“The sneaky new voter suppression tool in North Carolina, uncovered by one of our own”

Daily Kos:

North Carolina Republicans have been actively moving the goalposts—they’ve been moving polling places around like a crazed monkey on crack. They have been cutting numbers of polling places in some counties, increasing numbers in other counties. There has been no systematic analysis of the effect of this. All I’ve been able to find in any news outlet is, you know: a little local newspaper, say Winston-Salem’s, will say: “the number of early voting sites is twelve this year…by the way, it was fifteen last year.” That’s it. Nobody has taken an overall view. […]

The headline outcome from our analysis is that in 2014 white voters—71% of the electorate in North Carolina—had to travel an additional 119,000 miles from their homes to their nearest Early Voting locations…which is approximately equivalent to halfway from the Earth to the Moon.

I hear you ask, “how did it affect black voters?” Well, black voters—22% of the electorate—had to travel to the moon and halfway home again, 370,000 miles, in 2014, to get to their nearest Early Voting place. […]

Will be interesting to see if these stats pan out and if so what legal action might arise from this.


“Supreme Court Asked to Strike Contractor Contribution Ban”

Bloomberg BNA:

Challengers seeking to eliminate a decades-old federal ban on campaign contributions from government contractors have filed a petition seeking Supreme Court review of the case (Wagner v. Federal Election Commission, U.S., Docket No. Unavail., cert petition filed10/2/15).
The decision to seek review came nearly three months after a unanimous, en banc U.S. Court of Appeals for the District of Columbia rejected the challenge to the contractor contribution ban (Wagner v. Federal Election Commission, D.C. Cir., 13-5162, 7/7/15)….
The Supreme Court petition argued that the ban on campaign contributions as applied to individual contractors is not “sufficiently tailored” to pass muster under the Constitution’s First Amendment and the equal protection clause of the Fifth Amendment. Although the FEC interprets the ban to apply to independent expenditures influencing campaigns—including contributions to super political action committees—that ban is not specifically challenged in the case, the petition noted.

“In Maryland congressional race, sharp jabs at the better-funded candidates”


By virtue of money in the bank, state Sen. Jamie B. Raskin and former WJLA anchor Kathleen Matthews are the clear front-runners in the Democratic primary for Maryland’s 8th Congressional District seat.

And with front-runnerhood comes increased scrutiny and attacks by opponents.

That was the case at the first candidate forum of the primary season Wednesday night. Matthews, who according to campaign finance reports raised about $500,000 in the first month of her candidacy, was called out as “a millionaire white woman” by independent Liz Matory, who also accused Matthews of lacking support from people of color.

Raskin, who has raised a little over $550,000, was assailed by fellow candidate and state Del. Kumar P. Barve for making a campaign contribution to a state Senate colleague who does not share all of his liberal agenda.

I think Jamie Raskin is the first election law prof to run for Congress?  Am I wrong?

UPDATE:  I was wrong.  There was Frank Askin in New Jersey and Barack Obama in Illinois.


“Alabama Demands Voter ID–Then Closes Driver’s License Offices In Black Counties”


What happens when a state with a tough voter ID law suddenly makes it much harder for minorities to get driver’s licenses? We are about to find out in Alabama.

Facing a budget crisis, Alabama has shuttered 31 driver’s license offices, many of them in counties with a high proportion of black residents. Coming after the state recently put into effect a tougher voter ID law, the closures will cut off access — particularly for minorities — to one of the few types of IDs accepted.

According to a tally by AL.com columnist John Archibald, eight of the 10 Alabama counties with the highest percentage of non-white registered voters saw their driver’s license offices closed.

“Every single county in which blacks make up more than 75 percent of registered voters will see their driver license office closed. Every one,” Archibald wrote.

Section 5 of the Voting Rights Act likely would have stopped this.  Section 2 of the Voting Rights Act should stop this.


“I’m Trying to Run for President, but the Democrats Won’t Let Me”

Larry Lessig in Politico:


Here’s how you make the debates: After one declares, a candidate is formally welcomed into the race by the Democratic National Committee. Polling firms, taking a cue from the DNC, include that candidate on their questionnaires. Candidates that poll at 1 percent nationally in at least three separate polls earn an invitation. Simple enough.

That’s how the process typically works for other candidacies—but not for mine. The DNC still has not formally welcomed me into the race—despite my raising money at a faster pace than more than half the pack, and being in the race nearly a full month. Polls, in turn, have taken the hint, only including me sporadically on questionnaires: of the last 10 major polls, only three mentioned my candidacy. One poll recently put me at 1 percent (for comparison, candidates O’Malley, Webb and Chafee, who will each get a podium at the debates, are all currently polling at 0.7 percent or less, according to Real Clear Politcs). Were I actually included on every poll, I would easily make the debates.

The Democratic Party could fix this by welcoming me into the race. Yet when I tried to talk about this with the chair of the Democratic Party, Debbie Wasserman Schultz, she scheduled a call, but then cancelled it. So far she hasn’t had the time to schedule another. I’ve had similar experiences at the state level, where the same game is played: The chair of the New Hampshire Democrats invited me to speak at their convention. I was given 5 minutes. Hillary Clinton took an hour.



“GAB head asks lawmakers to delay overhaul of elections agency”

Milwaukee Journal-Sentinel:

The head of the state’s elections board has urged legislative leaders to slow down their plans to overhaul the agency, but top GOP lawmakers say they will unveil their restructuring plans next week.

Gerald Nichol, chairman of the Government Accountability Board, in a letter to lawmakers raised concerns about restructuring the board 13 months before the high-turnout presidential election. His request to slow down fell on deaf ears.

On Wednesday, aides to Senate Majority Leader Scott Fitzgerald (R-Juneau) and Assembly Speaker Robin Vos (R-Rochester) said they reached a deal on the matter. They declined to provide details, saying they would make their plans public next week.



The Next #SCOTUS Justice May Be Much Further to the Right

In my recent TPM piece, I wrote:

In a recent article in the Weekly Standard, Professors Randy Barnett and Josh Blackman urge the next Republican President to appoint Justices, like Thomas, who care little about judicial restraint or respect for precedent. Senator Ted Cruz, while running for president, has severely criticized Chief Justice Roberts as insufficiently conservative, calling for the appointment of even more extremely conservative judges.

Indeed, there is much further room to move to the right. Some strict textualists do not agree with Justice Scalia’s exception for interpretations of statutes which lead to absurd results. Let the chips fall where they may, they say, and either Congress will fix the problem with an apparently absurdly written statute or it won’t. It’s not the Court’s problem.

And here’s Linda Greenhouse’s NYT column today:

In a variation of that theme, the columnist George Will, in a piece that went viral in the conservative blogosphere during midsummer, castigated Chief Justice Roberts for, of all things, his dissenting opinion in the same-sex marriage case. It was not that Mr. Will, often a reliable barometer of inside-the-Beltway conservative thought, had suddenly embraced marriage equality. Rather, he objected to what it was the chief justice was objecting to in Justice Kennedy’s majority opinion.

In his dissenting opinion, Chief Justice Roberts accused the majority of reanimating the spirit of the long-discredited Lochner v. New York, a 1905 decision in which a conservative Supreme Court invoked a supposed “liberty of contract” to invalidate workplace regulations. It was a later conservative court that was still under Lochner’s sway when it struck down much New Deal legislation in the early 1930s.

The case stands for “the unprincipled tradition of judicial policy making,” Chief Justice Roberts said in his dissent; only when a later court understood Lochner’s error did justices return to their properly restrained role. “The majority today neglects that restrained conception of the judicial role,” he wrote.

In his column, Mr. Will said the chief justice’s account of Lochner contained “more animus than understanding.” Lochner should be celebrated, he wrote. The 1905 decision “was not ‘unprincipled’ unless the natural rights tradition (including the Declaration of Independence) and the Ninth Amendment (‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’) involve no principles.”

The Ninth Amendment? The amendment that constitutional progressives have viewed as the source of the “unenumerated rights” much disparaged by conservatives? The Ninth Amendment that Robert Bork likened to an ink blot on the Constitution? Indeed, Mr. Will wrote: “The next Republican president should ask this of potential court nominees: Do you agree that Lochner correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendments’ affirmation of unenumerated rights?”

Not very long ago, a potential nominee who was prepared to answer “yes” to those questions wouldn’t have made it past the security checkpoint of a Republican White House. The young John Roberts worked in the modern era’s ur-Republican White House, Ronald Reagan’s, when such an answer would have been apostasy. That was then.

I’m writing about such obscure subjects as Lochner and unenumerated rights in full understanding that the new conservative memes may be just so much window dressing on a more fundamental, less elevated explanation for the conservative anger. I never thought I would be quoting Senator Ted Cruz with anything close to appreciation, but here goes. Heaven knows there wasn’t much honesty in the Republican debate, but the Texas senator said something during his rant about Chief Justice Roberts that might actually, even if inadvertently, have come close. “You know,” Senator Cruz said, “we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want.”


“Sparta to use paper ballots in November election”

News from Ga:

The City of Sparta plans to use paper ballots instead of Hancock County’s electronic voting machines in their November election.

This election will be the first time the City of Sparta has done an election without the help of the Hancock County Board of Elections, and this change leaves some residents scratching their heads.

“Some citizens who were actually in on the meeting had come to the office and expressed that they maybe wanted to file a complaint about the city actually using paper ballots,” said Hancock County Elections Supervisor Tiffany Medlock.

The City of Sparta first approached the Hancock Board of Elections with an agreement for the county to let them use their electronic voting machines, but after the board revised the agreement and agreed to lend them the machines, the city never answered back.

I’ve heard from one reader who expresses concern that the switch is motivated by a corrupt city machine, and asks if it is possible to have outside election monitors.  I don’t know what the situation is in Sparta, but this does seem strange.


“Mitt Romney: ‘We’ve Gotta Rethink Campaign Finance'”


Former Republican presidential nominee Mitt Romney called for campaign finance reform in the wake of the explosion of super PACs, which can receive unlimited sums of money from corporations, unions and individuals.

“We’ve really got a mess in the financial system with regard to campaigns right now,” the 2012 nominee said Wednesday in an interview at The Atlantic’s Washington Ideas Forum.

“We’ve gotta rethink campaign finance,” he added.

The former Massachusetts governor said it is a problem that shadowy super PACs can take “unlimited amounts of money,” while candidates themselves are “very strictly limited” in the amount of funding they are able to raise.


“IRS Appears Headed Toward New Rules that Will Continue to License Secret Contributions in Federal Elections”

Fred Wertheimer:

IRS Commissioner John Koskinen appears to be headed toward issuing new IRS regulations that will continue to license section 501(c)(4) groups to improperly launder massive amounts of secret contributions into federal elections.

In testimony before the Senate Judiciary Committee, Commissioner Koskinen reportedly stated that section 501(c)(4) groups can engage in political intervention so long as that constitutes less than half of their activities.

Koskinen reportedly said, “So if an organization wants to spend less than half its money on politics, they can choose to become a 501(c)(4).” Koskinen also reportedly said the IRS is not trying to significantly change the way nonprofits operate today.


“Big crowd expected for Citizens United argument”

At the Lectern:

There will likely be lots of people attending next week’s argument of Howard Jarvis Taxpayers Association v. Padilla, the case to decide whether the Legislature can ask the voters to give their advisory opinion — through an initiative on the ballot — whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision.  The California Clean Money Action Fund is encouraging its supporters to attend a pre-argument rally outside the court and to then “pack the hearing room” for the purpose of, as an email announcement states, “show[ing] the justices how many Californians demand our right to vote on Prop 49.”


Interesting Turn in Kelly Horwitz Election Contest

Back in 2013 I wrote about disturbing allegations of vote buying involving sororities and fraternities on the University of Alabama campus in connection with a local board of education race. The candidate involved is Kelly Horwitz, who is married to U of A law prof Paul Horwitz (who wrote a letter to the Alabama faculty about the incident).

Kelly Horwitz lost her election contest at the trial court level, but today the Supreme Court of Alabama reversed and sent the case back to the trial court for “Phase II” additional factfinding for the election contest.

However, the state supreme court did not agree with Horwitz on the vote buying and coercion allegations.  Instead, it found that there were a number of illegal votes cast by college students who had not properly established residency due to their failure to show their intent to remain in the area after graduation. This basis for the ruling prompted a dissent from two Justices, who believe it is going to make it harder for students to vote in Alabama generally.

So now we have what appears to be a good result (because of good evidence of vote buying) but based upon troubling reasoning (about college student residency) and an even longer wait for this case to be resolved. We will see if this case gets resolved before the term at the Tuscaloosa Board of Education comes to an end.


“Voter ID and driver’s license office closures black-out Alabama’s Black Belt”

Kyle Whitmore:

The Alabama Law Enforcement Agency’s website says their office at the Clarke County Courthouse is still open, but soon a lot of others nearby won’t be. On Wednesday, the agency announced that it would close 31 offices throughout the state, leaving 29 counties without a place where 16-year-olds can take a driver’s test, whether they pass on the first try or not.

That’s an inconvenience.

But there’s something bigger happening here.

In 2011, Alabama lawmakers approved the state’s voter ID law, making it illegal to vote in Alabama without a government-issued photo ID.

For most folks, that’s a driver’s license.

In those 29 counties you might be able to register at the courthouse, but you won’t be able to cast a ballot there unless you have that ID.

That’s not just an inconvenience. That’s a problem.

But it gets worse.

Look at the list of counties now where you can’t get a driver’s license. There’s Choctaw, Sumter, Hale, Greene, Perry, Wilcox, Lowndes, Butler, Crenshaw, Macon, Bullock …

If you had to memorize all the Alabama Counties in 9th grade, like I did — and even if you forgot most of them, like I have — you can probably guess where we’re going with this.

Depending on which counties you count as being in Alabama’s Black Belt, either twelve or fifteen Black Belt counties soon won’t have a place to get a driver’s license.

Counties where some of the state’s poorest live.

Counties that are majority African-American.

Combine that with the federally mandated Star ID taking effect next year, and we’re looking at a nightmare.


“Watchdog: Top Secret Service official wanted information about Chaffetz made public”


The Secret Service’s assistant director urged that unflattering information the agency had in its files about a congressman critical of the service should be made public, according to a government watchdog report released Wednesday.

“Some information that he might find embarrassing needs to get out,” Assistant Director Edward Lowery wrote in an e-mail to a fellow director on March 31, commenting on an internal file that was being widely circulated inside the service. “Just to be fair.”

Two days later, a news Web site reported that Rep. Jason Chaffetz (R-Utah), chairman of the House Oversight Committee, had applied to be a Secret Service agent in 2003 and been rejected.


Quote of the Day, Super PAC Noncoordination Coordination Edition

“Essentially, it inoculates a case of coordination by making it public….As long as it’s not hidden in a ‘Where’s Waldo’ game and meets a reasonable definition of being public, it is a way to avoid running afoul of the coordination rules.”

–Attorney Ken Gross, quoted in NYT’s Carly Fiorina’s ‘Super PAC’ Aids Her Campaign, in Plain Sight


Bauer on Hasen on the Roberts Court at 10 on Campaign Finance


In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful.Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.


McGinnis on Hasen on the Supreme Court at the 2016 Election

Responding to my piece @TPM, John McGinnis says I’m further politicizing the Court. I’m afraid that horse left the barn long ago, and no amount of originalist scholarship will change that. As I write, regardless of methodology (Alito, for example, is no originalist), it has become increasingly true that Democratic- and Republican-appointed Justices reach results that are different from one another on the most contested issues.


“Supreme Court Protesters Take First Amendment Challenge to Court”

BLT on the @99Rise campaign finance protestors:

Can a whisper be disruptive? When does speech become loud? A federal district judge in Washington considered those questions on Tuesday in a constitutional challenge to a ban on protest activity at the U.S. Supreme Court.

Five protesters charged with disrupting Supreme Court arguments on April 1 are challenging a law that bans certain types of disruptions and demonstrations inside and outside of the court. U.S. District Judge Christopher Cooper was skeptical that the protesters could challenge sections of the law they weren’t being prosecuted for—provisions, for example, that deal with conduct outside the court.



“Super PAC Contributions Can Be Considered Bribes: Judge”

Paul Blumenthal for HuffPo:

A district court judge on Monday dismissed four corruption charges against Sen. Robert Menendez (D-N.J.) and his donor Salomon Melgen, but denied motions to toss out other charges including, notably, the senator’s solicitation of contributions for a super PAC.

Lawyers for the senator had asked the court to dismiss charges related to Menendez’s solicitation of $700,000 from Melgen for Senate Majority PAC, a super PAC run by former aides to Sen. Harry Reid (D-Nev.) that made independent expenditures to support Menendez’s 2012 reelection.

The basis for dismissal offered by Menendez’s lawyers were the Supreme Court’s 2010 Citizens United and 2013 McCutcheon decisions. Those two cases redefined corruption as only explicit bribery, excluding influence and access. The senator’s lawyers argued that this redefinition of corruption and Citizens United’s declaration that independent expenditures “do not give rise to corruption or the appearance of corruption” provided freedom of speech protections for all “efforts to influence and obtain access to elected officials,” including any campaign contribution.

Judge William Walls disagreed, ruling that the charges related to the super PAC contributions made by a corporation run by Melgen and solicited by Menendez would stand. In his opinion, Walls writes that “the Constitution does not protect an attempt to influence a public official’s acts through improper means.” (Read Walls’ decision here.)

I’m quoted in the article saying that there is no real tension between the logic of Citizens United and this holding.  One can bribe a Senator by promising to give money to the Senator’s mother. Even though the Senator cannot control the mother’s spending, if the Senator subjectively values the money given to the mother then there can be a bribe.


New Data on Campaign Spending in NJ

NJ ELEC: “An unprecedented wave of independent special interest spending drove the cost of the 2013 legislative general election to $53.3 million, the most ever without adjusting for inflation, according to a new analysis by the Election Law Enforcement Commission (ELEC)…. The latest white paper also includes a first-ever historical review of self-financed candidacies by legislators and other New Jersey candidates. It found that at least 101 legislative candidates since the 1980s have spent at least $15,000 on their campaigns. The combined outlay- $9.8 million in inflation adjusted dollars. Among the top 50 self-funders identified by the analysis, 18 were legislative candidates (a few also ran for other offices).”


“Legislator Says Gift Ban Violates His Freedom of Speech”

Lee Fang for The Intercept:

Supreme Court, in its Citizens United decision, ruled that corporations have a First Amendment right to spend unlimited amounts in elections. Now politicians in Kentucky are claiming they have a Constitutional right to receive gifts from lobbyists.

In a lawsuit filed in U.S. District Court, Republican Kentucky state Sen. John Schickel, along with two Libertarian political candidates, are suing to overturn state ethics laws, claiming that the campaign contribution limit of $1,000 and a ban on gifts from lobbyists and their employers are a violation of their First and Fourteenth Amendment rights.

The lawsuit notes that lobbyists and the employers of lobbyists are prohibited by Kentucky law from inviting legislators to parties, offering gifts, or paying for food for legislators. “This infringes on the legislator’s, lobbyist’s, and employer of lobbyist’s right to freedom of association, and freedom of speech,” Schickel claims in the suit.

Reminds me of an April Fool’s posting of mine.


“Kris Kobach, his views spark intense reactions – from supporters, opponents (+videos)”

Bryan Lowry for the Wichita Eagle:

Kobach has had “a devastating impact on voting rights in the state of Kansas and, for that matter, across the country,” says Micah Kubic, executive director of the American Civil Liberties Union of Kansas.

Kobach championed a proof-of-citizenship requirement to register to vote, a policy that has left thousands of prospective voters in suspended registration status since January 2013. Beginning this week, his office will remove any names that have been on the suspended list for more than 90 days.

He says this will save local election offices money, but the ACLU says it is primarily meant to relieve Kobach of the political embarrassment of having nearly 37,000 prospective voters in suspended registration status. He calls that ridiculous.


The Roberts Court at 10: Election Law

With today’s 10 year anniversary of John Roberts’ joining the Supreme Court as Chief Justice of the United States. here’s another link to my paper in progress, Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists.  Abstract:

The first decade of election law cases at the Supreme Court under the leadership of Chief Justice Roberts brought election law down a strong conservative path. Citizens United v. Federal Election Commission freed corporate money in U.S. candidate elections and opened up a deregulatory era increasingly dominated by nominally independent “Super PACs.” Shelby County v. Holder eviscerated the congressional regime codified in Section 5 of the Voting Rights Act under which Congress required states and localities with a history of racial discrimination in voting to obtain federal permission before making a change in voting rules by proving that the change would not make minority voters worse off. In its wake, previously-covered jurisdictions have adopted a number of election changes which no doubt have made minority voters worse off. In Crawford v. Marion County Election Board the Court gave the green light for state voter identification laws, despite a lack of evidence that such laws are necessary to deter fraud or instill voter confidence. Republican states have increasingly tightened voting rules in Crawford’s wake. Finally, the Court will soon consider whether to place new restrictions on application of the one person, one vote rule which would hurt Latino representation and strengthen rural and Republican power. The Court took the case, Evenwel v. Abbott, despite having apparently resolved the legal question it presents in 1966.

Nonetheless, the Roberts Court, while dominated by a majority of five conservative Justices, has not gone as far right as it could have or as some, including I, had predicted. In the campaign finance arena, the Court has thus far refused to take cases to strike down the ban on direct corporate contributions to candidates, or to reopen the ability of political parties to take large “soft money” contributions. It has not eliminated individual contribution limits, even as Super PACs and other campaign groups undermine them. In the voting rights arena, the Court so far has declined cases which would further limit the scope of, or find unconstitutional, Section 2 of the Voting Rights Act, a key remaining protection for minority voters, and it has revived the racial gerrymandering cause of action in a way which can help minority plaintiffs fight Republican gerrymanders. Most recently, the Court surprisingly rejected the opportunity to use the Elections Clause to kill independent commission-based congressional redistricting and other electoral reforms, and it upheld against First Amendment challenge a rule barring judicial candidates from personally soliciting campaign contributions.

In this Essay I describe the path of election law jurisprudence in the Roberts Court and then consider two questions. First, what explains why the Court, while shifting in a strongly conservative direction, has not moved more extremely to the right? Second, what options has the Court left for election reformers who are unhappy with the strongly conservative, although not maximally conservative, status quo?

On the first question, a combination of factors appears to explain the trajectory and speed of the Roberts Court’s election law decisions. The Roberts Court is fundamentally conservative, but for jurisprudential, temperamental, or strategic reasons Justices holding the balance of power appear to prefer incrementalism to radical change. Mandatory appellate jurisdiction appears the best way to force the Roberts’ Court’s hand, and it often but not always leads to a conservative result. Nearly half of the Roberts Court’s election cases came on mandatory jurisdiction. Progressives meanwhile have limited the number of cases they present for Court review to avoid adverse precedent. Finally, the five conservative Justices are not monolithic in their views and are capable of surprise, as evidenced by the recent Arizona redistricting decision, in which Justice Kennedy joined with the Court’s liberals, and the recent judicial elections case, in which Chief Justice Roberts joined with the Court’s liberals.

On the second question, the Court has left very limited space for reform in certain areas, such as campaign finance. Where the Court has greatly constrained choice, only minor improvements are possible absent a change in the Supreme Court’s personnel. In these areas, the problem is not that reformers have a “romanticized” vision of democracy; it is that the structural impediments erected by the Court have hobbled meaningful reform efforts. In contrast, in areas in which the Court has mostly left room for decentralized election law approaches, such as in the arena election administration, election fights are becoming both legal and political. Polarization and decentralization have led to the emergence of “red state election law” and “blue state election law,” with voting restrictions increasingly enacted in many Republican-leaning states but not Democratic-leaning states or states with mixed control.

Part I briefly describes the path of election law in the Roberts era across key election law areas including campaign finance, voting rights, and election administration. Part II explains why the Roberts Court is deeply conservative but not consistently maximalist. Part III considers the space for election reform in the Roberts Court era and beyond.


“Doubts about new redistricting case”

Lyle Denniston for SCOTUSBlog:

The Supreme Court on Monday afternoon told lawyers involved in a new case on the constitutionality of a congressional election district in Virginia to file new briefs on whether the case can go forward in the Court.  In a one-paragraph order issued along with two other procedural orders after the first Conference in advance of the new Term, the Court questioned whether current and former members of the House had a legal right to pursue their appeal.  The Court has not yet agreed to hear the case, but it is in a form that would require the Court to act on it if it were properly filed…..

When the voters who had filed the original lawsuit challenging District 3 answered the new appeal in the Supreme Court, they argued that the present and former lawmakers could not show that they had been injured by the new District 3 and therefore lacked “standing” to pursue their appeal under the Constitution’s Article III.

The situation appears to parallel what the Supreme Court confronted two years ago in a California case involving the same-sex marriage issue.  After a federal judge had struck down California’s “Proposition 8” ban on such marriages, and that ruling had been upheld by a federal appeals court, Proposition 8’s sponsors — who had intervened in the case — took it to the Supreme Court.  The state did not pursue an appeal on its own.  The Court in that case, Hollingsworth v. Perry, ruled that the sponsors of the ban did not have standing to appeal when state officials had failed to do so.




“Of Judges and ‘Wannabes'”

Kate Berry at the Brennan Center:

Should all judicial candidates be treated equally? This question gripped the Ninth Circuit during en banc oral argument earlier this month in Wolfson v. Concannon.* Plaintiff Randolph Wolfson is an Arizona lawyer who ran unsuccessfully for judicial office in both 2006 and 2008. Wolfson’s suit alleges that the ethical rules governing his campaign, found in the Arizona Code of Judicial Conduct, place unconstitutional restrictions on speech. The trial court upheld all of the challenged rules, finding in favor of Defendant the Arizona Commission on Judicial Conduct, but a three-judge panel of the Ninth Circuit reversed. Defendant successfully sought rehearing en banc, which took place after a stay pending the Supreme Court’s resolution of Williams-Yulee v. The Florida Bar last spring. In Williams-Yulee, the Courtupheld Florida’s ethical rule prohibiting judicial candidates from personally soliciting campaign contributions.


“Remembering Bill Crawford”

Here is a guest post from Josh Douglas:

I was saddened to learn of Rep. Bill Crawford’s death last week.  I had the opportunity — and pleasure — to interview Rep. Crawford this past summer for research for a new book chapter on The Story of Crawford v. Marion County Election Board, which will appear next year in Election Law Stories (Foundation Press 2016).  Rep. Crawford, the lead plaintiff in the voter ID case that went to the Supreme Court, was gracious, generous with his time, humble, and extremely helpful for my research.  He left quite a legacy.

For those who want to learn more about him, below are several (draft) paragraphs from the forthcoming chapter that tell the story of his life and his involvement in the voter ID case.

It is no surprise that William (Bill) Crawford became the lead plaintiff in the fight over Indiana’s new restrictive photo ID requirement, particularly given the racial overtones of the debate and the argument that racial minorities would suffer most under the law. Crawford was a long-serving Democratic member of the Indiana House of Representatives who represented the 98th District, an area notorious for being one of the poorest in the state. He retired in 2012 after being elected to twenty consecutive terms, leaving the Indiana House after forty years as the longest-serving black state lawmaker in U.S. history.


Crawford did not foresee dedicating his life to politics. Upon graduation from high school, the lifelong Indianapolis resident joined the U.S. Navy, a period of his life that left him “proud to serve his country, but affected by the blatant racism that was still prevalent in the military at the time.” Although the U.S. military was officially desegregated in 1948, opportunities for minority advancement remained minimal when Crawford joined in 1954. Two formative experiences involving race occurred during Crawford’s service. Once, while leading a ship, Crawford “pulled the sleeves on his uniform up to the elbow, in violation of official protocol,” and two white men of lesser rank working with Crawford commanded him to roll them down, an order that Crawford refused. As a result, a Navy officer ordered a court-martial for Crawford in August 1955 and handed down a thirty-day stint in the brig in South Carolina – a sentence Crawford never served.

A few years later, Crawford, who had advanced to the rank of a Radarman Third Class, traveled to Norfolk, Virginia to sit for the second-class status exam. Prior to the assessment, an officer remarked to Crawford, “I don’t think blacks can lead whites . . . . I’m not going to allow you to take the test.” Crawford appealed the rejection to a captain, who agreed that the decision was wrong but supported the offending officer’s refusal anyway. Crawford left the Navy shortly after this incident, claiming that his experience in the military and the racism he encountered “helped frame [his] commitment to protest” and “taught [him] discrimination [and] . . . . the rules of the game and how to fight and that fighting is done in the right way.”

After leaving the U.S. Navy in 1958, Crawford joined the U.S. Postal Service, where he was in charge of handling sensitive cargo and mail transported by train. Crawford was still working as a mail carrier in 1968 when civil rights leader Martin Luther King, Jr. was assassinated. King’s death was “a very traumatic experience” for Crawford, and the then thirty-two-year-old military veteran, who was simultaneously working and attending the Indiana College of Business and Technology under the GI Bill, dropped out of school and left the post office to become involved in various community organizations. Activist Charles “Snookie” Hendricks hired Crawford to work at the Radical Black Action Bookstore, which sold materials aimed at empowering the black community.

Additionally, Crawford joined an urban union of black activists, through which he became acquainted with then-state representative and future Congresswoman Julia Carson. In 1972, on the last day of filing for candidacy, Carson called Crawford to ask him to run for state representative because a lawyer slotted to run for one of the three seats given to Indianapolis districts at that time had backed out. Crawford agreed and was elected to the Indiana House after running on a platform of accountability, justice, and neighborhood development.

Shortly after taking office in 1973, Crawford was assigned to the budget-writing House Ways and Means Committee. Although Crawford’s primary role on this committee was to protect the state’s fiscal health, he focused in particular on meeting the needs of the state’s underserved populations. For instance, he was proud of his ability to direct the allocation of over $30 million in state funds to research minority health issues.

Outside of his appointment to the Ways and Means Committee, Crawford made various other contributions to minority groups and other underrepresented constituencies. In the 1970s, Crawford secured restitution from the state budget for two men who served time in prison after being wrongly convicted. In 1976, Crawford introduced legislation that called for the creation of district-specific seats on the Board of Commissioners for Indianapolis Public Schools. Crawford’s law resulted in the board having two at-large seats and five from districts around the city – which had the effect of providing greater geographic diversity and more opportunities for minority candidates to win a seat. In 1987, Crawford championed a bill that instituted a minority teacher scholarship program. Two years later he authored legislation that created the Low Income Housing Trust Fund. In 1993, he succeeded in passing the Minority Teacher’s Scholarship Fund, which provided a grant of up to $16,000 for African-American and Latino teachers who agreed to work locally in Indiana. Crawford also authored legislation, of which he is “most proud,” that helped make Indiana the thirteenth state to prohibit the execution of mentally ill individuals.

In addition to his legislative duties, Crawford also led major cultural institutions, twice serving as the president of the Indiana Black Expo. He was also the manager of outreach for Ivy Tech Community College of Indiana. Ivy Tech provides higher education opportunities to non-traditional students who do not immediately go to college after high school, minority groups, and those with financial difficulties. It now educates more African-American students than any other institution in Indiana; over half of all African-Americans who attend post-secondary school in Indiana go to an Ivy Tech campus. Crawford believed that education was important to civil rights and that “empowerment of people is the greatest thing you can do for economic development.” As Jeff Terp, a Senior Vice President at Ivy Tech, noted, “He sees every day that there are those that are poor and minority that don’t have equal access, and he want[s] equal access.”

With respect to the photo ID law, Crawford, as a civil rights advocate, considered Indiana’s bill to be “patently offensive.” He agreed to serve as the lead plaintiff in the lawsuit because, as he put it, “I was willing and involved in the debate in the House. So I was simply the right person at the time.” During the litigation itself, Crawford remained engaged by rallying support and finding individuals and organizations that would file amicus briefs on his behalf.

As Joe Simpson, the other lead plaintiff, said of Crawford’s involvement, “Someone had to step up to the plate, and Representative Crawford was the right person to do it. He had no fear of speaking up for those who could not speak for themselves.”


“Why The Most Urgent Civil Rights Cause Of Our Time Is The Supreme Court Itself”

I have written this longread for TPM, and I’ve been working on it for quite some time.  It begins:

When the next President of the United States assumes office on January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all of these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.

A conservative like Justice Scalia tends to vote to uphold abortion restrictions, strike down gun restrictions, and view the First Amendment as protecting the right to spend unlimited sums in elections. A liberal like Justice Ginsburg tends to vote the opposite way: to strike down abortion restrictions, uphold gun laws, and view the government’s interest in stopping undue influence of money in elections as justifying some limits on money in politics. This to not to say it is just politics in these cases, or that these Justices are making crassly partisan decisions. They’re not. It is that increasingly a Justice’s ideology and jurisprudence line up with one political party’s positions or another because Justices are chosen for that very reason.



“Chief Justice John Roberts Amasses Conservative Record, and the Right’s Ire”

Adam Liptak NYT Sidebar column:

Political scientists say the conservative critique has a little merit, but not much. An analysis of voting patterns over the last decade shows Chief Justice Roberts to be well to the right of Justices Kennedy and Souter.

But a comparison of his votes with those of Justice Samuel A. Alito Jr., who was appointed by Mr. Bush in 2006, tells a slightly different story. The two started out ideologically indistinguishable. But Justice Alito has trended right, and Chief Justice Roberts left.

A recent study in The Journal of Legal Studies and related data presented an even more nuanced picture. It ranked the justices in ideological order and was prepared by Lee Epstein, a law professor and political scientist at Washington University in St. Louis; William M. Landes, a law professor and economist at the University of Chicago; and Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit in Chicago.

They found that Chief Justice Roberts voted in a conservative direction 58 percent of the time over the last decade, while Justices Alito, Antonin Scalia and Clarence Thomas ranged from 61 to 65 percent.

But the chief justice leaned right when it mattered most. “He is a reliable conservative in the most closely contested cases but moderate when his vote cannot change the outcome,” the study said.

In 5-to-4 cases, the study found, Chief Justice Roberts voted in a conservative direction 85 percent of the time, a higher rate than that of any other member of the court.


Public Supports SEC Rule on Corporate Political Disclosure

From Lisa Gilbert:

I wanted to flag important polling released Friday by Public Policy Polling which shows that 88% of Republicans and 88% of Democrats want the SEC to issue a rule requiring publicly traded corporations to disclose their political spending.

This polling (Republican sample, Democratic sample), bolsters the already broad support behind the political spending disclosure rule that I know you are familiar with. Investors are calling for the rule, a record-breaking 1.2 million public comments have been submitted in support from retail investors and the public, and a recent letter supporting the rulemaking by a bipartisan set of former SEC chairmen solidifies the strong grounds the commission has to move forward.