#Halbig: Participation of Senior DC Circuit Justices in En Banc Review

There’s been some confusion about what role senior judges play in the en banc review.  After looking at the rules, it appears that senior judges do not get to vote on whether to take the case en banc, but if the case is taken en banc senior judges who were on the panel do get to participate in the decision of the case if the judge wants to do so. I’ve put the relevant parts of the rules in bold below:

If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The question now is whether there should be a rehearing en banc. On this question only active judges of the Court may vote, and a majority of all active judges who are not recused must approve rehearing en banc in order for it to be granted.
When rehearing en banc is granted, the Clerk enters an order granting the rehearing en banc and vacating the judgment by the original panel, either in whole or in part, as circumstances warrant. This order is posted on the Court’s web site and is published in the federal reporter system. An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish. The Court has followed a variety of procedures in conducting rehearing en banc. On occasion, only the original briefs have been considered; in other cases, the Court has requested supplemental briefs. The Court almost always hears oral argument in considering a case en banc.
The Court sitting en banc consists of all active judges, plus any senior judges of the Court who were members of the original panel and wish to participate. When the Court sits en banc with an even number of judges, and the result is an evenly divided vote, the Court will enter a judgment affirming the order or judgment under review, and it may publish the en banc Court’s divided views.


“The Tangled Web of Paul Ryan’s FEC Request”

Brian Svoboda:

At issue in Advisory Opinion Request 2014-06 is whether Representative Paul Ryan’s leadership PAC, Prosperity Action, may promote the sale of his upcoming book on the Internet beyond de minimis levels. Representative Ryan intends to receive royalties from the book.

The Federal Election Commission published two drafts of a response to his request. The first, Draft A, would grant it. The second, Draft B, broadly asserts that “the Act’s personal use prohibition applies to leadership PACs, such as Prosperity Action.” Adopting Draft B would be a significant policy change for the FEC. In its legislative recommendations just last year, the FEC asked Congress to amend 2 U.S.C. § 439a to cover leadership PACs, saying: “Congress might not have considered the application of the personal use prohibition to this particular type of political committee.”

But at the heart of the request is a highly technical question that vexed many during the failed prosecution of John Edwards….


Fourth Circuit Rules in FAVOR of the Government in the Obamacare Subsidies case

Making sure our readers keep up with this whiplash-causing day in the land of health reform: The Fourth Circuit released its own opinion (3-0, with a strong concurrence from J. Davis) rejecting the subsidies challenge pending in that court right after the DC Circuit released its own opinion sustaining the same challenge there . The Fourth Circuit went with a straight Chevron argument, but indicated it thought the government had the better reading of the statutory text in any event. Judge Davis concurred specially to make the point that Chevron wasn’t even necessary: that the statute clearly requires the subsidies on the federal exchanges. Of interest to statutory interpretation types (and along the lines of what I’ve been arguing in previous posts), Judge Davis also argued that this isn’t a case of “textualism v. purposivism” or statutory text versus some amorphous concept of congressional intent.  Davis argued that the text of the statute as a whole answers the question definitely in favor of the Government.

[cross-posted at Balkinization]


“Obamacare Ruling: Congress’s Dysfunction Hands Power to the Courts”

David Wessel:

The appellate court ruling on Obamacare underscores an increasingly important side effect of today’s congressional dysfunction and gridlock: The rising power of the courts, particularly the U.S. Supreme Court.  Congress, unable to agree on almost anything, is incapable of responding to court interpretations of often-vague statutes even when the Court invites a response.

That’s a big change.

“Polarization already is leading to an increase in the power of the [Supreme] Court against Congress, whether or not the justices affirmatively seek that additional power,” Richard Hasen, a University of California at Irvine law professor noted in a 2012 law review article.  In the past two decades, the rate of congressional overriding of Supreme Court statutory decisions has plummeted, he found, from an average of 12 in each two-year congressional term during the 1975-1990 period to an average of 5.8 overrides for each term from 1991-2000 and to 2.8 average number of overrides for each term from 2001-2012.


“I’d love to write for Electronic Law Blog”

I get spam all the time offering me free content for the blog, so long as I just include a little link to something special.  But I really liked this one I got this morning:

just thought I’d send a quick email because I wanted to let you know how much I enjoyed reading the articles on Electronic Law Blog. I have a keen interest and have been a writer on law-related topics for a year now, and sites like yours are always appreciated for inspiration.

I’m really interested to know if you’re looking for new contributors to your blog, as I’d love to put myself forward as a possible contributor.

Over the last few years I’ve written for some well-known publications and have received some really positive feedback for my writing. I really believe my writing would resonate perfectly with the readers of your site, my background is within family law, separation and divorce.

I had a piece published recently that I was particularly proud of, titled ‘Jess and Cathy talk about divorce’, you can see it here:…


D.C. Circuit Rules Against Govt in ObamaCare Exchange Subsidies Case

The D.C. Circuit has just ruled, 2-1, that the critical subsidies are not available to consumers buying insurance in states where the exchanges are operated by the federal government, rather than the states.   Initial reaction- more to come: The opinion  is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn’t even the basis for these provisions–the Finance committee’s was) and gets it wrong anyway (as I argued here);  it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges.  The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What’s more, applying the exclusio unius presumption  (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA — and one that did not go through the usual linguistic “clean up” process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years–turning it into a wooden unreasonable formalism  rather than the sophisticated statutory analysis that textualists have been claiming they are all about.


[cross posted at Balkinzation]


“Democrats challenge petition seeking spot in gubernatorial primary”

Buffalo News:

Democrats have turned to a lawyer who helped craft some of the state’s complex election laws to try to keep a challenger to Gov. Andrew M. Cuomo from getting onto the September Democratic gubernatorial primary ballot.

Martin Connor, a former State Senate minority leader from Brooklyn and one of the state’s most respected election lawyers, is in charge of the legal team seeking to challenge the designating petition submitted last week by Zephyr Teachout, a Fordham University law professor who is seeking to run against Cuomo in a primary.


Perkins Coie Makes Life Difficult for the Center for Responsive Politics

Here’s a taste:

On April 15, 2014, we sent a letter to Rodell Mollineau, then the president of American Bridge and a former staffer of Senate Majority Leader Harry Reid, requesting the group’s application materials, preferably in electronic form. On April 24, a Perkins Coie attorney we’ll refer to as Ezra R. — no, E. Reese — who represents the group, responded to our request, saying in an email that, yes, the group had received an exemption from the IRS, but “as a matter of policy, American Bridge 21st Century Foundation only issues paper copies of its 1024 application.”

We asked some of the nation’s top nonprofit lawyers whether there’s any legitimate reason for a well-funded nonprofit like American Bridge to have a “policy” of printing a document from an electronic file, then mailing it to a requester — other than to make it as difficult as possible for that requester to obtain and process the document. The consensus was that American Bridge probably knew it was going to be hard for us to scan thousands of double-sided pages.

American Bridge is not the only organization with a hard-copy policy, nor is it the only one that charges for paper copies of documents we’d prefer to receive in PDF form. It’s just the only one to charge us this much money for this much paper with this much drama.

First, the money: The Perkins Coie counsel informed us that the hard copies of the documents would cost CRP $428.60, plus an estimated $20 for postage. Collecting our jaws from the floor, we politely asked if there was a decimal error in the price cited. IRS regulations permit groups to charge a “reasonable fee for any reproduction and mailing costs.” But we’ve never been hit with a fee of more than about $20….


“New report finds broad opposition to IRS regulations on political speech”

Press release: “87 percent of concerned individuals sampled and 97 percent of organizations, nonprofit experts, and public officials oppose to varying degrees IRS regulations limiting the speech rights of societally important social welfare organizations, according to a new report from the Center for Competitive Politics (CCP).”


“Leadership war stymies Senate mission”

Paul Kane for WaPo:

The Senate went three months this spring without voting on a single legislative amendment, the nitty-gritty kind of work usually at the heart of congressional lawmaking. So few bills have been approved this year, and so little else has gotten done, that many senators say they are spending most of their time on insignificant and unrewarding work.

The big issues have been sidelined by political and procedural battles and an intensely personal war between the leadership offices.

Senators say that they increasingly feel like pawns caught between Majority Leader Harry M. Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), whose deep personal and political antagonisms have almost immobilized the Senate.


“Black voter turnout exceed white voter turnout, even in states with strict ID laws, pundit claims”

PunditFact says “true:”

Riley said “black voter turnout in 2012 exceeded the rate of white voter turnout, even in the states with the strictest voter ID laws,” despite the Democrats claiming the voter ID laws suppress the black vote.

While there is debate about the reasons why — and if the phenomenon will last — Riley’s statistic checks out. Census data shows that indeed, for the first time ever, black voter turnout was higher nationally than white voter turnout, and at least just as high in the states with strict voter ID laws.



“Senate primary needs to end so healing can begin”

Sam Hall on #MSSEN:

If the campaign has enough evidence to file a challenge, then they should file a challenge. A more likely observation: if the campaign had enough evidence to file a challenge, they would have filed a challenge already. McDaniel’s most ardent supporters — those who have passion plenty but are lacking in intimate knowledge of the campaign’s inner-workings — assail myself and others with the conviction that McDaniel is strategically holding back until all facts are gathered and the best possible case can be made. However, such conviction is naive and not politically strategic at all.

If the campaign had evidence of voter fraud that could overturn the election, they would immediately file a challenge for a number of reasons. For one, a court would be more likely to grant them unfettered access and issue injunctions halting the general election process if credible evidence of voter fraud was presented. For another, if McDaniel’s efforts are truly about challenging the legitimacy of Cochran’s nomination, then time becomes an invaluable commodity because McDaniel would face a general election if he was successful.



“The Conversation: Dissecting a ‘no party preference’ campaign in California”

SacBee: “Two seasoned California campaign strategists, one a Republican and one a Democrat, who advised a “no party prefence” candidate running for secretary of state, discuss the campaign.”

Sragow: Dan didn’t make it into the general election for three fundamental reasons, two of them structural and one of them systemic.

First, as political insiders are now realizing, our new top-two primary has at least one unintended consequence: The outcome depends heavily on how many viable candidates are competing for Democratic votes and Republican votes. To Dan’s disadvantage, ultimately there was only one viable Democrat and one viable Republican, so the major party votes weren’t divided into small pieces.

Second, the voters who are more likely to vote for an independent are less likely to vote in a June primary, and turnout this spring was brutally low.

Third, and this is something familiar to California political consultants, at the beginning of a campaign most voters know nothing, or close to it, about the candidates. So, a campaign needs money to buy sufficient advertising, and, failing that, a campaign needs to use shorthand to provide voters with clues. That’s where party affiliation and ballot title become important.

Stutzman: I, of course, agree with all of that assessment. My summation is that a good “no party preference” candidate like Dan is greatly aided by a June turnout that is about twice what occurred this year. Our poll didn’t take into account turnout as low as it was. Until voters participate in primaries in greater numbers, I’m skeptical of the path for an independent.

One other observation is that while Dan has been quoted regularly in the media for about 25 years, that really didn’t create a name ID for him. I also don’t think that the excellent news coverage Dan received when he entered the race had any residual aid for his candidacy. This is bad news, most of all, for newspapers.



“If they’re dead, then who voted? Identities of opera singer, World War II veteran, used for balloting”

UT San Diego: “The review found that 26 ballots have been cast in the names of 10 dead San Diego County citizens since 1998. Mail-in ballots were the most common way to vote in the name of a deceased person, accounting for 21 of the votes in question — and all the votes cast for DeGregory and Welty….Twenty-six votes cast on behalf of dead people is a minuscule tally in light of millions of votes cast, but long-running patterns such as the Welty and DeGregory records indicate problems identifying chronic posthumous votes. Vu said the registrar is reviewing the U-T’s findings and will hand information about Welty and DeGregory over to the authorities for further review.”



CA Controller Recount Over: Lessons Learned?

KPCC’s Sharon McNary reports: “Recount in @CAController race ends today. @SpeakerPerez spokesman @douglasjherman says it’s over. Cost: about $30K for 10 votes.”

I told the audience at #CACEO yesterday that this what what I expected unless Perez started finding a lot more votes fast to make up his 481 vote margin.

But making the candidate pay for a recount in such a razor-thin race is a dumb idea, and it led to the kind of cherry picking that Perez engaged in.  The election officials I spoke to yesterday were quite concerned any recount under the existing rules would run into the deadlines for printing ballots. They did not know if and when the courts would get involved.

The CA legislature needs to rewrite the rules, creating stated-funded, fast and automatic recounts with margins this close.

Do I think the legislature will do so?  No way. They still have not fixed obvious and easily fixable problems revealed in the 2003 CA gubernatorial recall.


Straight Out of a Legislation Exam: Is a Bicycle a “Vehicle” in Intoxicated Bicyclist Collision?

Velasquez v. Superior Court:

While riding his bicycle, Jorge Velasquez, Jr. collided with a pedestrian, seriously injuring her. He was charged with recklessly driving a “vehicle” under Vehicle Code section 23103.1 One section of the code, however, defines “vehicle” in a way that excludes bicycles. (§ 670.) Another section of the code subjects a bicyclist to “all the provisions applicable to the driver of a vehicle.” (§ 21200, subd. (a).) Given the seeming tension between the two sections, can a bicyclist be charged with recklessly driving a “vehicle”? We conclude, yes, a bicyclist can be charged with recklessly driving a vehicle under section 21200.


Now Available: 2014 Supplement to Lowenstein, Hasen, & Tokaji: Election Law Cases and Materials

[UPDATE: The 2014 Supplement is now available for purchase at Amazon. Professors who adopt the Lowenstein/Hasen/Tokaji casebook for their course can receive a complimentary copy of the  supplement for themselves and their students by emailing their request to crutan (at) cap-press (dot) com.]

The 2014 Supplement to the 5th edition of Election Law–Cases and Materials  is up-to-date through the end of the Supreme Court’s October 2013 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 an edited version of the lower court decision in the Alabama redistricting cases which the Supreme Court will hear in the October 2014 term.

The supplement also considers developments in Voting Rights Act litigation after the Supreme Court’s Shelby County case as well as cover litigation over citizenship and other state registration and voting requirements under the Elections Clause following the Supreme Court’s opinion last term in Arizona v. Inter Tribal Council.  It also covers the new Susan B. Anthony false campaign speech case.

You will find information about the Supplement and casebook on the Election Law casebook page at Carolina Academic Press.  Here is a description of the Fifth Edition, which was published in 2012:

The first edition of Election Law was the first modern casebook on the subject of election law. Now in its fifth edition, the leading election law casebook covers the right to vote and voter turnout, legislative districting, the Voting Rights Act, racial gerrymandering cause of action, ballot propositions, constitutional rights and obligations of political parties, bribery, regulation of campaign speech, campaign finance, and election administration.

The streamlined and student-friendly fifth edition of Election Law fully covers developments in election law in the 2012 election season including: extensive coverage of Citizens United, super PACs, and other campaign finance developments; emerging issues in voting rights and redistricting, including coverage of the Texas redistricting and voter identification cases; and new coverage of issues in judicial elections. It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well.

[This post has been updated]


Ron Klain Writes to David Gergen on Justice Ginsburg “Performance Pitfalls” When She Was Up for SCOTUS Nomination

Page 62 of this pdf from the new Clinton library papers. A snippet:

And finally, Judge Ginsburg’s technique — her failure to make eye contact, her halting speech, her “laconic” nature (to use Jim Hamilton’s phrase) -~ is not helpful….

You should be cautious in dealing with her on these and other points. Judge Ginsburg views the White House’s interest and her interests as being at odds with each other: she sees us as having a stake in presenting.her as a moderate and in getting along well with the Senate; she sees her interests as “being herself, ” preserving her “dignity’,” and promoting her “independence.”