Furthermore, many prominent supporters of public funding have shown that in their hearts, they really don't believe in political equality. The same people who have rushed to defend the Arizona law have supported the aspect of the Connecticut public funding law that is extremely unequal. The Connecticut law, according to Lowell Weicker, would have made it impossible for him to be elected as an independent in 1990. He and his major party opponents could all have raised enough small private funds to qualify, but the Connecticut law says that his Republican and Democratic opponents would have not needed to do anything else. But Weicker would have needed a petition signed by a number of signatures equal to 20% of the last vote cast.
And when the California public funding measure was on the ballot in June 2008, the supporters thought it
was perfectly fair that an independent candidate for Secretary of State would have needed 15,000 people to donate $5, whereas any Democrat or Republican would only have needed 7,500 to donate $5.
--- On Fri, 4/8/11, Steve Klein <stephen.klein.esq@gmail.com> wrote:
From: Steve Klein <stephen.klein.esq@gmail.com>
Subject: Re: [EL] Constitutional / Legal / Political Equality transposed on Political Speech
To: rick.hasen@lls.edu
Cc: "Rick Hasen" <hasenr@gmail.com>, "Election Law" <election-law@mailman.lls.edu>
Date: Friday, April 8, 2011, 7:44 PM
"Demonizing political equality"Tara Malloy has written this
oped for the National Law Journal, with the
subhead: "It used to be uncontroversial to suggest that
privately financed elections might undercut the democratic ideal
of one person/one vote by favoring the wealthy. But now some
justices seem to see any hint of equalizing as an invidious
interest."
Leaving aside the rather beaten-to-death divergence of principle over whether money, in fact, buys votes (never yours, just your silly neighbors', of course), I'm curious if listers have considered the implications of translating this equality-of-financial-condition under the First Amendment to other amendments?
Should we be concerned that the rich can buy more guns, and thus can assert a "greater" right to bear arms under the Second Amendment? Rich people can buy bigger houses, heck, sometimes so many that they don't even know how many they have (h/t Senator McCain). Should we not be concerned that the rich are enjoying a "greater" reasonable expectation of privacy in all those rooms of all those houses under the Fourth Amendment? (And "greater" protection from military quartering to boot! Whew!)
In fact, scanning the list, I think it's only under the Fifth Amendment right to counsel that I've ever heard the same amount of indignation that, even though we now provide counsel to the indigent, it's seldom to the level of representation afforded by Johnny Cochran.
What made these portions of the Bill of Rights exceptional for equality of condition rather than simply equality of right? On Fri, Apr 8, 2011 at 8:19 PM, Rick Hasen <hasenr@gmail.com> wrote:
April 08, 2011
"Demonizing political equality"
Tara Malloy has written this
oped for the National Law Journal, with the
subhead: "It used to be uncontroversial to suggest that
privately financed elections might undercut the democratic ideal
of one person/one vote by favoring the wealthy. But now some
justices seem to see any hint of equalizing as an invidious
interest."
"Dems replacing lone party member on recount
panel"
The Indianapolis Star reports.
"Redistricting Battle Under Way, With Lobbyists
and Lawyers"
The NY Times offers this
report.
Electionline Weekly Leads with a Litigation
Update
Download it here.
"What Happened in Iowa?"
David Pozen has posted this
draft on SSRN (forthcoming, Columbia Law Review
Sidebar). Here is the abstract:
November 2, 2010 is the latest milestone in the evolution of
state judicial elections from sleepy, sterile affairs into
meaningful political contests. Following an aggressive ouster
campaign, voters in Iowa removed three supreme court justices,
including the chief justice, who had joined an opinion finding a
constitutional right to same-sex marriage. Supporters of the
campaign rallied around the mantra, "It's we the people, not we
the courts" Voter turnout surged to unprecedented levels; the
national media riveted attention on the event. No sitting Iowa
justice had ever lost a retention election before.
This essay -- a surreply to Nicole Mansker & Neal Devins, Do
Judicial Elections Facilitate Popular Constitutionalism; Can
They?, 111 Colum. L. Rev. Sidebar 27 (2011) == explains why the
Iowa elections corroborate, yet also complicate, the thesis that
judicial elections offer important outlets for popular
constitutionalism. While the retention vote sparked (and
vindicated) an exceptional episode of constitutional
mobilization, the role played by out-of-state interests
highlights a number of difficult questions regarding popular
constitutionalism's relationship to federalism and popular
sovereignty. The essay concludes with a note on the prospects
for judicial election reform.
Was I a Hypocrite, Or Just Expressing
Disappointment that Some Democrats Also Made Unsubstantiated
Allegations of Fraud in WI Supreme Court Race?
You
decide. (Here's my original
post).
April 07, 2011
"Judge: Democrats' challenge to Secretary of
State White is valid"
See here.
As the WI Supreme Court Election Moves Beyond
the Margin of Litigation Toward Prosser, What Will Become of
Republican Fraud Claims?
With news
reports indicating that human error was responsible for a
failure to include 7,582 votes in favor of Justice Prosser in
the vote totals, I breathe a sigh of relief from the point of
view of election administration. Though it is possible that
there will be other, countervailing errors, it seems doubtful
that they could make up this huge gain.
Over the last day and a half, I have been collecting and
blogging links showing Republican concerns about voter fraud.
Here's Ann
Althouse, before the new numbers were revealed, responding
to my Politico
piece:
So... because past claims of fraud have been "methodically
debunked" -- have they? -- we should stop even looking
for fraud? We'll only suffer if we keep checking for
cheaters? This sounds way too preemptive to me. I've spent the
last 2 months in a vortex of political ugliness and saw it
grafted onto the judicial election. I saw frantically
impassioned protesters grasping at the symbolism of this
election and building an intense shared feeling of entitlement
to shift the politics of this state. I heard the phrase "by any
means necessary" more than once.
In this context, Prosser proponents have every right to drag us
through the search for fraud one more time. I hope they don't
find it, and Professor Hasen can add this new example to his
next there-is-no-fraud column. But there's a 204 vote margin in
this crazy election. We need to feel confident that the outcome
is correct.
There's John Fund too before this calling out the fraud.
Here's what I expect: With Prosser in the lead, the claims of
fraud on the Republican side will stop. The Democrats will not
raise claims of fraud even if they contest the election.
UPDATE: I already may need to take back the last part of this
post: looks like Dems may soon start playing fraud card in WI Sup
Ct race, focusing on the clerk who found the lost votes.
"Predictable: Right-Wing Media Respond To WI
Supreme Court Election With Baseless Voter Fraud Allegations"
Media Matters for America has put up this post,
which further
validates my
prediction.
"Does Cumulative Voting Really Help Peoria's
Blacks?"
Pam Adams has written this
column.
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-- Steve Klein Staff Attorney & Research Counsel Wyoming Liberty Group www.wyliberty.org
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