Citizens United: Did the Court Ask for Briefing to Cure an Incurable Defect?

As I noted, the parties in this case have been asked to address the question: "should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. s441b...?" (my emphasis)

It is an odd formulation, but the reason for the formulation may have to do with the issue I've alluded to yesterday, whether the question of overruling either case is properly before the Court. From my review below, it appears that neither of these questions is properly before the Court.

This may shed more light on why the case was reset for argument in September. Perhaps the five conservatives circulated a draft overruling either Austin, McConnell or both, and the would-be dissenters made the argument that the question was not properly before the Court. If that's true, it would make overruling these cases even more audacious, leading to charges of conservative "judicial activism."

If this theory is right, the full briefing ordered by the Court may have been ordered with the intent to provide some cover for the overreaching. Supplement briefing will give the parties a chance to fully brief the argument now. Nonetheless---and tellingly the Court did not ask for supplemental briefing on the question whether the issue of overruling McConnell and Austin is properly before the Court-- supplemental briefing cannot cure this defect: if an issue was not raised below or fairly presented in the jurisdictional statement, the Court should not decide it. I expect that his argument will surely figure prominently in any dissent from a majority opinion overruling Austin, McConnell, or both.

It is hard to imagine any other reason why the Court ordered this supplemental briefing now, rather than decide the case (and, contrary to Mickey, I think if CJ Roberts and Justice Alito just wanted to expand the MCFL exemption, they likely could have gotten some liberal votes for that, and would not have needed to set the case for briefing on a nuclear-type issue).

The rest of this post provides the details on why these questions are not properly before the Court. When the case began, a three-judge court denied Citizens United's request for a preliminary injunction barring FEC enforcement of section 203. 530 F.Supp.3d 274 (D.D.C. 2008). On Citizens United's facial challenge to the law, the court construed it as an attack on McConnell and held that it was without power to overrule McConnell, as it was bound by Supreme Court precedent. The initial opinion makes no mention of an attack on Austin. Citizens United appealed the denial of the preliminary injunction to the Supreme Court, which dismissed the appeal. 128 S.Ct. 1732. The three-judge court then granted summary judgment for the FEC, in a single paragraph opinion concluding: "Based on the reasoning of our prior opinion, we find that the Federal Election Commission is entitled to judgment as a matter of law." 2008 WL 2788753 (D.D.C. July 18, 2008). The Supreme Court agreed to hear an appeal of the summary judgment decision, 129 S.Ct. 594 (2008).

After the case got to the Supreme Court, CU changed lawyers (from Jim Bopp to Ted Olson) and changed strategy, mounting an attack on Austin. It comes in an odd way, as part of what it styles an "as applied" challenge to McConnell. It notes that McConnell is an "apparent extension" of Austin and then offers reasons for Austin to be overruled (see around pages 30-31).

The government's brief gives this argument the back of its hand. The government begins by noting that that: "Acceptance of appellant's argument [to overrule Austin] would effectively invalidate not only BCRA Section 203, but also 2 U.S.C. 441b's prohibition on the use of corporate treasury funds for express advocacy, as well as any state-law analogues. Notably, appellant does not ask this Court to reconsider McConnell''s holding that, if corporate spending on express advocacy in candidate elections may be regulated, so may corporate spending that is the functional equivalent of express advocacy. Cf. WRTL, 127 S. Ct. at 2686 (Scalia, J., concurring in part and concurring in the judgment) (advocating, as "modest medicine," the overruling of only McConnell's comparatively recent holding as to nonexpress advocacy). Rather, appellant seeks to invalidate both forms of regulation."

The government then states:

Appellant's argument is not properly before the Court. Although appellant previously sought to have BC RA Section 203 declared facially unconstitutional, see J.A. 24a, it later abandoned that claim, and the district court ultimately ordered dismissal of the relevant count pursuant to the parties' stipulation. See p. 10, supra. In addition, appellant's jurisdictional statement presented only "an as-applied challenge to *** BCRA s 203." J.S. 5. In setting out the substantial federal questionsb that it believed warranted plenary review, appellant identified a dispute over the application of WRTL and a question about whether Section 203 can be applied to a "feature-length documentary movie." J.S. i, 24-28. No issue as to the continuing vitality of Austin was either "set out" in the questions presented or "fairly included therein." Sup. Ct. R. 14.1(a) (rule for certiorari petitions), 18.3 (applying Rule 14 to jurisdictional statements).

In any event, this case presents none of the considerations that might support a departure from this Court's customary fidelity to precedent. Austin has been relied on by the other branches of the federal government, especially in crafting BCRA; by this Court, which applied Austin in upholding that statute, see McConnell, 540 U.S. at 203, 205 (explaining that none of the plaintiffs in that case, which included appellant, challenged the correctness of Austin's holding); and by legislatures and courts considering state and local campaign-finance measures. In short, "Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law." McConnell, 540 U.S. at 203.
Appellant makes virtually no effort to explain why Austin should be overruled under "the doctrine of stare decisis or the Court's cases elaborating on the circumstances in which it is appropriate to reconsider a prior constitutional decision." Randall v. Sorrell, 548 U.S. 230, 263 (2006) (Alito, J., concurring in part and concurring in the judgment). Appellant devotes less than two pages of its 58-page brief (Br. 30-31) to this issue, and it identifies no relevant new evidence or other intervening development that was unavailable to the Court when Austin was decided. That "incomplete presentation" is "reason enough to refuse" appellant's extraordinary request to overrule Austin, and as a consequence the relevant holding of McConnell as well. Randall, 548 U.S. at 263 (Alito, J., concurring in part and concurring in the judgment).

In arguing that Austin was "wrongly decided" (Br. 30), appellant relies in part on this Court's subsequent decision in Davis v. FEC, 128 S. Ct. 2759 (2008). That ruling, however, invalidated statutory conditions placed on a wealthy individual's expenditure of personal funds in support of his own candidacy. See id. at 2766-2767, 2770-2774. The case therefore did not implicate this Court's consistent "respect for the 'legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.'" McConnell, 540 U.S. at 205 (quoting National Right to Work Comm., 459 U.S. at 209-210). Indeed, neither the Court nor the dissenters in Davis suggested that there was any inconsistency between that decision and the prior ruling in Austin.

Appellant also relies (Br. 30) on Bellotti, which was decided 12 years before Austin. But the Court in Bellotti, while invalidating state-law restrictions on the use of corporate funds to influence ballot-question referenda, explained that its "consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office." 435 U.S. at 788 n.26. The Court further observed that "Congress might well be able to demonstrate the existence of a danger or apparent corruption in independent expenditures by corporations to influence candidate elections." Ibid. Far from providing a basis for overruling Austin, the decision in Bellotti anticipated the rationale on which, the Austin Court later relied.

UPDATE: More on this topic here.

Lyle Denniston on the MN Coleman Ruling and Bush v. Gore

See here. Lyle's analysis, like mine has quickly become moot in the media as this story moved from a legal one to a political one.

"Impressive unanimity: The historical significance of Coleman v. Franken"

Ned Foley offers this analysis.

"Why Norm Coleman Lost"

Politico reports.

"Campaign Finance Case and the Vote on Sotomayor"

BLT reports.

"Court opens door to possibility of corporate political spending"

The Hill offers this report.

"Preserving Our Institutions: Presidential Succession"

This important event will take place at AEI on Thursday. Looks like a great lineup of speakers.

Coleman Concedes

It is all over except the parsing of the decision and the second-guessing of the legal strategies.

Breaking News: Minnesota Supreme Court Decides Coleman-Franken, Unananimously in Favor of Franken

I have posted the opinion here. I'll have more analysis soon. The bottom line is that the Court says that Franken is entitled to an election certificate, but there is no direct order to the state's governor to sign one. We'll see what the governor does, if Coleman does not concede, as he well may at this point. If not, the opinion is not final until the period for rehearing ends (see the final footnote of the opinion). That's a ten day period, enough time to file an emergency stay application in the U.S. Supreme Court. It would go to Justice Alito, now circuit justice for the Eighth Circuit.

My earlier analysis of the potential issues in the U.S. Supreme Court, or a separate federal action, are in pieces at Slate, the LA Times, and the ACS Blog. I will post additional analysis as an update to this post after I read the decision.

UPDATE: Initial Thoughts on the Ruling, and What Happens Next

1. Pawlenty and the Certificate Let me start with the bottom line, because many of my readers care more about the politics than the law. I'll return to the law below. My best guess is the Coleman concedes by tomorrow. If that does not happen: Gov. Pawlenty has just enough wiggle room not to sign the certificate of election if Coleman files a stay/cert. petition with the United States Supreme Court within the 10-day window. He can say he wants to wait to see how things play out. If Coleman doesn't file and Pawlenty does nothing in 10 days, not only will Pawlenty face a lot of heat, he might be sued directly for an order of mandamus (or whatever proper procedure is used in Minnesota) to order him to sign the certificate.

2. A Stay in the U.S. Supreme Court I think a stay is very unlikely. First, you've now had eight judges look at this case (the three judge court and 5 of the members of the State Supreme Court) made up of judges with varied party backgrounds and they agree: Coleman could not find enough problems with the way the election was run to make out a constitutional violation. (Coleman was just unlucky in this regard; it could have just as easily been Franken. The election was razor-thin, and Minnesota's procedures pretty good, so there was not much for Coleman's lawyers to work with.) So the conservatives' red flags will not be raised, as they were in Florida 2000. Second, as I've explained in my Slate and ACS pieces linked above, Coleman's arguments depend upon an expansive reading of Bush v. Gore that would essentially enmesh the courts in the political thicket every time there was a close election and some deviations in how local election administrators enforced state election rules. That would mean a lot of litigation, state election law centralization, or both. That's not going to be appealing to any of the Justices. Third, the Court still has not cited Bush v. Gore in any opinion---majority, dissenting, or concurring---since the case was decided. It is still the third rail, and I don't see that they'd want to touch it, especially given what else they've been doing recently in election law. So I think Coleman's chances are slim in the Supremes.

3. The Legal Analysis of the MN Supreme Court This was exactly what I expected. The court found no due process problem, a la Roe v. Alabama (see my ACS post for more detail) because there was no changing of the election rules by the three judge court after the fact. (Indeed, a contrary ruling would have created a Roe issue for Franken). The court also saw no equal protection problem. First, there was no evidence of intentional discrimination against Coleman--the evidence just was not there and that was not really pleaded by Coleman. Second, there was no Bush v. Gore violation. The court followed the lower court in saying that any variations in election procedures were minor, and they were driven by differences in resources and good-faith attempts to administer state law as favored by the legislature. The court also rejected a number of evidenitary objections of Coleman.

4. Substantial Compliance, Strict Compliance, and the Democracy Canon The court followed its clear older precedents holding that absentee balloting rules are to be strictly construed: voters do not get any slack. (The court distinguished some cases giving slack to election officials, but not voters who make minor errors.) In my view, this was the correct result given the existing precedent, but my forthcoming Stanford Law Review article, The Democracy Canon, argues that voters should indeed be given slack when it comes to minor variations in following the rules when they attempt to vote. Minnesota generally follows the Democracy Canon, but not for absentee balloting. (On that question, it is in the minority of states). I suggested in an earlier blog post that the state Supreme Court should change that rule prospectively. The state Supreme Court says it should be changed by the legislature. My law review article cites to state legislatures that have legislated the Democracy Canon into state election law, and this is something both Democrats and Republicans in the Minnesota Legislature should do now---not only to honor Norm Coleman, but to honor the good faith efforts of voters to cast ballots.

5. What Took So Long? This is not the longest opinion in the world (32 pages). It is unanimous and follows the lower court. So why did it not issue sooner? I think the state Supreme Court wanted to get it right and explain itself clearly, not only because it owes that to the people of Minnesota and to the contestants, but also because of the potential for the case to be reviewed by the U.S. Supreme Court.

The people of Minnesota have much to be proud of in how their election was administered and in how the courts handled the contest. And no one should begrudge Norm Coleman for fighting this case as hard as he could. I would have expected Franken to do the same had he been on the losing end.

Thoughts on Citizens United, All in One Place

My Slate column, "The Supreme Court Gets Ready to Turn on the Corporate Fundraising Spigot," is here.

I discuss whether the the question of overturning earlier Supreme Court precedent upholding corporate spending limits is properly before the Court here.

I discuss the timing of Justice Souter's departure and the Citizens United case here.

And I round up other news and commentary on yesterday's developments here, here, here, here, and here.

"Supreme Court prepares to strike down campaign spending restrictions"

Campaign Diaries ponders the implications of overruling Austin for fundraising by the major parties.

" Delay in 'Hillary" case scares campaign reformists"

Tony Mauro has written this analysis for the First Amendment Center. BNA has more.

"'The Commission Has Been Road-Blocked': Republicans' War On The FEC"

TPM offers this extensive report.

"Is McCain-Feingold Headed the Way of the Dodo?"

The WSJ Law Blog asks. See also this LA Times article and this NPR report (about 5 minutes into this report), and these thoughts from C.E. Petit.

Citizens United: What Did Justice Souter Know and When Did He Know It?

Much has been made of the fact that Justice Souter did not follow the practice (of Justice O'Connor and Marshall) to agree to remain on the Court until the appointment of his successor. Instead, he stated his intention to retire "[w]hen the Supreme Court rises for the summer recess this year..". Justice Souter made the announcement on May 1, though he may have tipped off the White House earlier.

Citizens United was argued on March 24. By May 1, it could have been that the Justices were struggling with an opinion, and the outcome was uncertain. Or it could have been that the Justices knew by then the case was being reset for oral argument, perhaps because Justice Alito wanted more than a couple of pages of briefing from the government on overturning a law that (in various incarnations and with different coverages) has been in place for 100 years. My guess is that by May 1 the Justices knew an opinion was not coming and the case would have to be reset. On this theory, they delayed announcing it until the end of the term because nothing would be gained by announcing it earlier---there was enough controversy at the end of the term in any case.

The pendency of rehearing in Citizens United would provide an additional reason for Justice Souter to get out of town in June. In the event his successor would not be named by early September, he'd participate in an argument but leave the Court before an opinion would be issued (likely after the appointment of a successor by the first Monday in October, which is what Republicans eventually began calling for). His participation in argument but not decision might have been awkward, not to mention being a source of major heartburn.

How About Bush v. Gore?

Linda Greenhouse, writing about Ricci, asks: "Can anyone recall a previous occasion (other than habeas in the old days) when the court adopted a new rule in the petitioner's favor and then went on to apply it without a remand? Just wondering."

Technically there was a remand to the Florida Supreme Court in Bush v. Gore, but not one that could have had any effect on the outcome:

Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. s101.015 (2000).

The Supreme Court of Florida has said that the legislature intended the State's electors to "participat[e] fully in the federal electoral process," as provided in 3 U. S. C. s5. ___ So. 2d, at ___ (slip op. at 27); see also Palm Beach Canvassing Bd. v. Harris, 2000 WL 1725434, *13 (Fla. 2000). That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.

Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. s5, Justice Breyer's proposed remedy--remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an "appropriate order authorized by Fla. Stat. s102.168(8) (2000).

(my emphases)
UPDATE: Linda emails to say that she's looking for a case in which the Court explicitly acknowledges it is applying a new rule. BvG does not fit into that category.

More Citizens United News and Commentary

NY Times

USA Today

Wall Street Journal

Washington Post

AP

Politico

Brennan Center

Hans von Spakovsky

My Slate piece on today's developments is here.

"Thoughts on This Term and the Next"

Don't miss Tom Goldstein's reflections, including much on Citizens United and NAMUDNO. Tom see the Court locked in a basically static, conservative leaning pattern until 2017, barring unexpected health complications.

"Congressional hearing on self-determination for Puerto Rico--bill for referendum has 150 sponsors"

Michael Richardson explains.

California Appellate Court Decides Dispute Over Membership in Political Party County Committee

See here.

"Special prosecutor appointed in Shaffer case"

The latest on the Clarksburg anonymous campaign speech prosecution.

Reminder of the Day

"The Supreme Court is in session September - June."

---Minnesota Supreme Court general information page. Coleman-Franken remains pending. The Court issues opinions but does not hold scheduled oral argument during the summer.

"Why Has the Roberts Court Suddenly Gone Minimalist?"

Jack Balkin ponders.

DOJ Opposes Cumulative/Limited Voting in Euclid, Ohio Section 2 Voting Rights Case

This order is fascinating for a number of reasons, not the least of which is this statement from the court about the position of the Obama DOJ: "The United States argues that a remedy is not legally acceptable unless it is reasonably expected to result in the election of minority-preferred candidates based on past minority voting patterns. In particular, the United States argues that a legally acceptable remedy is one that will necessarily result in roughly proportional representation, even if minority turnout is substantially lower than non-minority turnout." I expect Rick Pildes to have more to say about this.

"The Supreme Court Gets Ready To Turn on the Corporate Fundraising Spigot"

My Slate Jurisprudence column on the developments in Citizens United is now available. It begins:

If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama's $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.

In a Supreme Court term that has had its share of surprises, the court saved one of the biggest for last. Rather than publish an opinion at the end of the term as expected in an obscure campaign finance case, Citizens United v. FEC, the court issued a rare order for reargument of the case in September (before the usual start of the term). At that point, the court will consider whether to overrule its two previous decisions that in 1990 and 2003 upheld limits on corporate spending in federal elections.

Given the dynamics of the court, there is a great chance the justices will use the opportunity to overrule limits on how much money corporations can spend supporting candidates--whether or not Judge Sonia Sotomayor is confirmed in time to hear the case in September. In the Voting Rights Act case the court considered last week, the court ducked the constitutional question in favor of narrow statutory interpretation. In contrast, in Citizens United, the court is likely to address the constitutional questions head-on, and the outcome likely will not be good for supporters of reasonable campaign-finance regulation.

Additional Briefing Ordered in Citizens United [UPDATED]

[This post has been updated. It started as a post wondering why there would be no additional briefing in Citizens United. But SCOTUSBlog now reports that there will be additional briefing.]

There will be additional briefing in Citizens United ordered by the Court. According to SCOTUSBlog, "both sides are to file their opening briefs simultaneously by July 24, with amici briefs due by July 31. Reply briefs are due by Aug. 19." I do not know if supplemental amicus briefs will be accepted.

In my ABA Preview of the oral argument in Citizens United, In noted the following about the government's response to CU's argument that Austin should be overruled (which was one of many arguments advanced by CU):

The FEC's main argument against these points is that they were not properly presented below. As to the Austin argument, the FEC notes that Citizens United did not raise this point below, and that it expressly withdrew any facial challenges before the district court issued its summary judgment. On the merits, the FEC argues that Citizens United presented no special reasons to overcome stare decisis in this case.

The government's argument about overruling Austin were brief---just a few pages. CU did not present much more. So it makes sense the Court has ordered additional briefing, but it is interesting that the Court did not ask for additional briefing in its order on the question whether the issue is properly presented. Reaching an issue that was not raised in the trial court is unusual for a court that says it is trying to avoid deciding constitutional questions.

FURTHER UPDATE: Amicus briefs will be allowed. Here is the full order of the Court:

08-205 CITIZENS UNITED V. FEDERAL ELECTION COMMISSION

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. s441b? The briefs, not to exceed 6,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, July 24, 2009. Amicus briefs, not to exceed 4,500 words, may be filed with the Clerk and served upon counsel to the parties by 2 p.m., Friday, July 31, 2009. Reply briefs, not to exceed 3,000 words, may be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, August 19, 2009. The case is set for oral argument at 10 a.m., Wednesday, September 9, 2009.

Reactions to the Citizens United Order

Trevor Potter (Campaign Legal Center)

Reid Cox (Center for Competitive Politics)

Both agree this is a big deal, but one of them is more pleased with the order today than the other.

UPDATE: Fred Wertheimer

Senator Schumer (statement via email, which also dealt with Ricci case): "Also, the Court's decision to rehear the Citizens United case in September provides another reason why Judge Sotomayor should be confirmed by the August recess."

Did Justice Alito Say Something About President Obama's Views of Judging and Empathy in Ricci?

There's been so much written about President Obama's call to appoint a judge with empathy (my early take, before Judge Sotomayor was nominated, is here). So I was struck by this sentence in Justice Alito's concurrence in the Ricci case today:

The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." Post, at 1, 39. But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.

Putting aside the merits of the decision in Ricci (on that question, don't miss this Slate series by Nicole Allen and Emily Bazelon), am I wrong to read this as a dig at the President's view?

UPDATE: Jonathan Adler appears to be thinking along the same lines. Also Tony Mauro makes these observations about Justice Ginsburg's oral dissent:

In the opinion there was no reference to the fact that the Court was overturning a ruling by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit that included Supreme Court nominee Sonia Sotomayor. But Ginsburg did get off one shot, noting that the white and Hispanic applicants who passed the exam only to have the results tossed out "understandably attract the Court's empathy." In the text of her opinion, she used the word "sympathy" instead of empathy, but "empathy" is the word President Barack Obama has used to describe a quality he wants in a justice. Conservatives have attacked Obama and, through him, Sotomayor, for valuing that criterion, and Ginsburg's comment was a pointed assertion that conservatives use empathy too. Joining Ginsburg in dissent were John Paul Stevens, David Souter, and Stephen Breyer.

The Citizens United Order

SCOTUSBlog has posted it here. Here it is in its entirety:

June 29, 2009

Case No. 08-205 -- Citizens United v. FEC, is set for re-argument later this term, on Wednesday, September 9, 2009, at 10 a.m. The parties should address the following question:

For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), and the part of McConnell v. Federal Election Commission, 540 U. S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U. S. C. s 441b?

"How Ricci Will Affect the Voting Rights Act"

Rick Pildes has written this must-read post on Balkinization.

What Does the Citizens United Order Mean?

Stand by. My thoughts will appear in a Slate column soon.

Order in Citizens United

According to SCOTUSBLOG, the Court issued the following order: "08-205 is set for reargument later this Term, on Wednesday September 9 at 10 a.m. The parties should address the following question "For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?"

This is very big. More coming.

Citizens United to Be REARGUED

So reports SCOTUSBLOG. It will be reargued to specifically consider whether Austin should be overruled. For more background, see my post here from Friday. I'll be back with more analysis, in a separate post, soon.

earlier postings below

We know that Justice Alito does not have the majority opinion in CU. The first opinion has been released, in Ricci, and Justice Kennedy is the author. Because these are released in reverse order of seniority, maybe it is the Chief's opinion as Linda Greenhouse suggested in one of her recent Slate posts.

[more to come]

Still waiting...Ricci ruling and dissent being read from the bench...

Justice Scalia has written the opinion for the Court in Cuomo. This means Citizens United will be last...

CA Supreme Court to Decide on Secret Ballot in Special District Elections

You can find the questions presented here. I've written a bit about whether vote buying should be allowed in such elections here.

"Pawlenty Waiting on Court Ruling"

Political Wire reports.

Dahlia Lithwick Talks NAMUDNO, Citizens United, Etc.

Listen here.

Pam Karlan on Why C.J. Roberts Wrote the Opinion He Did in NAMUDNO

Quoted in this LA Times article:

So are the 8-1 decisions signs of a new harmony at the Supreme Court, or examples of smart, tactical moves by the chief justice?

Stanford University law professor Pamela Karlan says it is the latter. "He didn't have the votes" to overturn the Voting Rights Act, she said, so Roberts opted for a decision that weakens the law.

It takes five votes to have a majority at the Supreme Court, and many lawyers questioned whether Justice Anthony M. Kennedy would supply a fifth vote to strike down the key part of the Voting Rights Act.

"Kennedy is sensitive to the racial dynamics. And they all knew the court would take a huge hi""had they struck down the law, Karlan said. "That decision would be very hard to explain to the American public. The message would have been: 'Conservative activists strike down voting rights,'" she said. "Besides, Roberts is young, and he's in it for the long haul. He can afford to wait."

"Boundary-Enforcing Supreme Court Decisions (Part III): How to Recognize Them, Why We Often Don't "

Rick Pildes's latest.

"Democrats Work To Avoid 2008 Primary Strife"

ABC News offers this report.

"Some say new constitution would solve state's woes"

The San Diego Union-Tribune offers this report.

"Fixing the Voting Rights Act"

Lynn Westmoreland has written this WaPo oped. See also this Newsweek column by George Will.

"Can the Voting Rights Act Survive Another Challenge?"

Tony Mauro has written this article for the National Law Journal.

Question of the Day

"Why all of a sudden now with the statesmanship?"

--Dahlia Lithwick, in conversation with Linda Greenhouse and Walter Dellinger at Slate's "Breakfast Table," referencing this ELB guest post on NAMUDNO.

More on Port Chester

Here.

Derfner on NAMUDNO

Interesting comments here. It concludes: "So let's take the Supreme Court opinion for what it says and what it does. Let's see how bail-out works. If necessary, if the bail-out mechanism proves to be too stringent or too lenient, Congress can re-visit the bail-out mechanism then. When the Supreme Court said that the results of the bail-out process may give a sufficient answer to avoid the constitutional issue, that's not chopped liver. Let's see how it really works before we tell Congress the sky is falling."

Kang: The Continuing Relevance of Section 5

Michael Kang sends along the following guest post:

Thanks to Rick Hasen for hosting this discussion of NAMUDNO, which I'm happy to join near its close. I've enjoyed surveying academic opinion about the Voting Rights Act and NAMUDNO, but I'm less skeptical than many of my colleagues about Section 5's continuing relevance. Of course President Obama's election was a watershed moment in the evolution of American racial politics that mark today as importantly different from 1965. Of course the crisper tailoring of the Section 5 coverage formula and bailout provisions is eminently sensible, as are calls for deeper attention to the evolution of what Dan Tokaji calls the "new vote denial" and to the development of broader guarantees for an affirmative right to vote. However, as much as things have changed in many parts of the country, it is easy to forget that things have changed much less in others, as Nate Persily's brief in NAMUDNO points out. Where I live, in Georgia, new measures that threaten to limit the franchise are regularly legislated, and while these proposals may be motivated at their base by partisanship, the effective targeting of these measures against certain populations of voters is no mistake. DOJ's refusal to preclear Georgia's requirement of proof of citizenship, following the presidential transition, helps remind us how Section 5 can make a meaningful difference along these lines.

The aftermath of NAMUDNO is less likely to be a major overhaul of, or a major shifting away from, the Voting Rights Act, but instead another incremental adjustment and peaceful co-existence of the VRA with new regulatory initiatives. I'm skeptical that Congress will be much less deferential to the VRA than a Court staffed by politically insulated Justices who appeared ideologically hostile to it during oral argument before ultimately issuing a more careful, perhaps "statesmanlike" decision. But the continuing relevance of the VRA need not crowd out new reform extensions, and indeed, one might reasonably hope that new extensions supplement, rather than necessarily supplant, and draw political strength from the VRA's historical pedigree.

A looming question is what NAMUDNO signals for the viability of Section 2. The legal debate about the constitutionality of the VRA, post Boerne, until rather recently focused on Section 2. Section 5 seemed on safer ground with its limited coverage, preclearance review limited to retrogressive changes, and sunset and bailout provisions. Debate about NAMUDNO has softened resistance to challenges against the VRA and potentially cleared political space for the Court to strike down Section 5's more vulnerable sister. However, this path doesn't seem the Roberts Court's style, which has more often been the crafty use of standing, as-applied challenges, and here in NAMUDNO, implausible statutory evasion, to achieve its policy ends by indirect means. The Roberts Court already carved back Section 2's reach earlier this Term in Bartlett v. Strickland, but its response to future challenges is likely to entail similar limitations of the law’s substantive reach, but executed carefully to avoid the unwanted headlines that follow from directly overruling precedent or striking down Section 2. This may well be the path taken by the Court with respect to Section 5 following NAMUDNO, at least if Nate Persily is correct about the Court’s bailout analysis. Although the Ricks-- Hasen and Pildes --compare NAMUDNO to Bush v. Gore, the NAMUDNO decision reminds me of Wisconsin Right to Life v. FEC. Like WRTL, NAMUDNO eschews sweeping invalidation but may just as well undermine Section 5's foundations over the long run, if Nate is right, by chipping away at its application case-by-case through judicially mandated bailout.

Finally, the shift in academic opinion, at least in legal circles, about the Voting Rights Act is striking to consider. Academic opinion has shifted from nearly universal support a decade ago, to sober concern about its constitutional vulnerability a few years ago, to what now seems to have galvanized during debate leading up to and following NAMUDNO into a skeptical consensus among academics against the Voting Rights Act's usefulness going forward. The Court's decision in NAMUDNO will prove astoundingly canny if the shift in academic opinion surrounding the case is a harbinger of a parallel shift still to come in political and public opinion. Others have speculated that NAMUDNO is a warning shot intended to spur political reconsideration of the VRA, and a quick review of academic reaction suggests the warning shot has already achieved the intended doubts and alarm among us "early adopters." But I wonder whether Congress and the civil rights community are likely to follow academic opinion following NAMUDNO any more than they followed it during the 2006 renewal process. I have my doubts, particularly when academic prognostications on these issues, while substantively sensible on paper, have been noticeably inaccurate in predicting actual results on the field.

"Club for Growth aims to drain Specter"

Politico offers this report, which begins: "The anti-tax Club for Growth is preparing a campaign designed to drain cash from party-switching Sen. Arlen Specter's (D-Pa.) campaign coffers, and is awaiting approval from the Federal Election Commission to follow through with their plan." More here and here.

"Thoughts on the FEC and Its Troubles"

Shorter Bob Bauer: Let's all be adults and move forward.

The Past as Prologue: From FEC v. Davis to Citizens United?

Exactly one year ago today, I posted Initial Thoughts on FEC v. Davis: The Court Primes the Pump for Striking Down Corporate and Union Campaign Spending Limits and Blows a Hole in Effective Public Financing Plans. That post began: "Today's Supreme Court opinion in FEC v. Davis nominally deals with a relatively tangential portion of the McCain-Feingold law; but the 5-4 decision has much broader implications, laying the groundwork for striking down limits on spending by corporations and unions."

Citizens United, to be decided by the Supreme Court on Monday, has the potential (but not necessity) of being a blockbuster case that strikes down corporate spending limits in candidate elections, overruling Austin v. Chamber of Commerce. Justices Kennedy, Scalia and Thomas are already on record as favoring this result. As I've written, for Chief Justice Roberts and Justice Alito, it appears to just be a matter of time.

I was reminded of this yesterday when I was preparing excerpts from Davis for the 2009 Lowenstein, Hasen, and Tokaji casebook supplement. Davis came out when the casebook was already in page proofs, so we were only able to add small bits about the case. This was an opinion written by Justice Alito and signed by him, CJ Roberts, and Kennedy, Scalia, and Thomas. Note the favorable citation to Justice Kennedy's dissent in Austin. In most ways Alito and Roberts are already there on the question of Austin's overruling. It is just a question whether "judicial minimalism"/blinking/statemanship strikes again.

Here is what I've prepared for the Supplement:

ADD THE FOLLOWING TO THE END OF NOTE 4 ON PAGE 873:

The Casebook at page 795 briefly describes the facts of Davis. Here is a relevant excerpt from the majority opinion taking issue with the equality-like rationale offered by the government for the provision of BCRA increasing candidate contribution limits when candidates face self-financed opponents:

The Government maintains that s 319(a)'s asymmetrical limits are justified because they "level electoral opportunities for candidates of different personal wealth." "Congress enacted Section 319," the Government writes, "to reduce the natural advantage that wealthy individuals possess in campaigns for federal office." (emphasis added). Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective. See Shrink Missouri (THOMAS, J., dissenting) ("'[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances'" (quoting NCPAC); Randall (THOMAS, J., concurring in judgment) (noting "the interests the Court has recognized as compelling, i.e., the prevention of corruption or the appearance thereof"). On the contrary, in Buckley we held that "[t]he interest in equalizing the financial resources of candidates" did not provide a "justification for restricting" candidates' overall campaign expenditures, particularly where equalization "might serve . . . to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign." We have similarly held that the interest "in equalizing the relative ability of individuals and groups to influence the outcome of elections" cannot support a cap on expenditures for "express advocacy of the election or defeat of candidates," as "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." see also McConnell (noting, in assessing standing, that there is no legal right to have the same resources to influence the electoral process). Cf. Austin (KENNEDY, J., dissenting) (rejecting as "antithetical to the First Amendment" "the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections").

The argument that a candidate's speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office. See Bellotti ("[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments" and "may consider, in making their judgment, the source and credibility of the advocate"). Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, s 2, and it is a dangerous business for Congress to use the election laws to influence the voters' choices. See Bellotti (The "[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves").

Davis, 128 S.Ct. at 2773-74.

Justice Stevens, speaking for the four dissenters, wrote the following in response:

[W]e have long recognized the strength of an independent governmental interest in reducing both the influence of wealth on the outcomes of elections, and the appearance that wealth alone dictates those results. In case after case, we have held that statutes designed to protect against the undue influence of aggregations of wealth on the political process-where such statutes are responsive to the identified evil-do not contravene the First Amendment. See, e.g., Austin (upholding statute designed to combat "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public''s support for the corporation's political ideas"); MCFL ("Th[e] concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas. ...Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace"); cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) (upholding constitutionality of several components of the FCC’s "fair coverage" requirements, and explaining that "[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market").

Although the focus of our cases has been on aggregations of corporate rather than individual wealth, there is no reason that their logic--specifically, their concerns about the corrosive and distorting effects of wealth on our political process--is not equally applicable in the context of individual wealth. For, as we explained in McConnell, "Congress' historical concern with the 'political potentialities of wealth' and their 'untoward consequences for the democratic process...has long reached beyond corporate money."

Minimizing the effect of concentrated wealth on our political process, and the concomitant interest in addressing the dangers that attend the perception that political power can be purchased, are, therefore, sufficiently weighty objectives to justify significant congressional action. And, not only was Congress motivated by proper and weighty goals in crafting the Millionaire's Amendment, the details of the scheme it devised are genuinely responsive to the problems it identified. The statute's "Opposition Personal Funds Amount" formula permits a self-funding candidate to spend as much money as he wishes, while taking into account fundraising by the relevant campaigns; it thereby ensures that a candidate who happens to enjoy a significant fundraising advantage against a self-funding opponent does not reap a windfall as a result of the enhanced contribution limits. Rather, the self-funder's opponent may avail himself of the enhanced contribution limits only until parity is achieved, at which point he becomes again ineligible for contributions above the normal maximum.

It seems uncontroversial that "there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other." Sunstein, Political Equality and Unintended Consequences, 94 Colum. L.Rev. 1390 (1994). In light of that clear truth, Congress' carefully crafted attempt to reduce the distinct advantages enjoyed by wealthy candidates for congressional office does not offend the First Amendment.

Davis, 128 S.Ct. at 2780-82.

We'll see on Monday.

"Voting Rights and the High Court"

WSJ editorial: "Civil rights groups and others on the political left want Americans to believe that the death of Section 5 would threaten the black franchise. But such scaremongering obscures their real agenda, which is preserving racially gerrymandered voting districts. Liberal Democrats like Section 5 because it gives legal cover to race-based redistricting. More than half of the blacks in Congress today come from Section 5 jurisdictions."

Linda Campbell on Justice Thomas's Opinion in NAMUDNO

See here.

"Judicial Statesmanship On Voting Rights"

Here is Stuart Taylor's new column for National Journal. He quotes Rick Pildes as follows: "The justices' decision 'saved Congress from itself,' says Richard Pildes, a professor at New York University Law School, by 'aggressively contorting' the language of the bailout provision just enough to find the Texas utility eligible to apply."

"What's Next For The Voting Rights Act?"

Steve Ansolabehere and Anthony Salvanto have written this piece for CBSNews.com.

"Veteran Latino-rights advocate charged with voter fraud"

The LA Times reports.

"DOJ Appeals Dismissal of Charges Of Illegal Contributions by O'Donnell"

BNA reports ($) that the Ninth Circuit has already set a briefing schedule.

"DOJ responds in Port Chester voting rights case"

LoHud.com reports.

"Conyers backs off probe of ACORN"

The Washington Times offers this report, which begins: "House Judiciary Committee Chairman John Conyers Jr. has backed off his plan to investigate purported wrongdoing by the liberal activist group ACORN, saying 'powers that be' put the kibosh on the idea."

Eleventh Circuit, Applying Burson Strict Scrutiny-Lite, Upholds Florida Law Barring Individuals from Post-Election Solicitation of Petition Signatures Within 100 Feet of a Polling Place

This very interesting Eleventh Circuit opinion reverses the judgment of the district court. The court was careful to distinguish exit solicitation from exit polling.

Epstein: NAMUDNO and the Dilemma of Observational Equivalence

David Epstein sends along this guest post:

Observers reacted to the NAMUDNO punt with a sigh of relief, but also as a bit of a missed opportunity: rather than have this case provide guidance for the next round of redistricting, the next round of redistricting will probably serve as input for the court's disposition of Section 5. So let's look ahead a bit and try to game out what influence the court's ruling, or lack thereof, should have on the redistrictings following the 2010 census.

The crucial concept to begin with here is what political scientists call "observational equivalence," or the difficulty of proving a negative. The question is whether Section 5 is still necessary. Southern states point to the near absence of preclearance requests denied under Section 5 to argue that they have reformed. Civil rights groups say that the lack of discriminatory actions is proof that Section 5 works, and that to dismantle it is to risk returning to the bad old pre-VRA days.

The problem is that a world in which Section 5 procedures are unnecessary is observationally equivalent to a world where they are necessary and completely effective. Either way, the result is no violations for the federal government to overturn. It is unarguable that, historically, Section 5 was a key component to dismantling the South's panoply of discriminatory institutions. But this state of affairs can't go on forever, and how can one tell when it's OK for the federal government to take its thumb off the scales?

If the only data we had came from the South, this would be a near-impossible question to answer. But luckily we have the whole rest of the country to use as a control group -- even better, since the question is whether the South (and other covered jurisdictions) should be singled out for preclearance requirements, a natural standard would be whether their electoral processes work to disadvantage minorities more than in the rest of the country.

So one could imagine, for instance, a civil rights version of the 1988 Seattle-Vancouver handgun violence study. Seattle and Vancouver are very similar socio-economically, except that in 1978 Canada essentially banned handgun carrying and handgun acquisition for self defense. Sure enough, although it had only slightly more aggravated assaults than Vancouver, Seattle had far more homicides than did Vancouver, with the difference mainly attributable to assaults with handguns. This type of study could be repeated with a number of Southern and non-Southern cities to test for rates of minority voting, office-holding, social benefits, and so on.

Until then, though, Southern states will have incentives to be very cautious. Given the difficulty in proving a negative, the South will probably concentrate on not proving a positive; that is, to engage in behavior that will appear to be retrogressive or anti-minority. This is especially true with a Democratic administration vigilantly enforcing Section 5; Texas's mid-decade redistricting and Georgia's voter ID laws, both passed under a Republican administration, now seem a bit ill-advised, as they perpetuate the image of the South as restricting minorities' political influence through any means possible.

Notice that this forecasted caution will exacerbate the problem Nate Persily points out; namely, that it may indeed be difficult to find a way for the Court to directly rule on the constitutionality of Section 5. They can, after all, force jurisdictions to seek bailout first, and then rule only on the bailout provisions of the VRA, rather than Section 5 itself. One of Persily's possible approaches to challenging Section 5 rests on a Georgia v. Ashcroft-type case, where a state's redistricting plan is denied preclearance and then this is used as a vehicle to attack the preclearance requirement itself. But if no state sticks its neck out, this avenue too would be closed.

So, probably not much will happen politically until the Court rules on a direct challenge to Section 5 (if it ever does). Which means that it will be up to social scientists, in all likelihood, to tackle the observational equivalence problem and change the intellectual terrain between NAMUDNO and the next big voting rights case.

FEC Unanimously Adopts New AO and Audit Procedures

CCP has the details.

More Statistical Evidence of Vote Manipulation in Iran?

See here.

"Caperton and Boundary-Enforcing Justices Part II: How Vague Law Can Create Stable Outcomes"

Rick Pildes has written more on Caperton, framed as a response to Linda Greenhouse.

I would add that vague pronouncements from the Supreme Court play another role as well: giving the Court the ability to see various approaches to its holding through natural variations in the lower courts. After getting more data, the Court can then settle on a firmer rule. That's the point I make in Chapter 2 of this book. Whether Caperton motions will become common in the lower courts remains to be seen.

Keyssar's "Right to Vote," Revised Edition

I'll be ordering the revised edition of Keyssar's important book.

Find All the TAPPED Posts on NAMUDNO

Linked here at the bottom of Heather Gerken's piece.

A Clearer Read of James Samples' Comments on Greenhouse on Caperton

Here, with hyperlinks, at the Brennan Center's blog.

For what it's worth, I agree with James. I think Linda understates the potential of the opinion to change the role of money in judicial elections. It is true Justice Kennedy talks a lot about this being an extreme case, but the standard is vague enough (as C.J. Roberts' 40 questions proves) that this could take on a life of its own in the lower courts. And in the meantime, those who would throw big money around elections might decide it is risky to do so. In any event, she expressed a certainty I don's have.

Gans: Some Thoughts, Post-NAMUDNO, Going Forward

Curtis Gans sends along this guest post:

I have been reluctant to enter the fray with regard to NAMUDNO and the VRA, in part because I'm not a lawyer, and while that hasn't deterred others, my comments will not have the legal precision of some who have commented here.

I join with those who have expressed relief that the Court did not decide on the constitutionality of section 5 and those who have expressed concern that with a case of larger moment, the court could well decide at some time in the not distant future to declare the title unconstitutional unless there is some remedial legislative action. The question which has been raised is what that legislative remedy should be. And that, in turn, can only be ascertained by answering a number of questions. To wit:

1. Is pre-clearance still necessary? The essence of pre-clearance is to put the burden of proof on covered jurisdictions to prove that their current laws and contemplated changes are not in violation of the VRA. It is highly likely that in Deep South states, the high number of elected African-American officials could not have been achieved without pre-clearance and majority-minority districting. And it is likely that without the pre-clearance provisions of the VRA, many of those states would backslide. My rule of thumb with respect to current conditions is any state where Obama handily won a primary (due largely to African-American votes) but convincingly lost the general election (despite heavy African-American voting) is still voting primarily on the basis of race, that African-Americans still could not win statewide elections and, without supervision and threat of federal action, would regress. Those states that fall clearly into this category are South Carolina, Georgia outside of Fulton county and Athens, Alabama with the possible exception of Montgomery, Mississippi with the possible exception of Jackson and Louisiana excepting New Orleans. In those states, section 2 with the burden of proof placed on government to prove denial of voting rights would not suffice.

2. Is pre-clearance necessary for all the currently covered jurisdictions? The answer is clearly no. Obama won Virginia and the state has elected an African-American governor. There may be pockets of likely voting denial on the basis of race in certain counties in the south and southwest of the state (like Prince Edward County), but the state as a whole has come a long way and is not likely ever to regress. A similar case could be made for Texas both with respect to African-Americans and Latinos. The state as a whole should not be subject to pre-clearance, but jurisdictions within it might. (I don’t know enough to speak to Alaska and Arizona.).

3. Should the bailout provisions be changed? Given the fact that there are many covered jurisdictions for which pre-clearance coverage is no longer necessary and which might bring court cases similar to NAMUDNO with uncertain results as to the constitutionality of section 5, a very strong argument can be made for Rick H's pro-active bailout proposal and the summary removal of jurisdictions which should not be covered. The question that hasn't been answered in this dialogue (or multilogue) as far as I can see is what are the updated benchmarks for both continued coverage and pro-active bailout.

4. Has the majority-minority district remedy outlived its usefulness? The answer is both no and yes. For the covered Deep South states, I see no other remedy to ensure that African-Americans continue to be elected at least for the foreseeable future. For the rest of the country, this remedy has outlived its usefulness, enhances political polarization and is a major obstacle to a redistricting regime which emphasizes competition and may create a more cooperative politics. Majority-minority districting enjoyed the support not only of minorities and civil rights organizations but also of the Republican Party, the latter because it could lump all minorities into a few districts and make an ever-smaller number of Republican districts competitive. The problem with non-competitive congressional and state legislative districts is that they tend to empower the more extreme as zealous elements of the American polity. The average turnout for a statewide Democratic primary (for governor and U.S. Senate and even adjusted for the competitiveness of the race) is ten percent of the eligible electorate,. For GOP statewide races, it's eight percent. That means an organized minority representing no more than four percent of the electorate can propel a candidate to primary victory and thus election in one-party districts. And it is the zealous who tend to be those organized minorities. One cannot conceive of expanding the number of competitive districts after the 2010 Census without dealing with the non-southern majority-minority districts and without some leadership from the minority community in understanding that neither their interests or the interests of the country are best served by their continuance.

5. Should there be a new comprehensive right-to-vote law as a substitute for VRA? The answer for me is there should be a comprehensive law like the one Rick Pildes suggests, but that it should not supersede the VRA. The virtue of the VRA as a separate law is that it is, once changed to provide new criteria for coverage and proactive bailout, an extremely effective well-targeted remedy for a major historical and potential present problem Making that task more complicated by creating an overarching "right to vote" statute probably would weaken the effectiveness of VRA. On the other hand, a comprehensive right to vote law is highly desirable, especially if it includes dispensing with the current list-based, hand-operated, extremely costly, and totally inaccurate and inadequate registration system in favor of one that might be biometrically-based.

Just Wondering Dept.

What happened to that horribly named "gang edit" in Coleman v. Franken? Another Thursday decision day with no opinion.

"Settlement in Missouri is a Victory for Low-Income Voters"

A win for the Lawyers' Committee, Demos, and Project Vote.

"A New Page for Voting: It's Time to Ditch Paper-Based Registration"

Bob Bauer and Trevor Potter have written this WaPo oped. A snippet: "There is a better way: In 2002, Congress passed the Help America Vote Act, which assisted states in centralizing their voter registration lists into single databases. The logical next step is to build on innovations put in place over the past few election cycles and shift the responsibility to automatically identify and register eligible voters from individuals and independent voter registration organizations to the states. An automatic system would eliminate the need for paper, alleviate the last-minute deluge of registration activity that consumes election officials and address the risks of registration fraud. Registration should also be portable, eliminating the unnecessary step of re-registering when one moves or changes one's name. Finally, there should be fail-safe mechanisms -- online and offline -- for voters to securely update and correct information and vote on Election Day."

VRM---keep your eye on it.

Guest Post: Linda Greenhouse Responds on Caperton

Yesterday I linked to this Slate piece by Linda Greenhouse, which includes a provocative paragraph on Caperton. James Sample of the Brennan Center responded to Linda on the election law listserv. I forwarded James's message to Linda, and she's sent in this response:

I sense a bit of "Linda, how could you" from my friends in the progressive community from my failure to salute the outcome in Caperton. I didn't mean to put words in former Chief Justice Phillips' mouth. Yes, he told Tony Mauro that the decision established "a principle that is really important." But here'' what he also said in that interview that led me to characterize his views as I did -- his views on the decision itself, let me emphasize, not on the principle:

He said that as he read the holding, it was limited to the following: Due process is violated ONLY (my emphasis) when: "(1) a person (2) with a personal stake in a particular case (3) had a significant (4) and disproportionate influence (5) in placing the judge on the case ... (6) when the case was pending or imminent." He went on to conclude: "Given how narrow that holding is, I'm not sure Caperton will ever be direct precedent for another recusal."

That's what the man (much more expert that I on this issue) actually said, and that's what my post reflected. My personal opinion is that if that's all there is, or all that a majority can manage to extract from the extraordinary facts, I'm not sure this case was worth the effort.

Who is Writing the Majority Opinion in Citizens United?

More parlour games: I've taken a look at the most recent SCOTUSWiki Statpack, and updated it with figures since its publication on 6/9. For the March sitting (which included Citizens United, and was the shortest calendar of the year), the following Justices wrote majority opinions: Stevens, Kennedy, Souter, Thomas, and Breyer. That leaves: Roberts, Alito, Scalia, and Ginburg. I doubt Justice Scalia is writing. By my count, he's already written 10 opinions, more than any other Justice. Ginsburg has written the least, but she's not likely to be in a majority in this case, and I cannot recall a campaign finance opinion (majority or dissent) of any length that she's written. My bet would be Justice Alito, which cannot be good news for supporters of BCRA (see his opinion last term in Davis, as well as his brief concurring opinions in Randall and WRTL). The Chief Justice likely had been very busy writing NAMUDNO, and I'm guessing he will have a hand in something in Ricci.

No Citizens United Today

The Court has released 4 opinions today, leaving only Citizens United, Ricci (the much-watched New Haven firefighters' case), and the Cuomo case to be decided.

Though the delay may simply be because one Justice is not ready with a concurring or dissenting opinion, it could be that bigger things are in store for the case, most provocatively an overruling of Austin v. Michigan Chamber of Commerce, the case upholding corporate spending limits in candidate elections. For my preview of the case, written before oral argument, see here. My post-argument thoughts are here.

It is expected that further rulings (I would think all three, but there's no telling for sure) will be released Monday.

Sandler on the FEC Republican Commissioners' Statement of Reasons Explaining the Inexplicable

Following up on this post, noted Democratic campaign lawyer Joe Sandler offers these interesting thoughts on the election law listserv (linked with permission), defending the commissioners.

"The Court Kicks the Can---What's Next?"

Edward Blum has written this commentary for The American. A snippet from one of the driving forces behind NAMUDNO: "It took only eight days after President George W. Bush signed the 2006 reauthorization of Section 5 before a jurisdiction challenged the law. Going forward, it will probably be more than a week before a new jurisdiction takes the second chop on the Section 5 log, but not much more."

"CCP files brief challenging 'matching funds' provisions in Arizona"

See this press release.

McDonald: Court Signals No Future Challenges to Section 5

Michael McDonald sends along this guest post:

Like the cartoon Road Runner, the Supreme Court Justices nimbly stepped through a door they drew in thin air to sidestep the oncoming train that, if derailed, would have ended Section 5 of the Voting Rights Act. Section 5 requires certain "covered" jurisdictions identified by Section 4 to submit changes in election administration to the federal government for approval before they can take effect. In NAMUDNO v Holder, the Justices interpreted Section 4 "bailout" -- the ability for jurisdictions to petition the federal courts to escape Section 5 coverage -- as applying to all jurisdictions, including a municipal water district, despite the lack of such enabling language in the Act.

This technical interpretation allowed the Court to avoid ruling on the larger issue of the constitutionality of Section 5, despite clear misgivings about it. As simply stated in the opinion:


Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of s5.

In crafting this decision, the Justices have effectively signaled that they will avoid ruling on future constitutional challenges to Section 5, as well. The logic is straightforward. Any jurisdiction that has the resources to challenge the constitutionality of Section 5 also has the resources to petition the federal courts for bailout. A covered jurisdiction challenging the constitutionality of Section 5 will be shown the bucket for bailout. A covered jurisdiction that does not qualify for bailout due to recent evidence of discriminatory practices will make a poor plaintiff, and will only reinforce the need for Section 5.
The irony is that there are a number of covered jurisdictions that routinely submit their election administration changes and the federal government routinely approves them. It is easier for these jurisdictions to continue coverage than to go through the more costly bailout process. These jurisdictions thus become trapped in the monitoring regime and resources are wasted, both by the local jurisdictions and the federal government, while perhaps less attention is paid to jurisdictions that deserve monitoring.
We can do better than this ACME-built monitoring system. The country would be better served by placing the onus for bailout on the federal government rather than the local jurisdictions. Unfortunately, by sidestepping the constitutionality question, the Supreme Court has given Congress a free pass on updating the Voting Rights Act. Without the Courts to challenge Congress, we will have to wait another twenty-three years when the current incarnation of Section 4 expires before Congress will revisit the bailout issue.

NAMUDNO and the Phantom Exhaustion Requirement

I've been thinking about the issues Nate raises in his post, and I've corresponded privately with some people about this issue. My view is somewhat different from Nate's, though I'm sure there will be a segment of the civil rights community that will think along these lines and argue that nothing should be done with preclearance (not only is that risky, but it gives up an opportunity to craft what Rick P, Sam, Guy, Bruce and Dan T. have called for--not to mention Nate in some of his writings---a new VRA for a new century, because the Court will never act (isn't that the message Pam sends in her piece in the Times?).

The Court never says in its NAMUDNO opinion that a jurisdiction must seek bailout in the future before raising a constitutional challenge. Sure, that's the natural reading of NAMUDNO, but who says natural readings are going to apply when this question returns (they certainly didn't apply to the reading of the bailout rules themselves in NAMUDNO)? Again I'm reminded of the first Florida 2000 case, Bush v. Palm Beach County Canvassing Board. The case contained a lot of dicta suggesting a very aggressive reading of Article II of the Constitution and Legislative power. However, as I detail here, by the time we got to Bush v. Gore, only three Justices embraced that reading of Article II, four rejected it, and two (Kennedy and O'Connor) were silent on the question. That dicta may have been a shot across the bow, but no one was bound by it when it came down to the time to act. The liberals were willing to send that shot across the bow because they did not know where the 5 conservatives ultimately would end up.

Nate could well be right that the Court never passes on this question. But if Congress does nothing, I would not count on a logical but unstated and dicta-implied exhaustion requirement to save the constitutionality of section 5.

Persily: Perpetual Constitutional Avoidance?

Here is a guest post from Nate Persily:

In the immediate aftermath of the NAMUDNO decision, I shared the view espoused by many that this was a placeholder decision that urges Congress to act so that the Supreme Court won't need to declare section 5 of the VRA unconstitutional. After contemplating what the next case might look like, however, I am starting to think that maybe the Court has placed itself in a position where it might never confront the basic constitutional questions surrounding the coverage formula. To understand why, one must work through the four ways such a challenge could get to the Supreme Court.

First, as with the constitutional challenge in NAMUDNO itself, a covered jurisdiction could argue that Congress has exceeded its authority under the Enforcement Clauses by requiring the jurisdiction to submit its voting law changes for federal approval. The response from the Court would appropriately be an exhaustion-style argument: go seek bailout and if you are denied bailout, then come back and see us. The implication here is that jurisdictions unconstitutionally covered by section 5 -- because they have not engaged in the requisite predicate unconstitutional acts that would justify coverage and preclearance --- should be able to bail out. The coverage formula is only unconstitutional if "good" jurisdictions are unable to bail out easily and that can only be demonstrated once they try.

That leads to a second potential course to the Supreme Court: appeal from a denial of bailout by the District Court for DC. Then the jurisdiction would argue, also somewhat similarly to NAMUDNO itself, that either bailout should be granted or the coverage formula is unconstitutional. Here, again, the Court can avoid constitutional difficulty (and probably can do so more easily than it just did in Monday's decision). One possibility is that the jurisdiction was appropriately denied bailout and the coverage formula remains constitutional as applied to it (see Tennessee v. Lane for some similar logic on this point). Or the jurisdiction should be allowed to bail out and the bailout statute should be read so as to make it possible for such a jurisdiction, given its voting rights track record, to be able to bail out. The bailout requirements seem individually severable, so I could see the Court rereading them to require, with the most extreme interpretation, for instance, that jurisdictions with a ten year clean record of no intentional discrimination are entitled to bailout. This may contort the bailout statute, but I think severing it in this way (or interpreting it to avoid constitutional difficulty or even vindicating an as-applied challenge to the bailout statute) seems about as easy a course as the one they just took.

The third way a case gets to the Court is from an appeal from a denial of preclearance by the District Court in DC (akin to Georgia v. Ashcroft). The covered jurisdiction alleges that its voting change is allowed by the Constitution, that the new standard for retrogression (Ashcroft and Bossier Parish-fixes) is unconstitutional, and/or that the coverage formula is unconstitutional. Here again I would expect the Court to read the retrogression standard to avoid constitutional difficulty (which is a tough job, as 30-plus pages of mental gymnastics in my Yale Law Journal piece attests) or simply sever it from the rest of the statute, which might leave the retrogression standard, perhaps, as limited to actual violations of the Fifteenth Amendment. In other words, the Court would allow the voting change to go forward, while still not reaching the question whether the jurisdiction is appropriately covered. The new retrogression standard might be the part of the statute that would most bother Kennedy, given his opinions in the Shaw cases etc. By defanging or even deleting the new retrogression standard, though, the Court should not need to reach the question of the constitutionality of the coverage formula.

Finally, a case could come to the Supreme Court because a jurisdiction fails to submit a voting change and is then sued in local district court to force them to submit the change for preclearance, and that decision is appealed all the way up. The jurisdiction might defend its actions by saying that the coverage formula is unconstitutional, on its face or as applied to it. Here again, the response from the Court is akin to exhaustion: if you don't want to submit your voting changes for preclearance, try to bail out. If the jurisdiction is unconstitutionally denied bailout, then the Court can deal with it then.

Of course, each of these situations presents the possibility that the Court will deal with the larger issue of the law's constitutionality. And if we view the NAMUDNO decision as simply a warning shot to Congress, maybe the Court will shoot more directly if Congress does not act soon (which was my initial response to the decision). However, it is also possible that the law could perpetually be read to avoid constitutional doubts so a never to force the Court to earn the headline: "Court Strikes Down Voting Rights Act."

If There Will Be Biometric ID for Immigration Purposes...

as this article suggests,then how about using it coupled with universal voter registration (or VRM,if you prefer)?

Tom Perez May Be Confirmed to Head Civil Rights Division of DOJ Soon

See here.

"Public Campaign Financing in North Carolina Judiciary: Balancing The Scales (2009)"

The Center for Governmental Studies has issued this report. A brief description from the web page:

Public Campaign Financing in North Carolina Judiciary: Balancing The Scales analyzes North Carolina's judicial public campaign financing law, and concludes that North Carolina's judicial campaign finance program is a model of reform, but that four recommended reforms should be implemented in order to ensure the long-term viability of the program. The program insulates Court of Appeals and Supreme Court judges from the influence of contributors who may have an interest in cases before the judge and decreases the amount of time judicial candidates need to spend fundraising, therefore increasing the time candidates can spend with all voters, regardless of the voters' ability to make campaign contributions. In addition, public financing programs such as North Carolina's have been shown to increase the public's confidence in their elected officials.

Just Wondering Dept.: Citizens United Edition

If the Court was going to go the constitutional avoidance route in the Citizens United case, avoiding the constitutional question whether to overrule Austin v. Michigan Chamber of Commerce in favor of a narrow statutory holding stating that video-on-demand is not an electioneering communication, what's taking so long?

CU was argued more than a month before NAMUDNO but NAMUDNO is out and CU awaits decision. But maybe in CU (rather than NAMUDNO) Justice Scalia will see fit to descry "faux judicial restraint" again, arguing again for Austin's demise, and maybe Justice Souter, an admittedly slow writer, could be crafting a dissent.

We may know as early as tomorrow. Or we might have to wait until Monday.

Linda Greenhouse on Caperton

Some unexpected words from one of the greatest Supreme Court analysts of our time:

Now, briefly, to Caperton. This was, indeed, a very odd exercise. The case was latched onto by a whole bunch of well-meaning folks who thought they could use it as a poster child for what's wrong with a system in which judges must run for election and raise money to do so. But its facts are so extreme that it can in no way be described as typical, and it produced an opinion so qualified and so tied to those facts, it's impossible to state the holding accurately in a way that has any utility for the nonextreme, and hence less visible and perhaps more troubling, situations that come up when judges have to run for office or retention. The real fight in this case was evidently in conference, in a closed-door debate that went on for weeks over whether to grant it. I'm sorry that they did: The case promised more than it could possibly deliver, while doing very little to clarify a judge's duties in ethically ambiguous situations. But the game was over with the grant of cert--once this case was run up the flagpole, it was quite foreseeable that Justice Kennedy would have to salute rather than be seen as shrugging off the behavior that went on here. Tony Mauro had an enlightening interview with Tom Phillips, the former chief justice of Texas, who suggests that very little will come of Caperton in the end.

Republican Commisioners Explain the "Inexplicable"

Back on June 10, I blogged about an extraordinary statement of reasons from Commissioners Weintraub and Bauerly in which they called the Republican Commissioners' actions in an enforcement case "inexplicable." The statement later caught the attention of the Washington Post editorial board.

Today the three Republican commissioners explained themselves. You can read the 20-page document here. It begins (footnotes omitted):

MUR 5957 presents an enforcement action that should have been handled differently from start to finish. The matter illustrates a number of shortcomings in the Commission's procedures and processes (particularly in the areas of due process and civil penalty calculation), and highlights a troubling disparity in campaign finance law: rote enforcement of hyper-technical rules often has an unfair impact on inexperienced political participants. And tragically, being subjected to such treatment leads many to swear off future involvement in the federal election process. That such shortcomings tend to have a disparate impact on inexperienced candidates who operate on small budgets and rely on non-professional staff is illustrated by comparing MURs 5957 (Sekhon) and 6031 (Hagan). Both matters concerned campaigns that ran into problems with a technical reporting issue commonly called "best efforts." Under that rule, campaign treasurers are supposed to report the occupation and employer of its contributors; however, contributors are not required to provide such information.

Mike Dorf on NAMUDNO

See here.

Michael McDonald on Proactive Bailout

See here

This is a topic near and dear to my heart.

Guest Post: Behind the Scenes in NAMUDNO

A blog reader who is a close watcher of the Supreme Court sends along the following observations:

At the end of your post on Thomas, you wonder if he was seeking to avoid embarrassing the Chief. I think in that one question you have come close to the answer to most if not all of your (and others') speculations: this was a compromise decision, with which no Justice, of any stripe, was entirely comfortable, and it was embraced as widely as it was (eight Justices of deeply differing ideological preferences) and was discussed with as little ad hominem rancor as it was (Thomas' moderation in his critique) because it simply provided a way out of a decisional and institutional corner.

Years from now, when Justices' papers become available, I strongly suspect that we will discover that the Chief Justice, in the end, simply rode to the rescue of an embattled Court -- perhaps not as an act of courage or statesmanship on his part alone, but as the product of a wide (perhaps unanimous) agreement that this was a moment of high institutional risk, and perhaps moral sensitivity, and that the Court was allowing itself to verge very close to a self-inflicted wound. From the very moment the Court encountered this case, it saw it against a sweeping background of history, and realized that much was at stake, on all sides -- including the Court's own potential reputation for causing or contributing to further racial tension.

It thus was OK to vent at oral argument, and get everyone's subjective perspectives on Section 5's sweep out into the open. But then a decision had to be written. I would bet that there were attempts by several Justices to shape a decision that would, indeed, strike down Section 5, but the more the drafts circulated, the more monumental the undertaking became. I would not suspect that the Chief Justice then forged, alone, the way out. I would bet that Kennedy and Stevens, and even Scalia, had major roles to play, and perhaps Breyer and Ginsburg, too, but to a lesser extent. Roberts is enough of a craftsman that he would have been entrusted with writing the "final" draft, but it represented a composite of ideas from among the more influential Justices. And, in reading the Roberts opinion closely, one finds that it does, indeed, satisfy all of the internal constituencies within the Court.

I would even conjecture that there was a wider involvement in the Thomas dissent than Thomas alone. He, like Scalia, is entirely capable of excoriating a majority on a point of high principle, as he sees it, but there is absolutely none of that here. I have suspected that the Thomas opinion (comprehensive as it is, especially in comparison to the rather tight opinion of the Court) at one time was the draft opinion for the majority. It was crafted not to give offense, even while declaring Section 5 to be invalid. It was then easy enough to let it become a solitary dissent; and who better to take the responsibility for it, in the United States Reports, than the one African-American on the Court, one who had personally experienced the racial horrors of the past, and who could thus draw vivid comparisons between that era and the present. It also was appropriate for Thomas to be the dissenter because he has acquired (and earned) the reputation of being the one Justice most willing to cast aside the Court's prior commitments and strike out in bold new directions.

In a phrase, then, I think what went on here was immensely complicated, not yielding to summary assumptions or conjectures.

Extremely perceptive observations, in my view.

Rep. Tanner Issues Press Release Pushing Bill Establishing Independent Bipartisan Redistricting Commissions for Congressional Districts

See here.

Meanwhile, Justin Levitt is following the details of redistricting reform in Ohio.

"Denver judge shelves donations ban; Judge doubts constitutionality of amendment curbing campaign contributions"

The Denver Post offers this report.

Pildes: Going Forward

Rick Pildes has written this guest post:

Rather than focusing on the Court's opinion, I want to look forward to the future of voting rights. The Supreme Court's decision gives Congress some breathing room, but the decision also puts Congress back on the hook.

If Congress is willing to take charge of this issue, it should start by recognizing that experience has given us two distinct models of national voting-rights legislation. For the future of voting rights, the most important decision will be which model Congress and the President embrace. If Congress can think outside the box of the law that the Court struck down, the Court's decision will spur the most effective voting laws for the next generation.

The first model is represented by Section 5 of the VRA, the law the Court just held unconstitutional. It reflects a "targeted," anti-discrimination approach to voting-rights protection. Section 5 is targeted in two senses. First, it defines in advance-- for the next 25 years-- which parts of the country have distinct voting problems that require unique federal oversight. Since 1975, the same nine states (mostly Southern) have been under this regime. Second, Section 5 singled out race-based denials of voting rights as the only kind of disfranchisement that justified aggressive federal protection. The Department of Justice, for example, recently used this law to block Georgia from requiring proof of citizenship to vote, given the error-riddled data bases that would have been used. But the Supreme Court was skeptical about whether the Act would remain constitutional because Congress had difficulty justifying why the same states that had been selected for unique federal oversight in 1975 remain the appropriate states to continue to single out until 2031.

The second model of voting-rights legislation is a "right to vote" model. It entails universal and general national laws that directly protect the right to vote of all voters nationwide. This model has emerged over the last 20 years. It's reflected in laws like the Help America Vote Act of 2002 and the National Voter Registration Act of 1993. National laws to directly protect the right to vote in all elections -- state and national -- became possible only after the modern Supreme Court established that the right to vote is a fundamental constitutional right. Laws like this do not require justifying why some areas have been singled out; nor do they protect only against race-based denials of the vote. If Ohio enacts citizenship requirements for voting that would be illegal in Georgia, they should be just as illegal in Ohio. If state laws unjustifiably disfranchise elderly voters, or poor voters, or any voters at all, such laws should be illegal even if they are not racially discriminatory.

In response to the Court's decision, Congress might find it tempting to try to "save Section 5" by tinkering with the formula that determines which areas should be targeted. But why not start by recognizing this targeted model grew from the political and constitutional constraints of earlier eras? For most of American history, including when Section 5 was enacted in 1965, laws affecting voting were left to the States. Congress could legislate to enforce a specific constitutional command, such as the Fourteenth and Fifteenth Amendments bans on racial discrimination. That's why we have so few national statutes that protect the right to vote and why the original ones, such as the VRA, don't guarantee the right to vote in general, but only protect against racially discriminatory barriers to voting.

Besides reflecting these historical constraints, "targeted" laws like Section 5 are inherently limited today. They require Congress to identify 25 years in advance where voting problems are likely to arise systematically. As we emerged from the era of black disfranchisement in the South, it was not difficult to identify those areas. But today, close elections are most often the best way to predict where manipulative voting practices will arise. Yet the location of close elections inevitably varies. In Presidential elections, the problems in 2000 emerged in Florida; in 2004, in Ohio; in 2012, they could be in Minnesota.

In addition, to the extent a reformed Section 5 would remain targeted on race only, it would require increasingly complex efforts to sort out whether a law impinging on voting rights is racial in character or not. The Supreme Court that just struck down Section 5, moreover, is likely to permit Congress to ban only those voting laws that can be tied to a racially-discriminatory purpose. In recent years, Section 5 has also had diminishing practical effect. Given all this, an effort to "save Section 5," even if successful, would likely be of more symbolic than practical effect.

National right-to-vote laws bypass these problems and are likely to have more widespread practical effect. Such laws would secure the vote against all unreasonable and unjustified limitations. They would be the most effective way to protect voting rights now, including those of minority voters. In these laws, Congress could retain a form of administrative preclearance review; such review could be required nationwide for particularly significant voting laws, such as those affecting access to the ballot box.

The current version of Section 5 is in constitutional jeopardy because a risk-averse Congress simply preserved the status quo when it reauthorized the Act in 2006. In light of the Court's decision, a risk-averse Congress might do nothing or tweak Section 5 in minor ways. But to protect voting rights for the next generation, the most effective way for Congress and the President to respond to the Court's decision is with uniform, tough new measures that protect the right to vote nationwide.

The Thomas Mini-Enigma in NAMUDNO

I went back and re-read Justice Thomas's concurrence in NAMUDNO. I just now noticed that Justice Thomas, like Heather Gerken and Ellen Katz, reads the majority opinion as a warning to Congress: "The Court quite properly alerts Congress that s 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional."

But I was also struck by something else. Yesterday I noted how weak the statutory argument embraced by the 8 Justices really was, and questioned by Justice Scalia signed on to it. What is curious about Justice Thomas's concurrence is that he completely avoids expressing an opinion on the statutory interpretation question. That's not Justice Thomas's usual way of writing separate opinions. If you think of Shrink Missouri, for example, he knocks down arguments in the alternative (as in, even if Buckley were accepted as good law, the majority's approach....). It would have been like shooting fish in a barrel for Justice Thomas to demolish the majority's statutory interpretation argument, but he did not do so. Perhaps he's the Justice who has shown the most restraint of all, despite the fact that he reaches the most radical decision: declaring section 5 unconstitutional. Did he not want to embarrass the Chief Justice?

Issacharoff: On Statesmanship

Here is a guest post from Sam Issacharoff:

Since Rick brought my comment in the Times into the debate, let me take the opportunity to address some of the issues behind the Chief Justice's statesmanship. To my mind, there are three issues that stand out in the debate over Section 5. The first is a legal one, the second is one about the legislative process, and the third is one about the field of voting rights.

First, the VRA extension had two great sources of constitutional vulnerability: how jurisdictions came to be covered and how their covered status could end. The brute fact is that most covered jurisdictions are defined by events that happened in 1964, before a large part of their eligible voters and, especially, most of their citizens were alive. That is compounded by the difficulties in place in getting out from coverage if the 1964 conditions no longer obtain. This is why Rick Hasen and others (including me) urged Congress to change the bailout provision in the 2006 amendments -- to no avail.

Judge Tatel below handled this issue as if it were squarely justified by South Carolina v. Katzenbach and the legislative history of the Act. The critical actors in the months that follow should not forget that the Court unanimously reversed the lower court. As many have noted: a clear warning.

What Chief Justice Roberts offered was the form of a potential legislative fix. If bailout were simple and routine, then a great deal of constitutional pressure would be taken off of both the formula for inclusion and the problematic timeless quality that the Act now has. It does not avoid all the constitutional issues in continued coverage, as Justice Thomas argued, but for 8 members of the Court it calms the waters. Finding this compromise without reaching in first instance for the constitutional hammer was, in my mind, an act of judicial stewardship.

This goes to the second point. Statesmanship is generally associated with the political branches, not the judiciary. In light of the Court's opinion, it is noteworthy that serious issues about legislative reform for the 21st century were never part of the congressional dialogue. The Act became an untouchable icon, and the votes were either with us or against us. I do not wish to belabor the point here, but I believe it ill serves the processes of democracy for legislative initiatives to come from the Court and not from robust congressional debate.

Finally, that raises a third point about the Act. Here I have little to add to what Guy Charles has been arguing both before and since the Court's opinion, and what Bruce Cain and Dan Tokaji noted as well. Increasingly in my view, Section 5 has more misses than hits in addressing the real sources of voting problems in this country. I may be more attuned to some of the costs of some of these collateral consequences, but leave those aside. The simple fact is that if one were drafting a statute from scratch to address the significant voting issues in the U.S. today, it is hard to imagine how it would take the form of Section 5. Certainly Section 5 may still have important value for some of the issues it handles. It is hard to see how it addresses the core issues of the day.

Ellen Katz: Roberts Didn't Blink

Here is a guest post from Ellen Katz:

Several people this week have said that Chief Justice Roberts "blinked" on Monday. I disagree. His opinion in NAMUDNO is calculated, shrewd, and (given what he believes about the statute) institutionally smart. The Chief Justice believes Section 5 of the Voting Rights Act is unconstitutional, but he also recognizes that striking it down is both a big deal and something he would rather the Court not have to do. Monday's contrived statutory holding remands the statute to Congress with a time limit and a warning. Make no mistake, do nothing and we will scrap this statute in the next case.

Yesterday, Morgan Kousser described the first pages of Chief Justice Roberts' opinion as dictum. Technically, of course, he is right, but I think we would be better served if we understood this portion of the opinion as the functional holding. Sounds strange, perhaps, but consider both the tone and structure of what Roberts has to say. He does not simply announce that this is a tough, unresolved constitutional question. Instead, he offers a blueprint for striking down the statute. In paragraph after paragraph, he relentlessly pounds home the argument for why Section 5 is unconstitutional. He includes no serious counterarguments. His only gesture in that direction is a boilerplate acknowledgment that Congress is a coequal branch and, by the way, that the district court thought the statute was fine.

True, Chief Justice Roberts then says he need not resolve the constitutional issue because there is an improbable statutory ruling that enables him to avoid (read postpone) reaching that question. Did Roberts blink? Not a chance. This is a savvy move that, as a matter of function if not formal doctrine, stays a constitutional holding. The Roberts opinion, at bottom, says: we are striking down this statute as unconstitutional but staying our order until the next case presents the same question. When that case comes up in a year or two, we will dissolve the stay and strike down the statute (unless something significant about the statutory regime will have changed by then).

Before oral argument in NAMUDNO, I was hoping (see here) that the Court would find a way to prompt Congress to reconsider Section 5. Monday's opinion prods Congress to do just that.

Your Daily Dose of NAMUDNO Commentary

Daniel Katz (apply game theory)

Abby Thernstrom (being Abby)

"GOP spent $900,000 to help Coleman pay legal bills"

The Star-Tribune reports.

"Reform Group's FOIA Request Highlights Ongoing Battle Over FEC Disclosure Policy"

This BNA report ($) notes that "The fact that FEC disclosure practices were changed in early 2007 was confirmed to BNA by former FEC General Counsel Lawrence Norton, who left the agency in February 2007 to go into private law practice."

"State May Sue Justice Department"

Georgia Public Broadcasting reports that "Georgia Secretary of State Karen Handel had hoped the high court would strike down section 5 of the voting rights act. That would have meant the state could enact a new law requiring proof of citizenship when registering to vote."

The Scalia Enigma in NAMUDNO

There's been lots of armchair psychoanalysis of the Justices in Monday's voting rights case. Heather Gerken says the liberals signed on to Chief Justice Roberts' opinion containing a lot of troubling language about the constitutionality of section 5 of the VRA to send a "crystal clear, united message" to Congress to amend the Act before 5 justices strike it down. There's been debate over whether Justice Kennedy will ever be ready to pull the trigger and declare a crown jewel of the civil rights movement unconstitutional. And of course the Chief Justice either engaged in an act of statesmanship (Sam Issacharoff) or blinked (me).

But what of Justice Scalia? Why didn't he vote with Justice Thomas that the Act was unconstitutional? At oral argument, Justice Scalia was as skeptical of the constitutionality of the Act as the Chief Justice. And the bailout argument ultimately adopted by the Court should make Justice Scalia squirm. When it comes to statutory interpretation, Justice Scalia is a big believer in the plain meaning and following statutory precedent set by the Court. Here, the precedent set in City of Rome was that only political subdivisions that register voters which does not include the MUD could bail out. Here is how the Chief deals with this problem in the NAMUDNO opinion:

In 1982, however, Congress expressly repudiated City of Rome and instead embraced "piecemeal" bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to "political subdivisions" in a covered State, "though [coverage] determinations were not made with respect to such subdivision as a separate unit." Voting Rights Act Amendments of 1982, 96 Stat. 131,codified at 42 U. S. C. s1973b(a)(1) (emphasis added). In other words, Congress decided that a jurisdiction covered because it was within a covered State need not remain covered for as long as the State did. If the subdivision met the bailout requirements, it could bail out, even if the State could not. In light of these amendments, our logic for denying bailout in City of Rome is no longer applicable to the Voting Rights Act--if anything, that logic compels the opposite conclusion.

I would have expected Justice Scalia to respond that Congress did not "expressly repudiate" City of Rome in the 1982 Amendments to the VRA. City of Rome is not mentioned in the 1982 amendments (compare this to Georgia v. Ashcroft and Bossier Parish, which are both expressly repudiated (at least in part) in the 2006 amendments). Nor is the Chief Justice's reading of the statute the most natural reading of what the 1982 amendments did with respect to bailout. Given the controlling Supreme Court precedent in City of Rome, one would have expected Congress to state clearly that bailout would be available even those subdivisions that do not register voters. But that change was never made.

Indeed, though Justice Scalia would not look at committee reports, I did. The 1982 Senate Report (which has been very influential in assessing the meaning of the VRA, see Thornburg v. Gingles), mentions City of Rome's constitutional holding many times with approval, but it never makes the point the Chief does here. Indeed, the only Senate Report reference I could find to the relevant amendment to the bailout provision reads as follows in its entirety:

THE STANDARD FOR BAILOUT IS ALSO BROADENED BY PERMITTING POLITICAL SUBDIVISIONS IN COVERED STATES, AS DEFINED IN SECTION 14(C)(2), TO BAIL OUT ALTHOUGH THE STATE ITSELF REMAINS COVERED. UNDER THE NEW STANDARD, WHICH GOES INTO EFFECT ON AUGUST 6, 1984, A JURISDICTION MUST SHOW, FOR ITSELF AND FOR ALL GOVERNMENTAL UNITS WITH ITS TERRITORY, THAT (1) FOR THE 10 YEARS PRECEDING THE FILING OF THE BAILOUT SUIT, IT HAS A RECORD OF NO VOTING DISCRIMINATION AND OF COMPLIANCE WITH THE LAW; AND (2) IT HAS TAKEN POSITIVE STEPS TO INCREASE THE OPPORTUNITY FOR FULL MINORITY PARTICIPATION IN THE POLITICAL PROCESS, INCLUDING THE REMOVAL OF ANY DISCRIMINATORY BARRIERS.

(my emphasis)
Of course, section 14(c)(2) is the part of the VRA that defines political subdivisions to be those that register voters to vote. Nothing in the committee report suggests that Congress was trying to change the definition of political subdivision for bailout purposes to overturn City of Rome.
Why did not Justice Scalia descry Chief Justice Roberts' analysis here as "faux judicial restraint," as he did in excoriating the Chief's opinion in Wisconsin Right to Life II? The only answer I can come up with is that Justice Scalia has given up on limiting congressional power when it comes to statutes dealing with race, something he suggested in Tennessee v. Lane. But then why the attitude at oral argument? Why was this not a 7-2 opinion?

Mark Posner's Analysis of NAMUDNO

See here.

Ansolabehere and Persily: Deciding Not to Decide...For Now

Steve Ansolabehere and Nate Persily have written this guest post:

The Supreme Court dodged a bullet yesterday by deciding not to decide the constitutionality of section 5 of the newly reauthorized Voting Rights Act. The decision, which makes small jurisdictions eligible for bailout from the Act, will have little practical impact. It leaves for another day the vexing constitutional question whether the Act's selective targeting of jurisdictions for coverage now exceeds Congress's power to protect civil rights. The Court will eventually confront that question, however, and there are things Congress and the Administration can do now to bolster the constitutionality of the Act.

The reason yesterday's decision will have little practical impact is that of the 12,000 jurisdictions covered by the Act before this decision only 17 municipalities (all in Virginia) have bailed out since 1982. The expansion of the bailout option to smaller municipalities is unlikely to lead to a flood of requests, given that very few eligible jurisdictions who always could have bailed out have decided to take that step. The rarity of bailout is somewhat of a mystery. Perhaps the criteria for bailout are too difficult or politicians are loathe to take as their cause celebre the escaping from a civil rights law. Or perhaps, as many of the covered jurisdictions themselves have indicated, they prefer to be covered because it gives them a DOJ stamp of approval for their voting laws that they can wave in the face of those who otherwise might sue them. Whatever the reasons for the rarity of bailout, one must suspect that those reasons will still be present for the jurisdictions newly eligible for escaping coverage under the Act.

Given the concerns over the constitutionality of the Act voiced at oral argument by what seemed like a majority of the Court, the Administration and Congress should take actions now to shore up the Act's constitutionality. First, the Department of Justice should communicate to certain covered jurisdictions their intention not to oppose bailout and in fact, should encourage qualified jurisdictions to seek bailout. Several hundred covered jurisdictions have virtually zero minority population, and therefore pose no threat to minority voting rights. They, along with others that have a spotless record regarding discrimination in voting, should be urged to bail out.

Congress too can help shore up the Act's constitutionality. It could alter the bailout statute itself, as some have proposed, to make bailout automatic or more prevalent. However, at a minimum it should establish a national reporting system that will allow us to evaluate the quality of democracy among the fifty states. Such a system should include the reporting of all results in federal elections down to the precinct level, so that we can match turnout, registration and other measures of election system performance with census demographic data. It should also expand the election supplement to the 2010 Census Current Population Survey and the American Community Survey by including various election administration questions to assess which voters in which locations are more likely to face longer lines, voter ID barriers, and other aspects of election maladministration.

There is, of course, a chance that the data will reveal a new coverage formula is necessary or that levels of discrimination against minorities are more consistent nationwide. If so, then Congress should amend the Voting Rights Act before the Court tells it to do so.

"Cornyn: I'll Support Norm Coleman if He Appeals to the Supreme Court"

The Washington Independent reports.

More on VRM

Following up on this post, it sounds like things are at an earlier stage than I thought after listening to the presentation at ACS. It appears that Schumer's office is not working with the Brennan Center on drafting the legislation, as my last post implied, but getting input from a variety of sources. And it doesn't appear that anyone is ready to share any draft legislation yet. So this sounds like it will be on the back burner for at least a little longer.

"Democracy 21 and the Campaign Legal Center Call on FEC Vice Chairman Peterson and Commissioner Hunter to Correct Their 'Clear Misrepresentation' of Groups' Views"

Democracy 21 has issued this statement.

Charles: Waiting for the Civil Rights Communty

Here is a guest post from Guy Charles:

It is time for the civil rights community to step up. They have dodged a bullet with the Court's decision to uphold the constitutionality of section 5. But the constitutionality of section 5 hangs on a thin reed. All nine justices agreed that the constitutional costs imposed by section 5 are sufficiently serious even under the least demanding rationality review. The civil rights community cannot simply hope to wait out the conservatives. If the four liberals on the Court truly believe what Chief Justice Roberts wrote on their behalf in NAMUDNO, the future for the current regulatory scheme is dim.

So far, the debate over section 5 has been fought over whether we have made sufficient progress or not as a country to get rid of section 5. This is not a useful question to ask. We can both acknowledge the progress we've made and focus a voting rights approach that befits the 21st century. So what should the civil rights community push for?

It could seek a modification of section 5's geographical targeting approach, which generally focuses on states with large populations of voters of color: remove some states from the South, add in some states from the North, and voila. Only this would be a mistake. Even if Congress were politically able to do this, geographical targeting depends upon the ability to predict where voting rights problems will arise, which we cannot do accurately anymore. Additionally, a geographical approach assumes that the targeted states are out to harm voters of color, which is generally no longer true. Perhaps most pertinently, according to the Court in NAMUDNO geographical targeting departs from the "fundamental principle of equal sovereignty" by "treating states differently."

I would advocate an alternative two-pronged option. First, the civil rights community should focus on solutions for voting problems in federal elections instead of instead of looking at the race of voters. For example, if there are voting registration problems, let’s have permanent federal registers for federal elections and same day registration. If there are problems with ballot design, how about one ballot design in federal elections modified only for regional considerations. They should also look for reasonable compromises where they can. For example, if conservatives want voter IDs in federal elections, let them have it as long as IDs are provided at government expense. This approach would help voters of color because they are disproportionately impacted by ostensibly neutral voting rules and problems in the voting process.

Second, the civil rights community might also advocate for the creation of an administrative agency to regulate elections in the United States. I am less sure about this approach but it might be worth exploring. This agency would be forward-looking and would have both investigatory and remedial powers. It would protect citizens against race-based discrimination and might focus on the very local level, such as school boards and municipalities, where voting rights issues might go undetected.

I'm sure that there will be plenty of ideas out there and better than what's recommended here. What the civil rights community should not do is simply preserve the status quo. It is time for the civil rights community to step up to the plate and lead us once again, this time into the 21st century.

Cain and Tokaji: Promoting Equal Participation: A Voting Rights Act for the 21st Century

Here is a guest post by Bruce Cain and Dan Tokaji:

In avoiding the question whether a key section of the Voting Rights Act violates the Constitution, the U.S. Supreme Court has provided a welcome respite for civil rights advocates worried that a cornerstone of racial justice would be decimated. The fact remains, however, that there are some serious cracks in the foundation of voting rights law that need to be addressed. Even though the VRA has been left standing, at least for the moment, the current Congress should get to work filling these cracks promptly. This might be accomplished by creating new legislation that broadly targets barriers to participation among racial minorities, economically disadvantaged, and other vulnerable groups.

When Congress reauthorized the Voting Rights Act in 2006, it failed to address some of the most glaring voting rights problems that exist today. Foremost among them are practices that may impede participation by people of color and lower socioeconomic status. In order to understanding the shortcomings of current voting rights law, it is necessary to step back in history. In the earliest years of the VRA, the central problems were discriminatory barriers to participation like literacy tests and poll taxes. These practices are sometimes referred to as "vote denial" because they prevented eligible citizens from voting or having their votes counted. It quickly became apparent that eliminating these barriers, while necessary, was not sufficient to ensure political equality for racial minorities. The emphasis thus switched to "vote dilution" -- that is, to practices like annexations, at-large elections, and unfair legislative districts that weakened minorities’ representation, even where they were allowed to vote.

While vote dilution remains problematic, the pendulum has swung back to vote denial in the years since the 2000 election, which focused attention on voting equipment, inaccurate registration lists, and other barriers to equal participation. Whether or not motivated by direct racial bias, such practices can keep eligible people from voting and having their votes counting. They can also distort the composition of the electorate, by disproportionately excluding racial and language minorities, people with disabilities, students, elderly voters, poor people, and those of limited educational attainment.

Collectively, these barriers to full participation can be thought of as the new vote denial. Just as poll taxes and literacy tests prevented poor people and racial minorities from voting, some election administration procedures may have discriminatory effects as well. That includes not only onerous identification requirements and overly aggressive purges of voting lists, but also reforms ostensibly undertaken for improving security or lessening inconvenience that may have unintended effects. An example is the move to all-mail elections, which some scholars believe will skew the electorate, making it older, richer, and whiter than it already is.

As effective as Section 5 has been when it comes to minority vote dilution, it has been remarkably ineffective when it comes to practices that impede people from voting or prevent their votes from being counted. The U.S. Department of Justice almost never objects to new election administration rules or procedural changes that may impede participation. Although the Justice Department is to be commended for its recent objection to Georgia's "voter verification" program, due to its discriminatory impact on African American, Asian American, and Latino voters, this case is the exception that proves the rule. In previous years, it has been extremely rare for new barriers to trigger an objection or a request for more information. This is understandable, since it has lacked either the tools or the will to monitor these practices effectively. Moreover, the coverage formula isn't targeted to places where there's most reason to worry about unfair barriers to participation in the 21st Century.

The Court's decision gives Congress a second chance to do something about the new vote denial. We recommend that it adopt a new scheme, applicable exclusively to rules and practices that may affect participation, while leaving others to consider what should be done about issues of vote dilution. When it comes to vote denial, a well-designed scheme should appropriately cover jurisdictions that have demonstrated a systematic pattern of low participation, flagging procedural changes that might worsen that problem and incentivizing changes that would improve the situation.

The task of monitoring the many administrative aspects involved in running an election can be time consuming and overwhelming, especially for disadvantaged groups. Coverage serves the purpose of drawing attention to areas that need special attention. To be effective, a federal administrative process should reduce the costs of monitoring for potentially affected voters. Ideally, a proposed change should trigger higher scrutiny, community input and ultimately final review and arbitration. And since the effects of some proposed new rules might not be known with any reasonable degree of reliability, the review process may need to generate new information and extend over time. Instead of just yes or no, perhaps the answer should sometimes be try it, provide some additional information, and revisit the recommendation later.

Under our proposed scheme, state and localities would be covered if their participation fell below a certain prescribed level for a set period of time, say three consecutive federal election cycles. Those jurisdictions would be subject to certain special requirements, designed to prevent law and practices that may disproportionately exclude minorities and people of lower socioeconomic status. There are three specific questions that this new regime would have to address: (1) what state and local jurisdictions are covered, (2) what those covered jurisdictions are required to do, and (3) what federal agency would administer and monitor compliance. We discuss these questions in turn.

First, how extensive would this coverage be? A trigger of falling below the national average in eligible voter turnout for three consecutive Presidential elections would cover 18 states in their entirety, including many southern states with large black populations (e.g. Mississippi, Alabama, Georgia and South Carolina) but also southern states with smaller black populations (e.g. West Virginia, Kentucky), western states with large Latino populations (Texas, New Mexico and Arizona), and jurisdictions outside the south with high minority populations (Hawaii and the District of Columbia). In short, it broadens the coverage to all sorts of low participation groups.

Second, what would covered jurisdictions be required to do? We recommend that, before implementing a new voting practice, covered states and localities be required to issue an "electoral impact statement," analogous to environmental impact statements. Covered areas would have to report voting statistics in greater detail such as number of failed registration attempts, how many voters were removed from the rolls and why, the number of provisional and absentee ballots counted, the reasons for rejecting those ballots. The idea is that the jurisdiction would have to provide a fuller picture of ballot and registration data in order to help assess why participation was low. In preparing the electoral impact statement, state and local authorities would be required to consult with representatives from the affected communities, including minority groups. For example, if authorities decided to close down an early voting center principally serving the African American community in a given county, they would have to provide a basis for their decision. To the extent that the recommendations of such representatives were rejected, state and local authorities would have to explain why. The electoral impact statement should assess not only the effect on racial and language minorities, but also on people of lower economic status -- an often overlooked group, even within the civil rights community.

Third and finally, what agency should be responsible for monitoring compliance with these new requirements? This is an especially thorny and difficult question. Under the current scheme, the Department of Justice decides whether to preclear electoral changes in the vast majority of changes, with covered jurisdictions having recourse to federal courts if preclearance is denied. Through most of its history, this process has prompted allegations of partisan conduct on the part of Justice Department officials. In the last administration, the Department's decision to preclear Georgia's restrictive voter identification law and Texas' redistricting plan --both over the objections of career staff -- proved especially controversial. We recommend the creation of a new agency to replace the Department of Justice, in reviewing electoral impact statements and preclearing changes, with the opportunity for judicial review if members of the community disagree with a decision.

While there is much that would require elaboration, our key point is that Congress must consider a new administrative process that will address barriers to participation faced by both minorities and people of lower socioeconomic status. As useful as Section 5 has been in curbing vote dilution, it has been ineffective in stopping the new vote denial. Now is the time for Congress to develop a system that will address 21st Century barriers to full and equal participation.

Get Ready for "Voter Registration Modernization" (or "VRM")

Just before Election Day 2008, I wrote this Slate piece calling for universal registration, in which the government proactively registers all people to vote. Pointing to the ACORN controversy and perennial disputes and litigation over registration issues, I said: "The solution is to take the job of voter registration for federal elections out of the hands of third parties (and out of the hands of the counties and states) and give it to the federal government. The Constitution grants Congress wide authority over congressional elections. The next president should propose legislation to have the Census Bureau, when it conducts the 2010 census, also register all eligible voters who wish to be registered for future federal elections. High-school seniors could be signed up as well so that they would be registered to vote on their 18th birthday. When people submit change-of-address cards to the post office, election officials would also change their registration information."

Fairvote has been interested in universal voter registration, but it is a tough sell nationally, likely to invite opposition from state and local election officials who would not want to lose power, as well as some Republicans (though I proposed in 2005 that universal voter registration be coupled with a national voter identification system, which could attract some Republican support).

It is clear that universal voter registration on a national scale is not coming. But what is going to be on the national agenda very soon is "voter registration modernization" ("VRM"), which is essentially universal voter registration on the state level. The Brennan Center has been working on this effort, apparently in coordination with Senator Schumer's office (he is the Chair of the Senate Rules Committee). The details are not clear yet--there's no legislation circulating. At the ACS panel I chaired on the topic of universal voter registration (video not yet available), Susan Liss of the Brennan Center gave just a few details (one of which is apparently no plan for interoperability of voter registration between states---this is a big deal). Nina Perales on the panel also brought up some very tricky citizenship issues that need to be addressed.

While the details are not known, the Brennan Center is putting out a load of stuff on this in anticipation of the impending legislation.

One thing to watch is if this effort will be bipartisan or not. As I've noted, good proposals like The Democracy Index thus far have only gained the support of Democratic sponsors in Congress. There's a lot to entice Republicans about on VRM: limiting the role of third party voter registration groups, fixing our embarrassingly bad system for allowing military and other overseas voters to vote, using a federal rather than national model, etc.

I will be watching this issue closely as it develops.

Tired of 3-3 Ties at the FEC on 527 Enforcement? Try a 2-2 Tie (with Two Recused)

See Here (MUR 6082).

Gerken: Can Congress Take a Hint?

This guest post is written by Heather Gerken:

NAMUDNO ended not with a bang, but a whimper. The Court unexpectedly issued a modest opinion on Section 5, neither affirming nor invalidating the provision. The ruling was a surprise, largely because few thought the statutory argument -- which ultimately formed the basis of the Court's opinion --had legs.


As I argue in the American Prospect online, Section 5's future looks quite dire. The Court quite explicitly casts doubts on all of the obvious arguments for letting Section 5 stand -- that it was okay for Congress to apply the statute selectively to Southern states, that Section 5 imposes a minimal burden on those jurisdictions, that the evidence Congress provided was powerful enough to justify the burden it did impose. The Court has done everything, in short, except pull the trigger and strike Section 5 down.

Astute Court watchers like Rick Pildes and Tom Goldstein have similarly argued that the opinion should be read as an explicit warning to Congress: fix Section 5, or we will fix it for you. The question is whether Congress will doing anything about it.

I can easily imagine perfectly rational arguments for Congress not to act. It's hard to figure out a sensible alternative; that is why, as Nate Persily convincingly demonstrates, Section 5 was renewed virtually as-is in the first place. Congress has an unbelievable amount on its plate right now; finding the legislative floor time to pass such an important bill would be quite difficult. And it's not even clear that the Court will, in the end, pull the trigger. After all, Rick Pildes' casebook co-author, Pam Karlan, has offered a far sunnier view about Section 5's fate.

Finally -- and this is where the rubber meets the road -- I suspect that most people have a lingering suspicion that Justice Kennedy doesn't have it in him to invalidate an iconic provision like Section 5. That was certainly the conventional wisdom leading up to the oral argument. If Justice Kennedy wasn't ready to invalidate Section 5 this time, who is to say he'll be ready to do so the next time?

There is no way of answering this question, because Justice Kennedy's questions at oral argument are all we have directly from him on the subject, and Justice Kennedy is even harder than most to read during oral argument. Nonetheless, here's what ought to worry Section 5's supporters. Dahlia Lithwick has asked how Chief Justice Roberts could have written this opinion given his extremely pointed questions during oral argument. My question is why the Justices to Kennedy's left on the Court joined an opinion that stated (for what was, de facto, a unanimous Court) that Section 5 imposes "substantial 'federalism costs'" "depart[s] from the fundamental principle of equal sovereignty," and "raise[s] serious constitutional questions" under even the most generous standard floating around in the briefs.

Why did the four liberals join such an opinion? If Justice Kennedy wasn't ready to pull the trigger today, those Justices were presumably free to say whatever they wanted about the constitutional question, and it's hard to imagine that Chief Justice Roberts' gloomy statements were precisely what they wanted to say. Perhaps agreement on these points was essential to get Justice Kennedy on board, though I doubt it. Justice Kennedy is perfectly capable of writing separately, as the 4-1-4 decisions the Court has recently handed down confirm.

The real worry for supporters of Section 5 is the possibility that the Court's liberals thought that sending a crystal clear, united message to Congress was Section 5's best hope. That is, the four Justices on the Court may have been as convinced as many commentators are that Section 5 will fall when the case returns, and they were hoping that a unanimous opinion would light a fire under Congress. To me, the fact that the four liberal Justices joined the opinion represents a pretty big hint that Congress needs to act. The question is whether Congress can take the hint.

As part of a joint project with the Tobin Project and The American Prospect, a bunch of top academics have been brainstorming about what Congress might do to protect Section 5 from invalidation in light of the Court's opinion. For those interested, the American Prospect will feature a series of guest blogs on the subject during the next day, and I've linked to several white papers on Tobin's website here.

NAMUDNO Roundup

Howard Bashman links to the major papers and editorials.

In addition, see:

Luis Fuentes-Rohwer

Guy Charles

Tracie Powell

One of the questions I asked yesterday is about the reaction of challengers to the law. This NYT article includes: "Christian J. Ward, a lawyer for the utility district, said the ruling was "a complete victory as far as we’re concerned.'" This Times article quotes Ed Blum: "The question of the constitutionality will await another lawsuit,....and I am confident one will be filed sooner rather than later. We have won the first battle, but the war is not over." This AJC article quotes Rep. Westmoreland, with whom I've tangled before.

UPDATE: More from NPR and Text and History.

More NAMUDNO Commentary

Bruce Ackerman

Gerry Hebert (whom I used to call the "Bailout King," but whom I will now refer to as "The Anomaly" (see Thomas, J. concurrence, fn. 1)

Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick (Slate's "The Breakfast Table")

NPR (and here)

Demos

NAACP LDF

Senator Schumer, via email: "This 8-1 decision brings a sigh of relief to those of us who are advocates for the Voting Rights Act. There are still some states and localities that continue to actively seek to deter people from voting, and to have struck down the protections in this law would have been a grave mistake. The Supreme Court was right to avoid it."

I have not received any press releases yet from conservatives who supported the challengers in this case. Do they (publicly at least) hail this as a victory?

Three minor errors in the case. One, which a reader pointed out, is referring to Sheffield as involving a Texas city rather than an Alabama political subdivision. Second, a blog post (which I can't find right now) said that Justice Thomas misspelled the Georgia governor's name in his concurrence. Third, in something sure to bother Dan Lowenstein (who is now lucky enough not to have to edit cases for our annual casebook supplement), Chief Justice Roberts treated the word "data" as singular, as in "The statute's coverage formula is based on data that is now more than 35 years old..."

More to come.

"Quelle Surprise! The Unexpected Ruling that Saves Section 5"

I've given this interview to the Wall Street Journal law blog.

Early News and Commentary on NAMUDNO

Heather Gerken

Tom Goldstein (who says "Congress is now effectively on the clock: it has the period between now and the date that it decides a follow-on challenge by a covered jurisdiction that is not permitted to 'bail out' of the statutory scheme to amend Section 5.")

Lyle Denniston (and here)

Rick Pildes, Jamal Greene, and Hans von Spakovsky at the NY Times' online's "Room for Debate" (Rick, like Tom Goldstein and me, draws parallels to the two-stage Florida 2000 opinion process)

AP

More to come.

Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked

Despite Chief Justice Roberts' longstanding skepticism of the Voting Rights Act and his blistering set of questions to supporters of section 5's constitutionality during oral argument, the Chief has managed to put together a coalition of 8 of 9 Justices to put the question off for another day. To do so, the Chief had to ignore the seeming plain language of the act, as well as earlier Supreme Court caselaw on point to reach an interpretation of the Act virtually no lawyer thought was plausible. And once again he has been able to get the Court to reach an outcome he desires through statutory interpretation and the doctrine of constitutional avoidance. Still, this is a much greater victory for supporters of the Voting Rights Act (and especially for Justice Souter) than for Roberts: indeed, one price paid to get the liberals on board was a concession that the question of the standard to apply to judge Section 5's constitutionality was unsettled: it might be the strict "congruence and proportionality" standard, or it might be something much weaker, akin to rational basis. All in all, a much better day for supporters of the Act's constitutionality than I and most other observers expected. Here is some elaboration and a few additional thoughts.

1. Background. Section 5 of the Act requires jurisdictions with a history of discrimination on the basis of race to get permission, or "preclearance" from the DOJ (or a three-judge court in DC) before making any changes in their voting rules, from big changes like redistricting to moving a polling place across the street. A "covered jurisdiction" that can demonstrate under a strict test that it no longer discriminates can "bail out" of coverage under the Act. But only 17 jurisdictions (all in Virginia and all handled by Gerry Hebert---see footnote 1 of Thomas concurrence) have ever been able to bail out, and it had been understood that only states and political subdivisions that register voters (which the utility district does not) are allowed to apply for bail out. The Court avoided the constitutional question whether Section 5 exceeds congressional power because there's not enough evidence of intentional discrimination by these covered jurisdictions through a holding that the utility district is entitled to ask for bailout.

2. Justice Souter's legacy? This outcome may have been the handiwork of Justice Souter, and one of his lasting legacies. At oral argument, Justice Souter asked the following to the MUD's lawyers: "Well Mr. Coleman, this is important to me. Do you -- do you acknowledge that if we find on your favor on the bailout point we need not reach the constitutional point?" Clearly this outcome was in Justice Souter's mind early on. Justice Ginsubrg made similar points early on. But the conservative Justices did not seem convinced, as the issue was decided in the earlier City of Rome case and the language of the section seemed quite clear that the utility district could not bail out. (Indeed, in my Slate preview of the case before oral argument, I noted that "Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental....What's especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there's not much they can do short of holding the act as broadly unconstitutional....The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. Since there's no good statutory loophole, the larger constitutional question seems unavoidable.")

3. Chief Justice Blinks. Chief Justice Roberts was clearly hostile to the government's position during oral argument. ("Counsel, the -- the -- our -- our decision in City of Boerne said that action under section 5 has to be congruent and proportional to what it's trying to remedy. Here, as I understand it, one-twentieth of 1 percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment."). It is clear he thinks the Act is unconstitutional under the "congruence and proportional" standard, and he's on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I've repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.

4. What of Justice Kennedy? He was universally seen as the key to this case. As I noted in my last point, he may have embraced the bailout position and then everything else fell into line. Or maybe the Chief took the lead here. We just don't know the role each played behind the scenes.

5. What of the future of section 5 of the Voting Rights Act? This case puts the issue off for a few years---it does not eliminate it. I see it like the first Florida case (Bush v. Palm Beach County Canvassing Board). That too was a unanimous opinion that masked deep divisions in the Court that became clear in Bush v. Gore. Eventually the section 5 question will come back to the Court, but it will likely be two or three years at the least. It may come when a state like Georgia (whose governor argued against the constitutionality of Section 5 in a NAMUDNO amicus brief) files a suit challenging the unconstitutionality. Or maybe NAMUDNO returns if the MUD cannot get a bailout. Who knows what the Court will look like at that point? If the same 5 conservative Justices are on the Court, they could well embrace the position of Justice Thomas's concurrence here, which holds section 5 unconstitutional (in a remarkably short concurrence given the importance of the question).

6. The political ramifications. The key political point is that Section 5 will remain in place during the next round of redistricting, and it will be redistricting supervised by the Obama Administration's DOJ. We have already seen that the Obama Administration appears more protective of voting rights than the Bush Administration's DOJ. So this will matter a great deal for the next decade of politics in terms of minority electoral success, even if Section 5 is struck down next decade.

6. Citizens United. I have suggested that the constitutional issue in this campaign finance case too could be skirted through the same doctrine of "constitutional avoidance." I am working on something about how important this doctrine has become in the election law field.

Breaking News: NAMUDNO Decided 8-1 Reversing on BAILOUT Grounds, Not Striking Down Act

Link to opinion coming. CJ Roberts author; partial dissent by J. Thomas.
No opinion in Citizens United today. More to come.
UPDATE: I have posted the opinion here.

"McConnell Carefully Chooses His Battles"

This WaPo profile begins: "When he was fighting campaign finance reform a decade ago, Sen. Mitch McConnell (R-Ky.) was dubbed Darth Vader by his critics. He embraced the nickname, even announcing 'Darth Vader has arrived' at a news conference."

"How to Trust Electronic Voting"

The NY Times offers this editorial.

"White House Changes the Terms of a Campaign Pledge About Posting Bills Online"

The NY Times offers this report.

"Everyone a Winner? The Lost Art of Conceding Defeat "

Matt Bai's latest.

Atlanta-Journal Constitution Article on Upcoming Supreme Court Ruling in NAMUDNO

The article begins: "John Lewis saw the blue sea of Alabama state troopers advancing with their horses and their nightsticks, saw them putting on gas masks and wielding bullwhips, saw everything until a trooper slammed his club into Lewis' head. After that, he doesn't remember what happened on 'Bloody Sunday' on the Edmund Pettus Bridge."

Will Business Interests Try to Defeat IRV in SF?

See here. More here.

"Election Law Questions...for Prof. Hasen (and his students)"

Steve Hoersting has written this post for the Center for Competitive Politics blog. In addition to taking me to task for my criticizing the 3 Republican commissioners for (what I believe to be) their unprecedented positions on enforcing FEC rules and regulations, Steve also has some unkind words for Commissioner Weintraub and not a lot of concern about a possible breach of attorney-client privilege.

"Obama's Pledge on Donations Faces Reality"

The New York Times offers this report.

"Senator Leahy: 'Striking Down the Voting Rights Act Would be Conservative Activism Pure And Simple'"

Text & History offers this blog post.

FEC Considering Alternative Drafts AOs on Coleman Paying His Legal Bills with FEC Funds

See here. It is possible that the FEC will adopt a different position than those in these drafts, or that there could be a deadlock.

The NVRA and the "Democracy Index"

On the Demos blog, Scott Novakowski has written Public Assistance Agencies Fail to 'Measure' Up.

"Source: Reportedly unanimous U.S. Senate election Supreme Court decision under 'gang edit' now"

The latest Coleman rumor. But this source was wrong yesterday.

"White House Intensifies War on Lobbyists"

Eric Wang has written this Roll Call oped.

"Promoting Change, Not Paralysis, at the FEC"

The three Republican FEC commissioners have written this letter to the editor in response to this Washington Post editorial. BNA also offers FEC Commissioners Apparently at Impasse Over Allowing Kerry Campaign to Fund Movie.

Ronald Rotunda Appointed to California's FPPC

See here.

Dep't of Bad Timing: Coleman-Franken Tomorrow Morning? Citizens United?

As I mentioned, I'm chairing a panel on universal voter registration at the ACS convention in DC on Friday. That means that I'll be boarding a plane early tomorrow morning in Burbank. Just as they close the doors to the plane at 7:15 am Pacific time, it is possible that the Supreme Court will hand down its opinion in Citizens United. (It is also possible that an opinion could come down in NAMUDNO, but that was argued the very last argument day of the term and likely will have a lengthy dissent however it comes out, so I don't expect it until closer to June 29, what I hear may be the last day of the term.) To find out if the opinion issues, check SCOTUSblog and How Appealing

If the opinion issues, I hope I'll be able to download it on my phone and read it on the first leg of my flight before they close the cabin door. If so, then I hope to do a blog post as I change planes in Dallas. At the very least, I hope to post a few thoughts from my phone via Twitter.

But the day may be big for Coleman-Franken too. Back on April 30 law professor Peter Knapp predicted an opinion from the State Supreme Court in Coleman-Franken tomorrow. The rumors are now flying that an opinion will be out tomorrow. (I expect these rumors are credible. The MN Supreme Court usually gives advanced notice to litigants that a ruling is coming, and probably they have received that notice.) Though the time for opinion release is not specified, the usual time for issuing opinions by this court is 10 am Central Time. If it happens, it should be posted here. Again, if I can get my hands on the opinion while I fly (maybe in Dallas), I will try to blog about the decision as soon as I can.

If the Coleman ruling issues, and as expected, the Minnesota Supreme Court affirms (likely unanimously) for Franken, I think we will quickly know whether this is going to be legal story or a political one. If Coleman is going to concede, I think he'll likely do it the same day or the next day after the ruling (shades of Al Gore). If he's going to fight in the U.S. Supreme Court or file a separate federal court action, I'm pretty sure that decision will have already been made, and that would probably be announced quickly afterwards. There will be intense pressure on Coleman to announce something quickly about his future, and I expect he will do so. (For my thoughts on a possible cert. petition or separate federal lawsuit, see my pieces in Slate, the ACS blog, and the LA Times.)

Or maybe nothing happens tomorrow. We'll see.

"Political Insider: A John Linder attempt to de-fund the Voting Rights Act"

See here.

"Senators Warn Court Against 'Activism' on Voting Rights Law"

Bob Barnes has written this post for the WaPo "44" blog.

Senator Specter on NAMUDNO, Congressional Power to Renew the Voting Rights Act

Back in 2006 when I testified before the Senate Judiciary Committee about congressional power to pass a renewed section 5 of the Voting Rights Act (based upon this 2005 law review article considering the question), I remember being impressed by Senator Specter's questions to the panel. Not only did he seem to be legitimately interested in the answers that panel members were giving, he seemed really to be (the only Senator) struggling with how to craft a renewed VRA that would pass constitutional muster before a Supreme Court increasingly skeptical of broad congressional power in this area.

I was reminded of that when I saw this letter that Senator Specter sent to Judge Sotomayor about the kind of questions he intends to ask at her confirmation hearing. Though the letter is directed to Judge Sotomayor, it takes a not-so-subtle shot at Chief Justice Roberts' views of congressional power, first as expressed at his Supreme Court confirmation hearings, and then as expressed at the oral argument in NAMUDNO.

FEC Split Gets Nastier: Latest Battle Over FOIA Requests and the Attorney-Client Privilege

Back in March, I noted one of the many recent 3-3 party-line splits at the FEC, this one over the Romney campaign and reimbursement for airplane expenses.

This was before things got even worse, with serious concerns emerging whether the FEC will continue to fairly and dutifully enforce existing campaign finance law (and whether there will even be four votes to do anything at all).

Today things appear to have escalated. This morning this document was posted on Commissioner McGahn's website, and this response was posted on the websites of Commissioners Weintraub and Bauerly. The first document, signed by the three Republican Commissioners, offers additional reasons for their vote in the Romney case (a rebuttal of sorts to the earlier Bauerly/Weintraub statement of reasons). But the Republican Commissioners do more in this supplemental SOR. They also respond to Paul Ryan (of the Campaign Legal Center), who wrote a blog post, Why Is the FEC Withholding Documents From the Public in Violation of Its Own Regulations and Policy Statement?. Decrying the lack of transparency at the FEC (which is a bit odd given Commissioner McGahn's minimalist approach to press releases), the three Republican Commissioners not only state that the underlying documents in the Romney case should be released; they actually append the documents to their supplemental statement of reasons.

That led to this morning's Statement of Commissioner Cynthia L. Bauerly and Commissioner Ellen L. Weintraub on the Release of Documents Subject to Freedom of Information Act Request. Here is the brief statement (footnotes omitted):

The Campaign Legal Center, on March 13, 2009 filed a Freedom of Information Act ("FOIA") request seeking the release of several documents referenced in the certification of the Commission's actions in Matter Under Review ("MUR") 5937, which was closed by the Commission on January 28, 2009.

Pursuant to the Commission's historic practice of delegating the authority to make initial FOIA determinations, the Agency's FOIA Service Center issued a denial to the CLC. On May 28, 2009, Campaign Legal Center appealed portions of that decision to the Commission. While awaiting the full documentation of and recommendation from the OGC on appeal, our colleagues wrote a Supplemental Statement of Reasons in MUR 5937 to be placed on the public record. Their statement mentioned the FOIA request and attached three of the documents subject to the FOIA appeal.

Despite our request to hold their statement until the full Commission could address the issues raised in the FOIA appeal, our colleagues released their statement before the Commission could act on the FOIA request. We strongly agree that Commissioners are entitled and indeed, are under an obligation to provide rationales for their decisions. We are disappointed that our colleagues chose to move forward with their statement at this time, when a consensus decision to release the documents subject to the appeal was clearly possible in the near future. At a time when we have so many legitimate disagreements over the precise contours of the law, we had hoped this matter could have been resolved by the full Commission according to established procedures, rather than by a group of three Commissioners choosing to preempt those procedures.

Moreover, because our colleagues' statement includes a footnote regarding an unrelated case, we must note for the record our objection to the disclosure of such internal, attorney-client advice. We have consistently advocated for fuller disclosure with respect to many of the ageny's actions, from its website to press releases. We cannot agree to, and do not believe that the interest of a well-functioning agency is served by, individual Commissioners releasing portions of documents that continue to be subject to attorney-client privilege in the absence of decision by the full Commission.

Wow.

California Court of Appeal Decides Case Involving Standards for DRE Recounts

You can find the opinion here. The opinion also has a lengthy discussion of appropriate fees in such a case for an election law firm.

"After lobbyist boasts, Feinstein cancels event"

The Washington Times offers this report (via Political Activity Law).

I Guess Former Rep. Jefferson's Housekeeper Does Not Like Ice Cream

See here.

"Reformers Fear Quick Vote on Sullivan Could Discourage Other Changes at FEC"

BNA has a must-read (or at least must-read if you have a paid subscription) report. "Despite these complaints [about deadlock at the FEC, officials and outside observers indicate privately that McGahn and Walther apparently continue to benefit from strong support on the part of key congressional leaders, including Senate Republican Leader Mitch McConnell (R-Ky.) and Senate Majority Leader Harry Reid (D-Nev.). There appears to be little support on Capitol Hill for replacing either or both until sometime in 2010, at the earliest...Another veteran reformer, Craig Holman of the watchdog group Public Citizen, said he was surprised in May when Obama nominated Sullivan to replace Weintraub but mentioned nothing about replacement of other FEC commissioners, including McGahn. Holman noted that Weintraub, the one commissioner now slated for replacement, has been among the most vocal at the FEC in criticizing the Republican commissioners for voting to drop enforcement cases."

It confirms my fears that there's nothing coming out of the Obama administration on FEC reform in the near term, and that the pattern of 3-3 splits along party lines (primarily for ideological, not narrow party, reasons) will continue. At worst, soon-to-be Commissioner Sullivan will vote with the three Republicans in rulemakings and on AOs to further weaken enforcement at the FEC. If trends continue, expect to see much less regulation, and much less enforcement of regulation, as we enter the 2010 and 2012 election.

I will have more later today on the newest schism at the FEC.

From Grunge to Grange

Following up on this post, Rob Richie comments on the decision of Nirvana bassist Krist Novoselic to drop out of local Washington state race.

More Thernstrom on NAMUDNO

Abigail Thernstrom has written this LA Times oped. Abby tells me that due to an editing error, a reference to 30 years of VRA protections should have been to more than 40 years of such protections.

AG Holder on NAMUDNO

From a speech the Attorney General gave yesterday (via BLT):

As you know, the Supreme Court is currently considering a case that challenges the constitutionality of Section 5 of the Voting Rights Act. No matter how the Court resolves this issue, I pledge that the Justice Department will continue working to enforce our nation's voting rights laws. And we will fight efforts to discriminate in the voting booth just as earnestly as we fight efforts to discriminate in the job or housing markets. You have my word, my friends. Our commitment to Equal Protection -- and to full participation in our nation's elections -- will not waiver. Never.

Young Political Majors Head Pleads Guilty to Voter Registration Fraud

Back in October I linked to an LA Times story on a group, the "Young Political Majors," allegedly duping voters to register as Republican. Today, the owner of the company pled guilty to voter registration fraud (not "voter fraud" as the title of the linked post erroneously suggests). More links to stories about the group here.

"Election at a Draw, Arizona Town Cuts a Deck"

The NY Times offers this report.

"Secretary and Clerk Close Lobbying Loophole"

Point of Order has the scoop on this clarification issued by the Clerk of the House and the Secretary of the Senate. "Under the clarified guidance, a registered lobbyist cannot be de-listed merely because that 'individual did not in the current quarter and does not reasonably expect in the upcoming quarter to make more than one lobbying contact per quarter'"

League of Women Voters v. Brunner Settles

See this press release from the Lawyers' Committee. More details on the settlement here.

"CFAC and MAPLIGHT.ORG Win Public Access to California Database of Lawmakers' Votes"

Maplight.org has issued this press release.

"Gay Rights Group Planning to Publicly Out Signers of Referendum Petition"

Eugene Volokh has written this blog post.

More on Illinois Reform Problems

See here.

"New FEC Pick Must Respect Law's Boundaries"

Steve Hoersting has written this Roll Call oped. A snippet: "The unease over Sullivan simmering among self-styled reform organizations is an extension of their attacks on the FEC for "partisan deadlocks" and a supposed failure to enforce "the law." However, the split votes represent genuine disagreements between the commissioners and are shaped by Supreme Court rulings-- not partisanship or flouting the law."

"Redistricting looms over 2010 landscape"

The Hill offers this report.

"For Some in Illinois, Talk of Reform Was Just That"

The NY Times offers this report.

Jefferson Case in Roll Call

The newspaper offers Prosecutors Allege Jefferson Involved With Millions of Dollars in Bribes and Jefferson Case May Set Precedents. The latter begins: "Although he is no longer a Member of the House, the outcome of ex-Rep. William Jefferson's (D-La.) corruption trial could resonate on Capitol Hill with its potential to create stricter limits for future federal corruption investigations."

WSJ Editorial on Tennessee Judicial Selection

See here.

BNA Reports on Lobbying Delisting Issue

See here ($). UPDATE: More from The Hill.

"Proposed law would end Pennsylvania's closed primaries"

The Pocono Record offers this report.

"Speed of Iran vote count called suspicious"

AP offers this report.

Reading the Statistical Tea Leaves on Justice Kennedy at Oral Argument in NAMUDNO

Much has been made of Justice Kennedy's comments at the NAMUDNO oral argument, leading supporters of Section 5 to expect the worst and prepare a legislative response. But the question has been raised about how much to read into comments at oral argument.

Along comes a fascinating paper on oral argument questions and the supreme court by Epstein, Landes, and (Richard) Posner. The paper is so rich, and well worth reading, but I want to pull out a snippet about Justice Kennedy's partial exceptionalism, which might give a bit of comfort to supporters of NAMUDNO--though the trends are mixed. This is from pages 16-17 of the pdf (footnotes omitted and my emphases added):

Even after we control for the direction of the lower-court decision and the participation of the United States, the number of questions and the total words in question still provide a reasonable predictor of most Justices' votes. Regardless of the way in which we measure questions, the variables are always significant (p ≤ .05) and have the expected sign for Breyer, Ginsburg, Scalia, Souter, and, with one exception, Stevens. For Roberts, questions to and words in questions to the petitioner are more predictive of his vote than are questions to the respondent; for Alito the reverse holds. The one exception is Kennedy; none of his question variables produces a statistically significant coefficient.

This is consistent, as explained earlier, with his being the swing Justice. Kennedy's and Thomas's questions (or in Thomas's case the absence of questions) to the petitioner and respondent have no significant effects on their votes; but might their votes be influenced by the questions of other Justices? The question is explored in the second part of Table 12. All eight regression coefficients have the expected signs--that is, Kennedy and Thomas tend to vote for the outcome signaled by the questions asked by the other Justices--and seven are statistically significant. Unsurprisingly, the effects tend to be smaller than the corresponding effects of a Justice's own questions.

We also considered whether Kennedy's and Thomas's votes are more responsive to questioning by other conservative Justices than to questioning by liberal Justices. The answer is yes, but most of the regression coefficients (not shown in Table 12) are not statistically significant. Both Thomas and Kennedy are less likely to vote for the petitioner the more questions conservatives ask the petitioner (Thomas, significantly so); and Thomas and Kennedy are more likely to vote for the petitioner the more questions conservatives ask the respondent (although the regression coefficients are not statistically significant). Kennedy but not Thomas is significantly less likely to vote for the petitioner the more questions the liberals ask the petitioner's lawyer. Kennedy's votes are not affected by the number of questions the liberals ask the respondent's lawyer. Thomas's votes are affected, but the influence runs counter to our other findings: the more questions the liberal Justices ask to the respondent, the more likely Thomas is to vote in his favor (p ≤ .10).

The ideological variable in Table 12 has a significant positive effect on the voting of the five conservative Justices and a negative effect on the voting of the four liberal Justices. For the latter group, however, the negative coefficient is significant only for Breyer. The implication is that the conservative Justices, plus Breyer, have a stronger political commitment than the liberal Justices, other than Breyer. Petitioners won about 69 percent of the cases in the period covered by our study, but when the petitioner was appealing a liberal lower-court decision the figure exceeded 90 percent for Scalia, Roberts, and Thomas and 75 percent for Alito and Kennedy. The corresponding figure for the liberal Justices is less than 50 percent, but it is statistically significant only for Breyer.

Some Evidence Justice Ginsburg is Not Planning on Retiring at the End of the Term

She writes: "This fall, I anticipate moving into Justice Souter's space. Though he will be many miles away, the move will be a constant reminder of the prince of a man with whom I had the privilege to serve."

"Franken/Coleman: former justice isn't surprised by lengthy process"

MPR offers this report. "Former Minnesota Supreme Court Justice Jim Gilbert told MPR's Morning Edition he's not surprised by the delay, but expects the judges will issue their ruling by July 4."

No Supreme Court Opinions in Citizens United or NAMUDNO Today

See here. The next day for opinions will be Thursday. At the time opinions are released on Thursday, I will be boarding a plane for Washington DC. If either or both of those opinions are released, my blogging about them will be delayed.

Mebane on Election Fraud in Iran

Following up on this post, Walter Mebane has written this brief preliminary report.

"Expanding Democracy: Voter Registration Around the World"

The Brennan Center has issued this report on the possibility of universal voter registration in the U.S.

I will be chairing a panel on the topic of universal voter registration on Friday at 2:45 pm at the ACS convention in D.C.

WaPo Editorializes on Failure of DC Voting Rights Act

See this editorial. My Slate piece on the constitutional issues is here.

I Know I Said I Don't "Tweet"

But I've now set it up so that my blog post titles (with links to the full posts) will appear here on Twitter within 30 minutes of my posting them.

This is in response to people who told me they want to be able to keep up with my blogging through Twitter.

Eliza on Caperton Ruling

Here.

Washington Post Editorial Board Notices Disturbing 3-3 Splits at FEC

Finally.

Justice Ginsburg Comments on NAMUDNO; Says More 5-4 Decisions Coming

This is a lot more information than we usually have about the end of the term.

Lobbying: De-Listing De-mise?

Following up on posts here and here, Ken Gross emails: "They are reconsidering. I have been engaged on this issue for a few days. It is very likely a clarification will be issued next week."

"Law targeting Shaffer may no longer be enforceable"

Following up on this post, Robbin Stewart sends along a link to this article, which begins: "The state law authorities cited in the June 1 arrest of Clarksburg City Councilman Martin Shaffer may not be enforceable, or even constitutional, the legal director of a national nonprofit organization said Thursday."

"Ruling on judges' campaign cash may echo in Wisconsin"

The Milwaukee Journal-Sentinel offers this report.

Determining Election Fraud without Smoking Gun Evidence: The Case of Iran

Josef Stalin is reputed to have said that it is not the people who vote that count, but the people who count the votes. Whether or not he actually made the statement, the statement points out the fundamental truth that real democracy is not possible without confidence in rudimentary rules of election administration: the ability of candidates to campaign and people to organize for political action, the ability to cast a vote freely, and the counting of votes in a fair and impartial manner. Though Americans throw around the rhetoric of "stolen elections" (in connection with Florida 2000 or elsewhere), we in the U.S. generally have confidence that the votes that are cast will be counted in a generally accurate way. (Only in very close elections, when recounts lead to examining the underbelly of American election administration, are the problems with election administration at the margins exposed.) It is always a small miracle to me that after such hard fought presidential elections, no one questions the peaceful transitions of power.

Of course, it is not so everywhere, and in places without longstanding democratic traditions it often takes outside election observers to confirm the fairness of an electoral process. When such outside verification is not available, there usually is very little smoking gun evidence showing lack of fairness. One way to try to ferret out problems with the fairness of election totals, as Juan Cole tries to do with yesterday's Iranian election, is to look at patterns of voting that don't fit the conventional thinking about candidate or party support. Walter Mebane has been looking at formal statistical methods to try to ferret out elections stolen by election officials. Ordeshook and Shakin are also making strides in this area. We'll have to see what these political scientists make of the evidence from the Iranian election.

In the meantime, issues like this may be more likely to be settled in the streets, or through government repression, than through advancements in social science.

"Experts: Brunner Deal Iffy"

Following up on this post, the Columbus Dispatch offers this report.

"Registration And Voting On Same Day Sought in D.C."

The Washington Post offers this report. More from FairVote.

"Hispanic school trustee says win shouldn't affect Port Chester voting-rights case"

See here.

More on Lobbyist Delisting

See here and here. Expect this issue to get bigger.

"Justices May Strike Down Part Of Voting Rights Act"

NPR offers this report. A snippet:

When the Supreme Court strikes down a significant law, the Justice Department often comes back with a proposed change that would address the court's concerns. Sources say civil rights is such an important part of this administration's agenda that the Justice Department does not want to wait weeks or months to respond to a decision gutting the Voting Rights Act.

That's why lawyers at the Justice Department are playing a complicated game of chess right now, trying to forecast the Supreme Court's potential moves so the department has responses ready.

The leader of the Justice Department team is an election law expert named Sam Hirsch. He arrived at Justice a few months ago from private practice. Neither he nor anyone else at the Department would comment for this story.

More on Pelosi FEC Complaint: Even in Unanimity FEC Commissioners Split on Party Lines

Following up on this post, just posted is this additional statement of reasons of the three Republican commissioners, who use it to announce their intention to seek a new exemption for bona fide public service announcements in the new coordinated communications rules.

"Preparing for the Worst on the Voting Rights Act"

The BLT reports.

FEC Unanimously Rejects Complaint Against Speaker Pelosi in Exercise of Prosecutorial Discretion

The statement of reasons, signed by 5 FEC Commissioners (Commissioner Weintraub was recused), is here. This looks like the exercise of some common sense: the ad with Newt Gingrich really was not calculated to have any effect on Pelosi's election.

An earlier NY Sun article is here.

"Why the Voting Rights Act Matters "

The NY Times has this editorial. I made similar points in my June 1 post, "Why Section 5 Still Matters, Or, The Obama DOJ Differs from the Bush DOJ."

Bob Bauer on J. Kennedy's Craftsmanship of Caperton, and the Contribution-Expenditure Distinction

Bob's posts, though fewer in number, remain well worth reading.

Covington's Political Law Update

It is now available. On page 3, there's an interesting discussion of the "de-listing" of lobbyists, which could be particularly important given the Obama administration's lobbying rules. (I'll likely be highlighting lobbying issues more in the next few months, as I work on a law review article on the topic.)

Illinois Clerks Fight Against Mandatory Notification of Voter Undervotes

See here. I would have thought that such notification would be a no-brainer, not a one of those controversial measures that makes difficult the emergence of best practices.

Finally I'm in the Loop

Here.

"Senate Rules Approves Labor Lawyer for Seat on FEC"

CQ Politics offers this report.

"Brunner requests blessing of deal"

The Columbus Dispatch offers this report, which begins: "Secretary of State Jennifer Brunner is asking the Federal Election Commission to determine the legality of a secret agreement designed to allow her U.S. Senate campaign to use equipment bought by her now-defunct state campaign. "

Caplin and Drysdale's Political Activity Law Bulletin Now Available

See it here.

California's Judicial Code in Light of Caperton

Some interesting thoughts here.

The FEC and Partisan Splits: A Clarification

I've received some reader comments about this recent post, which some have read as my accusing the Democratic commissioners of creating the partisan division on the FEC. That was far from my intention. I was (apparently inartfully) asking whether Mr. Sullivan, if confirmed, will have the fortitude to stand with Commissioner Bauerly (as Commissioner Weintraub has) in issuing these statements, calling out the three Republican commissioners of their new deregulatory/anti-enforcement positions. I am sure it will be much easier for Commissioner Bauerly to take these public stands if she does not have to stand alone.

To put it another way, I am even more worried about the Commission without Commissioner Weintraub there to keep an eye on things.

"Voters With Disabilities: More Polling Places Had No Potential Impediments Than in 2000, but Challenges Remain"

The GAO has issued this report. See also this AP report and this post from the blog of the American Association of People with Disabilities.

"The high court's role on the Voting Rights Act "

Jack Bass and Armand Derfner have written this oped for The Hill.

Minnesota Supreme Court Issues Opinion in Election Law Case---But Not Coleman-Franken

Instead, it is a unanimous opinion stating: "Instant Runoff Voting as adopted in Minneapolis is not facially invalid under the United States or Minnesota Constitution, and does not contravene any principles established by this court in Brown v. Smallwood, 130 Minn. 492, 153 N.W. 953 (1915)."

"Law and the Polarization of American Politics"

Stephen Gottlieb has posted this draft on SSRN (Georgia State University Law Review. Here is the abstract:

Changes in American law have played a major role in creating the partisan environment that many denounce. These changes have involved parallel trends in the law of political campaigns and elections and the law of mass communications. The collective impact of these changes has not been appreciated. This article brings these developments together and identifies their collective impact.

The article demonstrates how legal regulation shaped the centrism of the mid-twentieth century and regulatory shifts in media and election law shaped the partisanship of recent decades. Sensible proposals will not and should not bring the naive centrism of earlier decades back. But they might curb the excesses of contemporary politics.

"Senate Panel To Vote on Federal Election Commission Nominee"

CQ Politics offers this report. BNA reports ($) on bipartisan support for Sullivan, and says: "Schumer indicated during the hearing that he was aware of concerns about the FEC's recent operations, including an increasing number of 3-3 deadlocked votes on enforcement matters and other items. The chairman indicated that his committee may focus on further FEC oversight in the future but did not want to bog down the Sullivan nomination."

A hearing on the problems at the FEC would be quite warranted. I wonder if Mr. Sullivan, if confirmed, will be joining Commissioner Bauerly (former counsel to Senator Schumer) in these partisan votes and statements of reasons. Commissioner Walther has generally voted with Bauerly and Weintraub, but he has not joined Bauerly and Weintraub in many of their statements of reasons in cases splitting the commissioners on party lines.

Blankenship Speaks on Caperton Case

See this AP report. See also Coping With 'Caperton': A Q&A With Former Texas Chief Justice in the NLJ.

"New York State of Mindlessness"

Jerry Goldfeder has written an important NYT oped on succession issues in New York State.

"Can Pawlenty use his political war chest to run for president?"

The Minnesota Independent asks the question.

I pointed the reporter to 11 C.F.R. section 11 110.3(d):

(d) Transfers from nonfederal to federal campaigns. Transfers of funds or assets from a candidate's campaign committee or account for a nonfederal election to his or her principal campaign committee or other authorized committee for a federal election are prohibited. However, at the option of the nonfederal committee, the nonfederal committee may refund contributions, and may coordinate arrangements with the candidate's principal campaign committee or other authorized committee for a solicitation by such committee(s) to the same contributors. The full cost of this solicitation shall be paid by the Federal committee.

Things Getting Worse, Much Worse, in Terms of FEC Enforcement

Check out this extraordinary statement of reasons issued by Commissioners Weintraub and Bauerly involving apparently blatant violations of campaign law by a candidate committee in failing to make a good faith effort to file accurate contribution reports. At first, the FEC unanimously voted that there was reason to believe that the treasurer violated federal reporting laws. The committee was then ready to enter into a conciliation agreement with the FEC, but the three new Republican commissioners objected, and eventually the case was closed, with no conciliation, no resolution against the treasurer, and thus far no explanation from the three Republican commissioners as to why they would vote in this way. Commissioners Bauerly and Weintraub call this result "inexplicable" and say that it will "promote disrespect for the law and encourage noncompliance."

This disturbing trend of 3-3 partisan splits at the FEC still has gotten very little attention from the MSM.

Franken Awarded $94,000 in Trial Court Costs; Appeal Still Pending

See here. UPDATE: When the court official sent out this message, there was some initial confusion about what it meant and whether it meant the Supreme Court opinion was to be released imminently. It was followed by a message stating the following: "To clarify, this judgment has nothing to do with the Supreme Court opinion and it does not indicate anything about its release. However, John Kostouros, Director of Communications for the Judicial Branch, has just received word from the Supreme Court that the opinion will be released during normal business hours (8 a.m. to 5 p.m., Monday-Friday). We do not know what day it will be released, but you will receive it as soon as it is. No more information is available at this time."

"The Voting Rights Act, Through the Looking Glass"

Don't miss Justin Levitt's post on von Spakovsky, the VRA, DOJ, and Judge Sotomayor.

" Ruling May Open Finance Law Loophole"

Roll Call offers this report ($). My earlier coverage of Judge Ortero's order is here and here.

"Uncertainty in Law Circles Over New Rules for Judges"

The NY Times offers this report. See also this WSJ article.

Will Britain Give Up "First Past the Post" in the House of Commons for IRV?

See this report in The Guardian. FairVote has much more.

Norm Coleman and the Supreme Court: The Standard for Getting a Stay

A number of reporters have asked me about the kind of relief that Norm Coleman might seek from the U.S. Supreme Court if he loses in the Minnesota Supreme Court. I have explained that Coleman might ask for a stay of the Minnesota court's judgment pending a decision on a writ of certiorari, and that the standard for getting a stay is a pretty tough one (though George W. Bush got one in Bush v. Gore to stop the Florida statewide recount of undervotes which had been ordered by the Florida Supreme Court.)

A good indication of the standard the Court would use comes from this order just issued by the Supreme Court denying a stay of the Chrysler sale to Fiat. It is a tough sell.

I've indicated here why I think Coleman would need to seek such a stay to avoid Franken being seated by the Senate if Coleman loses before the state supreme court.

About That Judge Ortero Order on Conduit Contributions...

Following up on this post, Judge Ortero's reasoning may not be as "solid" as I thought upon my read of the opinion this morning. See the thoughts of Fred Woocher and Allison Hayward.

"FEC: President Obama funneled money to swing states"

Politico offers this report, which begins: "After nailing down the Democratic presidential nomination, Barack Obama poured $33 million into state parties -- more than double the amount transferred by Republican John McCain -- with the bulk of it in huge payments to swing state parties just before Election Day."

In the Election Law Mailbag

Alec Ewald, The Way We Vote: The Local Dimension of American Suffrage (Vanderbilt 2009). In my blurb of this book, available through the link above, I say:"Ewald's book fills an important void in the literature on election administration, focusing on what he terms the 'hyper-federalized' American system. Drawing from history, law, political science, and other disciplines, he paints a nuanced picture of the pluses and minuses of decentralization, from the beginning of the Republic through modern times. A must read for students of American elections and election law."

"Holder Winks at Voter Intimidation"

Hans von Spakovsky has written this WSJ oped. Think Progress responds.

Will the Coleman Decision Be Released by the Minnesota Supreme Court on Thursday?

I have no inside information, but that seems to be the usual opinion day. In the usual course, litigants are told of the release the Monday before. But "[i]n certain time-sensitive cases, the Supreme Court may issue opinions or orders on a business day other than Thursday. In these instances, involved parties will be contacted just prior to the special release."

Sotomayor Confirmation Hearings to Begin July 13

So reports the website of the Senate Judiciary Committee.

"Appeals Court Rejects Nader Lawsuit"

AP offers this report.

"Top court won't hear Ga. voter ID issue"

AP offers this report.

Caperton v. Massey Roundup

NY Times (and this editorial)

Washington Post

Wall Street Journal (and see this editorial

LA Times

National Law Journal

USA Today

Dahlia Lithwick (Slate)

Guy Charles (responding to Rick Pildes)

BNA ($)

My thoughts on the case are here.

"Senate Rules Committee Set June 10 To Consider Sullivan's FEC Nomination"

BNA reports.

Thernstrom on NAMUDNO

Abigail Thernstrom has written Integration Now: The Supreme Court should scrap an antiquated and unconstitutional rule for National Review (subscription required). A snippet: "Today, therefore,[section 5] may serve as a brake on black political aspirations and a barrier to greater integration. While the country has moved consistently, if unevenly, toward racial integration, the law has arguably created a black legislative class too isolated from mainstream politics. Blacks elected from safe minority districts do not develop the skills necessary to win in a racially mixed setting, and, perhaps as a consequence, few members of the Congressional Black Caucus have run for statewide office and none have moved from the House to the Senate."

UPDATE: You can read this without a subscription here.

Federal District Court Rules that Under Some Circumstances Conduit Contributions Not Illegal

See this AP report. If someone has access to Judge Ortero's 11 page order, please send it along and I will post it.

UPDATE: I have now posted the order at this link. The statutory interpretation question is fascinating, raising issues of expressio unius, the Whole Act Rule, deference to agency interpretation, and legislative history. I had never realized the potential ambiguity 2 U.S.C. s 441f.

It is not clear to me that the Ninth Circuit will agree with Judge Ortero's order, but it is a solid analysis. If this stands, Congress should act to amend the statute to make clear that conduit contributions are always illegal.

"2008 PRESIDENTIAL CAMPAIGN FINANCIAL ACTIVITY SUMMARIZED: RECEIPTS NEARLY DOUBLE 2004 TOTAL"

The FEC has issued this press release.

"In Defense of Judicial Elections"

With perfect timing comes word of the publication of In Defense of Judicial Elections by Chris Bonneau and Melinda Gann Hall (the latest in the impressive Controversies in Electoral Democracy and Representation series at Routledge edited by Matt Streb).

I have not read this book yet, but I am very familiar with Gann Hall's excellent work (and relied on it extensively in my writing on judicial elections). I look forward to reading this book.

"One Lobbying Battle Ends, But A War Remains"

Eliza's latest.

Group Reactions to Caperton

Campaign Legal Center, Center for Competitive Politics, Public Campaign.

"Lobbyists unlimited in honoring lawmakers"

USA Today offers this must-read report.

Pildes on Caperton

Don't miss Rick Pildes's important post at Balkinization on the Caperton case. A snippet:

The signal to these differences is Justice Kennedy's emphasis throughout that Caperton presented "extreme facts," "an extraordinary situation" -- and his candid admission that extreme cases test the boundaries of legal principles and sometimes cannot be resolved through any bright-line legal rule that defines the clear content of the principle that is being violated. At this very point, Supreme Court Justices divide. Some Justices -- Justice Scalia most forcefully -- believe that if the Court cannot come up with bright-line legal rules to define the content of a legal principle, then the Court has no sound, principled, indeed legal basis for acting. The best the Court can possibly do, by definition in such cases, is come up with a quite vague gesture that some constitutional boundary has been crossed. But vague guidance, on this view, is not law. In contrast, Justices like Kennedy and O'Connor not only reject this view, but they see as one of the Court's most essential roles the need for the Court to insist that there are boundaries on the conduct of public institutions and actors -- that some lines cannot be crossed, even if it is legally impossible to define those lines with clarity.

Read the whole thing.

Judge Sotomayor and the Ricci Case: An Unusual Leak to the New York Times

There's been so much coverage of Judge Sotomayor in the NY Times (and of course elsewhere), it is hard to keep track of it. But I was struck in reading this Times piece Saturday about the controversial Ricci case, involving the New Haven firefighters exam. Rather than write its own opinion, the three judge Second Circuit panel, including Judge Sotomayor, affirmed for the reasons given by the district court in a short order.

At the very end of Adam Liptak's excellent article on the case comes this revelation:

In the Second Circuit, Judge Sotomayor was the junior judge on the panel, which also included Judge Rosemary S. Pooler, who was the presiding judge at the argument, and Judge Robert D. Sack, who did not attend due to illness.

In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.

This is exactly what I would have expected as the reason for the use of the brief, per curiam order. But the fact that this information was leaked about the judges' deliberations is pretty extraordinary. Sometimes such information leaks out years later. (At the Supreme Court level, the information comes out when a late Justice's papers are made public.) I cannot recall another instance in which such information came out about a pending case that could well go back to the same court on remand.

Initial Thoughts on Caperton v. Massey: First Meaningful Constitutional Limits on Excesses of Judicial Elections

As judicial elections in recent years have become, in the words of Roy Schotland, "noisier, nastier, and costlier," litigants have consistently sought to limit some of the excesses sometimes seen in judicial elections, which 39 states use for at least some of their judges. Until today's opinion in Caperton v. Massey, the Supreme Court refused to impose limits as a matter of constitutional law. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down on First Amendment grounds a state judicial code provision barring judicial candidates from "announcing" their views on disputed legal or political issues. Since White, as I've chronicled, lower federal courts have continued relying on the First Amendment to strike down a number of judicial codes seeking to keep judicial campaigns as something somewhat different from ordinary elections. (Justice O'Connor has since expressed regret about her crucial fifth vote in White, and has been working on the issue of judicial independence since retiring from the Court.) Since White and until today's decision in Caperton, the Supreme Court refused to consider other judicial election cases.

The details of Caperton are set out at the beginning of the opinion by Justice Kennedy. Briefly, a litigant with a $50 million case pending before West Virginia courts spent up to $3 million on independent activity (some directly, some through a 527 organization) supporting a candidate for the West Virginia State Supreme Court of Appeals. The candidate won, and he refused to recuse himself upon a motion brought by the other side. The justice, Justice Benjamin, cast the crucial vote in favor of the litigant. After the case was set for rehearing after recusal of two other Justices, he again declined to recuse and again cast the crucial vote. Today, in a 5-4 decision, the U.S. Supreme Court held that Justice Benjamin's failure to recuse violated the Due Process Clause of the 14th Amendment. Here are some of my thoughts on the case.

1. Judicially manageable standards. My first thought in reading this case with its 5-4 lineup was one of relief. With Justice Kennedy, the swing vote in play, I was worried we'd have another 4-1-4 split as we saw in the partisan gerrymandering case of Vieth v. Jubelirer in which Justice Kennedy, writing only for himself, bemoaned the lack of judicially manageable standards leaving the standard murkier than ever. But fortunately for the sake of judicial administrability, we have a 5 justice majority opinion (with no concurrences), that sets forth a relatively clear standard. Though the general language is one of "probability of bias," the main test is the one that appears on page 14 (page 18 of the pdf):

We conclude that there is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign,the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

The Court repeatedly notes that the facts have to be extreme, and in most cases campaign spending will not be enough to trigger recusal.

2. The dissent Though this is a relatively clear test, and one that will rein in the most egregious cases of potential bias, Chief Justice Roberts is right that the standard leaves open many questions about its implementation. In his dissenting opinion for himself, and Justices Alito, Scalia, and Thomas, the Chief lists 40 different questions that he says need to be answered in subsequent cases about how this standard is to be implemented. To be fair to the majority, I think the list overstates the nature of the uncertainty. Some of the questions, such as the question of causation, are answered by the majority (see slip. op. at 15.) But other questions raised are legitimate ones. The key difference between the majority and the dissent appears to be this: Is it worth the risk of many more recusal motions and additional litigation to flesh out the details of the new recusal standard? To the majority, the effort is worthwhile to promote the fundamental fairness of the judicial process in cases brought before elected judges. For the dissent, the effort is going to undermine faith in the judiciary, by increasing the amount of accusations of unfairness against judges.

3. Caperton and Campaign Finance. One of the most interesting subtexts of the decisions in this case is the role of campaign finance. Justice Kennedy, of course, has been one of the Justices most opposed to the constitutionality of much campaign finance regulation on First Amendment grounds. Here, however, Justice Kennedy acknowledges the important role that campaign spending plays in potentially influencing outcomes: if such outcomes can influence judges---creating the possibility of subconscious bias on the part of judges who benefit from independent expenditure campaigns---isn't the same true of candidates for other office, and doesn't that present a reason why even independent expenditures can be regulated? I would expect some of Justice Kennedy's words to be thrown back at him in a future case involving campaign finance laws outside the judicial elections context. Moreover, given the key distinction in campaign finance law between contributions and expenditures, I thought it was very curious that Justice Kennedy frames the issue at the beginning of the case as follows: "The basis for the motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages." (My emphasis.) Only $1,000 of the $3 million spent supporting Justice Benjamin came in the form of a contribution to his campaign, thanks to a campaign contribution cap. The remainder were for independent expenditures and contributions not received by the Justice but by a 527. Perhaps this inadvertent equating of contributions and expenditures will disappear when this opinion is finalized for the U.S. Reports.

The dissenters' views are more in line with their view on campaign finance. Because they don't see anything objectionable about large (even one-sided) campaign spending supporting or opposing candidates, they see less of a constitutional problem with judges benefitting from such spending. It is just in the nature of campaigning that this kind of thing can happen. And, as the Chief points out, as far back as Buckley the Supreme Court recognized that independent spending can sometimes work against the interest of the candidate supported. (My sense in the real world is that this happens quite rarely, and that usually independent spending tracks the movements of the candidate campaigns, and seeks to independently emulate those movements.)

4. Overall significance. This is not just a victory for liberals who generally support more regulation of campaigns (though it certainly is that in terms of getting Justice Kennedy's vote). Recall that Ted Olson was the one who argued for recusal in this case before the Supreme Court. Some in the business community too will be happy with this ruling. Judicial elections are not going away---we haven't seen a state abolish them since White. Caperton provides a backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited. Given Chief Justice Roberts 40 questions, it will be interesting to track how much uncertainty actually comes out of this opinion. My sense is that things won't be as dire as the picture painted by the Chief Justice.

5. Justice Scalia's brief opinion. Justice Scalia's two page opinion quotes from the Babylonian Talmud: "A Talmudic maxim instructs with respect to the Scripture: 'Turn it over, and turn it over, for all is therein'.' The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935)." As I remarked when Justice Scalia made reference to the sanhedrin during oral argument in NAMUDNO, Justice Scalia does not mind citing foreign law, so long as it is a few thousand years old.

Breaking News: Supreme Court Reverses 5-4 in Caperton v. Massey

The opinion is here. Details to come.

Top-Two System in Washington State Far from "Nirvana"

See here and here.

It is quite interesting to me the role that joke or gag candidacies have played in Washington State election law. My 2006 Wisconsin Law Review article, Bad Legislative Intent, explains the history of why Washington State changed its primary rules in 1977, leading to the U.S. Supreme Court's opinion in Munro v. Socialist Workers Party:

The actual story of the 1977 amendments to Washington's election laws is more complex and surprisingly more entertaining than the fare usually found in election law articles. In the 1976 election, a jazz musician named Red Kelly decided to qualify a minor party to the ballot that he dubbed the "OWL" Party. "OWL" stood for "Out with logic; on with lunacy," and the party's goal appeared to be social and political satire rather than a desire to mount serious candidacies to gain election or influence the position of major party candidates on particular issues. The OWL Party ran a slate of candidates in the 1976 election whose names, pictures and platforms were featured in the 1976 Washington state ballot pamphlet, printed at state expense, and mailed to Washington state voters.

Griswold ran for secretary of state as an OWL candidate who advocated that the next secretary be able to "take shorthand or do typing." She also took "unequivocal stands" against "(1) the heartbreak of psoriasis; (2) Bed wetting; (3) The big 'O'; [and] (4) Post nasal drip." Jack "The Ripoff" Lemon ran as OWL Party candidate for lieutenant governor, proclaiming that his platform "is a four cornered triangle which has as its cornerstone a piece of pink Venetian marble which [he] picked up while spelunking in the catacombs under the Vatican." He pledged that "heads will roll" after the election, to be accomplished "by the renting of two Porta Pottys, placing them on wheels and pushing them over the precipice behind the Governor's mansion." He concluded that "[i]f you care enough to send the very least, vote for a Lemon and throw the rascals out."

These joke candidacies inspired the Seattle Times to editorialize soon after the 1976 election that the state should tighten up ballot access rules:


The Owl Party spoof this year irritated many voters who might have liked the gags, but who disapproved of the costs of including the group's candidates on ballots and in the Voters Pamphlet. Some critics also saw the Owl's "put on" as opening the door to additional frivolous electioneering in the future. That concern is not without merit. The next Legislature would do well to review the situation--not to bar legitimate candidates from the ballot, but to limit the field to genuine political viewpoints to reduce costs, ballot clutter and confusion. One step in that direction could be to stiffen the requirements for minor-party conventions. The present rules date back to the mid-1930s.

Indeed, as an opponent of proposed legislation later noted, "one sponsor [of the bill in the State Senate that became the 1977 law] said he introduced the bill because the satirical OWL party made Washington State the laughingstock of the nation last fall."

(footnotes omitted)
The more things change...

"All but over for Coleman, experts say"

Politico offers this report.

"Workers Charged with Absentee Ballot Fraud in AC"

AP offers this report on a kind of election fraud that actually happens---and that is not prevented by draconian voter identification laws.

"The 'Phantom Menace:' A Campaign Finance Prequel"

Laura MacCleery has written this post on the Citizens United case for the ACS blog.

"Creating a Democracy 2.0 to Pass a New Deal 2.0"

Heather Gerken has this post at Balkinization.

Roll Call Report Denied on Coleman's Plans

Politics in Minnesota: "I checked with several Coleman team members. All are stymied by where Roll Call got this information. Look for all-systems-go on appealing an adverse Minnesota Supreme Court decision and / or filing a new case in federal court."

"Ailing, Banks Still Field Strong Lobby at Capitol"

The NY Times offers this interesting report.

Quote of the Day

"If you experience an election lasting more than four hours -- or even four months -- seek medical attention immediately. Ask your physician if you are healthy enough for legal activity."

--LA Times' "Top of the Ticket blog, on Coleman-Franken. Despite yesterday's Roll Call report suggesting Coleman would not undertake further legal activity if he loses in the Minnesota Supreme Court, Coleman has not ruled anything out.

"Voter fraud is a reality in Kansas"

Kris Kobach, who should know better, has written this response to a recent editorial in the Wichita Eagle.

"Voting Rights Act Ruling Will Expose 'Judicial Activism'"

Norm Ornstein has written this interesting commentary for Roll Call.

"What are Campaigns For? The Role of Persuasion in Electoral Law and Politics"

Jim Gardner's new book is now available from Oxford University Press. I haven't read it yet, but I'm really looking forward to doing so. Jim's work is terrific, and I expect this work takes off from Jim's must-read article on this topic from 2007.

More on Voter Fraud Allegations in Beverly Hills

The Beverly Hills Weekly is all over it.

Would Coleman File a Cert Petition if He Loses in the Minnesota Supreme Court?

Roll Call has a must-read article today on the Coleman legal strategy, which reveals, among other things, that the national Republican leadership will defer to Coleman's decision whether or not to fight on in federal court, that a filibuster of a choice to seat Franken after ruling in Franken's favor is unlikely, and that "Sources close to Coleman say the former Senator would likely give up his legal battle and accept defeat if the Minnesota Supreme Court decides in Franken's favor. That's because Coleman anticipates that Gov. Tim Pawlenty (R) would ultimately sign Franken's certification papers." This still leaves open the possibility of further delay, if, as I've suggested, Gov Pawlenty might await the outcome of a cert. petition in the U.S. Supreme Court before signing the papers. That process could take months unless there would be a request to expedite decision in the U.S. Supreme Court.

The question whether or not to file a cert. petition obviously cannot be made before the Minnesota opinion issues. But given Coleman's views, as explained in the Roll Call piece, about what he sees as the unfairness of the process, I would not count it out despite the political risks for Coleman.

Sanderson: Analysis of Bill Clinton's Cybersquatting Loss

Matthew Sanderson, who has written this Election Law Journal article on political cybersquatting, has written this guest post:

Nearly a decade ago, President Bill Clinton signed into law the Anticybersquatting Consumer Protection Act and took aim at the practices of "cybersquatters"--individuals who buy-up web domains that evoke others' famous or trademarked names. Now the cybersquatters appear to be exacting some revenge on Mr. Clinton.

Joseph Culligan, a man who reportedly owns over 500 candidate-related domain names and who once offered PresidentHatch.com to U.S. Senator Orrin Hatch for $45,000, purchased WilliamClinton.com, WilliamJClinton.com, and PresidentBillClinton.com. He then linked each of the sites to the Republican National Committee's webpage. In an opinion issued earlier this week, a National Arbitration Forum ("NAF") panelist rebuffed Mr. Clinton's attempt to claim the domains. The opinion and result are notable for three reasons.

First, Mr. Clinton's domain-name complaint failed under factual circumstances that were nearly identical to those surrounding his wife's previous, successful domain-name claim. As readers may recall, a 2005 NAF panel ruled in favor of then-Senator Hillary Clinton after HillaryClinton.com was nabbed by a serial cybersquatter. The divergent outcomes were partially the result of a significant procedural difference: Mr. Clinton's cybersquatter replied to the complaint, whereas Mrs. Clinton was fortunate to have a no-show respondent. Although Mr. Clinton and Mrs. Clinton were each obliged to make out a prima facie claim, Mrs. Clinton obviously benefitted from the absence of a rebuttal.

Second, Mr. Clinton's case is noteworthy because he successfully demonstrated commercial rights in his name, but failed to show the cybersquatter's "bad faith" in registering the domains. This is unusual for a political cybersquatting case. All domain-name arbitration complaints must show:

* a domain name is identical or confusingly similar to the complainant's trademark;
* the cybersquatter has no rights or legitimate interests in the contested domain name; and
* the cybersquatter registered or used the contested domain name(s) in bad faith.

Typically, a politician's highest hurdle in these proceedings is showing that his name is a common law mark due to its "secondary meaning" as an identifier of goods and services. But Mr. Clinton's history as a best-selling author gave him a stronger claim than most to commercial rights in his name. Thus, the NAF panelist "[r]eluctantly" concluded that Mr. Clinton had a common law mark in his name after noting his earlier decision in a similar case involving Rolling Stones singer Mick Jagger. Mr. Clinton's claim still fell short, however, because the panelist inexplicably found a lack of "bad faith" by the cybersquatter. Past panels have found "bad faith" present where the cybersquatter: (1) engaged in a pattern of cybersquatting; (2) held a domain passively; (3) linked to a competitor's website; (4) registered a domain with actual or constructive knowledge that the domain included another's mark; or (5) failed to put forward a logical explanation for use of another's mark. All of these elements would seem to be present here, as the cybersquatter has held over 500 candidate-related domain names, offered to sell a domain to another politician under similar circumstances, used the contested domains only to link to the Republican Party's website, and purposely registered another's famous name without explanation. Nevertheless, after offering only conclusory statements like "Respondent has adequately rebutted any inference of bad faith" and "Complainant failed to meet the burden of proof of bad faith registration," the NAF panelist found no "bad faith" and denied Mr. Clinton's claim. Mr. Clinton cleared the usually outcome-determinative "trademark" obstacle, only to be tripped up elsewhere without so much as an explanation why.

Third, Mr. Clinton's domain-name case is notable because it was denied by the NAF, which had previously been seen as a relatively complainant-friendly forum in political cybersquatting disputes. Hopefully for candidates and political entities, this opinion is not a trendsetter at NAF. As I have outlined in articles here, here, and here, politicos already have difficulty using existing preventive and remedial measures to solve their cybersquatting problems.

Perhaps more than anything, Mr. Clinton's case is significant because it highlights the current system's inadequacy in reliably resolving political cybersquatting issues and the need for a new generic top-level domain, ".pol".

Mr. Sanderson is a political law attorney with the Washington, D.C. law firm Caplin & Drysdale, Chartered.

"ACORN, former workers vow to fight Nevada charges"

AP offers this report.

von Spakovsky Doesn't Disappoint

In my post Monday on the DOJ's rejection of Georgia's voter verification system, I wrote: "What to make of this development? To supporters of section 5, like me, it is one small piece of evidence that section 5 is still necessary, and that it is good to see the Department of Justice again aggressively enforcing the law. But I expect that opponents of section 5 will point to this ruling as an infringement on Georgia's sovereignty, and to argue that the potential for the DOJ to more aggressively enforce section 5 under orders from the Obama Administration is a reason for the Supreme Court to strike the provision down in the pending NAMUDNO case." As if on cue, here are Hans von Spakovsky's reactions: "outrageously stupid," "dumb," "Mr. von Spakovsky said the differences in the Justice Department's handling of the Arizona and Georgia cases shows how arbitrarily the Voting Rights Act is applied, based on nothing more than the administration in power. 'I think the department's actions in this case is just further evidence of why the Supreme Court ought to find this provision unconstitutional.'"

"Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar"

I have posted this draft on SSRN (forthcoming, Florida Law Review (December 2009)). Here is the abstract:

This brief essay responds to Professor Akhil Amar's Dunwoody Lecture at the University of Florida, "Bush, Gore, Florida, and the Constitution." In some ways, Professor Amar follows the well-trodden path of liberal critics of the Supreme Court's opinion in Bush v. Gore in arguing that: (1) the Florida Supreme Court did not violate Article II of the Constitution in ordering a partial recount of votes; (2) the U.S. Supreme Court majority failed to respect Congress's role in resolving disputes over Electoral College votes; (3) the Court's equal protection holding which ended the Florida recount promoted inequality, rather than equality; and (4) Chief Justice Rehnquist and Justices Scalia and Thomas voted strategically in support of the equal protection holding of the per curiam opinion because of the bad press that would come from having "a majority of Justices in fact reject[ing] each of the only two theories put forth by the Bush campaign to end the recount."

But Professor Amar's lecture makes a much broader point as well, one that has resonance for future election disputes well beyond debate over the legacy of Bush v. Gore. In drawing from writing by those on all sides of the debate, Professor Amar teases out a consensus rejecting lawlessness in the resolution of election disputes. That is, Professor Amar shows that everyone agrees that elections should be decided as nearly as possible under the "rules of the game" put in place on Election Day, and that it is illegitimate to change the rules after the election ends. Where people part company in the Florida 2000 dispute is over what the rules of the game actually were on Election Day in 2000, and whether the Florida Supreme Court or the U.S. Supreme Court was more guilty in changing those rules after the fact.

This consensus against lawlessness in resolving disputed elections is a profound point, and it is one that can be used to help avoid future Bush v. Gore-like debacles. In this brief response to Professor Amar's lecture, I aim to do three things. First, I show why, even though there is consensus about the lawlessness principle in the abstract, consensus can never be reached about who was right in Bush v. Gore despite Professor Amar's impressive arguments. Second, I show how the lawlessness debate is replaying itself in the contest over the winner of the 2008 U.S. Senate election in Minnesota. Finally, I argue that an understanding of the lawlessness principle can be used to help avoid similar debacles in the future. In particular, disputes over election outcomes may be curtailed through statutory interpretation instructions directed to state courts passed ex ante by state legislatures and increased centralization of election processes.

"Experts: Prognosis grim as Coleman runs out of legal options"

The Minnesota Independent offers this report.

Clarksburg, West Virginia City Council Member Arrested for Distributing Anonymous Campaign Literature

Wow. The arrest came the day before the election. This is very troubling. UPDATE: Apparently the council member himself was not up for reelection. I think an arrest for a charge like this the day before an election looks politically motivated. There are reasons for not interfering with an imminent election. The DOJ manual for prosecuting election crimes, for example, says to wait until after the election if possible so as not to interfere with an imminent election.

More Voter Fraud Claims Debunked

I got a call from a reporter the other day about some allegations of voter fraud in Beverly Hills. I told the reporter that claims of voter fraud should be thoroughly investigated, but that in my experience investigation usually reveals human error by election officials or inadvertent mistakes by voters, rather than intentional voter fraud, as a more likely explanation. (I also said that it is always tempting to look to outside explanation when your side narrowly loses a close election. If my person won, it happened fair and square. If yours won, it must have been because of some kind of fraud.)

Here's the latest: A Tulsa World investigation of 12 million (!) votes cast in Oklahoma since 1999 turned up 10 possible cases of voter fraud involving dead people voting. (Let's leave aside the fact that this is an astonishing low rate of error, much less fraud.)

What did the follow-up investigation reveal?

In five cases, voters apparently signed the wrong line in the precinct registry. The mistakes led to data entry errors when county election board officials logged voter history into a database.

One of those cases involved a deceased voter whose son shares the same name.

In two cases, no signature was written next to the deceased's name. Again, data entry errors likely caused the mistakes, Ziriax said.

And in two more cases, voters appeared to have cast an absentee ballot just days before their deaths. Thus, the ballots were still legal under state law.

Ziriax said a 2006 case involving a Lincoln County man is still under investigation

There you have it. A single potential case of voter fraud (still being investigated) out of 12 million votes cast since 1999. Sounds like a fraud epidemic that requires use of strict voter identification rules, no?

Gov. Pawlenty and the Election Certificate

NY Times:

At a news conference in St. Paul called to discuss his plans, Mr. Pawlenty also made clear that he would follow the directive of the State Supreme Court and ratify whomever it declared the victor in the Senate race between Norm Coleman, a Republican, and Al Franken, a Democrat.

Republican leaders in Washington, including Michael Steele, the head of the Republican National Committee, have said they would appeal the case in federal court should the state court rule against Mr. Coleman. That put Mr. Pawlenty in the position of dealing with conflicting pressure from national Republicans -- eager to stop the Democrats from holding 60 seats, which would allow them to halt a filibuster -- and from Minnesota residents eager for the race to be resolved.

"I think you guys have really overbaked that issue," Mr. Pawlenty said when asked about this at the news conference. "I'm going to do whatever the court says. If the court directs me to sign that certificate, I will."

Overbaked? Here's what the governor said last month: "'I don't know whether [the certificate] would be required to be issued. I think it could be issued at that time,' said Pawlenty. 'I'm not saying I wouldn't issue the certificate. I'm just saying we should have all of the facts in front of us before we precommit to something like that....'I also would want to look at what the courts did with the case in terms of leaving issues for potential appeal, the strength of those issues, how directly and effectively they addressed them,' said Pawlenty. 'I'm not saying that I'm going to, or not going to, issue the certificate at that point. I just want to make sure I have all the facts in front of me before I made a decision like that.'"

Professor Larry Jacobs, via TPM:

I asked Jacobs about how Pawlenty said today -- not for the first time -- that he would obey the decision of a court to issue a certificate of election. But Jacobs still sees wiggle room here. "Signing it -- and how quickly you sign it -- those are two different things," Jacobs explained. "If Norm indicates that he's going to be filing in federal court, the Governor may just say, 'you know, I am gonna sign it, I'm just waiting to hear from my legal counsel that this is appropriate.'"

I would add that if the Minnesota Supreme Court opinion does not specifically direct the governor to sign the certificate, there will be a lot more wiggle room in terms of such timing, including the possibility of waiting for the outcome of a possible cert. petition. At that point, the Senate could step in, even without a signed certificate.

In the Election Law Mailbag

Theresa Amato, Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny (New Press 2009)

Abigail Thernstrom, Voting Rights and Wrongs: The Elusive Quest for Racially Fair Elections (AEI 2009)

And the Effect on Coleman-Franken is...?

Gov. Pawlenty won't seek third term.

"Feds spike voter citizenship checks in Georgia"

AP offers this report. My earlier coverage is here.

"Voter Fraud May Have Changed Beverly Hills Expansion Project Outcome"

City News Service reports.

Texas Legislature Adjourns After Voter ID Bill Killed

See here.

Coleman-Franken Roundup

NY Times

Star-Tribune

Politico

LA Times

MPR

Pioneer Press

Minnesota Independent

Jay Weiner

My earlier roundup is here, my analysis of the oral argument yesterday is here, my discussion of the case on KCRW's "To the Point" is here, and my LA Times oped on what comes after the Minnesota Supreme Court decision is here.

Early Coleman-Franken Oral Argument Analysis

Ned Foley: "If the Minnesota Supreme Court rules for Franken, it would be wrong to jump to the conclusion that the court inevitably must be biased against Coleman. On the contrary, the trial court unanimously ruled against Coleman and displayed no bias or unfairness. In the end, impartial jurists reasonably might conclude that Franken has the better case on the merits. Or, alternatively, the conclusion might be that Coleman’'s attorneys failed to put before the court a winning case that perhaps, with a different strategy, they could have made."

David Schultz: "Prediction: 5-0 for Franken with a decision by the July 4, holiday."

Star-Tribune (quoting Guy Charles: "''What's remarkable about the whole oral argument is that there were very few questions, if any, asked on what we do next - what is the standard that you want us to apply,' Charles said. He predicted a unanimous ruling for Franken toward the end of June.").

Esme Murphy: "I have been unable to find any independent expert who believes Coleman will win in the Minnesota Supreme Court. In fact, I have asked the Coleman camp if they know of any expert and they not given me any names."

Eric Black

Eric Kleefeld (TPM) here, here, and here, along with quotes from Coleman's lawyers on possible further appeals and oral arguments.

More to come.

Why Section 5 Still Matters, Or, The Obama DOJ Differs from the Bush DOJ

Via the Atlanta Journal-Constitution comes this objection letter from the Department of Justice to a Georgia voter verification system which checks, among other things, the citizenship eligibility of Georgia voters. Because Georgia is a jurisdiction covered under section 5 of the Voting Rights Act, it cannot make changes in its voting procedures without permission from the Department of Justice (or a three-judge court in DC).

I have little doubt that this kind of change would have been approved if the Bush Administration still controlled the DOJ (after all, that Department approved the controversial Georgia voter id law and the Texas mid-decade redistricting). But the new DOJ looked at the evidence of how this procedure has worked in practice (Georgia, in violation of section 5, put it in place before getting preclearance), and found that the list produced inaccurate false positives, removing eligible voters from registration databases incorrectly, because of minor discrepancies in drivers license numbers, etc. It further found that preclearance was not warranted because the law had a disparate impact on minority voters. "[A]pplicants who are Hispanic, Asian or African-American are more likely than white applicants, to statistically significant degrees, to be flagged for additional scrutiny." The DOJ says that the case is different from Crawford, the Indiana voter id case, where there was no evidence offered of discriminatory effect (as an aside, that's an interesting reading of Crawford). Finally, DOJ offers to work with Georgia to meet its goal of preventing voter fraud without causing discrimination against minority voters.

What to make of this development? To supporters of section 5, like me, it is one small piece of evidence that section 5 is still necessary, and that it is good to see the Department of Justice again aggressively enforcing the law. But I expect that opponents of section 5 will point to this ruling as an infringement on Georgia's sovereignty, and to argue that the potential for the DOJ to more aggressively enforce section 5 under orders from the Obama Administration is a reason for the Supreme Court to strike the provision down in the pending NAMUDNO case.

Balkin and Gerken Talk Democracy Index, NAMUDNO

See here.

"Beyond Ricci: Judge Sotomayor and the Voting Rights Act"

This post appears at "Text and History."

"Latest FEC Deadlock Frees McCain From Charges of Raising 'Soft Money'"

BNA Money and Politics Report offers this report ($). Meanwhile, the FEC commissioners are even splitting along party lines over the "reason to believe" standard for investigations.

Live Blogging the Coleman Franken Oral Argument

Now that the oral arguments have concluded, here are my tentative thoughts (you can find my earlier live blog below the fold):

1. It is always dangerous to guess how a court is going to come out based upon oral argument. But there's good reason here to believe that the state Supreme Court Justices went into this with their minds made up: this case has been expedited pursuant to state law, and they've had two weeks (including three weekends) to think about how to decide this case based upon the briefs. They likely had a draft opinion or set of opinions in front of them. So this oral argument may be more of a tip off than most.

2. There's no question that Coleman's side got much tougher question than Franken's side, and based upon oral argument I would not be surprised to see a unanimous decision in favor of Franken in a relatively short time frame (within two weeks--maybe sooner). I counted at least three of the five Justices who were much more willing to accept Franken's arguments than Coleman's arguments, and who asked Coleman's side much more difficult questions.

3. It is not a surprise that Coleman would have a tougher time, and this is not a reflection on the quality of the lawyering on both sides. I expected a good argument from Marc Elias, for Franken, whom I know. I did not have any experience hearing Friedberg. But he was very good, addressing questions directly, not hiding behind rhetoric and not afraid to concede points he knew he could not win.

4. The reason Coleman is having a harder time is that he's got a tougher road to success:
a. The state Supreme Court is going to deter to the factual findings of the trial court, and those factual findings favor Franken.
b. The state Supreme Court's existing precedent in terms of treating absentee ballots strictly as a matter of fraud-prevention favors Franken. A change in that standard now, as I've argued, would create a due process argument for Franken by constituting a change in the rules of the election after the fact.
c. Even if the court accepted some of Coleman's arguments in the abstract---such as that there were some votes illegally counted by some jurisdictions (or alternatively, some ballots accepted under a looser "substantial compliance" standard)-- that doesn't mean Coleman would win his case. He'd have to show that there were enough problems to make a difference in the outcome of the election (a point the Justices expressed a great deal of skepticism about, in their discussion of the failure of the offer of proof).
d. On the merits, the Justices mentioned ways of distinguishing other cases in which there were due process problems, such as when voters relied upon rules of the game that were changed later. There was an interesting discussion of whether Bush v. Gore eliminated the requirement that a challenger prove intentional discrimination to make out an equal protection argument. It was the only line of argument that I saw potentially helping Coleman, but it did not appear to be enough to overcome the Justice's skepticism.

Near the end of the argument, Friedberg suggested that if the state Supreme Court affirmed under a strict compliance standard, it would create (or exacerbate) the federal constitutional problems that Coleman has been pushing. These are arguments Coleman may try to advance, assuming he loses in this court, in a cert. petition in the U.S. Supreme Court, or in a separate federal lawsuit. In pieces at Slate, the ACS Blog, and the LA Times, I have considered both the merits of those constitutional arguments and whether they need to be addressed in a separate federal court action.

The live blog notes appear after the fold.

Initial question: Aren't our requirements mandatory?

Friedberg: Mandatory only before the election, but directory/substantial compliance afterwards.

Heavy discussion of the Democracy Canon. Discussion of whether the Democracy Canon should apply to absentee ballots.

Question as to whether there can be statutory violations that don't raise equal protection or due process arguments.

One justice references Griffin, Roe, says they are clearly distinguishable in the sense that there was an announced procedure before the election and after the election the election officials change the rules. Question: did election officials engage in widespread misconduct by announcing a procedure, announce a procedure, and then voter reliance after the rules were changed.

Justice says it is not the election officials who changed the rules, but the panel changed the rules. How do you get around the federal cases that rely on fraud, widespread misconduct, but there's no evidence here of fraud or misconduct.

Shouldn't we judge the findings of fact under a clearly erroneous standard.

These are all questions showing the Justices (at least the ones asking questions) are very skeptical of Coleman's appeal.

More skeptical questions. Judges want to know whether there really was an offer of proof? It looks like an inadequate offer of proof. No admissible evidence to determine whether the plaintiff has met its burden.

Extensive discussion of the failure of proof here. Not like an offer of proof that the judges are used to seeing. There are no identified voters, for example. Justice Anderson says he "really has a problem" with this kind of offer of proof.

[So far two rulings from U.S. Supreme Court today, but neither in election law cases.]

Heavy discussion of Roe case. A justice says that the key in Roe is reliance by the voters. Friedberg disagrees. (My explanation of Roe is here.) He concedes there's not a good reliance argument.

Justice Anderson says lots of courts take a position that reliance is the key here. (Justices Anderson is a Republican appointee.)

Justices Anderson, Gildea, and Page (at least those three) seem very skeptical of Coleman's arguments, despite the fact that Friedberg is doing the best he can with what he has to work with. (Gildea is also a Republican appointee.)

Friedberg gets a final question from Anderson, before he sits down before rebuttal.

I've been listening more than watching. I don't know if Justice Dietzen asked any questions. He was criticized (in my view unfairly) for not recusing after giving campaign contributions to Coleman (before he became a Justice).

Justice Page: To the extent that the U.S. Senate makes the final decision here, how do we issue an opinion without it being an advisory opinion?

Elias: Lower court found it had jurisdiction to determine who has the most lawful votes, even if Senate decides who is seated.

J. Gildea: How can we tell from this record, who got the most legal votes?

Elias: Coleman is trying to use a broad brush to show problems. Diligent local officials looked at each ballot. "Every ballot tells a story."

J. Anderson: Were there illegally cast ballots included?

Elias says: No proof of specific problems. But in every election there are problems.

J. Anderson: Isn't there enough here to implicate due process and equal protection concerns?

Elias: Laches. Should have challenged at the precinct. Discussion of whether there was an opportunity to review decisions on absentee ballots. Justice Dietzen expresses concern about some ballots that were lacking signature.

Extensive discussion of why there might have been problems. Elias returns to waiver and laches issues. J. Dietzen says that Elias did not plead waiver in his answer. So should that itself be waived?

Justice Dietzen seems to be the most skeptical of Franken's side.

Elias seems to be getting some easier estions from some of the other justices.

Elias notes that Minnesota has not followed other states in using substantial compliance/Democracy Canon for absentee ballots.

Justice Anderson: Doesn't Bush v. Gore throw out an intentional discrimination standard from equal protection law?

Elias: BvG means conduct can become so arbitrary that it rises to the level of intentionality. (This reminds me of Roy Shotland's interesting work on Bush v. Gore as a due process case. Others, including Abner Greene, have made some interesting arguments along these lines. I'm thinking also of Dan Tokaji's Michigan piece.)

Friedberg is back up on rebuttal.

J. Dietzen returns to question whether Coleman made a sufficient order of proof. He returns to "every ballot has a story." Friedberg says this is "perhaps the biggest non-sequitur in American legal history." [Really?]

Discussion of burdens of proof. J. Page: The other side is saying we need to see the ballot so we know whether ballots were improperly accepted or rejected.

Friedberg concedes absolutely no evidence of election official fraud or voter fraud.

Says absentee voting is no longer a privilege.

Justice (?) says fraud can occur with absentee ballots, so it is a good reason to have a stricter standard.

Justice Dietzen asks whether absentee ballots could have been challenged under the statute at the polling place? Friedberg says that election officials did not read it that way.

The court concludes: "We shall take this matter under advisement and an opinion shall be forthcoming."

[I will put a summary up of the argument at the top of this post in a few minutes.]

"Get the Al Franken Show on the Road"

I have written this LA Times oped about the Coleman-Franken contest. A snippet:

If Coleman continues the fight by filing a new federal lawsuit, the U.S. Senate should not wait for the outcome before seating Franken provisionally. There's no argument that Coleman could make in a new federal lawsuit that he can't make in the current litigation. The only reason for a new federal lawsuit would be to delay the Democrats' ability to obtain a 60th vote -- a potentially filibuster-proof majority in the Senate. Even if Pawlenty chooses not to sign the certificate of election, the Senate, as the constitutionally authorized arbiter of disputed Senate elections, should declare Franken the provisional winner.

A more immediate question if Coleman loses in the Minnesota court is whether the Senate should await the outcome of any direct appeal of the ruling to the U.S. Supreme Court before seating Franken.

Coleman ordinarily would have 90 days after the Minnesota judgment to file his petition in the U.S. Supreme Court, and the high court would not be expected to rule on whether or not to hear Coleman's appeal before the beginning of its next term in October, at the earliest. But Coleman can ask to expedite the process. And the Senate should give Coleman only a short window of time to seek an immediate stay of the Minnesota court ruling from the U.S. Supreme Court. If Coleman does not quickly seek a stay, or if he files for it and the high court denies the stay, the Senate should provisionally seat Franken.

The NY Times also offers this preview of today's oral arguments, which should be streaming live here. Assuming I can get the audio, I hope to live blog the hearing beginning at 7 am Pacific this morning.