Monthly Archives: July 2018

Breaking: Michigan Supreme Court, on 4-3 Vote, Allows on Ballot Voter Initiative to Take Redistricting Away from Michigan Legislature

You can find the 121 pages of opinions, which did not split simply by party lines, at this link.

(Michael Li: Opinion is by Justice Vivano who is a Republican appointed by Gov. Rick Snyder. Justice Clement, another Republican Synder appointee joins him and the two Democratic justices in the majority.)

Voters will now get to decide whether or not to adopt redistricting reform before the 2020 redistricting round.

Chief Justice Stephen Markman, for three Justices, dissented. Footnote 63 of the majority opinion quotes Justice Markman’s language against him:

The Chief Justice’s dissent does not engage in a textual analysis of our Constitution—it does not, for example, directly examine the meanings of the relevant terms, but rather looks to what a few cases have said, generally, about those terms. However, “a judge must remember ‘above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.’ ” Markman, On Interpretation and Non-Interpretation, 3 Benchmark 219, 220 (1987), quoting Douglas, Stare Decisis, 49 Colum L Rev 735, 736 (1949); see also Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 561 n 4; 737 NW2d 476 (2007) (recognizing that “the actual language of the proposed constitution constitutes the best evidence of the ‘common understanding’ ” of the ratifiers).

Even so, we believe the Chief Justice’s dissent engages in revisionist legal history when it asserts that our precedents in this area have established “longstanding standards” on this point that are “consistent and compatible with each other, as well as with what is required by our Constitution . . . .” Post at 12. Indeed, the opinion labors to give its rule some provenance by repeatedly citing the age of the cases he relies upon, rather than focusing on their content. See post at 11 (“[F]or at least the past 85 years in Michigan, governing law concerning direct constitutional change has been characterized by the following . . . .”); post at 16 (“[O]ur Court would recognize, as [it has] for the past 85 years . . . .”); post at 17 (referring to “the standard set forth by our precedents over 85 years ago”); post at 18 (referring to “the standard set forth by our precedents over the course of 85 years”). And, for good measure, the dissent accuses the majority of altering these longstanding standards. But if the standard set forth in Laing and Pontiac Sch Dist and the Court of Appeals decisions in Citizens and Protect Our Jobs was so clear and longstanding on this point, one wonders why this Court refused to adopt it in 2008 in Citizens, instead issuing a highly unusual order leaving this area of law in a state of limbo. In any event, as already mentioned, Laing and Pontiac Sch Dist did not review the text of the Constitution or purport to establish any constitutional standard at all on this point. In light of this, it would be euphemistic to say that these cases have created a judicial gloss supporting the dissent’s reasoning—instead, they appear to us more like a spray-on tan.

If it is bad to depart from the plain language of our Constitution on the basis of a judicial gloss that is binding precedent, how much worse it must be to do so on the basis of the spotty and inapposite authority the dissent relies upon in this case. Cf. Markman, Resisting the Ratchet, 31 Harv J L & Pub Pol’y 983, 985 (2008) (“[T]o read the law consistently with its language, rather than with its judicial gloss, is not to be ‘harsh’ or ‘crabbed’ or ‘Dickensian,’ but is to give the people at least a fighting chance to comprehend the rules by which they are governed.”). Repeatedly calling these cases the “best and most authoritative and most consistent” precedents of this Court, post at 9 n 2, the “most compelling precedents of this state,” post at 9 n 2, and the “best and the most enduring relevant precedents of this state,” post at 19 n 9, does not make them so, even if with the use of italics.


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North Carolina Sued Over Retroactively Stripping Constitution Party Members of Access to the Ballot

Progressive Pulse:

The Constitution Party of North Carolina is following through on its threat to sue the state over ballot access restrictions.

The Party and three of its members — James Poindexter of Surry County, Jerry Jones of Greene County and Gregory Holt of Craven County — filed suit a little over a week ago in U.S. District Court for the eastern district of North Carolina against the Kim Westbrook Strach, Executive Director of the State Board of Elections and Ethics Enforcement.

The State Board officially recognized the Constitution Party in June, and until then, its candidates did not have ballot access. Prior to official recognition, North Carolinians also could not register for affiliation with the Party.

Because of that, Poindexter and Jones ran for election in the primary as Republican candidates and the Holt ran in the Democratic primary. They all lost.

After the Constitution Party was recognized and held its nominating convention, they submitted Poindexter, Jones and Holt as candidates to the State Board. They were accepted and certified.

But then the General Assembly passed a “sore loser” law preventing anyone who lost in a primary election from being on the ballot in November (Senate Bill 486). The Governor vetoed the legislation but lawmakers overrode his veto and the measure became law June 20.

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“Facebook Identifies an Active Political Influence Campaign Using Fake Accounts”


Facebook said on Tuesday that it had identified a political influence campaign that was potentially built to disrupt the midterm elections, with the company detecting and removing 32 pages and fake accounts that had engaged in activity around divisive social issues.

The company did not definitively link the campaign to Russia. But Facebook officials said some of the tools and techniques used by the accounts were similar to those used by the Internet Research Agency, the Kremlin-linked group that was at the center of an indictment this year alleging interference in the 2016 presidential election.

Facebook said it had discovered coordinated activity around issues like a sequel to last year’s deadly “Unite the Right” white supremacist rally in Charlottesville, Va. Activity was also detected around #AbolishICE, a left-wing campaign on social media that seeks to end the Immigration and Customs Enforcement agency.

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“North Carolina Republicans Flip Out About Voters Knowing What They’re Voting On”


North Carolina lawmakers rushed back to the state capital with less than 24 hours notice last week because Republicans called for a special session to block voters from receiving more information about a wide range of proposed changes to the state constitution during this fall’s election.

The proposed changes to the constitution deal with a range of important subjects that can affect voter access to the polls and impact the trajectory of state courts. This includes adding a voter photo ID requirement and restricting the ability of the state’s Democratic governor to fill vacancies on state courts and appoint people to the state election board.

Current state law requires a bipartisan commission to write a short caption to appear on the ballot summarizing those amendments, but Republicans passed a bill during the July 23 emergency session that blocked those captions from appearing on the ballot. Gov Roy Cooper (D) vetoed the bill on Friday, but Republicans have a supermajority in the legislature and are expected to override it in a vote on Saturday.

The 3-person commission responsible for writing the captions, which are just a few words long, consists of the secretary of state, attorney general and the legislative services officer of the general assembly. Currently, Democrats outnumber Republicans on the panel 2-1. Republican legislators, who gave the commission power to write constitutional amendment captions in 2016, said the new law was needed because Democrats would write them to sway voters to vote the proposals down.

News and Observer:

The first meeting of a state commission responsible for explaining constitutional amendments to voters turned into a nearly hour-long criticism of some of the proposals.

Voters will see six proposed changes to the state constitution on their ballots this fall. The Republican-led Legislature pushed them onto the ballot, despite Democratic legislators’ objections to some of them.

Attorney General Josh Stein and Secretary of State Elaine Marshall, both Democrats and members of the Constitutional Amendment Publication Commission, bashed some of the proposed amendments, raising points that were muted or absent from legislative debates. The third commission member, Republican Paul Coble, did not attend the meeting, which gave Stein and Marshall the chance to offer their views without rebuttal.

Stein described one of the amendments as “the most radical restructuring of our government in more than 100 years, since the Civil War. It would essentially give the Legislature the power to run the executive branch.”


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Election Law Academics Update

Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:

Ellen Aprill has been given the Outstanding Academic Award for 2018 for distinguished academic achievement in the nonprofit section by the Nonprofit Organizations Committee of the American Bar Association’s Business Law Section.

Travis Crum begins his Bigelow fellowship at the University of Chicago.

Josh Douglas was promoted to full professor and is now the Thomas P. Lewis Professor of Law

Michael Hanmer was promoted to Professor in the Department of Government and Politics at the University of Maryland.

Michael Kang begins at Northwestern Law after a stint at Emory.

Carl Klarner left his research position at the University of Florida Gainesville to do full time political, academic and election law consulting pertaining to state legislative elections.

Michael Morley begins at FSU after a stint at Barry.

Mike Pitts began serving as vice dean at Indiana U, Indianapolis Law.

Teddy Rave received tenure at the University of Houston Law Center and was awarded the George A. Butler Research Professorship.

Lori Ringhand received a Fulbright Distinguished Chair Award.

Doug Spencer will be visiting at the University of Chicago (Harris Public Policy) for the academic year 2018-2019.

Nick Stephanopoulos will be visiting at Harvard Law School in the fall.

Ciara Torres-Spelliscy was promoted to Professor of Law at Stetson University College of Law.

Congratulations all!

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