Justice Ginsburg Tells Nina Totenberg SCOTUS Likely Would Have Granted Same Sex Marriage Review If Circuit Split

At the 92nd Street Y event:

“As of now, all the Courts of Appeal agree, so there is no crying need for us to step in.”

When Nina asked if there is a split and the Court takes a case if it would be feasible to go back to same sex marriage being illegal after all of the decisions that have allowed it now in so many states, Justice Ginsburg demurred: “I can’t give an opinion on that.”

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Justice Ginsburg Tells Nina Totenberg About 5 AM Texas Voter ID Decision

From this event at the 92nd Street Y [my transcription, and there could be errors]:

Nina Totenberg: Justice Ginsburg, you were up until … Friday night/Saturday morning, writing a passionate dissent in the Texas voter id case. Just to let people in the audience know, this was a procedural question in some measure. And you can note a dissent in those kinds of cases and not write and it is fairly common for that to happen. But you wrote; you were joined by Justices Kagan and Sotomayor. So why did you write and why did it take until 5 in the morning?

Justice Ginsburg: Why till 5 in the morning? We didn’t get the last filing from Texas until Friday morning and then the Circuit Justice [Justice Scalia in this case—Ed.] as you know has to write a memo. And that came around some time in the middle of the afternoon. So there wasn’t much time to write the dissent. I had written a dissent in the North Carolina voting case, voting rights case. This one was… I would say it was very well-reasoned. You called it passionate.

Nina Totenberg: The point you were making…to explain a fact of law here is that in 2006 the Supreme Court issued a decision that basically said we try not to disturb what’s going on in an election right before an election because people will get confused. And you said you did not think that applied here. Why?

First this case was unlike others because it had gone through a complete 9 day trial, reams of evidence, and an excellent decision written by the district court. This was a new system for Texas. From 2003-2013, they have a voter id that was reasonable. There were many things you could present. The new law cut back drastically on that. There had never been a federal election held under the new law. There had been local elections with very small turnout. So the poll watchers [workers?-Ed] were more familiar with old procedur. So I didn’t think this case fell into the mold of we can’t disturb an election. There had been very little in the way of educational efforts, so that people knew what the new law required, so that the poll watchers would know. So I thought that the old system would involve less disruption than this never-done-in-a-federal-election-before [system].

You can read my Slate piece about this decision and Justice Ginsburg’s dissent.

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“In Judge’s Footnote, a Heavy Slap at Texas’ Past”

Ross Ramsey:

Strange things show up in the footnotes of federal court rulings.

Consider this one in a ruling by a federal judge in Corpus Christi, Tex., that the state’s voter photo ID law is unconstitutional: “The Texas Legislature did not vote to ratify the 24th Amendment’s abolition of the poll tax until the 2009 legislative session,” and “the process has not been completed and the measure last went to the Secretary of State.”

That came up early in an excoriating 147-page ruling from United States District Judge Nelva Gonzales Ramos that the state’s voter photo ID law, also known as Senate Bill 14, “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The court further holds that SB 14 constitutes an unconstitutional poll tax.”

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“Dawn Patrol: Justice Ruth Bader Ginsburg’s critically important 5 a.m. wake-up call on voting rights”

I have written this new piece for Slate.  It begins:

On the surface, Supreme Court justices seem to have it pretty easy: They decide only around 70 cases per year with a written opinion, meaning each of the nine justices on average gets assigned to write fewer than nine majority opinions per year. They do not sit for regular argument in July, August, or September; and some justices use part of those summer months to moonlight as guest law professors in exotic locations.

But every so often court watchers are reminded that these justices are working very hard behind the scenes by reading briefs, exchanging memos, and debating outcomes. Case in point: The justices issued an order and a dissent in a Texas voting rights case at 5 a.m. Saturday morning. Supreme Court reporters stood by all night for the ruling. The holdup apparently was Justice Ruth Bader Ginsburg’s six-page dissent, joined by Justices Elena Kagan and Sonia Sotomayor.

The Supreme Court allowed Texas to use its voter ID law in the upcoming election, even though a federal court decided a few weeks ago that Texas’ law violated both the Constitution and the Voting Rights Act, and that Texas engaged in intentional racial discrimination in voting. The trial court had barred Texas from using its law this election, but the United States Court of Appeals for the 5th Circuit reversed that decision last week, and the law’s challengers went to the Supreme Court, where, as expected, the court sided with Texas.

The Supreme Court’s order was consistent with some of its other recent orders indicating that lower courts should not change the rules of running an election shortly before voting begins. I have dubbed this rule the “Purcell Principle,” for a2006 Supreme Court case so concluding.

The court had to decide the emergency request very quickly—early voting begins in Texas on Monday morning—but Justice Ginsburg did not need to write her extensive dissent. The week before, when Justices Samuel Alito, Antonin Scalia, and Clarence Thomas dissented from a Supreme Court order putting Wisconsin’s voter ID law on hold, their entire dissent was only a few sentences. It was a dissent which disturbingly treated the right to vote as less important than deference to the Court of Appeals judgment, kind of an Anti-Purcell Principle.

Sometimes justices disagree with emergency court orders such as these and do not even bother to write a formal dissent. And recently, as Slate’s Dahlia Lithwick has noted, the majority has not been explaining its various orders in cases from voting rights, to abortion, to same sex marriage, at all.

So why did Justice Ginsburg keep the court and court-watchers up all night for a relatively lengthy dissent from an order issued with no majority opinion? There is no way to know from the outside, but my guess is that she wanted to make an important statement about how the Supreme Court should handle these voting cases going forward and to publicly flag where she believes the court is going wrong. Like a rare oral dissent from the bench after a written opinion, this middle-of-the-night dissent calls attention to what Justice Ginsburg likely sees as a grave injustice.

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Explaining Justice Breyer’s Surprising (Non-)Vote in the Texas Voter ID Case

Justice Breyer did not join in Justice Ginsburg’s fiery 6-page dissent in the Texas voter id case the Supreme Court just decided. The majority let Texas’s law go into effect, despite a final judgment from a federal district court finding Texas engaged in intentional racial discrimination in voting, and violated both the Equal Protection Clause and the Voting Rights Act.

Justice Ginsburg’s dissent was joined by Justice Kagan and Justice Sotomayor but not Justice Breyer, the other liberal on the Court. Why not?

We don’t know for sure, but here are the possibilities, put in order of what I think is most to least likely:

1. Justice Breyer still dissented, but did not want to publicly state (Justices do not always state their votes in these orders), perhaps because he disagreed with one or more aspects of Justice Ginsburg’s dissent.

2. Justice Breyer still dissented, but was not available until 5 am to review to see if he agreed with Justice Ginsburg’s dissent.

3. Justice Breyer agreed with the majority, because he believes more strongly in the Purcell principle (or he agrees Texas should win on the merits—which seems less likely).

4. Justice Breyer disagreed with the majority, but either he did not publicly dissent or voted with the majority for strategic reasons, as could have happened before in the North Carolina case.  This seems less likely–in the North Carolina case, the Justices knew the Wisconsin case was in the wings. There’s nothing else now on this same Purcell issue coming up, nor any reason to think that the next set of Purcell cases in future elections will be those that will help to protect voting rights.

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Teachout’s “Corruption in America”

[This is the latest in a series of short reflections on new books in campaign finance which I am working my way through as I write my own manuscript on the subject.]

Zephyr Teachout’s Corruption in America is a lively and valuable look at the common and judicial understandings of the concept of “corruption” in the United States during the time of the founding and at other key points in U.S. history. The historical analysis builds up to a contrast with the Supreme Court’s current narrow definition of corruption in the Citizens United line of cases and to an argument for courts, scholars, and society to adopt a broader anticorruption principle in both constitutional adjudication and argumentation and in legislative drafting (on the latter point, Teachout favors broad prophylactic rules, in a Madisonian way, to remove the temptation of those in power to act corruptly).

I will have more to say about Teachout and the focus on corruption in my own campaign finance book in progress. I would just say now that as a matter of constitutional interpretation I find her corruption concept rather fuzzy (I continue to believe that much of what she (and Lessig) would call corruption is more properly considered an issue of inequality), and her discussion of the First Amendment interests on the other side of the equation in the constitutional balancing relatively light.  But this is a book well worth reading for anyone trying to get a broader historical perspective on current battles in the Supreme Court on the constitutionality of campaign finance rules.

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Joan Biskupic’s Must-Read Book on Justice Sotomayor and the Supreme Court

Supreme Court reporter (and current Reuters legal editor) Joan Biskupic has written Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice. It is an engaging and insightful book on Justice Sonia Sotomayor’s path to the Supreme Court and the Justice’s complex relationship with the other Justices on the Court. Although not a straight-out biography, the book tells two parallel stories: the path of Justice Sotomayor from growing up as a poor girl with Puerto Rican parents in New York to the U.S. Supreme Court and the politics of the first judicial nomination of an Hispanic Justice to the Supreme Court (the material on the failed Miguel Estrada DC Circuit nomination was particularly fascinating).

What is perhaps most original in Biskupic’s reporting (which relied on interviews with many Supreme Court Justices, although they usually would not agree to be quoted by name) is an understanding of Justice Sotomayor’s role on the Court. Biskupic ably describes Justice Sotomayor’s strong personality, and willingness to go it alone and sometimes to go up even against her ally Justice Ginsburg; the Justice’s move to change the nature of what it means to be a Supreme Court Justice, and how other Justices should interact with the public, the bar, and other members of the Court; and how her personal experiences shape her judging. (The inside information on the drafting of the Fisher affirmative action decision is especially fascinating for Court watchers).

The picture that Biskupic paints of Justice Sotomayor is much like the picture Biskupic painted in her earlier excellent biography of Justice Scalia: a rich, complex, very smart person, full of contradictions, full of passion about ideas and ideals, and still fighting some demons from childhood. Biskupic paints in shades of gray while many other writers who write about the Justices know only black and white–trying to make an ideological point in the course of describing the Court. That’s not Biskupic’s way.  A must read.

 

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“Aligning Campaign Finance”

Nick Stephanopoulos has posted this draft on SSRN (forthcoming, Virginia Law Review).

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found.

This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy outputs. Alignment is a value of deep democratic significance. If it is achieved, then voters’ views are heeded, not ignored, by their elected representatives. Alignment also is distinct from the interests the Court previously has rebuffed. In particular, alignment and equality are separate concepts because equal voter influence is neither a necessary nor a sufficient condition for alignment to arise. And there is reason to think the Court might be drawn to alignment. In decisions spanning several decades, the Court often has affirmed that public policy ought to reflect the wishes of the people.

It is not enough, though, if alignment is merely an appealing value. For it to justify regulation, money in politics must be able to produce misalignment, and campaign finance reform must be able to promote alignment. The Article draws on a new wave of political science scholarship to establish both propositions. This work shows that individual donors are ideologically polarized, while parties and PACs are more centrist in their giving. The work also finds that politicians tend to adhere to the same positions as their principal funders. Accordingly, policies that curb the influence of individual donors would be valid under the alignment approach. But measures that burden more moderate entities could not be sustained on this basis.

I read an earlier version of this piece. Recommended!

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KY Electioneering Ban – Modified on Appeal

It looks like my wrap-up post from yesterday is already out of date.  Late Friday, the 6th Circuit granted a partial stay of the KY decision on electioneering.  The district court’s order is stayed — and electioneering is prohibited — within 300 feet of the polls on the property where the polling place is located, and on other public property.  However, the district court’s order stands (at least until the appeal is heard), and electioneering is permitted, with respect to private property like John Russell’s auto body business.

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“Voter ID Laws and Partisan Competition in the American States”

I missed this new paper from William Hicks, Seth McKee, Mitchell Sellers, and Daniel Smith.

The abstract:

We undertake a comprehensive examination of restrictive voter ID legislation in the American states from 2001 through 2012. With a dataset containing approximately one thousand introduced and nearly one hundred adopted voter ID laws, we evaluate the likelihood that a state legislature introduces a restrictive voter ID bill, as well as the likelihood that a state government adopts such a law. Voter ID laws have evolved from a valence issue into a partisan battle, where Republicans defend them as a safeguard against fraud while Democrats indict them as a mechanism of voter suppression. However, voter ID legislation is not uniform across the states; not all Republican-controlled legislatures have pushed for more restrictive voter ID laws. Instead, our findings show it is a combination of partisan control and the electoral context that drives enactment of such measures. While the prevalence of Republican lawmakers strongly and positively influences the adoption of voter ID laws in electorally competitive states, its effect is significantly weaker in electorally uncompetitive states. Republicans preside over an electoral coalition that is declining in size; where elections are competitive, the furtherance of restrictive voter ID laws is a means of maintaining Republican support while curtailing Democratic electoral gains.

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Where We Stand

A wrapup of what’s where in the world of prominent election-related litigation after the events of the last week:

  • TX photo ID law: in place, for nowStruck down by a federal trial court on 10/9, but that decision was stayed by the 5th Circuit 10/14.  After the election, the 5th Circuit will address an appeal on the merits.
  • NC omnibus law: in place, for now.  A federal trial court denied a preliminary injunction 8/8; the 4th Circuit reversed 10/1 with respect to same-day registration and out-of-precinct ballot cutbacks, and SCOTUS stayed the 4th Circuit order 10/8.  After the election, the case will proceed toward trial on all of the claims, but same-day registration and the ability to count out-of-precinct ballots will be restored pending trial.
  • KY electioneering law: not in place, for now.  On 10/14, a federal trial court struck down the ban on electioneering anywhere outside of the room where voting occurs.  The case is currently up on appeal.
  • MS Senate race: still waiting for a ruling from the Mississippi Supreme Court about Chris McDaniel’s challenge to Thad Cochran in the primaries.
  • NC early voting site on ASU campus: not in place, for now.  On 10/13, a state trial court required that the site be moved back to the Appalachian State campus, but an appellate court stayed that ruling on 10/17; the fight is now proceeding to the state Supreme Court.
  • WI coordination ban: not in place, for now.  On 10/14, a federal trial court temporarily (and ex parte) enjoined enforcement of state rules against coordinating spending with candidates, for anything that is not express advocacy of electoral victory or defeat. There will be further proceedings on a motion for preliminary injunction (and perhaps an appeal of the judge’s order, though there’s no appeal docketed yet).
  • CT Dems’ mailer using federal funds: under attack. The Connecticut GOP filed a lawsuit on 10/17, protesting the Democrats’ use of federal funds to support a state campaign.
  • CO disclosure for Citizens United movie: not in place, for now. A federal trial court denied a preliminary injunction 9/22, but the 10th Circuit ordered on 10/14 that Citizens United needn’t disclose donors involved in making the movie (but would have to disclose donors for ads about the movie) pending the appeal. After the election, the case will proceed both on the appeal of the denial of a preliminary injunction, and toward trial on the merits.
  • CO disclosure for small nonprofit: not in place.  On 10/10, a federal trial court enjoined state reporting and disclosure requirements as applied to a small nonprofit seeking to distribute an advocacy piece.  There has not (yet) been an appeal.
  • IN limited judicial nominations (Marion County):  in place, for now.  A federal trial court struck down Marion County’s system of limited nominations for judicial seats, allowing each party to nominate candidates for only some positions.  But then the judge stayed the order pending an appeal.  After the election, an appeal (filed 10/17) will proceed on the merits.
  • AR language on referenda: up in the air.  A lawsuit has been filed in state court to determine whether a “for” vote is a vote in favor of an enacted ordinance, or in favor of its repeal.

All caught up?  Welcome back, Rick!

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Coverage of and Reactions to the SCOTUS TX Voter ID Ruling

AP, The Hill, LA Times, McClatchy, MSNBC, NPR, NY Times, Politico, SCOTUSblog, Wall St. Journal, Washington Post, Washington Times.

Texas AG, Campaign Legal Center, Lawyers’ Committee for Civil Rights, Leadership Conference on Civil and Human Rights.

And an interesting take from Christian Adams, predicting that the trial court’s finding of intentional discrimination will likely hold when the law is revisited after the election. 

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“Federal Election Commission Can’t Post Data on its Website in a Timely Manner”

Michael Barone gets impatient

For what it’s worth, I understand that FEC data is quite important, and I understand that it’s important to have said data timely.  But I actually don’t understand the policy necessity for getting July-September FEC data within 24 hours of the deadline for reports to be submitted.  Yes, I know that this is the Online Age, and I also twitch (and curse my pathetic excuse for an Internet provider) when it takes my browser more than 3 seconds to load.  But it seems to me that we’ve mistaken the fact that most news is instant for a need to have most news be instant.  I notice it particularly when people demand accurate election returns the instant the polls close, and cry foul when a thorough count takes a bit longer to complete.  And if we could all stand to relax just a bit for the final electoral count, surely that’s true of a third-quarter finance report.  Beyond the notion that we might have to figure out other ways to occupy our curiosity, where’s the fire?

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Slim MT Campaign Against EDR

From the Helena Independent Record:

Progressive groups are putting money and shoe leather into defeating a Republican-sponsored ballot measure that would end Election Day voter-registration in Montana.

Yet the campaign for the measure, known as Legislative Referendum 126, is pretty much nonexistent.

A group called the Montana Equality Project, formed in February to support LR-126, hasn’t reported raising or spending a single cent for a campaign.

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And Now, a Ruling on Texas ID

And, of course, we’ve now got a SCOTUS ruling on Texas ID.  In the wee hours of Saturday morning, the Court refused to vacate the 5th Circuit’s stay.

In real-person, that means that despite a full trial leading to a 147-page opinion finding the Texas ID law unconstitutional, the law will be in place for this November’s election.  Justice Ginsburg, joined by Justices Sotomayor and Kagan, strongly dissented from the Court’s decision to let the law stay in place for now.

The ultimate fate of the law is still TBD.  The trial court struck it down, and the appellate courts have pressed pause on that ruling, but they have not overturned it.  After the election, the case will proceed to the 5th Circuit for review on the merits.

More to come.

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The AP Bulks Up in a Big Way on Redistricting

With four different stories. 

Juliet Williams describes the structure of redistricting in the states that take the process out of the hands of the legislature – an issue up at the Supreme Court this year, in a case out of Arizona.  Each state’s process is a bit different, and put in place to achieve slightly different ends. 

Stephen Ohlemacher’s “Congressional Redistricting 101” describes how the other states do the job.

Ohlemacher’s piece on the partisan politics of the process then talks about the partisan results.

And then a joint piece by Ohlemacher and Donna Cassata – “GOP Has a Built-In Advantage in Fight for US House” wraps up the conclusion.

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“In Defense of Private Civic Engagement”

Nick Dranias, in turn, looks into a right to anonymity.

The right to private civic engagement — the right to participate in politics confidentially as an individual or in association with others — is under assault as the product of “dark money.” But the attack on “dark money” is really an effort to suppress opposing ideologies by exposing speakers and their associates to retaliation. Unfortunately, current Supreme Court precedent is enabling and emboldening such suppression. But there is hope for a return to our Nation’s tradition of respect for private speech and association. Mandatory disclosure and disclaimer requirements are still subject to an exception for those who can claim a reasonable probability of retaliation. Sadly, in today’s polarized political environment, it is increasingly apparent that this exception should be the rule. A focused litigation strategy can help usher this recognition into wider acceptance by the judiciary. Moreover, states can assist in protecting private civic engagement by enacting the proposed Free Speech Privacy Act, which would codify the right to be free from disclosure and disclaimer mandates that impose a reasonable probability of retaliation. Furthermore, states can enact the proposed Publius Confidentiality Act, which would guarantee citizens, who legitimately fear retaliation, the right to secure a confidential identity for use in their political activities. These proposed tactics are fully constitutional under current precedent and will also help move the debate towards once again recognizing the fundamental importance of private civic engagement in our Republic.

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