“I was very, very troubled during the reauthorization process for Section 5 in 2006 — when I testified before the Senate Judiciary Committee — that there was no effort made in Congress to do anything at all to signal in some way that Section 5 would be updated…in a way that would put the statute in the best possible position in the inevitable constitutional litigation that would follow.”
Rick Pildes, to NBC News
AP:
The latest round of letters questioning the citizenship of some Colorado registered voters has 63 out of 298 people affirming their right to vote, and most recipients are ignoring the May letters altogether.
The letters are part of an ongoing effort by Republican Secretary of State Scott Gessler to address what he says is a risk for voter fraud. Gessler’s office provided the latest numbers to The Associated Press this week. Another 15 people who received letters last month said they weren’t U.S. citizens and asked to be removed from voter rolls.
Tom Curry piece with very interesting quotes from Rick Pildes and Pam Karlan.
A Denver grand jury ruled Wednesday that Secretary of State Scott Gessler did not violate the law when he used his office’s discretionary fund to pay about $1,300 to attend the Republican National Lawyers Association meeting in Sarasota in August.
However, the panel rebuked Gessler for using state money on the trip, and the secretary’s subsequent trip to the Republican National Convention in Tampa.
AP: “In a federal lawsuit, the Democratic Party of Hawaii claims the state’s primary election law is unconstitutional. Hawaii’s primary system that allows every registered voter to participate in the party’s nomination process is tantamount to forced political association, in violation of the First Amendment, according to the lawsuit filed Monday.”
Seems like a winner for the HDP given Supreme Court precedent.
Detroit Free Press oped on Arizona.
Sarah Binder channels her inner Shakespeare.
As I’ve been working on the bribery portion of my forthcoming Examples and Explanations book, I went back and reread Dan Lowenstein’s masterful article,Daniel Lowenstein, When is a Campaign Contribution a Bribe?, in Public and Private Corruption (William C. Heffernan & John Kleing, eds. 2004) and also looked at the recently failed cert. petitions in the Siegelman case (flagged by Rick Pildes, who wrote a brief in the case) and well as the key opinion by well-respected federal judge Myron Thompson in the McGregor case (more from Rick P. on that opinion). I’ve learned that McGregor ended with acquittals all around, which is great news for the defendants but less good news for other defendants who face difficulties in the law in this area. The lack of clarity which Lowenstein brilliantly illustrated in 2004 has only worsened.
It is time for the Court to grant cert. in one of these cases. (The Court denied cert. in Siegelman, and a few people have suggested to me that it was not a good vehicle for exploring these issues because there may have been enough evidence of defendants’ guilt under whatever standard the Court could announce.) But now via BNA comes word of a cert. petition from Kevin Ring, of the Abramoff scandal, raising these issues.I don’t know enough about whether the Ring case is a better vehicle for exploring these issues, but I hope it is.
What’s at stake in these cases is the troubling criminalization of politics, where no one knows where the line is (this is a lot like the IRS 501(c)(4) problem, where not even the IRS knows where the line is, but this time there is criminal liability on the line). Here’s what I wrote on the broader issue in a Slate jurisprudence column last year: “If politics makes for strange bedfellows, so too it seems do political prosecutions.”
Another snippet:
It is no wonder then that liberals and conservatives have rallied around these politicians, despite the fact that most wouldn’t win any popularity contests. (Edwards was cheating on his wife while she had breast cancer, and then later lied about it on national television.) Each of these cases, which feature prosecutors relying on novel theories to criminally prosecute prominent political figures, raises two distinct dangers.
First, if the law is murky, prosecutors with a political agenda could use criminal prosecutions to take down their political enemies. Siegelman, Edwards, and DeLay each claimed that the prosecutions against them were politically motivated: Siegelman and Edwards blame Bush administration Justice Department prosecutors, while DeLay blames former Travis County District Attorney Ronnie Earle, a Democrat.
We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such as Rep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.
Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.
KPBS Investigate report. Don’t miss the chart of connections, including the Koch Brothers and Donors Trust.
Paul Blumenthal reports for HuffPo.
On June 18, U.S. District Court Judge William J. Haynes ruled that Tennessee’s law, giving the two largest parties the best spots on the general election ballot, is unconstitutional. He also again struck down the law that requires newly-qualifying parties to submit 40,042 valid signatures (2.5% of the last gubernatorial vote).
Judge Haynes had struck down the number of signatures in the same case, but the Sixth Circuit had remanded the case back to him, and requested that he review the number of signatures again. The Sixth Circuit mentioned that in 1971, the U.S. Supreme Court had upheld Georgia’s petition requirement of 5% of the number of registered voters. In response, Judge Haynes reaffirmed his original decision, pointing out that Tennessee is obviously not concerned about crowded ballots, because it allows presidential primary candidates to get on the ballot with only 2,500 signatures; and it lets all candidates for other office get on primary ballots with only 25 signatures. Also he mentioned that Tennessee lets independent candidates get on the ballot for President with 275 signatures and independent candidates for all other office only need 25 signatures.
The part of the decision on ballot order of candidates is surely the most thorough court opinion on that subject ever written. The opinion contains an exhaustive report on research on whether ballot access order affects voting behavior.
Joey Fishkin on Justice Thomas’s dissent in yesterday’s Arizona elections case.
WaPo:
The House Oversight Committee’s top Democrat on Tuesday released the full transcript of a congressional interview that he said “debunks conspiracy theories” about the IRS targeting controversy.
Detroit Free Press: “Former Detroit Medical Center
CEO Mike Duggan is not eligible to run for mayor of Detroit because he did not meet city residency requirements, the Michigan Court of Appeals ruled today.”
I cannot find the dissenting opinion posted anywhere yet. An appeal to the Michigan Supreme Court is still possible.
See this press release.
Fairvote’s solution would be to—surprise!—adopt ranked choice voting.
In response my earlier post on why liberals joined Justice Scalia in the Arizona case, a longtime reader writes:
“I’m open to other ideas.”They won in the immediate instance, and that’s all they cared about.Liberals don’t care about stare decisis, conservatives do. So any victory liberals win is carved in stone, any victory conservatives win is written in the sand. Nothing in the decision the liberals dislike will stand if they get a fifth liberal vote. So, why should they care? It was a meaningless scrap tossed to the conservatives to buy the win.Arizona will follow this “roadmap”, and find every step of it contested, to run out the clock until one of the conservatives croaks, and five liberals completely re-write every temporary victory the conservative majority ‘won’, not just on this, but campaign censorship, the RKBA, every bit of it.They have no respect for precedent, so they can make deals never meaning to keep them. That’s my explanation.
Here’s my chance to get proven wrong rather quickly (rather than over years, as is the more common way that academics are proven wrong!). These are listed in order from greatest to least confidence.
Shelby County: 5-4, striking down the coverage formula of the VRA, and inviting Congress to rewrite the coverage formula, which the Court, and everyone else, knows Congress won’t, effectively ending preclearance under section 5 of the Voting Rights Act
Fisher: 4-1-3 with the four conservatives ready to say all affirmative action programs privileging race fail under strict scrutiny, with Justice Kennedy, for himself alone, not willing to go as far (J. Kagan is recused)
Prop. 8: 5-4 dismissal of writ as improvidently granted based on standing (Kennedy with four liberals), with the effect that Prop. 8 is likely banned in CA but the issue continues to percolate in the lower courts
DOMA: Either 6-3 (Kennedy, liberals, Chief) or 5-1-3 (with Chief avoiding merits) finding DOMA unconstitutional as applied.
How much would I bet on getting this perfectly right? Not much.
Must-read from NPR’s Tamara Keith.
The Columbia Journalism Review reports on how to follow Shelby County.
In Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012), I discuss different methods Justices use to move the law in their preferred direction aside from getting a majority to agree with a direct holding. One of the most important is the “time bomb.” As I explained:
Justices are sometimes more subtle than they are with invitations[ to litigants to ask the Court to overrule past precedent]. I became familiar with the “time bombs” concept from Seth Stern and Steve Wermiel’s fascinating 2010 biography of Justice Brennan. Discussing Justice O’Connor’s reluctance to join one of Justice Brennan’s opinions, the authors wrote, “O’Connor had taken to heart [Justice] Powell’s warnings that Brennan planted ‘time bombs’ in his opinions. She had learned to watch for those seemingly offhand, throwaway phrases that he exploited in later cases.
Yesterday’s opinion in Arizona v. Inter-Tribal Council is full of time bombs from Justice Scalia. Not only does he explain how Arizona might go to court to get an order compelling the FEC to alter the federal form to conform with the state’s citizenship requirements, he also draws a broad distinction between federal power to set the manner of elections and its lack of power to prescribe voter qualifications. (This was the main point of my Daily Beast piece yesterday, as well as Marty Lederman’s SCOTUSBlog post and much in line with Lyle Denniston’s analysis.) Justice Scalia’s footnote all but burying a key part of Oregon v. Mitchell on the right of Congress to require states to allow 18 year olds to vote in federal elections is sure to give states new powers to challenge federal voting rules. He suggests that arguments such as Arizona’s should be recast as challenges to registration rules and that they may have much greater success.
It is true that all of the Scalia language in yesterday’s opinion (on pages 13-17) is full of “might” and “could” language—most of it is dicta. Justice Alito notes those facts in the dissent. But this is scary stuff for those who worry about some states cutting back on voting rights. So the mystery to me is: why would the liberals on the Court go along with all this? Why not just join Justice Scalia’s opinion in part? After all, as a former clerk to Justice O’Connor emailed me, it looks like Justice Scalia is trying to provide a roadmap for states to implement voter id laws over federal objection.
Without inside knowledge from the Court, the answer is unclear. Here are a few possibilities, though I would be open to hearing others:
(1) The liberals were thrilled to get an opinion from Justice Scalia with a very muscular reading of Congress’s Elections Clause power. That battle is won, and other fights over qualifications and state challenges to federal voting rules can wait the next day. Note in Marty’s revised post comments from Rick Pildes emphasizing the importance of the win in yesterday’s case.
(2) The liberals agree with Justice Scalia on the dicta on pages 13-17, and they think these issues are better left to the states. (That seems unlikely to me, given divides in cases like Crawford).
(3) As Marty suggests in his post, there’s a larger end game here involving Shelby County, and reliance on the Elections Clause in that case to uphold section 5 of the Voting Rights Act.
I’m open to other ideas.
Ted Robbins reports for NPR from Arizona.
The Indiana Law Blog on the case of the fleeing legislators.
Here.
So this is the question being debated about the Court opinion in the Arizona voting law pre-emption case: is it a major victory for the federal government, or just a win in this case, with the longer term effects to lie more on the side of the states’ authority to shape voting rights in federal elections? Forecasts range from sunny (The New York Times) to cloudy (Hasen) to stormy (Lederman)…
Otherwise Arizona does well. It is encouraged to seek other means of appending a documentation requirement to the Federal Form, and the Justice believes that in the circumstances, it may have available to it a constitutional remedy. And though by no means a requirement of deciding the case, he musters a clear majority for the proposition that states have control over voter qualifications. Perhaps this is the better view, but the Court seems in quite the rush to decide it.
There is much argument still to occur over this case, in law reviews and elsewhere, but when the doctrinal fine points have been fully explored, it will remain the case that the Arizona decision is hard to think about without reference to the contemporary struggles over voting rights. In Crawford, Justice Souter counseled close attention to “the lessons of history” in judging the weight to be assigned to states’ asserted interests, such as “the interest in combating voter fraud [that] has too often served as a cover for unnecessarily restrictive electoral rules.” Crawford, 553 U.S. at 230, n.32 (Souter, J.. dissenting). In the age of voter ID and other state-imposed burden on the right to vote, the Court seems to discount or disregard that history. Critics are concerned that it is a history in the process of repeating itself.
NPR:
Last month, when news broke that the IRS had improperly targeted Tea Party groups for extra scrutiny, the original message from the IRS was that it was the work of a couple of rogue agents in the Cincinnati field office. Congressional investigators have been talking to those employees and generating hundreds of pages of transcripts.
Well, today, NPR’s Tamara Keith was able to look at the full transcripts of interviews with two IRS agents. And they appear to dispute that rogue agent description. Tamara joins us now from Capitol Hill. And tell us more about what exactly you got to read today.
TAMARA KEITH, BYLINE: So we got to read the full transcripts, a total of 360 pages of two interviews with agents in the Cincinnati office. These were interviews with congressional investigators.
You know, so far, we’ve seen snippets that have been released by Democrats and Republicans. And these snippets sort of fit the politics of what they were trying to show.
These transcripts are the full transcripts. And in some ways, they’re more nuanced. They’re also, in some ways, more mundane. You know, we get a lot of information about computer systems and things like that. But we do get a full view of at least what these two employees feel happened.
Here is a guest post from Josh Douglas:
Justice Scalia, in his majority opinion in Arizona v. Inter Tribal Council, explained that “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” The point, for Justice Scalia, is that Article I, Section 4 of the U.S. Constitution gives Congress the power to regulate only the “times, places, and manner” – the “how” – of elections, but under Article I, Section 2, states retain the ability to determine the qualification of electors, even for federal offices – the “who” may vote.
This language from Justice Scalia’s opinion has caused some concern among the voting rights community. Allowing states to determine voter qualifications could open the door to restrictive requirements, such as strict voter ID laws.
But there may actually be a silver lining within state qualification rules themselves. As I recount in a new paper, virtually all state constitutions – which include the state’s voter qualification requirements – explicitly grant the right to vote to the state’s citizens before listing the required qualifications voters must possess. For example, Wisconsin’s Constitution – the subject of recent voter ID litigation – provides that “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” That is, most state constitutions explicitly grant the right to vote and then provide several voter qualifications, which are typically age, citizenship, and residence. A few state constitutions also take the right away for those who are mentally incompetent or convicted felons. (Interestingly, Arizona’s is the only state constitution that does not include an explicit grant of voting rights, but it does provide that elections shall be “free and equal.”) Additional qualifications that are not enumerated in the state constitution would violate this explicit grant of the right to vote. The problem, however, is that many state courts have “lockstepped” their state constitutions with federal jurisprudence for the right to vote under the U.S. Constitution, reading the state constitutional provision to go no further than the U.S. Constitution. Of course, the U.S. Constitution does not grant the right to vote; it is implied within the Equal Protection Clause of the Fourteenth Amendment. And recent Supreme Court jurisprudence on federal protection for the right to vote has been quite limited.
If Justice Scalia is correct that state qualification rules are what matters and that Congress has no authority to determine qualifications under the U.S. Constitution, then state courts are wrong in using the “lockstep” approach for their constitutional right to vote provisions. These clauses are broader than the protection afforded under the U.S. Constitution. They should therefore operate to enjoin strict legislatively-enacted voter qualification requirements, even if those requirements may be permissible under the federal Equal Protection Clause.
In short, Justice Scalia’s push for a renewed focus on state qualification rules might actually be a move in the right direction for voters, at least where it comes to the constitutional right to vote. The question is whether state courts will follow suit and give their constitutional provisions the independent meaning and scope their language requires.
“I think it’s preposterous that seven people can overturn the votes of over one million Arizona voters to say the honor system works [to verify a voter’s citizenship...] It’s a bunch of baloney. It’s nuts.”
–”Kathy McKee, an activist who helped launch the effort for Proposition 200, criticiz[ing] the ‘idiot judges’ who ruled against Arizona.”
I have updated some information, removed dead links, added some new blogs and sites to the Election Law blogroll, linked to forthcoming and recent academic papers and commentaries, and otherwise eliminated some coding problems.
If you see any remaining problems, or have any suggestions for inclusions, deletions or improvements, please let me know and I’ll consider it.
Below the fold I’ve moved academic articles from 2009-2010 that I’ve moved off the Sidebar.
Thanks for reading!
I am moving them off the sidebar of the blog as I spruce things up around here.
Holder’s Voting Rights Gamble: The Supreme Court’s Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska’s Big Spelling Test: How strong is Joe Miller’s argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate‘s Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What’s the point of disclosing campaign donations? Let’s review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did–and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot”, Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito’s Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the “Separable Preferences” Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia’s Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove’s New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times “Room for Debate” Blog, Jan., 21, 2010
Credit Derek Muller for first noting the Supreme Court’s first citation of Bush v. Gore in today’s Arizona voting decision.
Frank James reports for NPR.
Read Emily Bazelon on today’s Arizona voting decision.
Nina Totenberg reports for NPR.
Kirsten Nussbaumer has posted this timely paper on SSRN (forthcoming, Publius). Here is the abstract:
Addressing the comparative-federalism literature, this article offers a sketch of how the unique character of U.S. election law may have shaped U.S. federalism as a whole — hypothesizing that the extent to which each level of government has controlled the other’s electoral arena may have partly determined each government’s relative policy autonomy, and thereby impinged upon the direct constituency relationship between each level of government and its voters.
The article proposes that we view “the election-law connection” between state and federal officials as a central field where ‘federalism happens’ — where the making and implementing of a shared election law has given rise to linked electoral incentives and intergovernmental networking, expressed most notably in strategic relationships that are keyed to state and local decision-making forums. Over time, the law of U.S. federal elections has exhibited complex patterns of mutual dependence between federal and state officials, but the dominant pattern has been a state-tilted story of subnational control over federal election law — to the extent that it may be meaningful to conceptualize the election-law connection as a ‘constituency relationship’ that tends to work to the benefit of the state and local actors who exercise control over the federal electoral arena. This electoral dependency of federal officials may have created a tendency towards greater federal respect for the institutional prerogatives of state and local governments, though the relationship is dynamic and contingent, interacting with other interests and factors such as the prevalence of divided or unified party government at the national and state levels.
The argument — while offered as an exercise in deductive theory-building more than empirical conclusion — is illustrated with recent election-law examples, especially intergovernmental communications about congressional redistricting that exhibit patterns of federal-to-state lobbying (a decentralized or ‘downward’ pattern not previously considered in the scholarly literatures). The election-law connection is also explored through a reading of two canonical texts in the literature on “political safeguards of federalism” (Herbert Wechsler 1954, Larry Kramer 2000), joining their insights about constitutional history and political parties with the election-law-focused account here (itself, a friendly amendment to that theory), while contending that the “political safeguards” explanation of U.S. history is more plausible when combined with a relational, strategic understanding of election-law incentives.
Finally, the constituency conception of the election-law connection gains added plausibility through a consideration of the large gap between, on the one hand, Congress’s arguable preemption power over federal elections and, on the other hand, the historical patterns of relative congressional abstention in formal law-making, and the federal legislative tendency to de-centralize many partisan and factional conflicts about election law.
South Bend Tribune: “The former chairman of the St. Joseph County Democratic Party will serve one year in prison for his role in a scheme to forge signatures onto petitions that qualified Democratic candidates for the state’s 2008 primary election.”
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