Influence of Justice Scalia Felt in Unanimous Decision Throwing Out Gov. McDonnell Conviction

The Supreme Court’s unanimous ruling throwing out the conviction of Gov. McDonnell (while leaving open the possibility of a retrial on a narrower theory of the case) is sensible and courageous, and shows the continuing important influence of Justice Scalia in this area of the law. It is hard to write an opinion letting off the hook someone whose actions were as odious as Gov. McDonnell, in taking rolexes, funding for his daughter’s wedding and more from someone who wanted the governor’s assistance in marketing the equivalent of snake oil. But it was the right thing to do.

In an earlier case, Sun-Diamond, Justice Scalia wrote a majority opinion (involving the conviction of Agriculture Secretary Mike Espy on illegal gratuity charges) in which Justice Scalia warned about the criminalization of ordinary politics. This unaninimous opinion by Chief Justice Roberts follows that same lead. It is not enough that conduct is odious—the rules governing political action need to be clear enough so that politicians know the line between politics as usual and crossing the line. In this case, all the government had to prove was that the Governor contacted state officials and asked them to take a meeting with the donor. The government did not have to prove that the Governor sought to influence anyone’s decision on anything. This raised problems of both a vague statute as well as overzealous prosecutors (as I argued in an earlier oped in the NLJ). Prosecutors seek to make a name for themselves by going after corrupt politicians. But vague and broad laws criminalizing ordinary politics raise due process problems, selective prosecutions, and unfair treatment. Justice Scalia signaled this and here a unanimous court followed his lead.

Justice Scalia’s influence was also felt in the mode of analysis. Tellingly, Chief Justice Roberts begins with a textual analysis of the statute, and the canon of construction known as noscitur a socciis.  He uses the textual tools to define what counts as an official act, and reads that statute in a way that avoids vagueness and makes sense. At least in the ordinary run of cases, Justices today follow Scalia’s lead and start with a textual analysis. It is not always the end of the analysis, but it is always the beginning. And in a case like this, presenting issues of possible overreach, the textual analysis lined up with the pragmatic analysis.

This opinion does not mean that there’s an easy path to corruption. Every state should make it illegal for public officials to accept large gifts from non-family members. And it may be on remand that McDonnnell will get convicted. But the law, and the line between politics and crime, must be clear. On this point, the Court was able to speak in one voice, and the case would have been 9-0 not 8-0 had Justice Scalia not died in February.


McDonnell on What Is and Isn’t an “Official Act”

From p. 14 of the slip opinion:

Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) [the federal bribery statute] and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”

From pp. 21-22:

[A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.  The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

And from p. 28:

There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.


Breaking: SCOTUS to Hear NC Racial Gerrymandering Case

This morning the Supreme Court agreed to hear a racial gerrymandering case from North Carolina, on an appeal brought by the state (in McCrory v. Harris).  This joins the Bethune-Hill case from Virginia, which the Court also agreed to hear.

In Bethune Hill, the three-judge court on a divided basis concluded there was no racial gerrymander.  In the North Carolina case, the three-judge court found there was a racial gerrymander.

I expect the Court will consider the cases together, even if they are not formally consolidatated.

Assuming there are no new Justices before these cases are heard and the Justices vote the way they voted before in the Alabama racial gerrymandering case, we go in with a 5-3 Court at least sympathetic to such claims in the abstract brought by minority plaintiffs against Republicans.  Kennedy sided with the liberals in the Alabama case.

You can find NC’s six questions presented in this jurisdictional statement.


Hearing in Louisiana Republican Party’s Challenge to Soft Money Ban

Bloomberg BNA ($) has this story on yesterday’s hearing before a three-judge district court, including U.S. Circuit Judge Sri Srinivasan who was reportedly skeptical of the argument pressed by plaintiffs’ attorney Jim Bopp:

While the logic of the high court’s recent majority opinions [like Citizens United and McCutcheon] might indicate soft-money ban is on shaky ground, Srinivasan said, a lower court must be reluctant to overturn a provision specifically left in place by the Supreme Court. Such a move “just sounds like something we’re not supposed to do,” he said.

BNA also reports that about half the 90 minute argument was spent discussing whether plaintiffs have standing.


Drutman on Rauch and Responsiveness

Lee Drutman has this piece on Vox responding to Rauch. Drutman argues:

The current chaos is instead the logical backlash to the inequalities that the existing power structures have created in order to maintain themselves. What we’re seeing now is what happens when party elites and political leaders ignore the economic concerns of their voters for too long, and then stir up anger and resentment to distract from that fact. It’s a product of too little democratic responsiveness, not too much.

Worth reading!


Stanford Law Review’s Election Law Issue

Thanks to Rick for handing me the keys during his trip to Asia.

No better place to start than the Stanford Law Review‘s star-studded election law issue, which includes Rick’s article Election Law’s Path in the Roberts Court’s First Decade and:


“Kansas to Use Provisional Ballots for Upcoming Elections”


Kansas Secretary of State Kris Kobach is planning to use provisional ballots during the upcoming elections and then throw out all of the votes for state and local races cast by the thousands of voters who register to vote at motor vehicle offices without providing proof of citizenship.

An email sent from Kobach’s office to county election officials outlines the state’s proposed plans for implementing a two-tiered election system in the wake of a federal court order requiring Kansas to allow these voters to cast ballots at least in the federal races.


Gov McDonnell Opinion Coming from SCOTUS Monday: What to Expect

We know this because it is the last day of the term. It is possible there’s another 4-4 tie, but I doubt it.  I’m expecting a Justice Breyer majority opinion reversing the conviction, with a dissent by Ginsburg (maybe joined by Sotomayor?).  I think that’s the right result too. See my Bob McDonnell Ruling Will Not Legalize Corruption, NATIONAL LAW JOURNAL, May 12, 2016.

On Monday I’ll be giving this keynote address in Tokyo, and Dan Tokaji will be guest blogging (through July 4).  But I will try to chime in on McDonnell when it comes down.


What’s Next in U.S. v. Texas Given SCOTUS 4-4 Tie?

Today’s 4-4 tie leaves a nationwide preliminary injunction in place, pending a trial on the merits before Judge Hanen, who has shown great hostility not only to the merits of President Obama’s immigration actions but also to the DOJ’s lawyering in the case. A nationwide injunction means the administration right now could not enforce its actions anywhere.

There may be hurdles to getting another case in another part of the country going, but immigration proponents (and maybe DOJ) could try to do so, and create some alternative ruling somewhere else in the country, which could create a clash with Judge Hanen’s injunction. It is not clear that the government would even want an immigration policy that would be administered differently in different parts of the country, and how SCOTUS would react if that were a real possibility. But I expect we’ll see some serous court actions elsewhere in the country before this all settles.

There’s also the fact that the Obama administration’s term could end before this gets resolved.


Fisher as Yellow Light for Affirmative Action Programs

The surprise 4-3 opinion by Justice Kennedy in the University of Texas Fisher affirmative action case is a yellow light for universities to take race into account in admissions. Universities will have to be cautious and establish a record that non-race based affirmative action plans do not achieve the educational goals of diversity that a university may wish to follow. It is not all that supporters of affirmative action will want, but it is about as much (more!) than anyone could have expected from Justice Kennedy, who in the past has not voted in favor of affirmative action programs.

What would it have looked like if Justice Scalia was on the Court. We likely would have had a 3-3 tie, which would have allowed the affirmative action program to go into effect, but without establishing any precedent. It is also possible that with Scalia on the Court and the prospect of a 4-4 tie, the Court could have punted or issued a non-decision again in the case.


“Why Isn’t Donald Trump Campaigning in Swing States?”

NYT’s The UpShot dialogue:

Toni Instead of focusing on Clinton, he has been continuing to squabble with Republicans.

What is the biggest mistake he’s making? What is the one thing he should prioritize in terms of organization and strategy? He has very little money. He’s not advertising. He has a very small staff. He’s not campaigning in swing states. And the list goes on.

Nate Well, a lot of that requires money. He doesn’t have it, and he needs to fix it. Traveling to swing states is the one thing that doesn’t require much money, so that’s inexcusable. He can get on a bus from New York and get to Levittown, Pa., in 90 minutes, Allentown in less than two hours. Scranton in 2.5 hours.