Have a Comment?
Generously Supported By
ELB Feeds and Email Subscriptions
Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: citizen commissions
Anchorage Daily News: “The Alaska Redistricting Board has gone once again to the Alaska Supreme Court, this time asking the justices to clarify whether an earlier ruling requires it to redraw all of Alaska’s legislative districts from scratch.”
MORE: “Torgerson, a former state senator from Kasilof, said the board was waiting out a decision by the U.S. Supreme Court in a case brought by Shelby County, Ala., challenging a section of the U.S. Voting Rights Act. The case could affect Alaska because like Shelby County, the entire state of Alaska must get authorization from the U.S. Justice Department before making any changes to its voting system, including redistricting.”
“Did Gerrymandering Cost Dems the House? A 33-State Look at Alternative Nonpartisan Maps Suggests Yes”
Stephen Wolf posts an interesting diary entry at Daily Kos.
Three months after the 2012 election, independent redistricting continues to gain attention as a panacea for American congressional elections. Making the case from the quantitative flank is Sam Wang, professor of neuroscience at Princeton and founder of the Princeton Election Consortium, whose February 2 op-ed in the New York Times purported to show that the partisan bias in the U.S. House of Representatives could be corrected nearly entirely by implanting independent redistricting nationwide in the form that it is currently used in states like California. Wang later expressed his admiration for the California commission model by tweeting, in response to a National Journal article on the defeat of Congressman Howard Berman, “What independent redistricting looks like: races blown wide open, incumbents ousted.”
As FairVote has long argued, independent redistricting is a necessary reform, and we support it wholeheartedly. But proponents are simply wrong to suggest it would be sufficient if left to operate within winner-take-all elections. A perfect illustration of this point is the effect of the independent redistricting commission in California. Election results clearly show that ”wide open” races and “ousted incumbents” were not the norm in California in 2012 – and are likely to become even more scarce in the state’s future elections.
Austin-American Statesman: “The city since late January has been urging residents to apply for the map-drawing commission. So far, it has received only 98 applications, all but a handful from white men. Only five applicants are Hispanic, two are black and one is Asian. And the application deadline ends in just two weeks.”
News from Austin: “The city of Austin is looking for volunteers to help carry out a dramatic shift in city government. Applications are being accepted to serve on a 14-member committee of residents that will draw maps for 10 City Council districts. Voters agreed last fall to change the council from seven citywide members to 10 district representatives and a citywide mayor. The ballot measure called for a group of residents, not the City Council, to draw the districts, so that council members can’t gerrymander the lines to try to keep their seats.”
“The Promise and Limits of Citizens’ Assemblies: Deliberation, Institutions and the Law of Democracy”
Michael Pal has posted this draft on SSRN (forthcoming, Queens Law Journal). Here is the abstract:
Recent experiments with deliberative democracy in British Columbia and Ontario have brought new life to the debate over electoral reform in Canada and have called into question the roles of the judiciary and the legislature on electoral law. In both provinces, Citizens’ Assemblies composed of randomly selected members were tasked with deliberating on electoral reform and brining their recommendations to the electorate in a subsequent referendum. These Assemblies were lauded as innovative alternatives to the conventional legislative decision-making process. The author examines the potential and the limitations of the Assemblies, by situating the Citizens’ Assembly mode within roader discussions bout the law of democracy. Specifically, the article explores how well the Assemblies in British Columbia and Ontario insulated electoral reform from manipulation by elected representatives. Although he concludes that those Assemblies were less successful at keeping politics out of the process than many have suggested, he argues that the model nevertheless makes a valuable contribution to the ongoing debate between structural theory and rights theory regarding election law and the right to vote. In light of the fact that both sides of the debate are dissatisfied with the Supreme Court of Canada’s section 3 jurisprudence, there are good reasons for both structural theorists and rights theorists to support the continued use of Citizens’ Assemblies on issues of electoral reform. The author concludes by offering recommendations for improving the Citizens’ Assembly process in the future.
Elliott Weiss has written this oped for the Arizona Daily Star.
News from Arizona.
PPIC has issued this report by Eric McGee and Daniel Krimm. Here is the summary:
In the June 2012 primary, California tested two important electoral changes: new legislative and congressional districts drawn by an independent citizens commission and a “top two” primary system. The results suggest the reforms produced some changes—in particular, more open seats and more competition. However, there was also a great deal of continuity with recent elections: most candidates endorsed by a major party and all incumbents are advancing to the fall election and partisan outcomes were broadly in line with what might have been expected under the old primary system. Over time, the reforms may produce more radical change, but the first step on the road of reform has been a small one.
Nick Stephanopoulos has posted this draft on SSRN (forthcoming U Chicago Law Review). Here is the abstract:
Election law suffers from a comparative blind spot. Scholars in the field have devoted almost no attention to how other countries organize their electoral systems, let alone to the lessons that can be drawn from foreign experiences. This Article begins to fill this gap by carrying out the first systematic analysis of redistricting practices around the world. The Article first separates district design into its three constituent components: institutions, criteria, and minority representation. For each component, the Article then describes the approaches used in America and abroad, introduces a new conceptual framework for classifying different policies, and challenges the exceptional American model.
First, redistricting institutions can be categorized based on their levels of politicization and judicialization. The United States is an outlier along both dimensions because it relies on the elected branches rather than on independent commissions and because its courts are extraordinarily active. Unfortunately, the American approach is linked to higher partisan bias, lower electoral responsiveness, and diminished public confidence.
Second, redistricting criteria can be assessed based on whether they tend to make districts more heterogeneous or homogeneous. Most of the usual American criteria (such as equal population, compliance with the Voting Rights Act, and the pursuit of political advantage) are diversifying. In contrast, almost all foreign requirements (such as respect for political subdivisions, respect for communities of interest, and attention to geographic features) are homogenizing. Homogenizing requirements are generally preferable because they give rise to higher voter participation, more effective representation, and lower legislative polarization.
Lastly, models of minority representation can be classified based on the geographic concentration of the groups they benefit and the explicitness of the means they use to allocate legislative influence. Once again, the United States is nearly unique in its reliance on implicit mechanisms that only assist concentrated groups. Implicit mechanisms that also assist diffuse groups—in particular, multimember districts with limited, cumulative, or preferential voting rules—are typically superior because they result in higher levels of minority representation at a fraction of the social and legal cost.
I read an earlier draft of this piece. Highly recommended.
“Process Failure and Transparency Reform in Local Redistricting: Harnessing the Power of 21st-Century Technologies to Fix 19th-Century Democracies”
Michael Halberstam has posted this draft on SSRN (forthcoming, Election Law Journal). Here is the abstract:
Redistricting reform during this cycle has pushed for greater transparency in redistricting, more public participation, the removal of redistricting from the hands of legislatures, and the design of more legitimate redistricting institutions and decision procedures. Reform efforts, however, are generally focused on statewide and congressional redistricting. Meanwhile, little, if anything, is being done to reform or study thousands of local redistrictings across the country, which typically take place under the radar. Local redistricting processes, moreover, vary between jurisdictions and levels of government, take place in institutional contexts that differ from statewide redistricting, are subject to different political dynamics, and are more vulnerable to serious process failures than statewide redistricting. This article advances a policy proposal to reform local redistricting that weds aspects from several contemporary governance approaches – including so-called ‘third-generation transparency” methods. The article suggests that sates establish centralized statewide redistricting clearinghouses for local redistricting (RDCs) that would standardize and systematize the disclosure of redistricting data and process information across the whole range of jurisdictions within a state. It sets forth the proposed design of such RDCs in some detail upon a careful dissection of the concrete information requirements of the different governmental and nongovernmental actors at each stage of the redistricting process; and of the institutional and political dynamics of local processes. The proposal envisions adapting new technologies to address process failures, but leaving existing local institutional arrangements in place.
Apart from its specific intervention in the national debate about redistricting reform, this article can also be read as a contribution to the broader literature about new governance approaches, and more specifically, as a case study on how certain mechanisms of “targeted transparency” or “choice architecture” can be applied to regulating the democratic political process.
Justin Levitt has posted this draft on SSRN. Here is the abstract:
The Voting Rights Act, often praised as the most successful civil rights statute, is among the most fact-intensive of election regulations. California, the country’s most populous and most diverse state, is among the most challenging terrain for applying the Act. California is also the largest jurisdiction at the vanguard of a burgeoning experiment in indirect direct democracy: allowing lay citizens, not incumbent officials, to regulate the infrastructure of representation.
In 2011, fourteen California citizens strode into the briar patch where citizen institutions intersect the Voting Rights Act. These fourteen comprised the state’s brand-new Citizens Redistricting Commission: an official body of laypersons responsible for applying, in the face of substantial public skepticism, the most nuanced of regulations to the most complex political landscape in the country.
This article, building on prior theoretical work regarding citizen control of public institutions, assesses the new Citizens Commission’s approach to complying with the Voting Rights Act. It offers the first comprehensive review of an actual citizen commission’s engagement with a legal structure that is poorly understood by most citizens. The article opens a rare window not only on the procedures involved in implementing the Voting Rights Act — including new amendments applied to redistricting for the first time in 2011 — but on the process by which a citizens commission may undertake public responsibilities more generally. And in so doing, it highlights decision paths likely to inform not only future citizen bodies, but a range of officials confronting the Voting Rights Act across the country.
Nick Stephanopoulos has posted this draft on SSRN (forthcoming, Harvard Law Review Forum). Here is the abstract:
In an earlier article, I relied on 2005-2009 data from the American Community Survey (ACS) to analyze the congressional districts that were used in the elections of the 2000s. In this brief addendum, I employ more recent ACS data, covering the 2006-2010 period, to analyze the congressional districts that recently have been drawn for the next decade’s elections. My findings should be a valuable resource for courts, litigants, scholars, and anyone else interested in the geographic makeup of America’s new congressional districts. The overall story is one of substantial continuity, but this headline masks an array of interesting subplots: for instance, the improvement of California’s district plan, the worsening of Maryland, North Carolina, and Pennsylvania’s, and the increase in the number of districts with highly heterogeneous African American populations.
California Republicans abandon Prop 40′s attempt to overturn CA Redistricting Commission
When Californians considered Proposition 11, establishing the redistricting commission, I was skeptical that the Rube Goldberg-esque machine could actually pass a plan, which could be implemented in time for the 2012 elections, which would not be subject to a major court challenge or referendum.
Well the measure passed, and it survived some court fights. Now comes news that Republicans who qualified a referendum to reconsider the state Senate lines are urging a no vote, admitting (quite candidly) that the main purpose of the referendum was to try to block the lines from being used in the 2012 elections.
Now I look forward to the debate over whether the lines created by the Commission were better or worse than the lines drawn by the California legislature (which has been accused of engaging in both partisan gerrymandering and bipartisan (sweetheart) gerrymandering in the past. But I do think it is significant that the commission was able to produce lines which actually are being used, without change, in this year’s elections.
Joe Mathews wants California to be more like Wisconsin in its politics. Really.
And anyone who thought top two and citizen redistricting would fundamentally transform California had expectations which were way too high.
The Arizona Capitol Times reports (subscription required). See also this article in the Arizona Republic. The federal complaint raising one person, one vote challenges is here. the state complaint is here.
Arizona Supreme Court Issues Opinion Explaining Why It Blocked Governor from Removing Head of Independent Redistricting Commission
AP reports: “A senior administration official said Wednesday night that Cuomo will sign the measure, withdrawing his promised veto of any “hyper-partisan lines.” Cuomo ultimately traded his veto for a long-term overhaul through a constitutional amendment promised by legislative leaders. The senior administration official spoke on condition of anonymity because although the deal is sealed, the officials hadn’t yet announced it.”
The NY Daily News says minority lawmakers are on board with the plan.
NYT: “This was the year New York State lawmakers were going to stop protecting incumbents by gerrymandering political maps to improve their re-election chances….But in Albany, as they say, it is déjà vu all over again.”
Breaking News: CA Supreme Court Says 2012 Commission Maps Will Be Used Even if Referendum on Senate Districts Qualifies for the Ballot
You can find the opinion here. Justin told us it would be so. What is perhaps most worthy of interest in this case is the concurring opinion of Justice Goodwin Liu, counseling restraint in the area of redistricting. (This is especially noteworthy because Liu was filibustered for a 9th Circuit seat on grounds that he would be a judicial activist.) Here is how his concurring opinion begins:
More than a half century ago, Justice Felix Frankfurter observed that “[t]he one stark fact that emerges from a study of the history of [legislative] apportionment is its embroilment in politics, in the sense of party contests and party interests.” (Colegrove v. Green (1946) 328 U.S. 549, 554 (plur. opn. of Frankfurter, J.).) Faced with entreaties by litigants seeking judicial intervention in the redistricting process, Justice Frankfurter famously warned that “[c]ourts ought not to enter this political thicket.” (Id. at p. 556.) Although the law has not adopted the uncompromising version of this principle urged by Justice Frankfurter (see, e.g., Reynolds v. Sims (1964) 377 U.S. 533; Baker v. Carr (1962) 369 U.S. 186), his admonition continues to resonate each decade when courts are asked to decide what are fundamentally political disputes. Judicial restraint is especially important in the context of legislative redistricting because, as the high court recently observed, “experience has shown the difficulty of defining neutral legal principles in this area.” (Perry v. Perez (2012) 565 U.S. __ [2012 WL 162610, 2012 U.S. Lexis 908].)
And here is how it ends:
In a future case, the court may be divided with regard to which map should serve as an interim map and, closely related, whether and when to issue a decision on that important issue. Those questions will inevitably play out against a backdrop of partisan interests. I hope the court is correct that prudence will be sufficient to guide us out of the thicket. But I believe the language of our Constitution already provides the guidance we need.
It is now uncertain enough that it puts the CA Supreme Court in a pickle.
John Myers reports on CA Supreme Court hearing today over whether citizen-commission state Senate redistricting needs to be put on hold for a referendum which may qualify for the ballot.
Bottom line: Expect a decision soon, but no one knows what that decision will be.
11th Circuit Today Considering Florida Constitutional Amendment Taking Away Legislative Power to Redistrict
“[I]f only California had a tax on phony outrage — we could balance the budget.”
Joe Mathews, on the dispute over ProPublica’s report on California’s citizen redistricting commission.
News from California: “The Supreme Court has scheduled a special January 10 oral argument for the Redistricting writ petition. It’s been only 19 days since the court agreed to decide the petition and set an “extremely expedited briefing schedule” that will allow “oral argument in this matter as early as the first two weeks in January 2012, and the filing of an opinion in this matter as early as the end of January 2012.””
In the weeks that followed, party leaders came up with a plan. Working with the Democratic Congressional Campaign Committee — a national arm of the party that provides money and support to Democratic candidates — members were told to begin “strategizing about potential future district lines,” according to another email.
The citizens’ commission had pledged to create districts based on testimony from the communities themselves, not from parties or statewide political players. To get around that, Democrats surreptitiously enlisted local voters, elected officials, labor unions and community groups to testify in support of configurations that coincided with the party’s interests.
When they appeared before the commission, those groups identified themselves as ordinary Californians and did not disclose their ties to the party. One woman who purported to represent the Asian community of the San Gabriel Valley was actually a lobbyist who grew up in rural Idaho, and lives in Sacramento.
In one instance, party operatives invented a local group to advocate for the Democrats’ map.
See also this press release from the California Republican Party.
Dave Wasserman’s take: “Overall, fascinating piece by
@olgapierce & @propublica. But CA commission still deserves credit for more compact & competitive lines…My 2 main qualms w/ @ProPublica story: 1) Dems got 6-7 more seats from new lines? 2) Rose Institute cited as impartial “expert.” Really?…Aside from the righteous indignation over Dems who played the remap smart, @ProPublica does have awesome maps: http://projects.propublica.org/redistricting-maps/mcnerney…This shocking ProPublica “expose” on #CAredistrict explains how Berman/Sherman/Capps/etc. got great districts. Wait… “
News from Ohio.
Horvitz and Levy’s “At the Lectern” blog reports.
Don’t miss this important Dallas Morning News editorial, which actually breaks some news.
SacBee reports: “Radanovich’s federal suit contends that the panel violated federal voting rights law and the U.S. Constitution by seeking to protect three African American incumbents in the drawing of three Los Angeles congressional districts.”