don't. I don't see why Iowa voters should follow the
federal standard for impeachment of judges, or the traditions that have
grown up around that standard, rather than just following the normal
standard for an election.
Eugene
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Tuesday, November 02, 2010 5:05 AM
To: Volokh, Eugene; election-law@mailman.lls.edu
Subject: RE: Re: [EL] more news II 11/1/10
What this says is that it is ok to engage in retribution against state judges
for
their constitutional rulings if their states provide a mechanism for doing
so, but
not ok to do so against federal judges simply because no such voting
mechanism
exists. That doesn't seem to advance the discussion much at the
theorectical
level-it just states the fact that a direct option exists under some
systems
and
not under others.
Further, I'm not sure it succesfully differentiates the two systems--there
is
a
federal impeachment option, which is waved around when Justices make
decisions that Members of Congress, the people's representatives,
disagree
with. More than one member has suggested impeachment of Chief
Justice
Roberts for his Citizens United ruling. THAT would be direct democracy in
action
at the federal election, under this theory...
Trevor Potter
Sent by Good Messaging (www.good.com)
-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH@law.ucla.edu]
Sent: Monday, November 01, 2010 10:56 PM Eastern Standard Time
To: election-law@mailman.lls.edu
Subject: Re: [EL] more news II 11/1/10
If we had a system where U.S. Supreme Court Justices were elected,
then it seems to me that it would be perfectly proper for the voters to
vote
Justices out of office if they thought the Justices' votes on Citizens
United,
or
D.C. v. Heller, or a wide range of other cases were unsound
interpretations
of
the Constitution -- and I say this as someone who agrees with the
majorities in
Citizens United and Heller. We don't have such a system at the U.S.
Supreme
Court level; that may be good or it may be bad, but we don't.
But in many states, we do have such a system. And I see no reason
why
the people of the state, in whose name the state constitution is created,
can't
act to remove their servants based on those servants' highly contestable
interpretations of that state's constitution.
Eugene
-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-
bounces@mailman.lls.edu] On Behalf Of Trevor Potter
Sent: Monday, November 01, 2010 7:14 PM
To: rick.hasen@lls.edu; election-law@mailman.lls.edu
Subject: Re: [EL] more news II 11/1/10
Jim Bopp writes:
I say there is nothing frightening about holding public officials
accountable for
their conduct in office. Judges are supposed to faithfully apply the law
and not
use their judicial power to impose their own personal policy
preferences.
These
judges imposed their own personal policy preferences, thereby
violating
their
oath of office, and should pay the price. Good riddance to judicial
activists.
________________________________________________________________
_
________________
Good thing Supreme Court Justices' opinions are not subject to voter
approval,
or Jim would lose his Citizens United majority!
There is no principled difference between subjecting Iowa Justices to
voter
retribution for interpreting the Iowa Constitution and proposing the
same fate
for US Supreme court justices--yet Jim on this list serve only days ago
was
bemoaning even subjecting constitutional decisions (Citizens United)
to
polling
scrutiny.
I know consistency is the hobgoblin of narrow minds, but still...
Trevor Potter
________________________________
From: election-law-bounces@mailman.lls.edu on behalf of
JBoppjr@aol.com
Sent: Mon 11/1/2010 8:16 PM
To: rick.hasen@lls.edu; election-law@mailman.lls.edu
Subject: Re: [EL] more news II 11/1/10
Rick Hasen says:
"New Iowa Poll: Voters tilt toward axing justices"
Frightening news
<http://www.desmoinesregister.com/article/20101031/NEWS09/10310356/N
e
w-Iowa-Poll-Voters-tilt-toward-axing-justices> from Iowa (via Wash
Wire
<http://blogs.wsj.com/washwire/2010/11/01/iowa-voters-split-on-
removing-
state-justices-for-gay-marriage-
ruling/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%
3A
+wsj%2Fwashwire%2Ffeed+%28WSJ.com%3A+Washington+Wire%29> ).
Posted by Rick Hasen at 11:30 AM
<http://electionlawblog.org/archives/017724.html>
I say there is nothing frightening about holding public officials
accountable for
their conduct in office. Judges are supposed to faithfully apply the law
and not
use their judicial power to impose their own personal policy
preferences.
These
judges imposed their own personal policy preferences, thereby
violating
their
oath of office, and should pay the price. Good riddance to judicial
activists.
Jim
Bopp
In a message dated 11/1/2010 4:13:26 P.M. Eastern Daylight Time,
hasenr@gmail.com writes:
November 01, 2010
"Justices won't take up sequel to Citizens United decision"
Law.com's "Supreme Court Insider" reports
<http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202474248905&src=EMC
-
Email&et=editorial&bu=National%20Law%20Journal&pt=Supreme%20Court
%20
Insider&cn=20101101sci&kw=Justices%20won%27t%20hear%20sequel%20to
%2
0Citizens%20United%20decision> .
Posted by Rick Hasen at 12:54 PM
<http://electionlawblog.org/archives/017732.html>
Federal District Court in Minnesota Rejects Request for TRO in Tea
Party
Garb /"Please ID Me" Button Lawsuit
You can read the judge's order here
<http://electionlawblog.org/archives/Minnesota%20Majority%20order.pdf> .
Posted by Rick Hasen at 12:38 PM
<http://electionlawblog.org/archives/017731.html>
Control of the Senate
Though Senator Cornyn seems to concede
<http://thehill.com/blogs/blog-briefing-room/news/126697-cornyn-will-
probabaly-take-two-cycles-for-gop-to-get-senate> that Republicans will
not
take the Senate in this election, if it is very close there are open
questions
about
whether Sen. Murkowski, if she is reelected, will caucus
<http://www.politico.com/news/stories/1110/44481.html> with the
Republicans. There is also some nervousness
<http://elections.firedoglake.com/2010/10/28/fdls-election-projection-
challenge-place-your-bets/> expressed by Democrats that Sen.
Lieberman
could
caucus with Republicans.
More to the point for this blog, I think it is fairly likely we won't know
the results of the U.S. Senate races in Alaska or Washington state by
Wednesday
morning, unless the polling of those races has been way off. So things
may up
in
the air for a while.
Posted by Rick Hasen at 12:34 PM
<http://electionlawblog.org/archives/017730.html>
"The voter fraud & intimidation stories you won't hear about on
Fox"
interesting item <http://mediamatters.org/research/201011010027>
from Media Matters.
Posted by Rick Hasen at 12:16 PM
<http://electionlawblog.org/archives/017729.html>
"CPA finds solid business leader support for corporate political
disclosure and accountability in new survey"
See this press release
<http://www.politicalaccountability.net/index.php?ht=a/GetDocumentActio
n/i/
4088> .
Posted by Rick Hasen at 12:00 PM
<http://electionlawblog.org/archives/017727.html>
"Dead Voters" and the Early Vote
In writing about the "dead voter" non-phenomenon a few days ago
<http://electionlawblog.org/archives/017683.html> , I mentioned that
despite
a
few real examples, "dead voters" far more often either aren't dead,
aren't
voters, or are different people altogether from those flagged in state
records.
I should have added that even finding real deceased voters doesn't
always reveal unlawful activity. For example, legitimate voters have
died
after
<http://articles.baltimoresun.com/1995-08-
24/news/1995236093_1_voting-
machines-vote-fraud-criminal-conspiracy/2> election day. And a timely
new
Virginia Attorney General's opinion
<http://www.oag.state.va.us/OPINIONS/2010opns/10-104-Lind.pdf>
reminds
me that early voting provides yet another category of "dead voters"
without
fraud: voters who cast legitimate ballots before election day but then
pass
away
before the polls close. With the increase in non-polling-place voting
more
generally, I wouldn't be surprised to see a few more of these anecdotes
cropping up.
Posted by Justin Levitt at 11:52 AM
<http://electionlawblog.org/archives/017728.html>
"Handbook on Corporate Political Activity: Emerging Corporate
Governance Issues"
The Conference Board has issued this report
<http://www.conference-
board.org/publications/publicationdetail.cfm?publicationid=1867> .
Posted by Rick Hasen at 11:41 AM
<http://electionlawblog.org/archives/017726.html>
Speechnow: The Glass is More than Half Full
The cert denial press release
<http://www.campaignfreedom.org/newsroom/detail/us-supreme-
court-
declines-to-review-speechnoworg-free-speech-case> .
Posted by Rick Hasen at 11:37 AM
<http://electionlawblog.org/archives/017725.html>
"New Iowa Poll: Voters tilt toward axing justices"
Frightening news
<http://www.desmoinesregister.com/article/20101031/NEWS09/10310356/N
e
w-Iowa-Poll-Voters-tilt-toward-axing-justices> from Iowa (via Wash
Wire
<http://blogs.wsj.com/washwire/2010/11/01/iowa-voters-split-on-
removing-
state-justices-for-gay-marriage-
ruling/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%
3A
+wsj%2Fwashwire%2Ffeed+%28WSJ.com%3A+Washington+Wire%29> ).
Posted by Rick Hasen at 11:30 AM
<http://electionlawblog.org/archives/017724.html>
--
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 <http://electionlawblog.org/>
<http://electionlawblog.org/>
<http://electionlawblog.org/>
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