Monthly Archives: April 2006

“Are the Lines Really to Blame?”

Richard E. Cohen has written this article for National Journal (paid subscription required). A snippet: “The drawing of House districts by state governments has few vocal defenders. But whether redistricting is the chief culprit for a supposed breakdown in democracy, and whether the reformers’ goal of imposing nonpartisan procedures on redistricting would make much difference, are highly debatable points”

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California Supreme Court to Hear Election Law Case

The California Supreme Court has agreed to hear Vargas v. City of Salinas. From the Court of Appeal opinion: “This appeal follows the grant of a special motion to strike the plaintiffs’ complaint as a strategic lawsuit against public participation. The complaint alleged improper government expenditures for communications concerning a local initiative election. Reviewing the matter de novo, we conclude that the defense motion was properly granted. We therefore affirm.”

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Two Legislation Papers by Staszewski

Glen Staszewski has posted on SSRN The Bait and Switch in Direct Democracy (Wisconsin Law Review). Here is the abstract:

    This Article provides a case study of the bait-and-switch in direct democracy based on a ballot initiative that recently amended the Michigan Constitution to prohibit the legal recognition of same-sex marriage or similar union for any purpose. The bait-and-switch in direct democracy occurs when initiative proponents (1) qualify a particularly popular idea for the ballot; (2) draft the measure in sufficiently broad or ambiguous terms to create collateral consequences; (3) either evade questions about those collateral consequences during the election campaign or flatly deny that they were intended; and (4) establish the collateral consequences through litigation or by lobbying executive officials who are responsible for implementing the measure. The Article claims that structural flaws in the initiative process facilitate this technique and otherwise increase the risk that successful ballot measures will have collateral consequences that were not approved by the voters. The Article evaluates the ability to alleviate these problems through existing procedural safeguards or the adoption of interpretive techniques that narrowly construe ambiguous ballot measures to minimize collateral damage. While endorsing the latter solution, the Article contends that these problems could be attacked more directly by the adoption of structural reforms that have proven effective in other contexts. Finally, the Article explains that the shortcomings of candidate elections and the ordinary legislative process do not undermine the rationale for reform proposals of this nature because the ballot initiative process has a distinct capacity to combine passionate voting (by the electorate) and instrumental lawmaking (by initiative proponents and others) in a way that is especially prone toward divergence (based on inadequate structural safeguards). The bait-and-switch in direct democracy is so troubling because it capitalizes on precisely this state of affairs.

He has also posted Avoiding Absurdity (Indiana Law Journal). Here is the abstract:

    American courts have always interpreted statutes contrary to their plain meaning to avoid absurd results. John Manning, a prominent new textualist scholar, has recently challenged the legitimacy of the absurdity doctrine on the grounds that it cannot be justified by legislative intent or squared with principles of constitutional law. His critique relies, however, upon deeply contested economic theories of the legislative process and constitutional structure that view lawmaking as a market in which self-interested participants compete for resources.
    This Article provides a comprehensive theoretical defense of the absurdity doctrine that relies instead upon significant aspects of civic republican theory, as well as liberal and pragmatic values, to suggest that while American lawmakers have broad authority to regulate in the public interest, our constitutional republic also has a responsibility to avoid needless harm to the extent fairly possible. When courts interpret laws to avoid absurd results – or privilege a statute’s spirit over its letter – in circumstances that were unanticipated by the legislature, they are justifiably seeking to serve the common good that legislation is presumed to embody, rather than undermining a fragile compromise struck in back-room deals by economic theory’s proverbial rent-seekers. The absurdity doctrine also promotes specific constitutional norms of fairness and equal treatment in a manner that avoids most of the institutional concerns that would arise from more aggressive approaches to judicial review. Not only is Professor Manning’s critique of the absurdity doctrine therefore mistaken, but his apparent willingness to incorporate the same underlying principles into his kinder and gentler version of textualism demonstrates both the undeniable validity of those principles and the fundamental shortcomings of the economic theories of the legislative process and constitutional structure that underlie the new textualism.

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President Bush on Voting Rights Act Renewal

From this press availability:

    Q Mr. President, some have questioned your efforts in having every vote count in the station, especially after the April 22nd New Orleans election. Now with that, what are you looking to do with the three sections of the Voting Rights Act that are set to expire in 2007? How are you planning to enhance those sections, because we understand that you want to study it prior to any passing of a bill by the Senate.
    THE PRESIDENT: I think I’m on record, as a matter of fact I’m pretty clearly on record, particularly at the Rosa Parks — signing of the Rosa Parks bill, that I’m for the extension of the Voting Rights Act, right?
    Q Yes, yes you are on record. But there is word that you want to enhance it, or people within your administration want to look at it to tweak it.
    THE PRESIDENT: I wanted to make sure the Voting Rights Act is strong and capable. I’m not exactly sure what you’re talking about. But my statement is my statement. The Voting Rights Act ought to be extended. The Voting Rights Act is a very important part of the civil rights legislation. Everybody ought to be encouraged to vote. Voting is a valuable part of democracy, and we want people voting.
    Q Do you think it was valuable in April — for the April 22nd elections in New Orleans?
    THE PRESIDENT: I’m not going to second-guess the federal judge. I was just down there yesterday, I didn’t hear much complaining about it, though, when I was there. And, obviously, it’s a more difficult election with people scattered around, but the state worked very hard to encourage people to vote. And I was with Mayor Nagin and Governor Blanco, and the subject, frankly, didn’t come up. That’s not to say it’s not on their minds. It’s on Mayor Nagin’s mind because he wants to win, he wants people voting.
    But the state bent over backwards to encourage people to participate in the mayoral election, and it looked like the process, given the circumstances the city has been under, pretty smooth process, which is not necessarily a given.

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Interesting Development in Padilla v. Lever Case

As readers of this blog know, the Ninth Circuit granted an en banc hearing in Padila v. Lever, in which a panel of the Ninth Circuit held that recall petitions circulated in California must be translated into multiple languages to comply with section 203 of the Voting Rights Act. The initial order granting review stated: “The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.”
Today, the Ninth Circuit en banc panel hearing this case took an unusual step: it issued this order, which reads in full: “A majority of the en banc court has voted to withdraw the opinion of the three judge panel. IT IS SO ORDERED.”
Like Howard Bashman, I am baffled by what the court’s order means for the future of this case. Presumably it is good news for those who think the panel decision was wrong. But will there be a hearing? Will the “majority” (we don’t know who the judges are on the en banc panel) issue an opinion? Will there be a dissent? Here is what the relevant Circuit Advisory Committee note says about en banc grants: “After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. The opinion of the three judge panel shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.”
Perhaps the court wanted to get a ruling out early, so that the panel opinion will not be used by any more lower court judges to interfere with ongoing recall or initiative elections. But it would be nice if the court clarified what is to come next.

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“Voting Rights Act Renewal on Pace for May Passage”

Roll Call offers this breaking news report, which begins: “House Judiciary Chairman Jim Sensenbrenner (R-Wis.) said Thursday that he believes reauthorization of the landmark 1965 Voting Rights Act could be completed as soon as late May now that the Senate and House Judiciary panels have agreed to introduce identical legislation early next week. The Wisconsin lawmaker confirmed the agreement following a Senate Judiciary hearing on the VRA, and he said identical bills are slated to be introduced in both chambers Tuesday.” See also this press release. Once I’m back from my DC conference, I’ll write more about what these events mean for possible constitutional challenges to the Act.

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Voter ID Debate in Missouri

St. Louis Today has this item, which begins: “U.S. Rep. William Lacy Clay, D-St. Louis, sent a letter today to each of the 197 members of the Missouri Legislature (163 House members, and 34 in the state Senate). In it, he lays out his opposition to the voter ID bill, which the Senate approved Monday. Clay — who earlier served in the state House and state Senate — has said that he will go to court to fight the measure, which he says violates the national Voting Rights Act.”

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“527s Back in Lobby Bill”

Roll Call offers this report, which begins: “A measure to curb the independent political groups known as 527s will be included in the House version of a lobbying bill that is slated for a vote this week, senior GOP aides said Tuesday.” Meanwhile the newspaper editorializes Bogus “Reform” (paid subscription required). Meanwhile, The Hill reports “Panel takes aim at lobby reform bill,” which begins: “Republicans on the House Appropriations Committee have threatened to kill the pending lobbying-reform bill unless leaders expand earmark reform to apply to tax and authorization legislation.”

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Do We Need a Delay Between the Election of the President and Inauguration Day?

Writing at Balkanization, Sandy Levinson has this post using the television show “West Wing’ to demonstrate “the way that we are disserved by a system that allows a true lame-duck [President] to make very important decisions that can well prove albatrosses around their successors necks.” He advocates that we “become like almost all other serious countries in the world and devise an election-inauguration process that limited the length of the hiatus.”
In theory, Sandy is surely right. But in practice, I would worry that shortening the time between election and inauguration would increase the chances of social instability caused by failure to fully resolve a close presidential election. Until our voting mechanics and voting laws are in order, the more time between the two events, the safer we are from electoral meltdown leading to social instability. (More on that here.)

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