Two recent essays at the Washington Post’s Monkey Cage blog, here and here, describe the various means through which the Freedom Caucus has turned itself into an effective, unified bloc within the Republican Party. Until I read these pieces, I had not understood the importance of the Freedom Caucus’ organizational structure. Maintaining hierarchical control and a disciplined, unified group stance is obviously easier for a smaller group like the Freedom Caucus than for the Republican Party as a whole in the House. Ironically, it is the ability of the Freedom Caucus to accept hierarchical control and unified decisionmaking that contributes to the political fragmentation of the House Republican Party.
The opinion in Hively is here, Howard rounds up the coverage, and Joshua Matz explains its substantive significance to antidiscrimination law (and why the Court is likely to take the case, and with a new Justice Gorsuch, could well reverse).
But I just wanted to point out that this is an excellent teaching case for a Legislation course. You have a majority opinion by Judge Wood that uses the kind of usual tools of interpretation, an opinion by Judge Posner that is provocative and rejects textualist and purposivist understandings in favor of dynamic statutory interpretation, and a dissent by Judge Sykes buying into textualist/originalist type ideology (and no doubt signalling to the Trump Administration that she’d be a great SCOTUS pick).
Here’s the Posner paragraph that could frame an entire day’s class debate:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
The Senate plowed Tuesday toward a historic and bitter showdown over President Trump’s Supreme Court nominee, with a parade of lawmakers taking to the Senate floor to deliver politically charged speeches for and against the president’s pick as a final vote neared.
There was no sign of compromise as the chamber formally opened debate on Judge Neil Gorsuch, who Senate Majority Leader Mitch McConnell (R-Ky.) predicted will be confirmed on Friday before senators leave town for the two-week Easter recess.
In a speech on the Senate floor, McConnell faulted Democrats for “hurtling toward the abyss” and “trying to take the Senate with them.” He urged them to “reconsider” their tactics.
Senate Republicans are preparing to abolish the final vestige of power that the minority has to block presidential nominations, worrying many senators in both parties that the final and biggest domino — the power to filibuster legislation — will be next.
In recent years, as partisanship has escalated, the Senate has required a 60-vote majority for almost any controversial legislation to overcome a filibuster. Gone, for the most part, are bipartisan quorums that used to pass large and complex laws with simple majorities.
But as both parties have moved to do what was once unthinkable — eliminating the filibuster for judicial and cabinet nominees, known as the nuclear option — senators are now forced to consider if the final step could be in the offing, one that would fundamentally alter the character of the Senate and make it indistinguishable from the House in a crucial way.
[updated and bumped to the top.]
Dean Corren, an unsuccessful candidate for lieutenant governor, sued the state in Vermont’s federal district court for violating his First Amendment rights, alleging that a restriction on fundraising for publicly-financed candidates is unconstitutional. The court issued its decision Tuesday.
The opinion does not yet appear to be on PACER. If anyone has it please send it along.
UPDATE: It appears this AP story is not quite right. What happened is the following. On March 29, the court issued an order denying attorneys fees and a motion for reconsideration of an earlier ruling.
Pam Fessler for NPR:
The federal government has declared elections to be part of the country’s critical infrastructure. That has election officials, who are very protective of how they do things now, extremely nervous.
Fusion on the efforts to get Congress to call an Article V constitutional convention. It is closer than you might think.
A little more than two weeks after a three-judge panel threw out a new state law combining oversight of state elections and ethics enforcement, leading Republican House members are pushing a revised version of the plan.
The House Elections and Finance committees on Tuesday approved a committee substitute for Senate Bill 68 less than 18 hours after Rep. David Lewis, R-Harnett, stripped out the bill’s original half-page of language calling for student attendance recognition programs in local school districts and replaced it with 15 pages of policies and procedures for the proposed Bipartisan State Board of Elections and Ethics Enforcement.
Lewis, the chairman of the powerful House Rules Committee, beat back an effort by Democratic members of the committee to delay voting on the new bill, saying the House needed to take a floor vote on it before lawmakers take time off for Easter late next week.
I spoke with Alex Wise of Sea Change radio about whether it is in Democrats’ self interest to filibuster.
The 2-1 federal court decision striking down Wisconsin’s redistricting plans for the state legislature as an unconstitutional partisan gerrymander, Whitford v. Gil, is without doubt the most significant lower federal court decision on partisan gerrymandering the lower courts have ever issued. The case will also come to the Court in the Supreme Court’s mandatory, appellate jurisdiction — which now exists only for a tiny sliver of cases, including challenges to statewide redistricting plans.
The normal route through which cases come to the Court is via petitions for certiorari. In those cases, the Court has complete discretion to decide whether to hear a particular case. But for cases in the mandatory appellate jurisdiction, the Court has only two options: summarily affirm the decision below or hear the case. One of the policy aims Congress had in mind in deploying mandatory jurisdiction for federal challenges to statewide redistricting plans was to get these cases resolved more quickly, given the time sensitivity of these kind of cases. But that policy objective conflicts with other policy concerns about the timing of Supreme Court review, and the WI case brings to the surface these conflicts.
In striking down a statewide redistricting plan as an unconstitutional partisan gerrymander, the WI decision is the first of its kind. In addition, the court relies in some part on a new statistical measure, the Efficiency Gap (EG), which is designed to help determine the extent of partisan gerrymandering in election maps. I do not want to overstate the extent to which the court relies on the Efficiency Gap; the court essentially uses the EG to corroborate the findings on partisan intent and effect it has otherwise reached. But in terms of both doctrinal development and methodology, the decision does break new ground.
If this case were coming to the Court in its certiorari jurisdiction, the Court would be able to decide whether to postpone review until other federal courts had had an opportunity to respond to the WI decision. If lower courts accepted the general approach of the WI court, what would this mean about how narrowly or expansively a partisan gerrymandering doctrine with teeth would be in application? As lower courts grappled with arguments about the EG in the specific contexts of different districting plans, what conclusions would they come to about the relevance and usefulness of this measure? In the language of Supreme Court practice, the Court could bypass review in the WI case, the first of its kind, and wait for the issues to “percolate” in the lower courts. The Court would then have a richer reservoir of judicial experience on which to draw in deciding the appropriate doctrinal response.
With mandatory appellate jurisdiction, the Court loses the ability to consider any of these factors. The Court either has to summarily affirm (a high threshold to get over for lower court decisions involving novel doctrinal and methodological developments in important areas) or jump in on the merits the first time a three-judge federal court breaks new ground in a case that falls, as the WI case does, within the Court’s mandatory appellate jurisdiction.
Charlie Savage in the NYT:
The conventional political narrative as Judge Neil M. Gorsuch’s Supreme Court nomination nears its endgame is that liberals want at least 40 Senate Democrats to follow through on their threat to stall him with a filibuster, daring Republicans to carry out their vow to change the chamber’s rules and confirm him anyway. Conservatives, meanwhile, are outraged — outraged! — that Democrats might precipitate such a crisis.
But some observers on both sides of the ideological divide say that the long-term strategic interests of each faction are the opposite of what their leaders are indicating in public. If so, the surface appearance of the partisan fight unfolding this week is really a tricky inversion of what is actually in play…..
And with the minority leader, Senator Chuck Schumer of New York, publicly calling on colleagues to filibuster Judge Gorsuch, any Democratic senators who break ranks do so at personal political risk. Against that backdrop, it appeared as of Monday that enough Democratic senators would support a filibuster to set up the showdown conservatives like Mr. Whelan crave and liberals like Mr. Hasen fear would be a mistake.
“It’s still a long shot, but you only get one chance to make a lot of noise about the demise of the filibuster and to try to preserve a mechanism that gives the minority some degree of veto power,” Mr. Hasen said. “It seems like it would be worth holding it for when it would likely matter much, much more. But Democrats seem to feel like they need to please their base and go on a suicide mission now.”
Today, Chief Judge Orlando Garcia of the U.S. District Court for the Western District of Texas denied the state’s motion to dismiss Stringer v. Pablos, TCRP’s “motor voter” case.
This decision provides critical validation of the arguments advanced by the plaintiffs — disenfranchised Texas voters — who challenge voter registration processes at the Department of Public Safety under the National Voter Registration Act, or NVRA, and the U.S. Constitution.
From today’s order (via Josh Gerstein):
Having heard re-argument, this Court intends to issue its new opinion on whether SB 14 was passed with a discriminatory intent in violation of the Voting Rights Act at its earliest convenience and in due course. The Court will, however, await the end of the current Texas legislative session to address remedies. In that regard, this matter is set for a status conference on June 7, 2017….The Court GRANTS the United States’ motion for voluntary dismissal of its discriminatory purpose claim without prejudice
Vlad Kogan, Stephane Lavertu and Zachary Peskowitz have posted this working draft. Here is the abstract:
There is considerable debate about how election timing shapes who votes, election outcomes, and, ultimately, public policy. We examine these matters by combining information on more than 10,000 school district tax referenda with detailed micro-targeting data on voters participating in each election. The analysis confirms that timing influences voter composition in terms of partisanship, ideology, and the numerical strength of powerful interest groups. But, in contrast to prominent theories of election timing, these effects are modest in terms of their likely impact on election outcomes. Instead, timing has the most significant impact on voter age, with the elderly being the most over-represented group in low-turnout special elections. The electoral (and policy) implications of this effect vary between states, however, depending on whether seniors are sheltered from local taxation.
I have written this piece for Washington Post’s “Post Everything.” It begins:
Judge Neil Gorsuch, whose nomination to the Supreme Court is expected to be voted on by the Senate Judiciary Committee on Monday, is an affirmative action baby. But there’s no reason to believe that if he’s confirmed, his rulings on the high court would reflect the fact that he did not get where he is today solely based on his merits — or extend to others the benefit of a helping hand.
Let’s start with how Gorsuch got to the point of being nominated in the first place. The judge secured a clerkship on the Supreme Court in 1993 after a post-law school year at Oxford University, quite an accomplishment for a new lawyer. But the clerkship began with Justice Byron White. White was known to favor his home state of Colorado, and it was unsurprising that he handed a clerkship to a bright, politically connected fourth-generation Coloradan. White had just retired, though, and a clerkship with a retired justice is not nearly as prestigious as one with sitting justices, because they do not work on Supreme Court cases. As a courtesy to White’s clerks, Gorsuch got to work in Justice Anthony M. Kennedy’s chambers, too — not because Kennedy hired him through a process based only on merit, but instead, because Kennedy wanted to help a fellow justice.
Then there’s the question of how Gorsuch got his seat on the U.S. Court of Appeals for the 10th Circuit. To be nominated for such a prestigious position, it helps to be politically connected. Gorsuch’s mother was a Republican Colorado state legislator and later held a top position in President Ronald Reagan’s administration. Gorsuch was a lawyer to Philip Anschutz, one of the wealthiest people in the state and country, who advocated on his behalf. The conservative billionaire helped push Gorsuch’s case for nomination to the appeals court with President George W. Bush. Gorsuch must be grateful, because even as a 10th Circuit judge, he has continued to speak at off-the-record events for Anschutz.
Adding to the fears about how a Justice Gorsuch would vote on issues of race has been his unwillingness or inability to schedule courtesy meetings with three senators who are all women of color, Tammy Duckworth (D-Ill.), Catherine Cortez Masto (D-Nev.), and Kamala D. Harris (D-Calif.). It is not that these Democratic women are likely to vote for him, but a meeting would be a sign of respect for the Senate and its institutions. Justices Elena Kagan and Sonia Sotomayor, for example, offered to meet with every senator when nominated, and Sotomayor met with 93. This is the last time Gorsuch will be answerable to anyone and have to listen to others’ concerns with a job on the line.
I would just hope, against the available evidence, that he would recognize that laws that try to give others more modest advantages do not violate the Constitution, either as originally understood or properly interpreted for these times.
Voters in New Hampshire are free to take selfies with their election ballots and post the photos online after the U.S. Supreme Court refused to revive a state ban on the practice.
The justices, without comment, left intact a federal appeals court ruling that struck down the ban on free-speech grounds in September. The 2014 law subjected violators to fines of up to $1,000.
A senior adviser to President Donald Trump on Saturday urged a primary challenge against a House Freedom Caucus member, prompting charges that he may have violated federal law against using his official position to sway an election campaign.
Dan Scavino Jr., director of social media and senior White House adviser, tweeted that Rep. Justin Amash (R-Mich.) is a “big liability” for his state and encouraged a GOP primary opponent to oust him in 2018.
Sheldon Whitehouse is a politician with a great name, a bad haircut, and a pissed-off attitude. The second-term Democratic junior senator from Rhode Island has built his career around two seemingly unrelated issues—climate change and money in politics—and he’s just written a book to demonstrate how intimately connected they turn out to be.
Lisa Rab with a must-read Politico magazine feature:
But that wasn’t it. Not by a long shot. Eleven years after the books were closed on Ashcroft’s probe, another voter fraud investigation is gearing up. Once again, it is being driven by a Republican president who is convinced that he was robbed of the popular vote by a massive conspiracy, larger perhaps than even Bush’s administration had contemplated. In late November, Donald Trump tweeted: “I won the popular vote if you deduct the millions of people who voted illegally.” In January, he told congressional leaders that 3 million to 5 million people voted illegally and cost him the popular vote. He didn’t stop there. Trump promised to form a commission, headed by Vice President Mike Pence, to investigate. In a March 22 interview with Time magazine, Trump said, “I think I will be proved right” about the 3 million illegal votes. He elaborated: “When I say that, I mean mostly they register wrong, in other words, for the votes, they register incorrectly, and/or illegally. And they then vote. You have tremendous numbers of people. In fact I’m forming a committee on it.”
Pence has yet to launch his version of what Ashcroft attempted in 2002, and the very fact that the inquiry is not being run out of the Justice Department indicates that it might proceed very differently. But it wouldn’t be a waste of time for the former Indiana governor (who himself was accused of voter suppression in October) to spend some time studying what happened the last time a Republican administration went looking for a national web of illegal activity at the ballot box. If anything, the results of Pence’s commission might be even less spectacular than before. Elections experts say that’s because voter rolls are cleaner now than they were then, voting systems have been updated in many jurisdictions and stricter voter ID laws are in force. Yet, despite skepticism from high-ranking Republicans in Congress, some conservatives who were involved in the original investigation and who are pushing hardest for the new inquiry insist that the failure to prove widespread fraud is not evidence it doesn’t exist, only that the pursuit wasn’t aggressive enough. It’s a fixation that makes voting experts shake their heads.
“This has been done over and over again,” Becker says. “You don’t waste taxpayer resources without some evidence that an investigation is worthwhile. That’s called a fishing expedition.”
In written responses to questions from the Senate Judiciary Committee in anticipation of a committee vote to move his nomination forward Monday, Supreme Court nominee Neil Gorsuch declined to express an opinion on whether human cannibalism ordered by a state would violate the Due Process Clause of the Fourteenth Amendment.
Gorsuch replied to a question from Sen. Patrick Leahy (D-Vt.): “Respectfully, the questions posed here may come before me as a judge. Accordingly, I can promise no more than that I will endeavor to follow the law as faithfully as I am able. To offer more would risk violating my ethical obligations as a judge, denying litigants the fair and impartial judge to whom they are entitled, and impairing judicial independence by suggesting that a judge is willing to offer promises or previews in return for confirmation.”
Richmond Circuit Court judge has ruled against a group that argued 11 of Virginia’s legislative districts are so sprawling that they do not meet the constitutional requirement for compactness.
The ruling is a setback for efforts to claim that Virginia’s legislative districts have been gerrymandered to favor Republicans and disenfranchise black voters, who tend to vote Democratic, but the matter is likely to be appealed to the state Supreme Court.
You can find the 15-page court opinion at this link.
I’d like to hear Judge Gorsuch supporters explain why these Senators in particular were not extended a normal courtesy.
Anthony Johnstone – professor at the University of Montana’s law school –previously served as state solicitor and during that time wrote an amicus brief in the Citizens United case on behalf of 26 states asking the high court to keep unlimited corporate contribution out of elections.
He said Gorsuch is a “smart, articulate, interesting judge,” but added that the 10th Circuit is “notoriously strict” about what states can do to regulate money in politics, and it’s safe to believe his position on the matter would be similar if he was confirmed.
“I think there is one important area in which he may actually diverge from Justice Scalia in a way that is even more encouraging to those who wish to inject unlimited sums of money in politics and that’s with respect to dark money,” Johnstone said.
Josh Douglas for Governing:
Many states have adopted or are considering enacting strict photo identification requirements for voting. But doing so is a waste of time and money: The laws will not prevent election fraud, and these states will surely face protracted litigation with an uncertain outcome.
Dan Tokaji at the Take Care blog:
American democracy is in trouble. We are deeply divided along lines of race, class, and party. Our political discourse has coarsened as the level of vituperative political rhetoric has intensified. Racism, sexism, and nativism have reappeared at a level that we have not seen in decades. There is not even consensus on basic facts. Our President repeatedly makes statements that are demonstrably false, including claims of widespread vote-rigging that have no evidentiary support, while railing against the press for exposing his mendacity.
Bad as things are, the challenges that our democracy now confronts are bigger than Donald Trump. He did not create the divisions that the 2016 election revealed, though he has surfaced, exploited, and deepened them. The consequence is not only to embitter Americans toward one another during election campaigns, but also to make governance much more difficult after the election is over.
And so barring a real compromise, my advice to Democrats would be pretty simple. Forget about long-term strategy and trying to figure out the ideal time to use their Supreme Court filibuster at its most useful moment but before it goes away. That’s just guesswork.
Instead, they should filibuster now if and only if they are confident that Neil Gorsuch would be worse than whoever Trump would replace him with. If so, they should make clear it’s no blockade or revenge for Merrick Garland; it’s a one-time objection to someone they believe is unusually far from the mainstream. And, if so, they should be prepared for the possibility that they might actually defeat Gorsuch and have to live with a replacement nominee.
President Donald Trump’s senior adviser Steve Bannon will not face charges related to his registration to vote in Miami despite spending most of his time elsewhere, South Florida prosecutors said Thursday.
The Miami-Dade County State Attorney’s Office concluded in a memo that there was not enough evidence to prove any crime. Bannon registered to vote in the county on April 2, 2014, after leasing the first of two houses in Miami’s Coconut Grove neighborhood, then switched his registration to the Sarasota area last year.
Bannon never voted in Miami-Dade County, the prosecutors said. They also said there was insufficient evidence to prove Bannon falsely claimed to reside in Florida on a voter registration form, which is a felony.
Back in February it was reported that the Wisconsin legislature was bringing in Paul Clement to work on the partisan gerrymandering case.
Last week the Wisconsin DOJ filed its jurisdictional statement (the equivalent of a cert. petition for an appeal). No Clement. Would be odd to have them come in later.
Update: Michael Li believes that Clement is representing the Legislature itself and not the state. That would explain it and makes sense.
Announcement via email:
On Friday, April 7, ElectionLaw@Boalt (EL@B), a student group at Berkeley Law, is hosting its First Annual Election and Political Law Symposium, titled “The Future of Democracy.” The Symposium includes five events throughout the day that focus on political law, voting rights, and election administration. Our lunchtime event will be a workshop with the Voting Rights Institute, and our keynote panel includes a discussion with Justin Levitt and Ann Ravel.
There is no cost for attendance and registration is only required if you hope to receive CLE credit. Here is a link to our Facebook event.
9:30 – 10:30 Breakfast and Panel: Political Law in Theory and in Practice
1: Margaret Prinzing (Partner, Remcho, Johansen, & Purcell)
2: Jonathan Mintzer (Associate, Sutton Law Firm)
Moderator: Adam Lioz (Counsel, Demos)
10:30 – 11:45 Panel: Voting Rights and Community Empowerment
1: Pedro Hernandez (Deputy Director, FairVote California)
2: Mindy Romero (Professor, UC Davis)
3: Nicolas Heidorn (Legislative Director, CA Common Cause)
Moderator: Sophia TonNu (Law student)
11:45 – 12:00 Break
12:00 – 1:45 Lunch and Workshop on
1: Danielle Lang (Deputy Director of Voting Rights, Campaign Legal
2: Justin Levitt (Professor, Loyola; former Deputy Assistant Attorney
General, Civil Rights Division)
3: Mindy Romero (Professor, UC Davis)
1:45 – 2:00 Break
2:00 – 3:15 Panel: Innovation in ElectionAdministration
1: Chris Jerdonek (Commissioner, SF Elections Commission)
2: Dean Logan (County Clerk, Los Angeles County)
3: Charles Belle (Director, Start Up Policy Lab)
4: Kim Alexander (President / Founder, California Voter Foundation)
Moderator: Meghan Fenzel (Law student)
3:15 – 3:30 Break
3:30 – 5:00 Keynote: Future of National Election and Political Reform Efforts
1: Ann Ravel (Former Chairwoman, Federal Elections Commission)
2: Justin Levitt (Professor, Loyola; former Deputy Assistant Attorney
General, Civil Rights Division)
Discussant: Bertrall Ross (Professor, UC Berkeley)
5:00 – 6:30 Reception
During the hearings, I criticized an answer Judge Gorsuch gave to Senator Leahy which suggested there was ample room for Congress to regulate expenditures after Citizens United. Derek Muller pushed back a bit but conceded “Judge Gorsuch’s answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate.”
Well Sen. Leahy followed up in a written question, and Judge Gorsuch continues to insist on spending limits being possible upon proof of quid pro quo corruption (which I think is essentially foreclosed by both Citizens United and the follow-up American Tradition Partnership). See page 65 of this document:
13. When I asked you about Citizens United and concerns about corruption, you said, “I think there is lots of room for legislation in this area that the Court has left. The Court indicated that if, you know, proof of corruption can be demonstrated, that a different result may be obtained on expenditure limits.” You then added, “And I think there is ample room for this body to legislate, even in light of Citizens United, whether it has to do with contribution limits, whether it has to with expenditure limits, or whether it has to do with disclosure requirements.” However, Citizens United states that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
In the Bullock case in 2012, the same five justices who decided Citizens United overturned a Montana Supreme Court ruling, and refused even to consider a record showing that “independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana.”
a. What “room for legislation” were you referring to?
b. What types of expenditure limits would be consistent with Citizens United? Or did you misstate the holding of Citizens United?
RESPONSE: As we discussed at the hearing, the Supreme Court has long recognized Congress’s authority to legislate regarding campaign contributions, expenditures, and disclosures, subject to the constraints of the First Amendment. For example, in Buckley v. Valeo, the Court held that “contribution and expenditure limitations both implicate fundamental First Amendment interests,” and that such restrictions therefore must pass heightened scrutiny. 424 U.S. 1, 23 (1976). At the same time, the Court recognized that one governmental interest sufficient to justify restrictions on contributions and expenditures is the government’s interest in combatting quid pro quo corruption, or the appearance of such corruption. In Buckley, the Court upheld certain contribution limitations enacted by Congress as furthering the compelling interest in combatting corruption. Meanwhile, the Court concluded that certain limitations on independent expenditures by individuals did not sufficiently advance the compelling interest to justify the heavy restriction on speech. Citizens United expanded on this point, holding that certain “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” 558 U.S. 310, 314 (2010). Although the Court in Citizens United found that the Government had not shown a compelling interest in the regulation of certain independent expenditures, the Court has not expressly foreclosed any regulation of political expenditures that might implicate the Government’s interest in preventing quid pro quo corruption, or the appearance thereof.The Supreme Court also has recognized Congress’s authority to enact disclosure requirements relating to the political process. In Buckley, the Court identified three governmental interests that can be served by disclosure provisions: (i) equipping the electorate with information as to where political campaign contributions come from and how they are spent; (ii) deterring actual corruption and avoiding the appearance of corruption by exposing large contributions and expenditures to publicity; and (iii) gathering data to detect violations of the contribution limitations. 424 U.S. at 66-68. The Court noted that “disclosure requirements – certainly in most applications – appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” Id. at 68. The Court upheld certain disclosure and disclaimer requirements in Citizens United. 558 U.S. at 319.
A far cry from “lots of room for legislation in this area” and still overly softened.
I agree with Pildes and Elias that Bethune-Hill is a significant decision that is likely to have profound consequences. But is this big news also good news? We’ll see. Many leading authorities foresee the Supreme Court growing increasingly hostile to voting rights claims, and even the more liberal wing of the Court seems exhausted by the crush of complex and fact-intensive redistricting cases. Justice Kennedy’s opinion in Bethune will—despite his entreaties to the contrary—do nothing to stem this tide. In the end, whether Bethune-Hill is viewed as a major voting rights victory or the next Northwest Austin will depend on how VRA advocates and opponents use it—and with whom the Supreme Court ultimately agrees in the years ahead.
I have written this piece for Politico. A snippet:
Now, though, a band of state lawmakers is attempting to succeed where so many others have failed. In at least 24 states, legislators have introduced bills that would force Trump (and all other presidential candidates) to disclose their tax returns in order to qualify for their states’ ballots in 2020.
There’s one big obstacle, though: Requiring presidential candidates to release their taxes as a condition of ballot access may not be constitutional. And even if it is, the Democrats sponsoring such legislation run the risk of major retaliatory measures being taken in Republican states…..
The idea of using ballot access to force politicians to do something they don’t want to do is not new—nor is the fight over the move’s constitutionality. The Supreme Court’s 1995 ruling in U.S. Term Limits v. Thornton held that Arkansas could not deny ballot access to congressional candidates who had served more than three terms or to Senate candidates who served more than two terms—measures the state had enacted to create congressional term limits. The Court held that the Constitution set the exclusive qualifications for running for federal office (including age and citizenship requirements), and that allowing individual states to impose addition qualifications “would erode the structure designed by the Framers to form a ‘more perfect Union.’” So while states can set reasonable conditions for presidential candidates to get on the ballot, such as requiring a certain number of petition signatures to be listed, they cannot go further and set substantive conditions for who can run.
In light of such precedent, what could possibly be the basis for upholding a state law barring ballot access for presidential candidates who decline to release their tax returns? After all, Article II of the Constitution includes exclusive qualifications for the office of the president: The president must be a natural-born citizen who is at least 35 years old and has resided in the United States for at least 14 years.
The answer lies in another part of Article II—the part that received some important attention in Bush v. Gore, the Supreme Court decision that Democrats love to hate. Famously, the 2000 case between Republican nominee George W. Bush and Democratic nominee Al Gore effectively handed the election to Bush when it ended the Florida recount….
McCaskill made a distinction between using the filibuster to block Gorsuch, who would replace Scalia, arguably the court’s most conservative justice during his tenure, and using it to block a nominee if one of the court’s more liberal or centrist justices dies or retires.
“So they move it to 51 votes and they confirm either Gorsuch or they confirm the one after Gorsuch,” she continued. “They go on the Supreme Court and then, God forbid, Ruth Bader Ginsburg dies, or (Anthony) Kennedy retires or (Stephen) Breyer has a stroke or is no longer able to serve. Then we’re not talking about Scalia for Scalia, which is what Gorsuch is, we’re talking about Scalia for somebody on the court who shares our values. And then all of a sudden the things I fought for with scars on my back to show for it in this state are in jeopardy.”
McCaskill acknowledged that many members of the party’s base want Democrats to fight any Trump nominee after Republicans refused to even hold a hearing for President Barack Obama’s nominee, federal Judge Merrick Garland.
Super interesting. Second time it is being rescheduled. I explained what was supposed to happen tomorrow here. The governor and AG of North Carolina want to withdraw the petition and the Legislature does not.
Something is going on behind the scenes, because maybe the Court wants the state to resolve this somehow.
(I first suggested the withdrawal of the cert. petition, which would preserve an important voting rights precedent, in this Slate piece).
David Daley for WaPo’s Post Everything.
Eric Segall in the Daily Beast.
I would have been in favor of the Senate Democrats boycotting the hearings and the vote altogether in protest of what happened to Merrick Garland. But it is too late to play that card. Therefore, the only remaining question is how Democrats should play the current hand to maximize leverage and chances of success in the future. This is an issue of strategy not principle. The answer is to put the filibuster card back in the deck. That decision does not guarantee it will work next time but the players both at the table and away from the table may be very different the next time a vacancy arises. Sometimes the best strategy is simply to leave the table and come back to play another day.
My earlier thoughts on this (linked by Eric) are here.
A constitutional challenge to per-election limits on campaign contributions faced skeptical questioning from nearly all the judges of the federal appeals court in Washington during a March 29 hearing.Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit repeatedly asked attorney Allen Dickerson whether a decision in favor of the challengers in the case, known as Holmes v. Federal Election Commission (D.C. Cir., No. 14-05281, argued 3/29/17), could threaten the whole structure of campaign contribution limits, which has been in place for decades at the federal level and in most states.Garland, whose nomination last year to the Supreme Court by President Barack Obama was never considered by the Senate, led the questioning in the D.C. Circuit hearing. The case is being considered by an en banc panel of 11 active D.C. Circuit judges. One judge, Karen LeCraft Henderson, was absent from the oral argument.Defending the current structure of contribution limits was FEC attorney Erin Chlopak, who faced fewer questions than Dickerson from the appellate judges. Chlopak argued that the existing contribution- limit system should be easy for the court to uphold because a series of Supreme Court decisions, including the landmark 1976 case Buckley v. Valeo and other rulings, have consistently upheld the constitutionality of contribution limits.
Print Archive: Volume 104, Issue 4 (2015-2016)
104 KY. L. J. 547 | A Pivotal Movement for Election Law, Foreword | Joshua A. Douglas
104 KY. L. J. 561 | Who’s Afraid of the Hated Political Gerrymander | Luis Fuentes-Rohwer
104 KY. L. J. 583 | Voting Realism | Gilda R. Daniels
104 KY. L. J. 607 | Economic Precarity, Race, and Voting Structures | Atiba R. Ellis
104 KY. L. J. 631 | Judicial Enforcement of a Grand Election Bargain | Michael J. Pitts
104 KY. L. J. 651 | Aggregate Corruption | Michael D. Gilbert, Emily Reeder
104 KY. L. J. 671 | Judicial Review of Direct Democracy: A Reappraisal | Michael E. Solimine
104 KY. L. J. 699 | Arbitrating Ballot Battles | Rebecca Green
A federal district court today refused to throw out a lawsuit Campaign Legal Center and Democracy 21 filed against the Federal Election Commission (FEC). CLC and D21 filed the suit in the United States District Court for the District of Columbia after the FEC failed to act on five complaints calling on the agency to investigate donors who broke disclosure laws by hiding behind opaque corporate entities like Limited Liability Companies (LLCs) to anonymously make contributions to super PACs.
In response to the lawsuit, the FEC called on the court to dismiss the case, on the ground that CLC and D21 failed to show standing, or the right to sue. The court disagreed as to the majority of the FEC complaints and now the case will be heard on the merits.