I expect the state’s lawyers are spending the weekend drafting an emergency motion to SCOTUS to stay this ruling for the March election, given that absentee ballots are already out. I would not at all be surprised to see a stay even if, as seems fairly likely, this ruling is ultimately affirmed by the Supreme Court for future elections.
And of course, North Carolina could potentially moot this case by drawing new districts that are political, but not arguably racial, gerrymanders.
So there’s a potential claim that WI Supreme Court justices should have recused themselves from deciding the John Doe case, given that they themselves benefitted from campaign financing by the same groups in the case. The district attorneys asked for outside help on those cases, from an outside law firm specializing in SCOTUS appeals which would work pro bono (for free).
And today the Wisconsin Supreme Court, itself the target of the appeal, said no (over Justice Abrahamson’s dissent).
Heck, the Justices won’t even let an outside printing company print redacted portions of the John Doe record for the Supreme Court appeal.
This is totally indefensible.
Howard rounds up the stories.
Kate Ackley interviewed me for CQ Weekly ($):
In his new book, “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections,” law professor Richard L. Hasen of the University of California, Irvine, calls President Barack Obama a hypocrite on political money issues and suggests controversial remedies, such as outlawing fundraising by lobbyists, to quell what he views as out-of-control campaign spending.
Hasen spoke to CQ’s Kate Ackley. Here’s an edited transcript
The 100 pages of opinions are here. One of the three judges dissented as to one of the two districts.
If North Carolina wishes, it could seek direct Supreme Court review. There is already a Virginia case raising similar issues before the Court. And we are waiting for other rulings in similar cases, including the remand of the Alabama racial gerrymandering case from last year which got this ball rolling.
On these cases, see my piece, Racial Gerrymandering’s Questionable Revival, Alabama Law Review (forthcoming 2015) (draft available).
Update: The court has given two weeks to parties to redraw these districts, but early voting has already begun. [Correction: It is absentee voting, not in person early voting which has already started.] Republican lawmakers have already criticized this change as “eleventh hour.”
The state might file an emergency motion with the Supreme Court, and the Court could delay this ruling. The Supreme Court has been very wary of allowing court changes to election rules just before the election. (See this paper on the Purcell Principle).
Noah Bierman for the LAT:
Money may yet prevail in this year’s presidential election, but the failure so far of big donors to propel candidates to the top of the heap has shown the limitations of even huge stockpiles of cash and put some critics of lax campaign finance laws on the defensive.
Former Florida Gov. Jeb Bush, who has collected more super-PAC money than any candidate, finished with less than 3% of the vote in Iowa, where his super PAC spent about $3,000 on television ads for every vote he won. Although he says he hopes for a “reset” in New Hampshire, Bush has lagged badly in polls leading up to Tuesday’s primary there.
Wisconsin Gov. Scott Walker, another early favorite of the big-donor class, dropped out four months before the first ballots were cast.
Meanwhile, two candidates who rail against big money and declined to establish their own super PACs, Republican Donald Trump and Vermont Sen. Bernie Sanders, a democratic socialist running as a Democrat, finished near the top of their races.
The lesson, says Richard L. Hasen, a professor at UC Irvine and author of a new book on campaign spending, “Plutocrats United,” is that money remains powerful, but not all powerful.
Looking forward to this event Feb. 22 at UCI Law (which will be livestreamed):
UCI Law Professor Rick Hasen and Ed Whelan, president of the Ethics and Public Policy Center (EPPC), a conservative D.C. think tank, will offer perspectives on the Supreme Court and the 2016 elections. The event will be moderated by UCI Law professor Henry Weinstein. The panelists will discuss questions such as why Democratic-appointed and Republican-appointed Justices differ on constitutional law and statutory interpretation, the extent to which the Supreme Court will be an issue in the 2016 election, and the extent to which the 2016 elections will influence the future of the Supreme Court….
This program is co-sponsored by the UCI Law Speakers Series, and the UCI Law student chapters of the American Constitution Society and The Federalist Society.
RSVP here by February 19 to reserve your seat. Lunch will be provided.
Las Vegas Review Journal:
Observant Jews and Seventh-day Adventists who want to caucus with Nevada Democrats on Feb. 20 are out of luck.
The party’s noon caucus falls squarely in the middle of a Saturday, a sacred day of rest and worship for both faiths.
Jewish clergy said the timing of the caucus disenfranchises those who want to participate and pointed out that other high-profile early-state caucuses and primaries don’t fall on a Saturday.
A party spokesman said the big event is set for that day and time to maximize participation.
I’ve complained about this before as a reason to kill the caucuses. In 2012, Republicans had a post-sundown caucus to accommodate observant Jews.
The talk is sponsored by ACS and the Federalist Society. Details.
Lee Drutman at Vox offers a generous review of my book, Plutocrats United:
In reading Plutocrats United, I found myself doing a lot of nodding to myself. I am on board with Hasen — equality is a much more sensible and practical justification for regulating campaign finance.
But Sanders gets big applause lines when he says things like, “We can no longer continue to have a corrupt campaign finance system.” Corruption polls well. That’s the reason Larry Lessig has used it in his various political adventures.
And for decades, campaign finance reformers have played to the central role that the Court gave corruption in Buckley. They’ve now spent four decades trying to prove that our campaign finance system is “corrupt,” searching for that always elusive evidence that would somehow convince the Court.
But they haven’t succeeded. At what point is it time to accept Einstein’s famous definition of insanity: “doing the same thing over and over again and expecting a different result”? Maybe that time has finally come.
for the SLR election law conference.
I will be presenting my paper, Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (draft in progress, Nov. 2015).
Jay Ashcroft is running for MO SOS, on an anti-voter fraud platform.
That’s the lead story in this week’s Electionline Weekly.
Sure seems like it. (Politifact)
And voicemails too! (TPM)
Unsurprising but good to see.
Eliza Newlin Carney in TAP:
Good-government advocates are “oblivious to the failure of ‘big money’ to dictate the race,” wrote Bradley Smith, chairman of the Center for Competitive Politics, in a Wall Street Journal commentary headlined “That’s Odd, ‘Big Money’ Isn’t Buying This Election.” One of the contest’s “unexpected surprises,” wrote New America senior fellow Lee Drutman, is how well Donald Trump and Bernie Sanders have done with such little backing from wealthy donors.
It’s easy to see why billionaire donors don’t look so influential anymore. Former Florida Governor Jeb Bush and his super PAC spent $14.9 million on the Iowa caucuses, but won just 5,238 voters (a mere 2.8 percent of the total GOP vote) and a single delegate. That added up to $2,845 per vote—a dismal showing that U.S. News & World Report dubbed “by far the worst bang-for-the-buck performance” of any GOP candidate.
But the failure of Bush or any other big spender to win an election says little about the actual role that money plays in politics and—perhaps more important—in policy-making. As a long list of self-financed millionaire candidates can attest, having the biggest wallet is no guarantee of success. And as election lawyer and author of the recent book Plutocrats United Richard Hasen has noted, the real issue is not just how political money boosts candidates, but how it helps big donors win the tax breaks, contracts, and policies they seek.
Also overlooked in the argument that money doesn’t matter is the ever-growing role that millionaire and billionaire donors are playing in elections other than the race for the White House.
Super PACs, which may raise unlimited contributions if they don’t coordinate with candidates, are wading aggressively
into not just House and Senate contests, but into gubernatorial, state legislative, mayoral, city council, and even school board races.
Chris Land has posted this draft on SSRN. Here is the abstract:
The Electoral Count Act governs the procedures used by Congress to tabulate Presidential election results every four years. The Act contains a number of provisions that purport to restrict debate, points of order, and other parliamentary motions that can be offered while certificates of vote are counted by the President of the Senate. These restrictions likely are unenforceable based on the Rules Clause of the Constitution and Supreme Court precedent interpreting this provision. Part II of this Article seeks to answer the threshold question of what institution counts our electoral votes — a constitutionally unique ‘Joint Session’ or merely a simultaneous meeting of the House and Senate. Part III analyzes the 1877 Electoral Commission and argues that this entity was a permissible delegation of Congressional authority. Part IV discusses the 2000 electoral count and contends that the provisions of the Electoral Count Act cited by Vice President Al Gore are unenforceable. Finally, Part V asserts that the enforceability of the Electoral Count Act is justiciable and federal court resolution would likely be a necessary last resort in the midst of a contested election.
William Barber and Jonathan Wilson-Hartgrove in The Atlantic:
Throughout the McCrory trial, NAACP lawyers made a strong case that the voter-ID component of this legislation places an unnecessary and undue burden on voters—especially poor and African American voters. A verdict is expected in a few weeks. But the case is really about much more than defeating voter-ID laws. It is about a central question of 21st-century American politics: Is a multiethnic democracy possible?
Must-read Zach Roth for MSNBC:
Newby’s move sparked instant criticism. In astatement posted online Tuesday, the panel’s lone Democratic commissioner, Vice Chair Thomas Hicks, wrote that Newby had acted “unilaterally,” and that his decision “contradicts policy and precedent established by the Commission.” Hicks noted that a 2015 EAC statement makes clear that the executive director lacks the authority to set policy, which must be done by the commissioners. Hicks said any change to the federal voter registration form would need to be voted on by the commissioners after a public comment period, neither of which occurred in this case.
“This is a shocking departure from two previous rejections by the EAC of requests to change the federal form along these lines, with no explanation, and, what’s worse, with no opportunity for public notice and comment,” said Dale Ho, the director of the ACLU’s voting rights program, which is suing Kobach over the proof-of-citizenship requirement, calling it “troubling on a number of levels.”…
In an interview with MSNBC, Newby conceded that he lacks the authority to change EAC policy. But he argued that changing the state-specific instructions that accompany the federal voter registration form, unlike changing the form itself, constituted an administrative matter, rather than a policy change— even though the agency had twice rejected Kansas’ requests to change the instructions. In fact, Newby said, he believes he’s required to change the instructions if a state asks him to.
“If a state requests that we modify the state-specific instructions based on their state law, yes, I believe that my role is to put those [changes] in our state-specific instructions,” Newby said.
If there’s a meaningful distinction between the federal form and the instructions that accompany the federal form, it was lost even on Kobach. In his court filing this week seeking to have the lawsuit against him dismissed, he referred to Newby’s decision thus: “On January 29, 2015 (sic), the EAC granted Kansas’s request to modify the Federal Form.”
William Lawrence, a Kansas lawyer who is challenging Kobach’s effort to remove the roughly 30,000 would-be voters who didn’t provide proof of citizenship, said the distinction Newby is seeking to draw doesn’t hold water….
Newby admitted to MSNBC he’d been in contact with Kobach on the issue, as well as with the secretaries of state of Alabama and Georgia. He said there was nothing improper about doing so, or about not including the the EAC’s commissioners in his conversations with state officials.
“It wouldn’t have been proper to include the commissioners in any of the discussions I had with the secretaries of state,” Newby said. “It was really my jurisdiction, my process.”
The New America Foundation will hold this event on Feb. 16, in connection with this new report by Lee Drutman.
The answer, in short, is more politics: a political system that is fluid and competitive; a system that leverages diversity and creates opportunity for experimentation and change; a political system that expands, not limits, the combinatorial possibilities of political innovation and deal-making; a political system that helps citizens to aggregate and realize their interests in the most efficacious ways, rather than simultaneously expecting them to be super-engaged and expert while giving them few meaningful choices.
Ari Berman writes for The Nation.
I’m a big believer in using laches (unreasonable delay) as a reason to kick more election suits out where candidates and groups sit on their rights.