“Scott Walker, legislative leaders drop open records changes”

Wisconsin State Journal:

In the face of withering criticism, Gov. Scott Walker and the Republican leaders of the Legislature announced Saturday that a provision added to the state budget to gut the open records law “will be removed from the budget in its entirety.”

Walker made the announcement Saturday afternoon in a joint statement with Senate Majority Leader Scott Fitzgerald, R-Juneau, Assembly Speaker Robin Vos, R-Rochester, and Joint Finance Committee co-Chairs, Sen. Alberta Darling, R-River Hills, and Rep. John Nygren, R-Marinette.

“We are steadfastly committed to open and accountable government,” the statement said. “The intended policy goal of these changes was to provide a reasonable solution to protect constituents’ privacy and to encourage a deliberative process between elected officials and their staff in developing policy. It was never intended to inhibit transparent government in any way.”

The statement said the Legislature will form a Legislative Council committee to study the matter outside of the budget process.

No one claimed responsibility for requesting the language be added to a sweeping omnibus amendment the Legislature’s budget committee passed late Thursday. And it’s unclear what role, if any, Walker played in the drama over the past few days.

But amid near-universal condemnation of the move and bipartisan demands that the language be withdrawn or that Walker use his partial veto power to strip it out of the budget if it passed, the governor and the leadership conceded defeat on the issue.



“I.R.S. Expected to Stand Aside as Nonprofits Increase Role in 2016 Race”

Eric Lichtblau for the NYT:

As presidential candidates find new ways to exploit secret donations from tax-exempt groups, hobbled regulators at the Internal Revenue Service appear certain to delay trying to curb widespread abuses at nonprofits until after the 2016 election.

In a shift from past elections, at least eight Republican presidential candidates, including leading contenders like Jeb Bush and Senator Marco Rubio of Florida, have aligned with nonprofit groups set up to raise hundreds of millions of dollars. Hillary Rodham Clinton’s supporters are considering a similar tactic.

Some of these so-called social welfare nonprofit groups are already planning political initiatives, including a $1 million advertising campaign about Iran by a tax-exempt group supporting Mr. Rubio.

The groups are able to carry out many of the same political activities as candidates and their affiliated “super PACs” but do not have to disclose where they get their money, allowing total anonymity for donors.


“Voting Rights Bill Would Address, Not Invalidate TX Law”

Texas Tribune:

A voting rights bill introduced in Congress last week would subject Texas elections to new levels of federal scrutiny, but it would not invalidate the state’s controversial 2011 voter photo ID law that helped inspire it….

Asked whether House Judiciary Chairman Bob Goodlatte, a Virginia Republican, would schedule a hearing on the House’s version of the bill, a House judiciary aide said in an email, “The Voting Rights Act is alive and well and protecting the freedom to vote.”


“Accusations fly as NC House changes course on Greensboro redistricting”

News and Observer:

After a heated debate that featured accusations of deception and Senate coercion, the N.C. House rapidly changed course Thursday on legislation that would change how the Greensboro City Council is elected.

The bill – now a law after the Senate also voted Thursday – marks the second time this year that the legislature has reshaped local elections. An April vote redrew the Wake County Board of Commissioners district boundaries in a change likely to favor Republicans.

That bill passed quickly along party lines, but the Greensboro council redistricting prompted a bitter split among GOP legislators. And it drew comments from legislators who represent other areas, including criticism that the change will diminish the impact of black Greensboro residents.

Before Shelby County, this plan would have required federal approval, and proof that the plan would not make protected minority voters worse off.


@Lessig Criticizes Bernie Sanders’ Rejection of Super PACs

The Guardian:

Clinton will also get help from the Priorities USA Super PAC, which is backing her candidacy despite a pledge by the candidate to combat “uncontrolled money” in politics, and announced Thursday that it has raised $15.6m – bringing the coffers of her campaign and its allies beyond $60m so far.

In contrast, Sanders, who rails against the “grotesque and obscene” concentration of wealth in America, has refused to have a Super Pac support him and is focused on wooing small-dollar donors.

Harvard University professor Lawrence Lessig, who founded a Super Pac to end Super Pacs, said Sanders’ renouncing Super Pacs is tantamount to “bringing a knife to a gunfight”.

“I regret the fact the Bernie Sanders has embraced the idea that he’s going to live life like the Vermont snow, as pure as he possibly can, while he runs for president, because it weakens his chances – and he’s an enormously important progressive voice,” Lessig said.


Goldstein and Totenberg on the “Roberts Court”

On NPR with Robert Siegel:

SIEGEL: It is. Now, I’m surprised. You brought this to my attention that this is now 10 years since John Roberts has been chief justice. It doesn’t feel that long to me somehow (laughter) but I guess we’re older than I think. Can one now speak of a Roberts court that has a particular flavor to it?

TOTENBERG: His model for what a chief justice should be was Charles Evans Hughes, who was a great chief justice during the New Deal era and basically saved the Court in many ways from being dismantled or added to by Franklin Delano Roosevelt. He’s an institutionalist like Hughes, so that’s what I take from it. He writes beautifully. He is a – pretty much a purist on the First Amendment, he and Kennedy. But I don’t think he’s a beloved chief justice either.


GOLDSTEIN: Well, what we hear from inside the building is that he does run the Supreme Court and the federal judiciary very well and that’s his princip[al] job. But, of course, he only has one vote and he does not have a Roberts court in that sense. He finds himself in big case after big case often in dissent. Justice Kennedy is the justice who is really controlling the swings in the court as we know ’cause he’s in the ideological center. So there’s – he’s doing what he can, but frequently it’s not much.




“Scalia, Sotomayor most outspoken justices inside, outside court”

Richard Wolf for USA Today:

He speaks the most during oral arguments, so perhaps it’s no surprise that Supreme Court Justice Antonin Scalia remains the most popular among his colleagues on the outside speaking circuit as well.

Scalia took 23 trips for which he was reimbursed in 2014 to deliver speeches and lectures or teach courses, according to financial disclosure statements made public Thursday. That was more than any of his colleagues on the court.

Justice Sonia Sotomayor, the second most frequent questioner inside the courtroom, was the second most popular speaker outside court. She was reimbursed for 16 trips, including to Berlin and Florence, Italy. Justice Anthony Kennedy, who wrote the landmark decision declaring a nationwide right to same-sex marriage, took 13 trips.




“Secret spenders face challenge in 2016″

Teddy Schleifer for CNN:

Secret money groups will have to work harder this year to keep their spending hidden.

That’s because of a legal complication that is sending some Republican operatives back to the drawing board this cycle: Since Hillary Clinton is not a current federal officeholder — like Obama was in 2012 or Clinton was until she left his administration in 2013 — the nonprofit groups need to find more oblique ways to spend the money that they aren’t allowed to dedicate to full-throttle attacks.

If Clinton were a current official, Republican groups could argue that these ads were merely debating the issues, allowing them to maintain their tax-exempt status while nevertheless dedicating nearly their entire media budgets to ads that slice and dice the Democratic hopeful.

Now, they’ll have to get creative.


“Voting Rights and the 14th Amendment”

Airing on C-SPAN3 (corrected) July 4 at 6 pm:

Marking the anniversary of the end of the Civil War, panelists discuss the origins of the 14th amendment and how voting rights have changed over time in America.


  • Asa Gordon
  • Secretary GeneralSons and Daughters of the United States Colored Troops
  • Richard Kreitner
  • EditorNation, The->Archives Blog
  • Frank Smith Jr.
  • DirectorAfrican American Civil War Memorial Freedom Foundation and Museum

@AdamLiptak Too Notes Change in J. Scalia Demeanor

Fresh Air:

On how Justice Scalia’s dissent in the marriage equality decision mocked Justice Kennedy

That’s a another trend this term: The level of personal ad hominem animus, just personal insult — particularly from Scalia, but not only from Scalia — was really extraordinary this term, and you saw a kind of change in Justice Scalia, who, it must be said, in his earlier years was a towering legal figure and a vivid writer and sometimes a snarky writer, but a man who single-handedly transformed areas of American law. And now he seems to have turned a corner and is just spewing a kind of “get off my lawn” kind of bile that doesn’t obviously advance his jurisprudential cause. He seems very angry.

As I’ve said earlier, it’s not just the longstanding sarcasm. There’s been a change in both the nature and frequency of the most gratuitous insults. I can’t think of anything else like his statement that he would “hide his head in a bag” rather than sign the Kennedy same sex marriage opinion.

Maybe all the Justices are getting snippier as a result.  I was somewhat surprised at the “What chumps!” in the Roberts AZ redistricting dissent. And Justice Kagan, while she writes beautifully and clearly, has been veering in the sarcasm direction. But Scalia is off the charts qualitatively and quantitatively.


#SCOTUS Slightly Limits Review in New AZ Redistricting Case

On Tuesday I discussed the Supreme Court’s agreement to hear Harris v. Arizona Ind. Redistricting Commission (more background from Justin here and from Lyle Denniston here.) At the time I initially wrote up the case, I had not reviewed the materials.  I then reviewed them, and thought the primary issue here is going to be the scope of the Larios rule: while redistricting bodies can ordinarily do some deviation from perfect mathematical equality in state and local redistricting, such deviation appears to be improper if motivated by a partisan purpose. The allegation in the complaint is that the independent commission actually engaged in a Democratic gerrymander in drawing unequally populated districts. (The second question has to do with deviation from mathematical equality to comply with the now-moribund preclearance requirements of Section 5 of the VRA.)

A few people asked me about the third question presented, which dealt with the creation of Latino influence districts. The argument was a weak and throwaway one, taking up only 1.5 pages in the jurisdictional statement. Well today the Court got rid of this less significant question with the following order:



The order noting probable jurisdiction is amended as follows: In this case probable jurisdiction is noted limited to Questions 1 and 2 presented by the statement as to jurisdiction.

UPDATE: More from Lyle.


2015 Supplement to Election Law Casebook

The 2015 supplement (152 pages) to Lowenstein, Hasen, and Tokaji, Election Law Cases and Materials, is going to the printer today. Instructors using the book can write to crutan (at) cap-press.com to get a pdf of the book for planning purposes beginning next week.  Among the items covered in the supplement (a * means an edited version of the case or significant excerpts appears):


Shapiro v. Mack

Harris v. AZ Redistricting Commission

Arizona Legislature v. Arizona Redistricting Commission *

Shelby County v. Holder*

Alabama Democratic Conference v. Alabama*

Williams-Yulee v. Florida State Bar*

281 Care Committee*

American Tradition Partnership v. Bullock*

McCutcheon v. FEC*

Kobach v. EAC

Earlier description:

The 2015 supplement is shipping in time for fall classes, and will now include edited versions of the Evenwel one person, one vote case in the district court and the Supreme Court’s recent opinion in Williams-Yulee. Here’s an earlier written description of the supplement:

The 2015 Supplement to the fifth edition of Election Law: Cases and Materials will be up to date through the end of the Supreme Court’s October 2014 term. It includes an edited version of of the Supreme Court’s new campaign finance case, McCutcheon v. FEC, an edited version of Shelby County v. Holder, and coverage of the Supreme Court’s consideration of new redistricting cases from Alabama and Arizona, raising new questions about racial gerrymandering claims and the scope of state power to enact citizen redistricting commissions for congressional districts via voter initiative.

The supplement also considers developments in Voting Rights Act litigation after the Supreme Court’s Shelby County case, including new disputes over voter identification requirements, and covers litigation over citizenship and other state registration and voting requirements under the Elections Clause following the Supreme Court’s opinion in Arizona v. Inter Tribal Council.  It also covers theSusan B. Anthony false campaign speech case.

Professors who adopt the Lowenstein/Hasen/Tokaji casebook for their course can receive a complimentary copy of this supplement by emailing their request to crutan (at) cap-press (dot) com. A PDF draft version of this supplement may be available to adopters in July — please specify if you would like to receive a copy of this early version.



Teaching Election Law, Legislation, Statutory Interpretation, or Leg Reg in the Fall?

Then consider recommending my Examples and Explanations book to your students.  It is designed to work in all of these courses, with all of the major casebooks. I’ve gotten very good feedback so far. Thanks!



“Soros helps pro-Clinton Super PACs to $20 million haul”


A trio of pro-Hillary Clinton groups raised more than $20 million in the first half of the year, including at least $1 million from billionaire financier George Soros, POLITICO has learned.
American Bridge 21st Century, an opposition research super PAC founded by Clinton enforcer David Brock, will disclose raising $7.7 million — including $1 million from Soros — to the Federal Election Commission before a July 15 deadline, an official with the group said Wednesday. A linked nonprofit group called American Bridge 21st Century Foundation — which is not required to disclose its donors — raised an additional $1 million, the official said.

Meanwhile, Priorities USA Action, an allied super PAC dedicated to airing ads supporting Clinton and attacking her opponents, is expected to report raising $12 million or more in the first half of the year, multiple sources in Democratic finance circles told POLITICO.



Nate Persily to Join “The Law of Democracy” Casebook

It’s been nearly twenty years since Pam Karlan, Sam Issacharoff, and I published the first edition of “The Law of Democracy” casebook.  In all those years, we have not added another co-author to the book, which is now in its Fourth Edition.  We are therefore particularly pleased to announce that for the next edition, which we are at work on now, Professor Nate Persily, the James B. McClatchy Professor of Law at Stanford Law School, will become a co-author of “The Law of Democracy.”  Nate, who recently served as the Senior Research Director for the Presidential Commission on Election Administration, is well-known to readers of this blog.  From now on, all errors in the casebook can be attributed to Nate.

We will have the 2015 Supplement available in the next week or so.  The Supplement will address the big three “law of democracy” cases this Term:  The Arizona redistricting commission decision, the Alabama racial redistricting cases, and the Court’s campaign-finance decision concerning judicial elections.  In addition, the Supplement will provide updated perspective on developments over the last year in voting-rights and campaign-finance litigation and legislation throughout the country.


“Gerrymandering Isn’t Evil; Why independent redistricting won’t save us from political gridlock’

John Sides and Eric McGhee for Politico:

But the notion that so many of our political ills stem from gerrymandering is, in fact, a bad idea that simply will not die—what we call a Zombie Myth. And when it comes to Zombie Myths in American politics, gerrymandering remains one of the most persistent. Actual evidence from political science research shows only weak correlations between gerrymandering and both polarization and electoral competitiveness. So why does the Zombie Myth persist? We think three major misconceptions are to blame.


“Did Jeb Bush’s Campaign and Super-PAC Cross the Line on Coordination?”

Russ Choma for Mother Jones:

Jeb Bush officially declared that he was seeking the presidency two weeks ago, yet political observers have assumed he made the decision long ago and may have remained a shadow candidate for strategic purposes. Official candidates are not permitted under campaign finance law to coordinate with super-PACs, which can raise unlimited amounts of money. As a supposedly undecided candidate Bush could work closely with Right to Rise, the multimillion-dollar super-PAC supporting his candidacy. But recent statements by one of Bush’s top political allies suggest Bush may have coordinated with Right to Rise even after he technically qualified as an official candidate.


Don’t Be Surprised #SCOTUS May Kill Public Sector Unions. Justice Alito Asked for These Cases

The Supreme Court’s decision to hear Friedrichs v. CTA is an ominous sign for the vitality of public sector unions, but it should come as no surprise.  Justice Alito practically begged for someone to send the Court such a case.  Here is a post of mine from exactly a year ago:

An Anticipatory Overruling of #Abood in #Harris Case?

Justice Alito’s opinion for the Supreme Court in the Harris v. Quinn case gives all kinds of reasons for overturning the key pro-union case of Abood. Yet the Court majority does not pull the trigger.  Why not?  This seems to be a common move of the Roberts Court, as I explained in Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012): “Anticipatory overruling occurs when the Court does not overrule precedent but suggests its intention to do so in a future case.” It is one of the tools the Roberts Court uses to appear moderate and minimalist.

For example, the Court did not immediately overturn the preclearance provision of the Voting Rights Act when it had the opportunity to do so in the 2009 NAMUDNO case. Instead it signaled the Act was unconstitutional, and then overturned it in the 2013 Shelby County case. As I’ve explained, the Court in Shelby County relied upon dicta in NAMUDNO as though that earlier case had settled it. Similarly, on the campaign finance side, Chief Justice Roberts and Justice Alito signalled the coming overruling of the ban on corporate general treasury spending in elections in the Wisconsin Right to Life case, and then pulled the trigger with the 3 other conservative Justices in Citizens United.

But just because the Court takes two or three cases to reach its highly ideological decision doesn’t make it any less ideological or any more comporting with principles of judicial minimalism or respect for precedent.



Once Again, Justice Ginsburg Not Only Corrects Small Error in Opinion But Announces It

On Monday, I noted a small error in Justice Ginsburg’s AZ redistricting commission that a reader pointed out to me. When a similar thing happened with the Texas voter id case, Justice Ginsburg promptly corrected the error and announced it, something which is quite rare and worthy of praise (as I noted in this oped for the National Law Journal).

Now, from the Court’s public information office:

RE: 13-1314 — Arizona State Legislature v. Arizona Independent Redistricting Commission


For your information, Justice Ginsburg has amended the opinion of the Court in the above case, released on Monday, June 29.  Page 8 of the opinion contained an error.  Redistricting plans adopted by the California Redistricting Commission may be, but are not necessarily, subject to public referendum.  Accordingly, the Justice revised the sentence discussing the California Redistricting Commission to read:  “The California Redistricting Commission, established by popular initiative, develops redistricting plans which can be halted by public referendum.”  The version of the opinion on the Court’s website has been updated.



“Redistricting litigation persists in key states despite court ruling”


The Supreme Court may have knocked out the best-known challenge to existing congressional districts in a number of states on Monday, but maps still remain in flux for 2016 in three important, large battleground states: Florida, North Carolina and Virginia.

Continued redistricting litigation — spearheaded mostly by Democrats, who were in the legislative minority in the three states after the 2010 Census, and their allies — involves 51 of the nation’s 435 congressional districts and could allow Democrats to make a dent in the GOP’s near-historic House majority in next year’s elections.



Congrats to Peter Miller, Bernie Grofman, and UCI Law Review

Peter and Bernie’s article in the UCI Law Review symposium I organized on nonpartisanship in election administration, campaign financing and redistricting was cited by the Supreme Court in the AZ redistricting case. 

I expect this is the first of many citations to UCI Law’s new law review in Supreme Court opinions.

(Disclosure, Bernie and I, along with Marty Wattenberg and Matt Beckman [corrected], sat on Peter’s dissertation committee.)