“California judge named head of state’s political ethics agency”


Gov. Jerry Brown on Wednesday appointed as head of California’s political ethics agency a judge who has overseen the discipline of attorneys.

Jodi Remke, presiding judge of the State Bar Court of California, is Brown’s choice for chairwoman of the state Fair Political Practices Commission.

Good-government activists including Robert Stern, a former general counsel for the California agency and a coauthor of the state Political Reform Act, said they knew nothing about Remke. But a former boss said she was a great choice.


“Southern Whites’ Loyalty to G.O.P. Nearing That of Blacks to Democrats”

Nate Cohn at NYT’s New “The Upshot:”

It is impossible to discuss Mr. Obama’s weakness among Southern whites without mention of race. It is surely a factor, and perhaps even a large one. Mr. Obama performed significantly worse than John Kerry among Southern whites, even though both were Northern liberals and 2008 was a far better year for Democrats than 2004. (The estimates are derived from census and exit poll data). And the pattern of white support in the 2012 presidential election is an eerie reversal of post-Reconstruction presidential elections, when Jim Crow laws rendered blacks ineligible to vote and Democrats won the so-called Solid South by similar margins.

But it is hard to know the extent to which racism is responsible for Mr. Obama’s weakness. After all, Mr. Obama is not the only Democrat to perform so poorly in recent years. Some white Democratic candidates, like Virginia Gov. Terry McAuliffe, have done worse than Mr. Obama among Southern whites. And Mr. Obama’s losses are part of a longer-term trend. Mr. Kerry, for instance, performed worse than Al Gore, who even fared worse than Michael Dukakis among Southern whites.


Rethink Red Lion?

Ron Collins:

More than a quarter-century ago, Professor Laurence Tribe declared: “The first amendment’s sweeping guarantees have been most compromised in the realm of the most modern medium: electronic broadcasting.” (American Constitutional Law, p. 1004: 1988).

Perhaps mindful of that contention, in his petition for certiorariJoshua Rosenkranz (who heads  Orrick’s Supreme Court and appellate litigation practice) urges the Court to reconsider its unanimous ruling in Red Lion Broadcasting Co. v. FCC (1969), which upheld the Fairness Doctrine over a First Amendment challenge. (Note: Archibald Cox and Erwin Griswold successfully represented the Respondents in the case. The ACLU filed an amicus brief submitted by  Melvin L. Wulf and Eleanor Holmes Norton in which they supported the First Amendment claims.)

Josh was of course the first director of the Brennan Center and I worked with him a few years ago on the Carrigan case.

One to watch.


Shorter Supreme Court in Child Pornography Case: Congress, Please Override Us

Today the Supreme Court decided a statutory interpretation case, Paroline v. U.S. with no easy answer, an unusual cross-ideological divide among the Justices, an interpretation offered by the majority which Adam Liptak rightfully describes as “a new and vague legal standard,” and a Chief Justice in his dissenting opinion begging Congress to fix the problem (“The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.”). Even though Congress rarely overrides Congress these days, I predict an override in this case, and probably relatively quickly.

As Adam explains the facts, “The 1994 law allows victims of child pornography to seek the ‘full amount’ of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million [of her losses].” The majority in an opinion by Justice Kennedy said that was too much, and sent the case back for some kind of uncertain undertaking of the amount of damages; the Chief Justice (joined by Scalia and Thomas, but not Justice Alito) in dissent said the standard was unworkable and the proper amount was zero until Congress fixes the statute for others, and Justice Sotomayor, for herself only in dissent would have allowed for the full amount of damages awarded in the lower court.

The case is fascinating to me as someone who teaches both Torts and Remedies. (It’s not every day that you get the Justices on the Court opining on the difference between actual and proximate cause, citing the Restatement (Third) of Torts, and discussing the concept of independent concurrent causation.)

But thinking about this from the point of view of Legislation, this seems the ideal case for a Congressional override.  As I’ve noted in a recent law review article, Congress now rarely overrides the Court, and when it does, there tend to be partisan overrides (as when Republicans overrode the Supreme Court in cutting back habeas for detainees in Hamdan or when Democrats overrode the Supreme Court in allowing more employment remedies in Ledbetteri).  I attribute the decline of bipartisan overrides to increasing political polarization in Congress.  (Christiansen and Eskridge are skeptical of the partisanship point, and reach somewhat different conclusions using very different methodology.  I will blog more about that at some point.)

But even in an era of intense partisanship, as we are in right now, there is room sometimes for biparisanship, and this looks like the perfect opportunity for two reasons. First, everyone hates child pornographers and wants to look tough on crime. Unless Congress is satisfied with the vague standard of the majority, it could look good for all of Congress to get tougher than the Court was willing to be on child pornographers—particularly when the Court’s ruling means that many victims are undercompensated.  (Marci Hamilton offers a suggestion for what new congressional legislation could look like.)

Second, though related to the first point, taking a stand in favor of fixing the statute won’t be seen as going up against the Supreme Court.  If all the conservatives were on one side and all the liberals on the other in a 5-4 decision, then an override of a Supreme Court statutory case looks like an attack on one wing of the Court.  Here, you have a case with a cross-ideological majority throwing up its hands as to an administrable rule, and three of four dissenters asking Congress to step in.

In an era where Congress can do so little thanks to ideological polarization, a new Amy Act looks to be a no-brainer.

UPDATE: Much more on what Congress can do from Paul Casell, Amy’s lawyer.


This Does Not Bode Well for Congress’s Updating of the Voting Rights Act

At I have been writing, the only real chance of the Voting Rights Act Amendment (which would restore a form of preclearance regime) making it out of the current session of Congress appears to be if the bill gets the support of Eric Cantor.  So far Cantor has been noncommittal.

Today, however, Eric Cantor is being attacked from the right (not about the VRAA, but generally). Whether the claims against Cantor are fair or not are not questions for me to answer. But there’s little doubt that if he endorses the VRAA he is going to get attacked from the right.  While if he does nothing on the VRAA he will suffer no political cost.  So this marginally makes it less likely that Cantor will do anything on the VRAA.


“There Is One Campaign Finance Regulation That Rand Paul Supports”

HuffPo: “In an appearance at the University of Chicago’s Institute of Politics, the Kentucky Republican said he backed legislation that would prohibit the ability of federal contract recipients to plow money back into the political process. Though he kept his remarks broad (as he has in the past), Paul hinted that he supported prohibiting contractors from donating to campaigns and, potentially, from lobbying Congress.”


“D’Souza Case Is Political, Lawyer Says”

Talk about NYT burying the lede:

Prosecutors also said they had obtained a copy of a recording made surreptitiously last October by the husband of a woman Mr. D’Souza was involved with romantically around the time of the donations, when Mr. D’Souza was separated from his wife. In making the recording, the husband was not acting at the government’s direction, prosecutors said. The woman, Denise Joseph, was one of the alleged straw donors.

Ms. Joseph was recorded as saying that Mr. D’Souza had told her that if he were charged he might plead guilty, but would initially plead not guilty because that “gives him a window of opportunity to get his story out there,” the government said. Ms. Joseph had no comment, her lawyer said.


SCOTUS’s Recycled Outtakes?

Gerard N. Magliocca, writing about today’s Schuette decision, says “The opinions are out, and they are extremely interesting.  (One gets the impression that some of this material was drafted last year for Fischer and left on the cutting room floor.).”

I think Gerald is right about J. Sotomayor’s dissent, which is really one which is more appropriate for a case in which the Court blocks an affirmative action plan than this case (which is about whether the state through the initiative process can ban affirmative action).

But the comment got me wondering how much other recycling we’ve seen.  How much of Justice Stevens’ Citizens United dissent came from the draft Souter dissent which did not see the light of day?  How much of Justice Ginsburg’s Shelby County dissent was originally draft (by whom?) for NAMUDNO.

I guess our grandchildren might find out when papers are released.


NYT Room for Debate: Do the Rich Call the Shots?

From the intro:

A recent study by Martin Gilens and Benjamin I. Page examining 30 years of opinion surveys and policy decisions by the federal government found that, “When a majority of citizens disagrees with economic elites and/or with organized interests, they generally lose.” The average voter has little influence on government, the study found, but the well-to-do hold tremendous sway.

Has the United States become more of an oligarchy than a democracy?


“Christian Adams, the Election Law Listserv, and Private Speech”; And Clearing Up What Judicial Watch Wanted

Allen Dickerson, Legal Director of the Center for Competitive Politics (with whom I’ve had countless but respectful disagreements over the years) writes at CCP’s blog:

In a similar vein, Mr. Adams takes issue with a listserv run by Professor Rick Hasen:

       Hasen runs an online meeting hall for all the would-be speech totalitarians. They post, bluster, and kibitz about the latest news on their effort to erode the First Amendment and increase federal power. Whenever a free speech advocate seeks to contribute to the conversation at the blog, they are often deliberately given a cold shoulder and ignored, per plan. The ignored don’t understand that leftists aren’t interested in debate. Their pedigree requires the eradication of opposing ideas, not their incubation.

He goes on to suggest that, because this listserv is hosted by a public university (Prof. Hasen teaches at the University of California, Irvine), that it is appropriate to file “a freedom of information request demanding Hasen’s emails to the White House and other government officials including any on the topic of speech regulations.”

As a participant on that listserv—and I do not believe that Mr. Adams would consider me a “speech totalitarian”—I can say that while Prof. Hasen and I disagree on a great many things, I have never been given the cold shoulder or ignored. There have been exchanges both terse and tense, but that is to be expected in discussing this issue. This isn’t a field populated by folks with thin skins.

More importantly, a bedrock principle for many of us is that private speech should be left alone. Prof. Hasen is a private citizen. While leaving aside the merits of any particular state Public Records Act request (I am not a California lawyer), there is an unmistakable air of intimidation in requesting a private person’s emails, especially when that same request can be more properly addressed to any government officials involved.

I do want to clear up one misconception of Allen’s, created by Mr. Adams’ original post. Adams wrote: “Judicial Watch sent the University of California at Irvine a freedom of information request demanding Hasen’s emails to the White House and other government officials including any on the topic of speech regulations.” (my emphasis)  Allen then writes that any public records requests should go to whatever government officials are out there. But that’s not all that Judicial Watch asked for.  They asked for virtually all of my email for a two year period [corrected] except internal UCI email and email sent to students:

  “…Judicial Watch, Inc. requests from the University of California access to and a copy of any and all record(s)… concerning or relating to the following:

1) All emails from Law Professor Rick Hasen from September 1, 2010 through November 6, 2012, to any party outside of the University of California, Irvine, sent on University of California, Irvine, servers from rhasen@law.uci.edu. This request does not therefore include any administrative emails regarding the University of California, or any emails to students or the like.

2) All emails from third parties outside the University of California, Irvine, system sent to Law Professor Rick Hasen sent from September 1, 2010 through November 6, 2012, on University of California, lrvine, servers to rhasen@law.uci.edu. This request does not therefore include any administrative emails regarding the University of California, or any emails from students or the like.

3) Moreover, this request does not seek any emails which are already public record by virtue of being part of a list serve run by Law Professor Rick Hasen and housed on University of California, Irvine, servers at http://department-lists.uci.edu/mailman/listinfo/lawelection. This request does not include email traffic which is part of this list serve and already has been posted publically though it also appears in Professor Hasens in or out box for his email mailbox rhasen@law.uci.edu.”

So it is worse than Eric Rasmussen thought too.


“Dysfunction and Belief at the FEC”

David Mason:

Former FEC GC Larry Noble has offered his take on the public dispute between FEC Vice Chair Ann Ravel and the FEC’s Republican commissioners.  Noble ultimately calls for “fundamental changes” at the FEC “including the appointment of commissioners who believe in the law and its enforcement.”

This question of “belief in the law” reminds me of the fundamentalist minister who was asked if he believed in total immersion baptism.  “Believe it in?” he thundered in response, “why, I’ve seen it done!”

There is no question about whether Republican FEC Commissioners believe in the law.  The law sits in ready sight in a bound book on their desks.

So, the “belief” question appears to have something to do with enforcement philosophies.  Noble’s complaint is akin to law and order conservatives bemoaning the appointment of liberal judges who don’t “believe” in lengthy and inflexible prison terms.  Some reformers apparently believe they have a special claim on enforcement policy at the FEC, and that those who believe election law should be enforced more flexibly, more leniently, or with stricter adherence to constitutional limits should be disqualified from service as FEC Commissioners.


Justice Sotomayor’s Schuette Dissent Talks of Shelby County and Voting Rights

In Adam Liptak’s analysis of today’s Supreme Court decision in Shuette, he notes: “But Justice Sonia Sotomayor, in the longest and most significant dissent of her career, said the Constitution required special vigilance in light of the history of slavery, Jim Crow and ‘recent examples of discriminatory changes to state voting laws.’”

I hadn’t had a chance to carefully read Justice Sotomayor’s dissent, and that got me looking for the reference.  There are a number of election cases mentioned in the dissent, including these references to the Shelby County decision, striking down a key part of the Voting Rights Act.

11. Attempts by the majority to make it more difficult for the minority to exercise its right to vote are, sadly, not a thing of the past. See Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 15–17) (GINSBURG, J., dissenting) (describing recent examples of discriminatory changes to state voting laws, including a 1995 dual voter registration system in Mississippi to disfranchise black voters, a 2000 redistricting plan in Georgia to decrease black voting strength, and a 2003 proposal to change the voting mechanism for school board elections in South Carolina). Until this Court’s decision last Term in Shelby County, the preclearance requirement of §5 of the Voting Rights Act of 1965 blocked those and many other discriminatory changes to voting procedures.


Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why? For the same reason we guard the right of every citizen to vote. If “[e]fforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot,” were “‘second generation barriers’” to minority voting, Shelby County v. Holder, 570 U. S. ___, ___ (2013) (GINSBURG, J., dissenting) (slip op., at 5), efforts to reconfigure the political process in ways that uniquely disadvantage minority groups who have already long been disadvantaged are third-generation barriers.


Race matters. Race matters in part because of the long history of racial minorities’ being denied access to thepolitical process. See Part I, supra; see also South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966) (describing racial discrimination in voting as “an insidious and pervasive evil which had been perpetuated in certain parts ofour country through unremitting and ingenious defiance of the Constitution”). And although we have made great strides, “voting discrimination still exists; no one doubtsthat.” Shelby County, 570 U. S., at __ (slip op., at 2).

Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz, 539 U. S., at 298–300 (GINSBURG, J., dissenting) (cataloging the many ways in which “the effects of centuries of law sanctioned inequality remain painfully evident in our communities and schools,” in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U. S., at 273 (GINSBURG, J., dissenting) (recognizing that the “lingering effects” of discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods”).
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’sview of society when he spends his teenage years watching where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country.Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carryout the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.


Thoughts on Today’s SCOTUS False Speech Case

I have now had the chance to review the transcript in today’s Susan B. Anthony case. I’m going to stick with my pre-argument prediction: This is likely to be a unanimous decision against the state of Ohio.  There may be a few Justices (Scalia, Alito, Thomas) who will want to reach the merits of the constitutionality of the false speech scheme. I imagine the other Justices won’t go that far because it is not necessary to reach that question right now.  But a majority opinion could well cast doubt on the constitutionality of a false speech law, at least one that has the government itself engage in a “ministry of truth” function. (My analysis of that in A Constitutional Right to Lie in Campaigns and Elections?)

Interesting too was the contrast with defamation laws, which could well remain constitutional.  Consider what the Chief Justice and Justice Scalia said:

CHIEF JUSTICE ROBERTS: Well, no, but a defamation action, people sue everybody all the time. No one’s going to take that seriously. In fact, it’s probably going to redound to the benefit of SBA and COAST to say the congressman is, you know, bringing a defamation action. It highlights it, but it’s another thing to have the State involved making a determination that there’s probable cause that you lied.

JUSTICE SCALIA: The mere fact that a private individual can chill somebody’s speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it. That’s not that’s not the law.



Michael Li Explains that New Ed Blum Texas Voting Suit is a Lot Like One Blum Recently Lost

So why bring it?

By bringing it up in this way, it will come up to the Supreme Court on direct appeal rather than a discretionary petition for cert.  As I’ve explained to blog readers many times, cases up on direct appeal are different because a decision not to hear such a case is a ruling on the merits (unlike a cert denial).

But in this case, I’ll make a bold prediction.  Lower court cites earlier authority to reject Blum’s suit. Supreme Court summarily affirms.


Schuette Affirmative Action Decision Offers Different Views of the Initiative Process and Political Process.

In today’s major Supreme Court opinion, Justice Kennedy for a plurality of three Justices waxes poetic about the initiative process (which in Michigan led to an amendment banning the use of affirmative action in higher education), Justice Scalia, for himself and Justice Thomas [corrected], wants to abandon the Carolene Products approach to determining if the political process is somehow stuck in deciding whether there should be enhanced judicial review for “discrete and insular minorities.”  (Along the way he coins the term “dictumizer”.)  Justice Breyer, concurring for himself only, seems to agree that in Michigan, the political process was working, not broken.  And Justice Sotomayor, dissenting for herself and Justice Ginsburg, sees the political process as broken, with the majority of Michigan voters putting special roadblocks in the political process between minority voters and university boards.

A few snippets from each:


Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn,to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.
The respondents in this case insist that a difficult question of public policy must be taken from the reach of thevoters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learnfrom its past mistakes; to discover and confront persistingbiases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded,not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discusscertain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding anissue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.


The Constitution allows local, state, and national communities to adopt narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs. Compare Parents Involved, 551 U. S., at 839 (BREYER, J., dissenting) (identifying studies showing the benefits of racially integrated education), with id., at 761–763 (THOMAS, J., concurring) (identifying studies suggesting racially integrated schools may not confer educational benefits). In short, the “Constitution creates a democratic political system through which the people themselves must together find answers” to disagreements of this kind. Id., at 862 (BREYER, J., dissenting).


The dissent does not argue, of course, that such“prejudice” produced §26. Nor does it explain why certain racial minorities in Michigan qualify as “‘insular,’” meaning that “other groups will not form coalitions with them—and, critically, not because of lack of common interests but because of ‘prejudice.’” Strauss, Is Carolene Products Obsolete? 2010 U. Ill. L. Rev. 1251, 1257. Nor does it even make the case that a group’s “discreteness” and “insularity” are political liabilities rather than political strengths8—a serious question that alone demonstrates the prudence of the Carolene Products dictumizers in leaving the “enquir[y]” for another day. As for the question whether “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation . . . is to be subjected to more exacting judicial scrutiny,” the Carolene Products Court found it “unnecessary to consider [that] now.” 304
U. S., at 152, n. 4. If the dissent thinks that worth considering today, it should explain why the election of a university’s governing board is a “political process which can ordinarily be expected to bring about repeal of undesirablelegislation,” but Michigan voters’ ability to amend their Constitution is not. It seems to me quite the opposite. Amending the Constitution requires the approval of only“a majority of the electors voting on the question.” Mich. Const., Art. XII, §2. By contrast, voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles. See BAMN v. Regents of Univ. of Mich., 701 F. 3d 466, 508 (CA6 2012) (Sutton, J., dissenting). So if Michigan voters, instead of amending their Constitution, had pursued the dissent’s preferred path of electing board members promising to “abolish race-sensitive admissions policies,” post, at 3, it would have been harder, not easier, for racial minorities favoring affirmative action to overturn that decision. But the more important point is that we should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion


We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there.Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self government. That right is the bedrock of our democracy,for it preserves all other rights.
Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right ofracial minorities to participate in the political process. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on votingwith literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted.This time, although it allowed the minority access to thepolitical process, the majority changed the ground rules of the process so as to make it more difficult for the minority,and the minority alone, to obtain policies designed tofoster racial integration. Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of oursociety to participate meaningfully and equally in the political process.
This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.1 Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities—including race-sensitive admissions poli- cies2—were in the hands of each institution’s governing political parties and elected by the citizenry in statewide elections. After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took intoaccount the benefits of racial diversity. And this Court twice blessed such efforts—first in Regents of Univ. of Cal.
v. Bakke, 438 U. S. 265 (1978), and again in Grutter v. Bollinger, 539 U. S. 306 (2003), a case that itself concerned a Michigan admissions policy.
In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies.Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies.When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy. Our system of government encourages—and indeed, depends on—that type of democratic action.
But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006 election by amending the Michigan Constitution to enact Art.I, §26, which provides in relevant part that Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
As a result of §26, there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen whowants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the state’s constitution.


“Sacramento Press Club Excludes Green Party’s CA Sec. of State Candidate From Upcoming Debate”

Brad Blog:

The candidates polling first, second…fourth and fifth in the 2014 election for CA Secretary of State, according to a recent Field Poll, will appear at a debate being held by the non-profit Sacramento Press Club (SPC) this coming Wednesday.

The candidate polling in third place in that survey, however, Green Party candidate David Curtis, is not invited to participate and he’s none too happy about it.


No, the Supreme Court Probably Won’t Address the Right to Lie in Campaigns Tomorrow

On Tuesday morning, the Supreme Court hears the Susan B. Anthony case. Here’s what I wrote when the Supreme Court agreed to take the case:

I’ve now had a chance to read the petition, opposition, and reply in Susan B. Anthony List v. Driehaus.  I believe this case is about ripeness, not the merits of Ohio’s false speech law.

I expect the Court to reverse the Sixth Circuit, perhaps unanimously, and I think that’s the right result. Getting a probable cause determination against someone at the Ohio Elections Commission is a real injury which has serious political consequences.

I expect that the Supreme Court will not reach the merits of the constitutionality of Ohio’s false speech law, either on its face or as applied to the Susan B. Anthony group. That would be left to the lower courts with a possible return trip to the Supreme Court in the future.

My earlier post on the case is here, and my substantive take on false campaign speech laws after US v. Alvarez in A Constitutional Right to Lie in Campaigns and Elections?