“Student Voting Rights Case Filed in TN”


A federal lawsuit was filed today in the U.S. District Court in Nashville challenging Tennessee’s voter ID law as violating the voting rights of Tennessee college and university students. The lawsuit was filed on behalf of a student organization and nine college students by the Fair Elections Legal Network, a national voting rights organization, and Nashville law firm, Barrett Johnston Martin & Garrison, LLC. The lawsuit asks the court to rule that the current voter ID law violates the 14th Amendment and 26th Amendment to the U.S. Constitution because it discriminates against college students by excluding student ID cards from the list of accepted voter IDs.


No Justice Scalia, Congressional Overrides Don’t Happen “All the Time” (Anymore)

From today’s oral argument in King v. Burwell:


But today, Congress very rarely overturns the Supreme Court, especially in high profile cases with great partisan salience, except in situations (unlike today) where the Congress and Presidency are all controlled by one party. See End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013) and Response: Conscious Congressional Overriding of the Supreme Court, Gridlock, and Partisan Politics, Texas Law Review See Also,(forthcoming 2015) (draft available) (with Jim Buatti).

As I wrote in this LA Times oped, in relation to the Chief Justice making such an argument, “In today’s fraught political environment, court-Congress dialogues are not generally possible.  But that might not stop Roberts from citing the possibility of such a dialogue  — especially if what he is really seeking is political cover and a chance to redeem his controversial earlier ruling on the Affordable Care Act with a new one that hobbles a key part of the law.”



“City Election Sea Change Santa Barbara to Initiate New District System This November”


Although a few “i”s remain to be dotted and few “t”s to be crossed, the Santa Barbara City Council voted 6-0 to settle a lawsuit charging that the at-large elections City Hall has conducted since 1971 have yielded “racially polarized” results as defined by the California Voting Rights Act. The five plaintiffs who brought the lawsuit pointed out that only one Latino — Cathy Murillo — had been elected to the council since 2000 even though Latinos make up 38 percent of the population and 24 percent of eligible voters. As part of the settlement, the council agreed to begin holding district elections this November, when three seats come up for grabs.


“House GOP Moves to Axe Presidential Public Financing Program, Bolster Election Spending by Corporations and the Wealthy”

Public Citizen:

Public Citizen roundly condemns the latest sneak attack (PDF) by U.S. House GOP leaders to terminate the presidential public financing program and give corporations and the wealthy still more influence over American elections.

On the heels of the fifth anniversary of the U.S Supreme Court’s infamous Citizens United decision – which said that corporations may spend unlimited amounts to influence national, state, local and judicial elections – House Republicans have introduced H.R. 412, a bill to end public financing of presidential elections. The legislative proposal, sponsored by U.S. Rep. Tom Cole (R-Okla.), is being whisked through a House Administration Committee hearing as early as today.


“Audio Links: Alabama Law Review Symposium on the Voting Rights Act”

Paul Horwitz:

This past Friday, the Alabama Law Review held its annual symposium. This year, the symposium marked the fiftieth anniversary of the signing of the Voting Rights Act. The speakers discussed its past, especially the civil rights activism–not least the famous Selma-to-Montgomery march, which will be commemorated this weekend across the country and in Selma itself–that helped bring about its passage; the current state of voting rights law, with panelists discussing, among other things, both the Shelby County decision and the pending Alabama Legislative Black Caucus case; and the uncertain future of voting rights. It was an extraordinary day. The topic itself was suggested by the students themselves, not the dean or faculty; that itself was important, showing both the students’ willingness to acknowledge and confront our state’s troubled (and, with respect to the marchers themselves, heroic) history and their commitment to voting rights now and in the future.

The speakers, including many of the nation’s foremost experts on the subject, were terrific. Audio recordings of almost all of the talks are available on the Law School web site. I regret that the keynote address, by Judge Myron Thompson of the United States District Court for the Middle District of Alabama, is not available. Judge Thompson’s talk was one of the most moving and eloquent addresses I have ever had the privilege of witnessing, and the rest of the audience clearly felt the same. I will not be surprised if it ends up altering the career choices of a number of the law students who heard it. I’m grateful to the Law Review and its editors, as well as the Law School’s staff, for organizing the event, and to the wonderful panelists. Here’s a rundown, with links:

Welcome & Introduction

Mark Brandon, Dean and Thomas E. McMillan Professor of Law Paul Horwitz, Gordon Rosen Professor of Law Johnny Wilhelm, Alabama Law Review

Session I

Jack Bass, Author and Historian

Session II

Professor Kareem Crayton, University of North Carolina School of Law

Session III

Professor Richard Hasen, University of California – Irvine School of Law

Session IV

Professor Franita Tolson, The Florida State University College of Law

Session V – Lunch and Keynote Speaker

Judge Myron Thompson, United States District Court for the Middle District of Alabama

Session VI

Professor Pamela Karlan, Stanford Law School

Session VII

Professor Samuel Issacharoff, New York University School of Law

Session VIII

Professor Guy-Uriel Charles, Duke University College of Law


“DOJ to investigate allegations of voter fraud in Red Clay referendum”

News from Delaware:

A Delaware senator has asked the state attorney general’s office to investigate alleged voter fraud in last week’s Red Clay Consolidated School District’s referendum.

Sen. Karen Peterson, D-Stanton, made the request of AG Matt Denn following a report that a group of parents who had just finished voting at one location said that they were proceeding to another polling place to vote again.



“Eric Garcetti’s Mayor’s Fund lets companies give big”


The contribution is one of dozens the Mayor’s Fund has received, from companies with a stake in City Hall decisions and from charitable foundations, according to records reviewed by The Times. Modeled on similar nonprofits in New York and other cities, the fund provides a financial boost for civic programs — as diverse as environmental initiatives and summer jobs for thousands of inner-city kids — that might otherwise fall victim to city belt-tightening.

But the nonprofit, which took in about $5.2 million between its formation in June and last month, can also offer a discreet destination for special-interest money that is not subject to campaign finance restrictions. City law caps contributions by individuals or businesses at $1,300 per election for mayoral candidates. By contrast, the average donation to the Mayor’s Fund has been $111,000.

“To the extent that we’re worried about groups or individuals or companies or unions being able to curry favor with elected officials, it does raise concerns,” said Richard Hasen, a professor at the UC Irvine School of Law who studies campaign finance regulation.


50 Years After Selma, Alabama Still Resists on Civil Rights (Same Sex Marriage This Time)

In most states, once a federal court has declared laws against same-sex marriage unconstitutional, state officials go along. This is true even in Wisconsin, where governor Scott Walker acquiesced in a federal court ruling. But in Alabama things are different. After a federal district court ruling holding Alabama’s same sex marriage ban unconstitutional, and the refusal of the 11th circuit to grant a stay, some probate judges are still resisting giving same sex marriage licenses. Some had been encouraged to resist by the state’s Supreme Court Justice Ray Moore.

Well now comes a bigger gun.  A 7 Justice 134 page majority opinion holding it illegal, at least temporarily, for probate judges to issue same-sex marriage licenses in the state, except perhaps to the limited extent they are ordered to do so by federal courts. Even then, it may take a direct order from the U.S. Supreme Court to put an end to all of this.

We know how this ends—with same sex marriages in Alabama. But it will be a struggle to the end.

It is kind of amazing this is coming almost 50 years to the day of the Selma march. I was just in Alabama this past weekend for an incredible conference on the 50th anniversary of the Voting Rights Act. I thought it remarkable how far the state has come. But I now see there is much further for the state to go when it comes to the question of civil rights.



“Fifth Circuit Should Uphold Ruling Striking Down Texas’s Discriminatory Photo ID Law”

Brennan Center press release:

Texas’s strict photo ID law violates Section 2 of the Voting Rights Act and was passed by the Texas Legislature with intent to discriminate, argues a brief filed todayin the Fifth Circuit Court of Appeals by counsel for the Texas State Conference of NAACP Branches and the Mexican American Legislative Caucus of the Texas House of Representatives (MALC).


“Texas Voters Urge Fifth Circuit to Uphold Ruling Striking Down Texas Voter Photo ID Law”


Today in Veasey v. Abbott, attorneys at the Campaign Legal Center, who serve as co-counsel for plaintiffs Congressman Marc Veasey, LULAC, and a group of Texas voters, filed a brief urging the Fifth Circuit Court of Appeals to uphold a District Court ruling striking down Texas’ voter photo ID law (SB 14), the most restrictive and burdensome voter ID law in the nation.



Re-Upping My Slate Piece on the Obamacare Case and the Dangers of Mindless Textualism

At Slate:

Unless you are a lawyer or a glutton for punishment, you probably want to avoid reading the new D.C. Circuit and 4th Circuit opinions reaching conflicting results on the legality of key provisions of the Affordable Care Act—the parts that provide subsidies for Americans who sign up for health insurance through the exchanges the law created. The opinions are full of jargon parsing the intricacies of the mammoth health care law. But well within the weeds of these lawyerly discussions is a more fundamental question: Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?


“50 Years of the Voting Rights Act”


Today the Joint Center for Political and Economic Studies released 50 Years of the Voting Rights Act: The State of Race in Politics.

The report examines minority voter turnout, racially polarized voting, policy outcomes by race, and the number of minority elected officials from the enactment of the Voting Rights Act of 1965 until today.

Click here to read the report, which is authored by Professors Khalilah Brown-Dean, Zoltan Hajnal, Christina Rivers, and Ismail White.


Key findings:

  • The black/white racial gap in voter turnout has decreased dramatically in presidential elections since 1965.
  • Local election turnout is generally less than half of presidential general election turnout.  As overall turnout declines in local elections, the electorate may become less diverse.
  • Turnout rates among both Asian Americans and Hispanic Americans in presidential elections remain 15 to 20 points below white Americans.
  • Since 1960, the party identification and partisan voting patterns of blacks and whites have become sharply divided.
  • In urban local elections, race is a more decisive factor than income, education, political ideology, religion, sexual orientation, age, gender, and political ideology.
  • Based on available data from 1972 to 2010, blacks were the least advantaged group in America in terms of policy outcomes.
  • Since 1965, the number of elected officials of color has grown enormously, but people of color remain underrepresented in elected office.

If you’ll be in Selma, click here to join a breakfast with the authors and National Urban League President Marc Morial at the Selma Public Library on Saturday, Mar. 7 just before President Obama speaks.



“Does Candidate Race Impact Who Turns Out to Vote?”


The forthcoming article “Candidates or Districts? Reevaluating the Role of Race in Voter Turnout” byBernard L. Fraga is summarized by the author here:

The recent film “Selma” highlighted the struggle by African-Americans to win voting rights. Yet even as we mark the 50th anniversary of these events, Black, Latino, and Asian American turnout continues to lag non-Hispanic White turnout. The 2008 and 2012 elections appeared to be an exception, however: Black turnout matched or exceeded White turnout nationally. Given Barack Obama’s candidacy, media naturally asserted that his historic run encouraged African-Americans to turn out when they otherwise would have stayed home. The same sort of candidate race-turnout connection also forms a tenet of modern political science understandings of race and politics. But does candidate race impact who turns out to vote? If so, do we see a similar pattern across racial/ethnic groups?

In “Candidates or Districts? Reevaluating the Role of Race in Voter Turnout,” I examined and contrasted White, Black, Latino, and Asian American turnout via detailed, individual-level voter registration records. The focus of the study was on recent congressional primary and general elections, where hundreds of candidates of various racial/ethnic backgrounds seek office each election cycle. Importantly, the analysis was conducted at the state or congressional district level, thus allowing me to account for demographic and partisan differences across jurisdictions using Census data.

In line with past work, I find that when minority candidates are on the ballot, minority turnout is often substantially higher. However, the relationship between candidate race and turnout is overshadowed of a more robust impact of “district” race and turnout: Black and Latino citizens are more likely to turn out to vote in places where they compose a large share of the population. Since Black and Latino candidates tend to seek office in places where their ethnic group is a substantial portion of the population, we see a spurious relationship between candidate background and participation better explained by the demographic (that is, racial/ethnic) makeup of the districts themselves. After accounting for this factor, we see no difference in rates of turnout attributable to the race/ethnicity of congressional candidates. Asian Americans, America’s fastest-growing minority group, also show no signs of increased turnout when same-race candidates are on the ballot, nor do non-Hispanic White citizens.

In short, I demonstrate that candidate race matters less than the unique racial/ethnic makeup of the places these candidates usually seek office. But what explains such a finding? One possibility is that voters are more likely to turn out when their ethnic group holds sway in election outcomes, or has done so historically. Another is that savvy politicians (of any race) will mobilize groups when they have to to win election; mobilization of a large, cohesive bloc of minority voters may be an obvious strategy to politicians of any background. More work needs to be done to understand which of these processes is occurring, but from a practical standpoint these findings clarify what matters and what does not when it comes to race and voter turnout. As America becomes more diverse, minority groups will play an even larger role in determining election outcomes. Perhaps a long-elusive equality in rates of participation will accompany such changes.


“Where black voters stand 50 years after the Voting Rights Act was passed”


African Americans have come a long way politically over the past half-century, but disparities remain.

In the five decades since the passage of the Voting Rights Act, blacks have made significant strides in registering and turning out to vote, according to a new study. Yet, the policies enacted tend to better represent the interests of white Americans and blacks continue to be underrepresented in elected office.


“McDonnell launches effort to have corruption conviction thrown out”


Former Virginia governor Robert F. McDonnell on Monday fired the opening salvo in a bid to get his public corruption conviction thrown out, arguing in a filing that the case against him was “built on a boundless definition of bribery” and that the judge made legal errors throughout the process that warrant a new trial.

The brief — 103 pages, including indexes and other administrative sheets — restated many of the arguments that McDonnell made at various points during the case against him, arguments that were rejected by a U.S. District Court judge. But McDonnell (R) is trying to persuade a different audience — a three-judge panel at the U.S. Court of Appeals for the 4th Circuit, which will look at the case with fresh eyes.

Anyone have the brief?


“Hillary Clinton Used Personal Email at State Dept., Possibly Breaking Rules”


Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.

Mrs. Clinton did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.

NYT says it is a “possible” rules violation for HRC to use private email. What’s the defense she’s complied with the law?


“FEC Limits on Newly Formed PACs Supported by Federal Court Decision”

Bloomberg BNA:

A constitutional challenge to contribution limits on traditional political action committees has been turned back by a federal judge in Virginia, who ruled that the limits remain valid under Supreme Court rulings dating back to the 1976 landmark case Buckley v. Valeo (Stop Reckless Economic Instability Caused By Democrats v. FEC, E.D. Va., No. 14-397,summary judgment order, 2/27/15).


Analysis: Supreme Court Looks to Endanger Citizen Redistricting Commissions and MORE

I have now had a chance to review the transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission and the news is not good. It appears that the conservative Justices may be ready to hold that citizen redistricting commissions which have no role for state legislatures in drawing congressional districts are unconstitutional. What’s worse, such a ruling would endanger other election laws passed by voter initiative trying to regulate congressional elections, such as open primaries. For those who don’t like campaign finance laws because they could protect incumbents, this is a ruling that could make incumbency protection all the worse, removing the crucial legislative bypass which is the initiative process (for congressional elections).

The question in the case arises from the Constitution’s Elections Clause, giving each state “legislature” the power to set the rules for Congressional elections if Congress does not act. The key question is whether the people, acting through a state’s initiative process as lawmakers, are acting as the legislature for purpose of this clause. If not, redistricting done without the involvement of the legislature would be unconstitutional. (Before the Court agreed to take the case, it seemed settled that Legislature could include the initiative process of a state.)

From my read of the transcript, Chief Justice Roberts, Justice Scalia, Justice Alito, and Justice Kennedy all seemed skeptical that the word “legislature” used in the Elections Clause could refer to an initiated redistricting process in which the legislature is not involved. Part of this turns on what Legislature meant at the time of the Constitution’s drafting, as well as the use of the term Legislature in other parts of the Constitution which seems to more clearly refer to the representative body. Of course, there was no regular initiative process at the time of the founding, but that fact can cut either way.  There are also two precedents which seemed to support the broader reading of “legislature,” but not only the conservatives, but also Justice Breyer, did not believe those cases settled the case.

When you add in Justice Thomas, who is likely to join fellow conservatives in reading Legislature in the narrow textual way, and possibly Justice Breyer, that looks like a majority which will reject a redistricting commission in which the state has no involvement.

What’s worse, Justice Scalia and others suggested that Congress (which has primary power over congressional elections) could not simply authorize redistricting commissions for drawing districts, because doing so would be an end run around the alternative power given to state legislatures.

And if the Court opens this pandora’s box, it is not clear how far it goes.  Can legislatures be partially involved in the process? What if there is a veto power for either the legislature or a commission over alternative plans.  And how far would this stop other laws affecting congressional elections passed by initiative?  Justice Kagan asked:

Well, Mr. Clement, well how about that, because I thought that the legislature was completely cut out as to most of those things. I mean, you take the 2011 law in Mississippi adopting voter ID requirements; 2007, Oregon, vote by mal; 1962, Arkansas, use of voting machines. All of things, these things were done by referendum or by initative with the legislative process completely cut out. So would all of those be unconstitutional as well? And we can go further. Im ean, there are zillions of these laws.

The worst part is that the initiative process is the best way to deal with legislative self-interest in the political process. And the Court seems poised to take away the one tool to keep down partisan gerrymandering, to keep the legislature honest, and to make sure the current process protects the will of the people.

What a shame.

[This post has been edited.]


“Call for Papers: The Best of the Most/Least, Best/Worst, Etc./Etc. of the U.S. Supreme Court”

Green Bag:

We invite submissions for our fourth micro-symposium, to be published in the Green Bag and the Journal of Law. Theme: The Top Ten Rankings of the Supreme Court. This is inspired, obviously, by Rick Hasen’s The Most Sarcastic Justice (see page 215 below), and Jay Wexler’s “Laugh Track” studies (see, e.g., 9 GREEN BAG 2D 59 (2005)). What makes Hasen and Wexler and their work special are their combinations of scholarly rigor, good humor, and cleverness – rare mixes in a sea of sloppy, snarky, partial, and partisan most/ least, best/worst, etc./etc. commentary about the Justices and their court. Hasen and Wexler are, in the best sense of the term, old school, like Currie and Easterbrook. See, e.g., David P. Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. CHI. L. REV. 466 (1983); Frank H. Easterbrook, The Most Insignificant Justice: Further Evidence, 50 U. CHI. L. REV. 481 (1983). We want more of that. Invited topics: Any original and empirical study involving some kind of ranking of the Justices or their work, accompanied by illuminating analysis and commentary, that will help readers better understand the Supreme Court of the United States, the people who work there, and the products of their labors. Length limit: 1,500 words, including title, text, footnotes, author notes, and everything else. (Yes, yes, we allowed Hasen and Wexler more than that, but they were the pioneers, at least for this generation. First pigs to the trough and all that.) Deadline: Finished works must be received at editors@greenbag. org by August 1, 2015. No extensions will be granted and no postdeadline tinkering will be permitted. Selection criteria: We will select works for publication based on how original, interesting, well-researched, well-written, potentially useful, and good-spirited they are.