Subject: Re: [EL] Constitutional / Legal / Political Equality transposed on Political Speech
From: Steve Klein
Date: 4/8/2011, 7:44 PM
To: "rick.hasen@lls.edu" <rick.hasen@lls.edu>
CC: Rick Hasen <hasenr@gmail.com>, Election Law <election-law@mailman.lls.edu>

"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."

Posted by Rick Hasen at 07:15 PM

"Dems replacing lone party member on recount panel"

The Indianapolis Star reports.

Posted by Rick Hasen at 07:05 PM

Inside Higher Ed on the Brad Smith Dean Controversy

See here. More from Matthew Franck.

Posted by Rick Hasen at 06:58 PM

"Redistricting Battle Under Way, With Lobbyists and Lawyers"

The NY Times offers this report.

Posted by Rick Hasen at 06:39 PM

Electionline Weekly Leads with a Litigation Update

Download it here.

Posted by Rick Hasen at 06:35 PM

"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.

Posted by Rick Hasen at 06:30 PM

The Latest on Wisconsin Supreme Court Election

The Milwaukee Journal-Sentinel offers State elections officials dispatched to examine Waukesha County count.

AP reports that Ms. Kloppenburg is raising recall funds.

Jay Weiner compares Wisconsin and Minnesota recount procedures.

And Sandy Levinson blogs on judicial elections generally, including Wisconsin.

Posted by Rick Hasen at 06:24 PM

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).

Posted by Rick Hasen at 04:04 PM

April 07, 2011

"Judge: Democrats' challenge to Secretary of State White is valid"

See here.

Posted by Rick Hasen at 05:22 PM

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.
Posted by Rick Hasen at 04:49 PM

"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.

Posted by Rick Hasen at 09:54 AM

"Does Cumulative Voting Really Help Peoria's Blacks?"

Pam Adams has written this column.

Posted by Rick Hasen at 09:35 AM
--
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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rhasen@law.uci.edu

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org

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Steve Klein
Staff Attorney & Research Counsel
Wyoming Liberty Group
www.wyliberty.org