The Los Angeles Daily Journal offers this article ($), which focuses on the stays in Doe v. Reed, McComish v. Bennett (the Arizona public financing case), and Perry v. Schwarzenegger. [UPDATE: You can now read the entire article here.] I have posted some excerpts below the fold.
Stays Were Common at High Court
By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON – One of the most distinctive features of the U.S. Supreme Court’s just completed term was the justices’ unusual willingness to intercede at the early stages of controversial cases through their power to stay lower court rulings.
Perhaps the most high profile example of this was the stay granted in January that prevented the broadcast of the blockbuster trial in San Francisco over the constitutionality of California’s Proposition 8, the ballot initiative that banned gay marriage.
The Supreme Court also attracted attention for two other stays it granted, both in cases coming from the 9th U.S. Circuit Court of Appeals. …
In June, the Supreme Court decided the case narrowly, without reaching the question of whether the names should be released. Doe v. Reed, 2010 DJDAR 9570.
Instead, the court upheld the general right of states to release the names of people who sign petitions to put issues before a popular vote, holding on an 8-1 vote that the First Amendment rights of those who sign petitions are not automatically violated.
But the court said people who sign the petition could make case-by-case challenges to the release of names if they can persuade a federal judge that there is a likelihood of threats or harassment. The Washington petition signers now have a chance to do that before the state can release the names.
The eventual outcome in the case illustrates how the court’s decision to grant a stay does not necessarily foreshadow the final ruling, Supreme Court watchers say.
Election law expert Rick Hasen, a professor at Loyola Law School in Los Angeles, noted the stay in the case was not a surprise because the Supreme Court had merely maintained the status quo – specifically that the names were not in the public domain – until it had a chance to review the case on the merits.
But Hasen and others feel quite differently about the stay in the Arizona elections case because the stay was sure to have a direct impact on election season despite the fact that the court hadn’t yet decided whether to hear the case on the merits.
The stay was “really surprising,” Hasen said, because it seemed to contradict Supreme Court precedent stating that courts should not issue decisions that affect how elections are conducted in the middle of election season.
“It’s hard to see how the Supreme Court can justify changing the rules,” he said.
While the parties brief the case, a provision of a state campaign finance law, known as the Citizens Clean Elections Act, that provides extra public subsidies to candidates who are running against privately funded candidates, is on hold. Candidates in this year’s elections who opted to take the subsidies, including sitting governor Jan Brewer, a Republican, are now at a disadvantage against candidates raising funds privately.
The law gives candidates the opportunity to receive public financing if they give up their right to raise private funds. The amount of funding varies depending on whether the candidate faces an opponent in the primary or general election. The provision of the law under scrutiny allows the candidate to get additional funding if they are being outspent by someone raising funds privately. Primary elections in the state take place on August 24. McComish v. Bennett, 09A1163.
Monica Youn, a lawyer at the Brennan Center for Justice at New York University School of Law, who is in favor of campaign finance reform, described the court’s action as “very irresponsible” because it threw “the entire system into chaos.”
The decision to intervene indicates to Youn that the justices “are really not looking at the real-world consequences.”
Nicholas C. Dranias, an attorney at the conservative Goldwater Institute in Phoenix, Ariz., who filed the application in the case on behalf of various political candidates, said he viewed the Supreme Court’s actions quite differently.
Although the Arizona law was passed in 1998, the legal challenge was launched immediately after the Supreme Court issued a 2008 campaign finance ruling that cast into doubt the future of public financing. Davis v. FEC, 2008 DJDAR 9585. In that case, the court struck down a provision of the 2002 McCain-Feingold campaign finance law that increased the contribution caps for candidates running against self-financed opponents.
Dranias conceded that seeking a stay was a long shot but said he did so because he was so confident that the Arizona law was unconstitutional based on the ruling in Davis.
Criticism of the court’s decision to grant the stay “has surface level appeal,” he added, but ultimately, “the First Amendment is more important than the sanctity of politicians getting taxpayer funds.”