Carrigan Roundup

Here are some stories about today's Supreme Court argument in Nevada Commission on Ethics v. Carrigan [Disclosure: I am one of Mr. Carrrigan's lawyers].

AP

SCOTUSblog

NPR

National Law Journal

CNN

The transcript is here. Justice Scalia, who was the most skeptical of a First Amendment right to a legislative vote, had an interesting exchange with my co-counsel, Josh Rosenkranz:

MR. ROSENKRANZ: No, Your Honor. Let me give you a concrete example from real life that happens all the time. If the NRA or NARAL decide that they believe strongly in a piece of legislation and they hire a lobbyist, so there's benefit to the lobbyist from this relationship, and that lobbyist says "I, too, am on mission; I continually lose in the legislature because it hangs in the balance, I'm going to work for candidates who will tip the balance for me, the commission's opinion says that that lobbyist, because he's worked on that campaign and wins, will by that very act invalidate the vote of the legislator. That's just untenable, and there's no way to interpret the -- the opinion that the commission actually wrote to make that anything other than the natural consequence of its -- of its opinion.
And worse yet, from the -- from the

JUSTICE SCALIA: If that's what it means, you would think the legislature would change it, wouldn't you?

MR. ROSENKRANZ: Well

JUSTICE SCALIA: I mean, it doesn't just hurt Mr. Carrigan. That -- you know, that -- that would be something every legislator would -- would worry about and say, oh, boy, we've got to change this.

The interesting thing is that the Nevada conflict of interest statute at issue in this case does not apply to the state legislators who passed it. ("The provisions of this section do not, under any circumstances, apply to State Legislators or allow the Commission to exercise jurisdiction or authority over State Legislators").

Ninth Circuit Grants Rehearing En Banc in Arizona Voter ID Case

Howard has the news. My earlier coverage of the panel decision was entitled Breaking News: Ninth Circuit, on 2-1 Vote with Strong Kozinksi Dissent, Holds that Arizona Requirement of Proof of Citizenship to Register to Vote is Preempted by the National Voter Registration Act. That post concluded: "Strong words, which makes me think that Judge Kozinski will be pushing hard for en banc reconsideration of this case."

"Perkins Coie Got Obama's Birth Certificate'

See here.

"Revitalizing Section 2"

Chris Elemndorf has posted this draft on SSRN (forthcoming, U. Pa. L. Rev.). Here is the abstract:

This article develops a fresh account of the meaning and constitutional function of Section 2, the Voting Rights Act's core provision of nationwide application, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. Section 2 on my account delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 only arise when electoral inequalities owe to race-biased decision-making by majority-group actors, whether public or private. But as an evidentiary matter, plaintiffs need only show a "significant likelihood" of race-biased decision-making, rather than proving it more likely than not. So cast (and with a few more details worked out), Section 2 emerges as a constitutionally permissible response to, inter alia, the largely unrecognized problem of election outcomes that are unconstitutional because of the racial basis for the electorate’s verdict -- a problem that generally cannot be remedied through constitutional litigation. My account of Section 2 has numerous practical implications. Most importantly, it suggests that electoral arrangements that induce or sustain race-biased voting are vulnerable under Section 2, irrespective of their potentially "dilutive" effect on minority representation. My account also resolves a number of prominent circuit splits over the application of Section 2. And it clears the ground for overruling the many Section 2 precedents that rest on the constitutional avoidance canon.

A very interesting and provocative piece!< p=""> <>

Access the Webcast of the Brennan Center's "Accountability after Citizens United" Event

The webcast will be here Friday.

"Democrats Will Gain Secretary of State's Office If White Is Disqualified"

The latest from Indiana.

Quote of the Day

"This would appear to be the end of enforcement of most consumer law in the United States. And the current Congress won't do a thing about it."

--Leading Remedies scholar Doug Laycock, writing about the Supreme Court's decision today in AT&T Mobility v. Concepcion.

Torres-Spelliscy Responds to Martson-Yoo on Political Disclosure

See here. See also this blog post from Elizabeth Kennedy.

"Supreme Court Examines State, Local Ethics Laws"

NPR offers this report. [Disclosure: I am one of Mr. Carrigan's lawyers.]

Rachel Maddow on Fla. Election Law

Here.

Decision Removing Carl Lewis from Ballot in NJ

Read all about it.

"The GOP's 2012 Campaign Plan: Disqualify Eligible Voters"

Steven Rosenfeld wrote this commentary for AlterNet.