Rick Hasen's web log
May 27, 2005
Election Law Cases I Am Watching for Possible Eventual Decision by the Supreme Court
With the Supreme Court having issued its decision in Clingman v. Beaver, I thought it would be useful to list election law cases I'm watching for eventual resolution by the Supreme Court:
Landell v. Sorell This is the Second Circuit case that strongly suggests candidate expenditure limits may be consistitutional, despite the Supreme Court's ruling in Buckley v. Valeo. Plaintiffs recently filed a cert. petition. My earlier coverage is here.
Wisconsin Right to Life This is the "as-applied" challenge to the corporate expenditure limits in BCRA. This case is on appeal to the Supreme Court, so the Court eventually will have to rule, either summarily or by setting the case for argument. I predict a summary affirmance, with some dissents. My earlier coverage is here.
The Florida felon disenfranchisement case There is a split between the circuits over whether a ban on felon disenfranchisement violates Section 2 of the Voting Rights Act given a racially discriminatory effect. I had wrongly predicted the Supreme Court would take either the case from the Second or Ninth Circuits. Now the Eleventh Circuit has sided with the second in Johnson v. Bush in holding there is no VRA violation. You can find my earlier coverage of on the Florida case here. I don't believe a petition for cert has been filed yet.
The Texas Re-redistricting cases A three judge court in Texas heard arguments in the Texas re-redistricting case on January 21. The delay likely means there will be more than one opinion. This case will eventually be appealed to the Supreme Court, where we might then learn whether there will be a standard that a Court majority will embrace to judge when partisan gerrymandering is unconstitutional. How might that happen? Justice Kennedy might make up his mind, or one of the members of the plurality (Rehnquist, O'Connor, Scalia, and Thomas) could retire, to be replaced by a Justice who would take a different position on these issues. My earlier coverage is here.
Any other cases we in the election law field should watch closely? I have enabled comments.
FL case -- The 15th Amdt. and the 1965 VRA have nothing to do with felon qualifications.
See the book - The Right to Vote: Politics and the Passage of the Fifteenth Amendment by William Gillette (1965) -- esp. Chapter II Paralysis and Passage.
The catatrophic failure has been in NOT enforcing the plain language in 14th Amdt., Sec. 2 regarding things like literacy tests, poll taxes, etc.
TX case - Half the votes in half the gerrymander districts (for 1 party control) equals about 25 percent ANTI-democratic minority rule -- something noted by Justice Stewart in Lucas in 1964 -- a mere 41 years ago.
Each house of the Congress and every house of every State legislature is an indirect minority rule gerrymander regime.
Posted by: D.R. at May 27, 2005 11:58 AMThere's a nub of a case here in Virginia. A state senator is counsel of record in a case filed by the chairman of the GOP committee for another senator's district that challenges Virginia's open primary law. The GOP district committee wants to close the primary, which violates state law, and is claiming 1st Amendment freedom of association and 42 U.S.C. S 1983 violations.
Because the next senate election is 2007, there are substantial ripeness questions. The state senator representing the plaintiff in the case and I have a running colloquy on justiciability and the effect Clingman will have on the merits here.
We're waiting for the state AG's answer, which is due June 14 (ironically, primary day for Virginia's statewide office and lower-house legislative elections this year). The case is in the E.D. Va. Richmond Division, styled Miller v. Brown, Case No. 3:05 cv 266. Plaintiff's pleadings can be read here.
If the complaint is ripe (which I doubt), this one has the potential to test whether states are obliged to close primaries if parties demand them to be closed.
Posted by: The Jaded JD at May 27, 2005 01:49 PM