Bauer on Chemerinsky on RBG


In the LA Times, Chemerinsky opens with these words:

Imagine that you are a person with great influence, highly respected and with a powerful voice that commands enormous attention. Imagine that you see the country heading down a potentially destructive and very dangerous path. Do you sit quietly and, if the worst happens, always regret your silence, or do you speak out even if doing so will subject you to criticism?

It is an entirely fair question. And the one that follows is what is permitted to others who lack the same power and influence but who feel no less urgency about the country’s direction. This is not an argument for dispensing with all campaign finance controls, but for considering them carefully in the light of those times when many wishing to speak and to influence voters are convinced that there is a great deal on the line, with the “country heading down a potentially destructive and very dangerous path.”


ELB Podcast Episode 14. Erwin Chemerinsky: Did Justice Ginsburg Cross the Line?

Did Justice Ginsburg go too far in her comments against presumptive Republican nominee Donald Trump? Should comments like Justice Ginsburg’s be protected by the First Amendment, and would they be grounds for recusal in a future Clinton v. Trump case? Are judicial rules which bar endorsements of candidates and political statements by judges unconstitutional?

On Episode 14 of the ELB Podcast, we talk with UCI Irvine Law dean and noted constitutional scholar Erwin Chemerinsky.

You can listen to the ELB Podcast Episode 14 on Soundcloud or subscribe at iTunes.


“Lawyers’ Committee Expresses Disappointment with U.S. Department of Justice Decision to Terminate Critical Federal Observer Program”


 The Justice Department (DOJ) has stated that it will no longer deploy federal observers inside polling sites, a long-standing and critical component of its election monitoring efforts.  The Justice Department announced that it will cease dispatching federal election observers to polling sites, based on the their interpretation of the 2013 U.S. Supreme Court decision in Shelby County v. Holder.  The DOJ also issued a Fact Sheet further outlining the decision.  Federal election observers, specially trained individuals with authorization to enter polling locations and review the counting of the votes, have historically played a critical role monitoring elections to ensure that all voters are able to freely cast a ballot.

From an AG Lynch speech to LULAC:

That decision did great damage.  It seriously undermined Section 5 of the VRA, which required jurisdictions with the most troubling histories of voter discrimination to receive federal approval, or “preclearance,” before they could change their election rules.  Section 5 was in many ways the heart of the Voting Rights Act and its neutralization was a serious blow with far-reaching consequences.  First and foremost, the Department of Justice can no longer block voting restrictions before they take effect.  For example, in 2011, the state of Texas passed a restrictive voter ID law that requires voters to produce documents that more than half a million Texas voters simply do not have.  Seven federal judges have reviewed this law and seven federal judges have found that it violates the Voting Rights Act – three of them before Shelby County and four of them after.  The case is currently before the full Fifth Circuit, with a decision due any day.  But because of Shelby County, Texas’s law remains in force while we wait for a final decision – and it is not the only one.  Because of Shelby County, other states have also enacted laws that restrict voting rights.  And these laws have the potential to distort elections by making it harder for voters – especially low-income and minority voters – to access the ballot box.

Shelby County had other consequences as well.  It has forced the Justice Department to rely much more on local groups and individuals to alert us to potentially unlawful acts, since jurisdictions no longer have to self-report.  In the past, we have also relied heavily on election observers – specially trained individuals who are authorized to enter polling locations and monitor the process to ensure that it lives up to its legal obligations.  Unfortunately, our use of observers is largely tied to the preclearance coverage formula that the Supreme Court found to be unconstitutional in Shelby County and so our ability to deploy them has been severely curtailed.  Rest assured, we will continue to monitor elections to the extent that we can, but because of Shelby County, we will be sending out fewer people with fewer capabilities this November.

The kind of harm we see – in places that pass restrictive laws that we now spend years fighting on the back end, instead of preventing on the front end; the harm that comes when we don’t have the same number or kind of “eyes and ears” in polling locations that we did before –cannot be undone.  And in the year 2016, in the United States of America, it should not be tolerated.  Nor does it have to be.  In its ruling, the Supreme Court made clear that Congress has the ability to establish a new system for determining which jurisdictions are subject to preclearance – a step that would restore Section 5 to its full effect and restore our capacity to protect.  I have repeatedly urged Congress to embrace this opportunity.  And today, once again, I call upon the people’s branch to stand up for the people’s voice.  In a nation of the people, by the people and for the people, no eligible citizen should be denied the right to vote, no matter who they are or where they live.  And the representatives of the people should guarantee that right – not tomorrow, not after the election, but right now.

Now, the good news is that even without Section 5, the Voting Rights Act remains a potent tool.  Its other provisions remain in effect. And there are many other important voting rights laws that our Civil Rights Division is using to ensure and to widen access to the ballot.  We entered into an agreement with the State of Alabama to ensure its compliance with the National Voter Registration Act, which requires states to provide eligible citizens with the opportunity to register to vote through motor vehicle agencies.  Our action eased the way to vote for the more than one million Alabama residents who interact with the state motor vehicle agency annually.  We have also made certain that communities in Virginia establish accessible polling places for voters with disabilities.  We have secured access for Latino voters in Napa County, California, to the Spanish-language ballots and assistance to which they are legally entitled.  We have worked to ensure that uniformed service members deployed at home and abroad are able to send in their absentee ballots in plenty of time for them to be counted – because the men and women fighting to defend our rights should never be denied theirs.  When others bring cases, we join the fight there as well: since the beginning of 2014, we have filed briefs in private lawsuits in 14 different states that address issues ranging from district lines and registration opportunities to ID rules and language access.  And as we prepare for the first presidential election since the Shelby County ruling, we are mobilizing all of the resources left at our disposal to monitor the process as thoroughly and effectively as possible.


Supreme Court Asks for Response to Cert. Petition in WI John Doe Case, and Respondents Oppose Amicus Brief from Reform Groups

See the latest two entries.

The next to last entry means that someone at the Court thought enough of the district attorneys’ cert petition to ask for those opposing cert. to file a response. It is no guarantee of a cert grant, but makes it somewhat more likely.

The second entry means that some of the unnamed respondents don’t want to allow those groups to file an amicus brief supporting cert. That’s unusual, and to me a sign of weakness.



“Call for Papers: Analysis and Comment on Recent Developments in Constitutional Law”

Announcement via email:

The Syracuse Law Review seeks manuscripts that address constitutional issues that were raised by the Supreme Court’s 2015-2016 term and that continue to be discussed in the ongoing 2016 presidential campaigns. Such issues include, but are not limited to, affirmative action, immigration, voting rights, healthcare, and gun control. A book of Volume 67 of the Law Review will be dedicated to addressing these constitutional themes, and we would like to include any and all pertinent subjects in the conversation. The articles’ subjects were left intentionally broad so as to leave room for authors to choose individual, specific topics within their fields. Article submissions should be approximately 10,000 words (flexible) and must be submitted to the Law Review no later than October 1, 2016. If you are interested in submitting or if you have any questions, please contact Lead Articles Editors Hillary Anderson at and Matthew Petrone at


“Stop Corruption Now drive targeting Arizona dark money ends”

Arizona Republic:

A campaign to stop a bill that loosens much of the control Arizona has over anonymous campaign spending has dropped it efforts to get the issue before voters.

The Stop Corruption Now drive wanted to refer the state’s campaign-finance overhaul to the Nov. 8 ballot, so voters could decide if they agree with the changes state lawmakers approved earlier this year. But the drive didn’t have enough money to gather the more than 75,000 signatures needed to get it on the ballot.


“Mike Pence used campaign funds to pay his mortgage — and it cost him an election”


Mike Pence was a young lawyer on the rise, challenging a longtime Democratic congressman in a Republican-leaning Indiana district.

And then, scandal.

Campaign finance records from the 1990 effort showed that Pence, then 31, had been using political donations to pay the mortgage on his house, his personal credit card bill, groceries, golf tournament fees and car payments for his wife.

The spending had not been illegal at the time. But it stunned voters — and undermined Pence’s strategy to portray the incumbent, Rep. Philip R. Sharp, as tainted by donations from special-interest political action committees.


“The Wrong Way to Count Prisoners”

NYT editorial:

Voting rights advocates have been pressing the Census Bureau for more than a decade to stop counting prison inmates as “residents” of prisons — where they typically remain for only a short time — instead of the communities they call home. The bureau, in a rejection of common sense and fairness, has proposed rules for the 2020 census that continue this discredited practice.

Counting inmates this way allows legislators who draw electoral lines to inflate the power of certain areas with “constituents” who have been stripped of the right to vote and have no interaction with the larger community.


“Trump raised $32 million with RNC, but kept only a fraction”


Of that, Trump Victory transferred only $2.2 million to Trump’s presidential campaign committee, as compared to $10.1 million to the RNC, though $5.8 million of that went to funds that can’t be used for campaign activity, and are earmarked instead for the party’s buildings and legal and convention expenses. Trump Victory didn’t transfer any money at all to the 11 state parties participating in it. Meanwhile, Trump Make America Great Again Committee, which comprises only the Trump campaign and the RNC, did not transfer any money to either.



“GOP convention organizers apologize to Sheldon Adelson”


The last-minute plea for $6 million from Las Vegas billionaire Sheldon Adelson to rescue the Republican convention has erupted in controversy, as four of the five signatories to the letter from party organizers never saw it before it was sent and major donors flagged serious errors that forced the convention hosts to apologize to one of the GOP’s most influential financiers.

The episode has opened a window into a host committee that is scrambling and still millions shy of its fundraising target, only days before tens of thousands of Republicans arrive in Cleveland, as it acknowledges for the first time that presumptive Republican nominee Donald Trump has put a damper on donations.



Trump Campaign, By Adding Pence, Now Faces Pay-to-Play Rules Limiting Campaign $

Jason Abel and Scott Sinder of Steptoe:

Today, Donald Trump, the presumptive Republican nominee for president, announced that Governor Mike Pence of Indiana will be his running mate.  By virtue of the fact that Pence is a current governor, the presumptive Republican vice president nominee will now subject the Republican ticket to various pay-to-play rules:

  • Securities and Exchange Commission Rule 206(4)-5 for investment advisers
  • Municipal Securities Rulemaking Board Rule G-37 for municipal securities dealers and – effective on August 17, 2016 – municipal advisors
  • Commodity Futures Trading Commission Rule 23.451 for swap dealers

Those in the donor community who are subject to pay-to-play rules (specifically those in the financial services sector) may be limited in how much they can contribute to the Trump-Pence ticket.  Companies should have in place compliance policies and procedures to safeguard against the negative consequences resulting from prohibitions that can be triggered by certain contributions (including bans on business), and employees should be aware of the actions that could lead to violations of the rules….


“Election Cases Move Toward U.S. Supreme Court, Risking Deadlocks”

Greg Stohr for Bloomberg:

At the shorthanded U.S. Supreme Court, the next deadlock may affect the November election.

A group of voting-rights cases is making its way to a court that’s all but guaranteed to have a lingering vacancy through the election. The divisive nature of the issues may leave the eight justices unable to decide who can cast the ballots that will determine control of the White House and Congress.

The disputes involve voter-identification requirements in Texas, Virginia and Wisconsin; an early-voting period in Ohio; a variety of restrictions in North Carolina; and proof-of-citizenship laws elsewhere. The cases pit Democrats and civil-rights groups claiming discrimination against Republicans arguing the steps are warranted to prevent voter fraud.

“They affect the rights of voters to be able to cast an effective ballot that will be counted accurately,” said Rick Hasen, an election-law professor at the University of California, Irvine.

The eight-member court deadlocked in four cases in its just-completed term. Justice Antonin Scalia died in February, and Senate Republicans have refused to consider President Barack Obama’s nomination of Judge Merrick Garland to fill the slot.

The vacancy increases the potential for the cases to produce varied outcomes from state to state. A 4-4 Supreme Court split leaves the lower court ruling in place.


“A North Carolina law the Justice Dept. says has ‘a race-based purpose’ could have a huge impact on the election”


A Reuters review of Republican-backed changes to North Carolina’s voting rules indicates as many as 29,000 votes might not be counted in this year’s Nov. 8 presidential election if a federal appeals court upholds the 2013 law. Besides banning voters from voting outside their assigned precinct on Election Day, the law also prevents them from registering the same day they vote during the early voting period….

Reuters reviewed state election board data showing the number of North Carolinians who made use of out-of-precinct voting and same-day registration in previous elections, including March’s state nominating contest, or primary, when voters nominated their preferred presidential candidate.

The Reuters analysis includes some assumptions. For 29,000 votes to go uncounted on Nov. 8, North Carolinians would need to vote in the same numbers and in the same ways they have in previous elections, including the March primary.


Nina Totenberg Gets RBG on Tape: “You’ve Apologized So To Speak. Why?”

Must Listen.

Asked why she felt it was time to say she was sorry about the remarks, Ginsburg said:

“Because it was incautious. I said something I should not have said and I made a statement that reads, ‘On reflection, my recent remarks in response to press inquiries were ill-advised. I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.’ And that’s exactly how I feel about this whole business.”

Ginsburg responded, “I stand, Nina, by what I said. I would say yes to your question, and that’s why I gave the statement. I did something I should not have done. It’s over and done with, and I don’t want to discuss it any more.”

On that “blog post” error, see Nina’s earlier report:

Three days after the opinion was released, professor Richard Hasen of the University of California, Irvine said on his election law blog that the state does in fact accept the Veterans Affairs IDs. Upon confirmation of that fact by the Texas secretary of state’s office, Ginsburg amended her opinion.

Not surprising. What was surprising is that, according to Supreme Court spokeswoman Kathy Arberg, Justice Ginsburg instructed the press office to announce that the opinion had “contained an error” and that it was being corrected.

On Wednesday, the court announced the mistake and the correction.

Errors of this sort are not exactly rare. In this case, it appears that Ginsburg may have gotten the Wisconsin and Texas voter ID provisions, both before the court, mixed up.

Until the era of the blogosphere, however, this sort of mistake was the stuff of academic gossip. Now it is the stuff of academic blogs, which sometimes get picked up in the popular press. A more embarrassing mistake by Justice Antonin Scalia was caught by Harvard Law professor Richard Lazarus last spring; the error was quickly fixed, but it was not announced. Nor was another error made and corrected by Justice Kagan.

Ginsburg is the first justice to call the public’s attention to her own mistake.


“Utah settles lawsuit, concedes First Amendment violation”


In an agreement approved by a federal judge this afternoon, Utah agreed not to enforce a state campaign finance law that violated the First Amendment. The complex law required nonprofit advocacy groups to register with the state and publicly report their supporters’ private information, threatening donations to those organizations.

The agreement, known as a consent decree, was approved by U.S. District Court Judge Dale A. Kimball and settles a lawsuit filed on behalf of three Utah groups by attorneys at the Center for Competitive Politics (CCP), America’s largest nonprofit working to promote and defend First Amendment rights to freedom of political speech, assembly, and petition.


“GOP Cleveland organizers beg Adelson for $6 million”

The real story is the reason for the shortfall, not the begging of a plutocratic overlord:

In a letter to the Adelsons, obtained by POLITICO, the Cleveland 2016 Host Committee revealed the names of more than two dozen prominent corporations and individuals who have reneged on a collective $8.1 million in pledged donations….It goes on to list the companies and wealthy individuals who have withdrawn their financial commitments. Among those who have canceled their donations, according to the letter, are David Koch ($1 million), FedEx ($500,000), Visa ($100,000), Pepsi ($500,000) and Coca-Cola ($1 million).


Nina Totenberg Talks About RBG’s Apology

Click on the audio to the left on this story (the written story is not by Nina).

My rough transcription of part: “I was very surprised [she said these things]…She made a mistake. I have to say she is the most transparent Justice on the Court….She’s the first Justice who when she made a mistake…a minor error in a Supreme Court opinion…she announced she made a mistake and now other Justices do it…..It is rather refreshing. She can only hope the controversy will now subside….I think this is pretty clear evidence her mind is not shot and she’s not going to resign….I’m going to see her later today and I’m going to see if I can get any more out of her but I think this is it.”


“Green Party makes it onto Arizona ballot”

Az Cap Times:

Arizonans who are concerned about Clinton, terrified of Trump and are jittery about Johnson are going to have another choice.

Secretary of State Michele Reagan has agreed to put electors for Jill Stein on the Nov. 8 ballot even though Green Party officials missed the June 1 deadline for submitting their names.

But it took a federal court lawsuit to make it happen after Reagan told party officials that, absent a court order, Stein would be struck.



TODAY! @UCILAW SCOTUS Term in Review Event Live Webcast 12 PM Pacific

I’ll be moderating a great program:

6th Annual Supreme Court Term in Review

Thursday, July 14, 2016, 12:00–1:30 p.m. Pacific Time
UCI Student Center, Pacific Ballroom (Map)

*Registration and doors will open at 11:15 a.m.

Livestream >

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2015 term, with an all-star panel of Supreme Court practitioners, journalists, and academics.


Viewers may submit questions via Twitter (@UCILaw or @rickhasen), using the hash tag #ucilawscotus at the end of your question.