"Citizens United, Stare Decisis, and Democracy"

Ned Foley has written this thoughtful post.

An Anti-Rent-Seeking, Anti-Extortion Rationale for the Austin Limits?

See the Center for Political Accountability, Etc. supplemental amicus brief in Citizens United.

I'm still waiting to see the Corrado, Ornstein, Mann brief, written by Dan Ortiz. UPDATE: The brief is here, and Dan Ortiz is a party, not the counsel on the brief.

DOJ Considered RICO Charges Against ACORN Affiliate Project Vote in 2004

Buried in Appendix 2 of this minority report issued by Republicans on the House Oversight committee (see also this press release) is this nugget (p. 82 of the pdf): "In 2004, Asheesh Agarwal, a Justice Department attorney, was assigned to write a memorandum ('Agarwal Memo') analyzing whether the Justice Department could prosecute Project Vote under the civil provisions of the Racketeer Influenced Corrupt Organization Act ('RICO'). The Agarwal Memo concluded, "such a claim would face a very high hurdle in satisfying the 'business or property' element of a [civil] RICO claim. We could probably get by a Rule 11 motion, but probably not a motion to dismiss."

The memo itself was not released with the report, "Is ACORN Intentionally Structured as a Criminal Enterprise?" But it would not surprise me if it gets released once this report gets more publicity.

Supplemental Amicus Briefs in Citizens United; Thoughts on BCRA Sponsors' Brief

Here's what I have so far (in addition to the Former Republican FEC Commissioners' brief already linked):

BCRA Sponsors (McCain, Feingold, Shays, and Meehan)

Brennan Center

Campaign Legal Center, etc.

Institute for Justice

League of Women Voters (and see this blog post)

Reporters' Committee for Freedom of the Press

Scholars Brief (Hayward, Dimino, Jones, LaRaja, Miylo, Munger, New, Primo, Samples) (more Hayward on CU here)

UPDATE: More briefs:

Center for Competitive Politics

American Independent Business Alliance (Demos)

California Broadcasters Association, etc.

Justice at Stake (on the effect of overruling Austin on judicial elections---as with the BCRA sponsors' brief, perhaps calculated to sway Justice Kennedy)

Brief of 26 States (This brief goes heavy on the constitutional avoidance argument, opening with NAMUDNO on this point.)

I won't link to any more of these briefs as the FEC has set up this page linking to even more supplemental amicus briefs.

All supplemental amicus briefs on both sides of the case are due today. Supplemental party reply briefs are due August 19.

The BCRA sponsors brief is going to be especially important, not only because it comes from the sponsors of the legislation, but also because Seth Waxman, their attorney, is likely to get 10 minutes to argue in favor of the law, and Seth, a former SG, is highly respected on the Court.

This brief is somewhat understated on the Austin distortion point, though not to the extreme extent of the government's brief. The BCRA sponsors' brief does not mention "distortion" or "corruption," but does make arguments against corporate dominance of the electoral process. (The brief does so in a much more subtle way than the brief filed by the Campaign Legal Center, Democracy 21, etc., who had jointly worked on the initial amicus brief filed by the BCRA sponsors in this case.) But most of the BCRA sponsors' brief is dedicated to the question of stare decisis. And, in a point that makes me very happy, the brief cites Ashwander and makes a brief constitutional avoidance argument. Still, it is striking that the two most important briefs supporting Austin do their best to keep away from Austin equality arguments---just a testament to the writer knowing his/her audience.

ACS Panel on "Diversifying Our Courts"

August 4 in DC. Details here.

Cover of "Townhall" Magazine Features Article on ACORN

You can view the cover here. I have not seen the actual article.

"EXCLUSIVE: No. 3 at Justice OK'd Panther reversal"

The Washington Times offers this interesting report. [CORRECTED LINK]

State Court in Colorado Bars Enforcement of Major Provisions of Campaign Finance Initiative, Amendment 54, on First Amendment Grounds

I have posted the opinion in Dallman v. Ritchie here. According to the opinion "Amendment 54 prohibits contributions to any candidate for any elected office of the state, the counties, municipalities and special districts and to any political party made by the holder of 'sole source government contracts' valued in the aggregate at more than $100,000. The amendment also prohibits contributions to promote or influence a ballot issue election by a person who wants to qualify for a sole source government contract relating to the ballot issue."

"Commissioners Deadlock Again on Rulings About Key Campaign Finance Law Questions"

BNA reports ($).

Eight Former Republican FEC Commissioners File Citizens United Amicus Brief Urging Court to Overrule Austin and McConnell

The brief is here. A related press release from counsel Jim Bopp is here.

Alec Ewald on "Criminal Disenfranchisement and the Challenge of American Federalism"

This article appears in Publius: The Journal of Federalism.

New Rove Testimony and Email About the U.S. Attorney Firings and Voter Fraud Allegations in New Mexico

Interesting reading in the Washington Post and the NY Times. Rove claims he was just a "conduit" for allegations of others. "He also said he had expressed an interest in the issue of voter fraud as a policy matter but did not ask the Justice Department about specific cases, although he sometimes passed on reports of voting irregularities to the White House counsel's office." UPDATE: More from TPM.

"Judge seals Wash. gay-marriage signatures"

Josh Gerstein reports that "A federal judge has temporarily barred the State of Washington from releasing the names, addresses and other contact information of more than 138,000 people who signed petitions to put a same-sex marriage ban on the ballot."

Ninth Circuit Holds that AG Need Not Get FEC's Permission Before Investigating and Prosecuting Possible Election Law Violations

See here.

A Saturday Iowa Caucus for 2012?

It could happen. Though I think parties have great latitude in setting rules for primaries or caucuses (subject to potential congressional override), I think there's a reasonable chance a Saturday caucus (without the possibility of a proxy or absentee vote) could be successfully challenged on constitutional grounds by orthodox Jews and others whose religion would prevent them from voting in the caucuses.

"Citizens United: The Government Presses Its Case to Regulate All Speech"

Brad Smith has written this blog post at the CCP website.

"Sotomayor Closer To Sitting On Campaign Finance Case"

Dow Jones offers this report.

"A look at HR 1826 and the Public Financing of Congressional Campaigns"

The Committee on House Administration is holding this hearing on Thursday.

July 29 Heritage Event on Voting Rights with Thernstom and von Spakovsky

See here. Von Spakovsky has also co-written (with M. Eric Eversole) this paper on military voting rights.

Sleep Deprivation as a Legislative Tool

George Skelton explains. Without term limits and party discipline, what else do California legislative leaders have?

Brennan Center on Voter Registration Reform

The Brennan Center has released Registering Military and Overseas Citizens to Vote and Automatic Voter Registration in the United States: The Selective Service Example. See also this U.S. News opinion piece by Adam Skaggs of the Center and this NY Times editorial.

"President Obama refunds cash to Kenyan aunt, convicted murderer, lobbyists"

Politico offers this report.

Elmendorf and Leib on Citizen Juries to Break Budget Impasses

Chris Elmendorf and Ethan Leib have written this NY Times oped.

"For a Typo?"

The NY Times offers this editorial, which begins: "New York City's election laws are notoriously unfair, and few events make that point as well as what happened on Thursday to City Councilman Bill de Blasio. Mr. de Blasio, a Democrat from Brooklyn, has been running for the job of public advocate for New York City."

Washington Post Editorializes on Election Day Registration in DC

See here.

American University's CDEM (Bob Pastor, the Force Behind Carter-Baker) Issues Election Administration Report

You can find the report here. A la "The Democracy Index", it grades states on how well they've implemented certain election administration criteria, in this case, the Carter-Baker recommendations.

See also this profile of the 50 states' progress on election administration, and this draft legislation to create nonpartisan, professional, independent election administration.

"Enormous archive of third party and ballot access information now available on line"

The "Independent Political Reports" notes that the paper archives of Ballot Access News are now available on line. What a great resource for those researching questions about third parties and independent candidacies.

The Government's Remarkable Supplemental Brief in Citizens United: No Mention of Corporate "Distortion"

On the last scheduled day of the Court's term in June, the Court issued an order in Citizens United v. Federal Election Commission requiring the parties to brief whether the Court should overturn two cases upholding corporate (and union) independent spending in candidate elections: Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. FEC. For background on the Court's order, check out this Slate piece.

The briefs were filed Friday. I have now had a chance to review the government's supplemental brief and Citizen United's supplemental brief. (Amicus briefs are due Friday, and simultaneous reply briefs are due August 19).

There is much to like about the government's brief, and I have more about that below. But let me begin with the most interesting feature of the brief: the government does not even mention the central holding of Austin, much less defend it. To put this in context, before Austin, in Buckley v. Valeo the Court had held that contributions to candidates could be limited because of the government's interest in preventing the corruption of elected officials (through quid pro quos and otherwise) and the appearance of such corruption, but that independent spending by individuals could not be limited consistent with the First Amendment. With truly independent spending, the Court in Buckley said, the link to corruption of candidates is too tenuous, and the costs to freedom of speech and association too high to justify such limits. Buckley did not deal with corporate spending limits, but in a 1981 case, First National Bank of Boston v. Bellotti, the Court held that corporate spending limits in ballot measure elections, in which candidates are not involved, are unconstitutional. In Austin, however, the Court held that corporate spending limits are constitutional. The key passage in Austin is the following:

The Chamber argues that this concern about corporate domination of the political process is insufficient to justify restriction on independent expenditures. Although this Court has distinguished these expenditures from direct contributions in the context of federal laws regulating individual donors, Buckley, 424 U. S., at 47, it has also recognized that legislature might demonstrate a danger of real or apparent corruption posed by such expenditures when made by corporations to influence candidate elections, Bellotti, supra, at 788, n. 26. Regardless of whether this danger of "financial quid pro quo" corruption, see NCPAC, supra, at 497; post, at 702-705 (KENNEDY, J., dissenting), may be sufficient to justify restriction on independent expenditures, Michigan's regulation aims at a different type of corruption in the political arena: 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. See supra, at 658-659. The Act does not attempt "to equalize the relative influence of speakers on elections," post, at 705 (KENNEDY, J., dissenting); see also post, at 684 (SCALIA, J., dissenting); rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations may accumulate large amounts of wealth is not the justification for s54; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions. We therefore hold that the State has articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations.

(my emphasis)
Though the Austin Court spoke of a "different type of corruption" (like the "other white meat"), the anti-distortion rationale is better thought of as a type of equality argument, rejecting "disproportionate" corporate spending that can "unfairly influence elections." (I've written more on this "barometer equality" argument here.)
As I expected, CU's brief goes right against this anti-distortion rationale in its supplemental brief. The brief opens: "For the proper disposition of this case, the Court should rejected the anti-distortion rationale for suppressing corporate political speech formulated in Austin and relied upon in McConnell..." But the government brief does not mention the rationale, even in passing as it did in its original brief (see p. 15: "In particular, because of the numerous advantages that the corporate form confers, a corporation's ability to pay for electoral advocacy has 'little or no correlation to the public's support for the corporation's political ideas.' McConnell, quoting Austin.").

On the one hand, it is no surprise that the government does not want to emphasize Austin anti-distortion. After all, as I detail here, this equality rationale has already been undermined by the Court's recent opinion in FEC v. Davis, and the equality rationale is not likely to find a receptive audience in either "swing" voters on the question in Citizens United, Chief Justice Roberts and Justice Alito. On the other hand, the government surely anticipated that Ted Olson and company in CU would be all over the Austin rationale. I suppose that the government figured it would just save its points on this question for its August 19 supplemental reply brief. The closest the government comes in this brief is to stress that corporations are not natural persons (p. 10.)

But in passing on discussing the equality/anti-distortion rationale, the government puts a great deal of effort into an argument that only Justice Stevens has embraced (in his Austin concurrence): that the government can justify limits on corporate independent spending to prevent quid pro quo corruption of candidates. In other words, the argument that the government pushes here requires the Court to reject, at least in part, one of the central tenets of Buckley, that independent spending cannot be limited because the independent nature of the spending means it cannot corrupt candidates. The government asks at least for remand to the three judge court to make an evidentiary record on this point (one way, I suppose that the Court could, for a time, avoid the constitutional question). I recall discussing with others whether to push this traditional anti-corruption justification in earlier amicus briefs I've filed in campaign finance cases, but it has always seemed to be a real long-shot kind of argument.

The other point the government makes, which is perhaps a bit more promising, is that corporate spending limits in elections are necessary to protect shareholders, a point Justice Brennan emphasized in his Austin concurrence. But that theory is in great tension with Bellotti, which rejected it in the context of ballot measure elections.

Finally, in what is sure to please Mickey Kaus, the government (in footnote 1) seems to invite the Court to expand the MCFL exemption for ideological corporations are "financed 'overwhelmingly' by individual donations."

As I've said, there are lots of ways the Court can duck the constitutional issue in Citizens United. But given the first oral argument, I fully expect SG Kagan to be pushed on the Austin anti-distortion/equality rationale. We may get a better sense of what she would say in response to such questions when we see the government's reply brief. So far, there's no defense of the concept in sight.

The government makes a lot of good points in the brief, especially as to why this is not the proper case to decide these questions and about the application of stare decisis principles. But if the Court does decide the constitutional question, getting to 5 to reaffirm Austin remains an uphill climb.

"GOP to stage push for voter ID laws"

The latest from Mississippi.

"City Council works on bringing single-member districts to Irving"

The Dallas Morning News offers this report.

Meanwhile, the Wall Street Journal writes that "Latino activists are seeking to gain political clout by forcing electoral changes in communities nationwide, using a recent federal court decision in Irving, Texas, as a template."

California Sausage Factory: Budget Edition

Well worth the read.

Election Law Blog One of the "Best Read" or "Stickiest" Blogs?

See here and here.

One of the problems with these calculations (and all the calculations based on Sitemeter entries) is that they exclude the 800+ people who get the full content of my blog posts each day via the election law listserv. (Reading the posts in this way does not require the reader to actually visit my blog.)

"A Dispute Over Obama's Birth Lives on in the Media"

The NY Times offers this report.

"Democracy Restoration Act Needed To Restore Voting Rights Of Millions Of Americans"

The ACLU has issued this press release.

"U.S. District Court in Alabama Says State May Require More Signatures for U.S. House than for President"

Richard Winger reports on this recent federal court decision.

Citizens United Supplemental Brief for Appellant Now Available

You can download it here.

Also, legal ethicists ask: Should Ted Olson argue Citizens United?

"In Vote Fraud Case, Acorn Challenges a Law as Unconstitutional"

The NY Times reports.

"Caperton Capers"

The ABA Journal reports on the fallout from the Supreme Court's recent decision in Caperton v. Massey.

von Spakovsky Says Sen. McCain Does Not Understand McCain-Feingold

Here.

New 4th Edition of "The Lobbying Manual" Available for Pre-Order

Before I got sidetracked on other projects, I was working on a paper on lobbying regulation and the Constitution. I was able to get my hands on advanced copies of some of the chapters in the newest edition of The Lobbying Manual: A Complete Guide to Federal Lobbying Law and Practice, Fourth Edition. It is an extremely valuable resource, and it is now available for preordering. Highly recommended!

FEC to Revisit Political Committee AO, Other Business at "Hastily Called" July 28 meeting

So reports BNA ($).

Military Voter Bill Passes Senate on Voice Vote; On to Conference

See here and Here.

SG Asks for 10 Minutes for Seth Waxman to Argue in Citizens United;Government Brief Filed

Details here and here. I had expressed hope Waxman could participate.

SCOTUSBlog has posted the government's brief. We should have CU's brief later today. Once both briefs are in, I hope to post some analysis, likely early next week. A quick word search shows no mention of constitutional avoidance or the book hypo.

"Election Law Discriminates Against Everyone Except Mayor Bloomberg"

See this press release.

Lighter Blogging until August 17

Classes resume at Loyola August 17 (I'll be teaching Legislation and Election Law). Blogging will be lighter than usual until then, as I sprinkle in some travel over the next few weeks and finish up some pending writing assignments, and as election law news remains relatively light. The next flurry of activity will be briefs filed in Citizens United (much more on that case here), and I'll be linking to the briefs as I receive them/find links to them. For those on the election law listserv, my daily news/commentary emails will not appear on some days before August 17th.

David Broder on NAMUDNO and Ricci

I originally missed this column from July 2.

"Appeals court OKs group's challenge to touch-screen voting"

The Arizona Daily Star offers this report about this opinion issued by Division One of the Arizona Court of Appeals.

"Obama Campaign Returning Foreign Contributions"

The Hill reports.

"New Project Vote Report Evaluates Fifteen Years of the NVRA"

See here.

Judge Sotomayor Responds to Written Election Law Questions of Republican Members of Senate Judiciary Committee

Response to Sen. Sessions (see pages 22-25, campaign finance, voting rights) [CORRECTED LINK]

Response to Sen. Cornyn (see page 40, Bush v. Gore)

Response to Sen. Coburn (see page 40, political question doctrine)

As with the hearings generally, these written responses are unilluminating. There has been a great deal of criticism over the failure of the hearings to illuminate much about the judge's views---even from liberals who wanted Judge Sotomayor to make bold statements about the meaning of the Constitution. Though I agree that the hearings have not done so, that seems to me to miss the bigger point. Judge Sotomayor's priority is to get confirmed and have influence once on the Supreme Court, not to use the hearings to educate Senators or the public. She acted rationally in using the model of other recent nominations to say as little as possible of substance in order to get confirmed. Any other strategy would have been riskier, and of questionable benefit compared to her elevation to the Supreme Court.

"Bill is Start in Reforming Initiative Process"

The SF Chronicle offers this editorial.

Leiter Gets (Partial) Results!

Following up on this post, linking to this post by Brian Leiter, Leiter now posts the following: "A colleague at Loyola Law School, Los Angeles reports that the magazine notified the Dean yesterday that they will resume listing the school by its proper name on the ballot, though will continue (for some reason) to list it in the magazine as Loyola Marymount University. That's a partial victory for good sense, though surely what the magazine should do is what they do for business and law schools that have special names (e.g., USC's Gould School of Law), and list the law school name in parentheses after the university name."

Roll Call Buys CQ

So reports Roll Call. Both outlets have among the most important news articles for those following election law. Both also have pretty tough policies about what they put behind the pay wall on the Internet. We'll see what this means for free availability of content in the future. Good luck to my friends at both publications!

"Ballot Initiatives: Tool for Reform or Threat to Basic Rights?"

Demos is holding this event on Wednesday.

"Looking Abroad For Answers On Voter Registration"

Eliza's latest.

Profile of Election Law Prof. and Kansas Secretary of State Candidate Kris Kobach

Here, in the NY Times. The primary may be ugly.

"2008 Surge in Black Voters Nearly Erased Racial Gap"

The NY Times offers this report.

"Group claims BMV rules make voting tougher"

The Indianapolis Star offers this report. You can read the League's pleading on this at this link.

Constitutional Avoidance, Anti-Avoidance, NAMUDNO, and Citizens United

I have just posted a draft article, Constitutional Avoidance and Anti-Avoidance at the Roberts Court on SSRN. I've posted this earlier in the writing process than I normally would, in the hopes to get these ideas out here before the briefs are all filed in Citizens United. For this reason, comments are especially welcome as I get this in shape for law review submission.

Here is the abstract:

At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of "constitutional avoidance." That doctrine (also known as the "avoidance canon") encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question. In NAMUDNO, however, the Court--without objection from single Justice--embraced a manifestly implausible statutory interpretation to avoid the constitutional question.

A week after NAMUDNO issued, the Court announced it would not be deciding a campaign finance case, Citizens United v. Federal Election Commission, by the Court's summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law's challengers in the Court below and was not even mentioned in the challengers' jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question. It remains to be seen whether the Court will actually decide the constitutional question when issues its decision. But the reargument order itself embraced the anti-avoidance principle: the Court went out of its way to make a thorny constitutional question more prominent by scheduling briefing and argument on it despite a plausible statutory escape hatch.

What explains the divergent approaches in the two cases, and what does the divergence tell us about the Roberts Court? In this Article, I identify the evidence supporting three competing explanations for the Court's actions, ranging from the most charitable to least charitable reading of the Court's motives.

First, the dialogic fixability explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that full-blown constitutional pronouncement would harm its legitimacy. Third, the political calculus explanation posits that the Court uses constitutional avoidance and similar doctrines to soften public and Congressional resistance as the Court's movement of the law in its preferred policy direction.
While it is impossible to know which of these explanations is correct, the developments of the October 2008 term suggest Court watchers should continue to keep an eye on use of the constitutional avoidance doctrine for broader clues about the Roberts Court. Whether intended or not, the use of constitutional avoidance and anti-avoidance allows the Court to control the speed and intensity of constitutional and policy change.

Pildes: The Return of Alternative Voting

Rick Pildes sends along this guest post:

Many academics, myself included, have been supportive of greater use of alternative-voting systems, particularly in local government elections, where I believe they might be most appropriate. These systems might be worthwhile on their own merits, and they are often worth considering as remedies in cases in which the current design of elections has been found to violate the Voting Rights Act. Cumulative voting (CV) and limited voting (LV) are among these alternatives, and they are particularly attractive in VRA cases because, if designed properly, they can give minority groups a reasonable opportunity to elect candidates of choice. In CV, voters get multiple votes to cast and can spread them among candidates or concentrate them on one or more candidates. If there are five seats to fill, voters might get five votes; they can give all those votes to one candidate or distribute them among several candidates. In LV, voters get fewer votes to cast than there are seats to fill; if three seats are up, voters might have only one vote to cast. Until recently, federal courts had been somewhat reluctant to adopt these remedies in VRA cases. But a major recent District Court decision might change that, which is why I want to bring that decision to a larger audience.

Typically in local-government cases under the VRA, the United States challenges at at-large election structure -- for a city council, a school board, a county commission, or similar entities -- for diluting the voting power of a minority group. If liability is found, the typical remedy is then to breakup this at-large election structure and create a number of single-member election districts, some of which are intentionally designed to be dominated by a supermajority of minority voters. As with all election structures, there are tradeoffs with at-large elections. They can have the effect of minimizing minority voting power, but they have the benefit of electing representatives who might be more likely to act from the perspective of the entire city or county, as opposed to representing more narrowly-sliced up geographic areas. The attraction of CV and LV is that they preserve the benefits of at-large elections while addressing the problem of minority exclusion.

The important recent decision came in United States v. Euclid School Board, No. 08-CV-2832 (N.D. Oh. July 13, 2009). Whatever one concludes about the merits of the analysis here, I want to praise District Judge Kathleen O'Malley, about whom I knew nothing before reading this opinion. The opinion shows a superb command and depth concerning the relevant issues. Because Euclid conceded liability under Section 2 of the VRA, the question was how to change its election structures to remedy this violation.

Euclid's elected school board had five members elected at-large with staggered terms. Every other year, voters elected either two or three board members. This Ohio city was in the midst of rapid demographic changes: the African-American total population was 7.8% in the 1980s; 16.2% in 1990; 30.5% by 2000; and 44.6% in 2005-07. In the latter period, relevant to this litigation, they compose 40.2% of the voting-age population (VAP). Until 2008, no African-American had been elected as mayor, city council, or school board member. As it always does in these contexts, the United States argued that the proper remedy was to draw five-single member districts, with one of those districts a safe, minority-controlled one (this district was designed to have a 60% VAP of African Americans). Euclid proposed cumulative or limited voting instead, while retaining the at-large, staggered-terms structure. The Court accepted the limited-voting remedy. There are four particularly interesting elements in the Court's decision:

1. Why Limited Voting Over Single-Member Districts? The broad legal issue is how much of an "opportunity to elect" must a minority community when courts are remediating Sec. 2 violations. In the District Court's words, the United States argued 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." The District Court characterized Euclid's remedial standard being "that a plan is legally acceptable so long as it would provide representation were minorities to vote at the same rate as non-minorities." The Court rejected both of these standards and held that the correct one was whether a voting system ensured "genuine opportunity for all citizens."

First, the Court held that prior law required it to accept the governmental body’s proposed remedy if that remedy was legally acceptable, even if some other remedy would be "better." Thus, the Court had to accept an alternative voting system, rather than single-member districts, if the former would correct the violation. With a three-seat election (as was upcoming), and limited voting, the Court noted that the "threshold of exclusion" was 25%, meaning if African Americans cast at least 25% of the votes and all cast their one vote for a minority candidate, that candidate would win. The Court found it reasonable to assume that this would be the case, that is, there would be a "meaningful" opportunity to elect, based on how the Court analyzed potential minority voter turnout, which was the next big issue.

2. How Should Courts Deal with Turnout Issues in VRA Litigation Today? Because the black population had risen so dramatically in recent years, the Court had more than the usual problems struggling with that issue. Historically, the minority population had turned out at lower rates than whites. Should the Court ignore that? Should it assume that same historical pattern would continue into the future and use these relative turnout figures to project how effective the remedial, limited voting system would be? Data from 1995-2003 indicated a difference of 25 percentage points in white v. black turnout in school board elections (32.0% to 7.4%). Relative turnout was much more even, though, in some other elections not involving school boards. Or should the Court do something in the middle, between VAP and historical turnout? The Court concluded that the cases had not clearly resolved this question before; it noted that four of the five cases in the alternative-voting context had used VAP, as opposed to historical turnout figures.

The middle option is the one the Court chose. The Court concluded: "[w]hile the effects of long-standing electoral discrimination on voter turnout are undeniable, there is assuredly some point at which potential voters must themselves come to the polls." The Court concluded it would assume minority turnout going forward would be at least 2/3rds that of white voters and that this was a reasonable baseline to use. Thus, since African Americans were currently 40% of the VAP, if they turned out at this rate, they would be above the threshold of exclusion (.67 x 40% = 27%).

3. Why Limited Voting Over Cumulative Voting? This last question was the easiest to answer. In the cumulative voting option, each voter would have three votes to cast. In limited voting, each voter would be able to cast only one vote, even when more than one seat was up.

First, the Euclid School Board was indifferent between the two. Second, limited voting was used throughout Ohio, cumulative voting was not used anywhere. Next, the county elections board, which administered voting in Euclid, argued that it would find it easy to implement limited voting but difficult to implement cumulative voting. In addition, the Court judged cumulative voting to be harder for voters to understand and employ, which increased the likely rate of errors.

4. Why Maintain At-Large Elections At All? Historically, successful Sec. 2 challenges to at-large elections resulted in eliminating the at-large structure and creating single-member districts. But here, the Court explained and endorsed several legitimate reasons the School Board had for wanting to keep the at-large structure, if possible. Again, this analysis is important because it might stimulate other courts to consider maintaining at-large elections and using alternative voting systems, rather than creating single-member districts, when Sec. 2 violations have been found.

The Court held that at-large school board elections served important values because the issues boards addressed "require district-wide support or accountability." Single-member districts risked creating "geographic partisanship" that would make the kinds of decisions boards had to make "far more difficult, and, at times, even impossible." In addition, because these are such low-turnout elections, at-large elections made it more likely a sufficient number of candidates would actually run.

Kagan

Following up on this post, BLT reports "Solicitor General Elena Kagan plans to make her first argument before the Supreme Court on Sept. 9 in the case of Citizens United v. Federal Election Commission, the so-called 'Hillary - The Movie' case. Justice Department spokeswoman Beverley Lumpkin today confirmed reports that Kagan plans to argue the case." Simultaneous initial supplemental briefs in the case are due Friday.

"Extend Press Freedoms to Companies"

This letter to the editor appears in the WSJ.

"Automatic Voter Registration is the Way to Go"

John Tanner has written this extensive letter to the editor of the Indianapolis Star. It begins: "Can we just stop this nonsense? Another day, another lawsuit against the state of Indiana over voting procedures. First it was the state's failure to remove dead people from the voter rolls. Now it's the state's failure to add live people. On Election Day, the names of voters who supposedly made it onto the voter list have disappeared, changed spelling, or popped up in a precinct across town."

"The Legal Workshop" Posts Op-Ed Sized Version of "The Untimely Death of Bush v. Gore"

You can read it here. The full version of my Stanford Law Review article is here.

A Rose by Any Other Name Dept.

Brian Leiter writes Why Did Loyola Law School Fall in US News? Because the Magazine Changed the School's Name, and Its Reputation Score Plunged!:

This really takes the cake for carelessness on the part of U.S. News. Loyola Law School in Los Angeles dropped from 63 to 71 in the overall U.S. News ranking this past spring, and for one primary reason: its reputation score among academics dropped from 2.6 to 2.3. But that kind of drop is extraordinary: the academic reputation scores move .1 in either direction all the time, without rhyme or reason, but only once in the last eight years did another school's peer reputation score drop that much. (The lawyer/judge reputation scores used to fluctuate more wildly, because the response rate was so low; U.S. News this year decided to average two years' worth of these reputation scores to make the results less [meaninglessly] volatile.)

So with only a 1 in 1,000 chance of this kind of movement, what else might explain the precipitous drop in academic reputation? Unfortunately, the explanation seems to be clear: U.S. News unilaterally changed the school's name on the survey: from "Loyola Law School" to "Loyola Marymount University." Loyola was the only school whose name was changed on last year's survey.

I've posted Loyola Dean Victor Gold's full message to the Loyola faculty on this topic after the jump.

Email from Dean Gold to Loyola Law School faculty:

Given the recent faculty email discussion regarding the name US News attaches to our school, I thought it would be appropriate to provide you with the following report on that issue.

As you know, Loyola Law School is ranked 71 in the latest US News survey. Last year we were ranked 63. The decline is the result of a drop in Peer Assessment, the single most heavily weighted of all criteria in the rankings. Last year our score was 2.6. This year it is 2.3. I have uncovered some facts that suggest why this happened.

US News has used a five point scale for Peer Assessment (reputation in the academic community) since 1998. For each of the 11 surveys published between 1998 and 2008, our score was either 2.6 or 2.5. This lack of volatility is typical for Peer Assessment. The last eight surveys show only one other instance when any law school's score dropped as much as .3 in one year. Since about 185 schools are ranked each year, these eight surveys presented well over a thousand opportunities for schools to drop .3 from one year to the next (7x185=1,295). It happened only twice.

What could have produced such an anomaly in Loyola Law School's score this year? It was not a change in the quality or quantity of our faculty's scholarship. Our productivity in the last year or two has been normal. We published articles in the principal law reviews at Stanford, Berkeley, Virginia, Penn, Minnesota, Iowa, Northwestern, Wash U, William & Mary, etc, etc. During the same period we published more than a dozen books with the likes of Oxford, NYU, Aspen, West, etc. etc. We are ranked 40th among all law schools in Social Science Research Network (SSRN) downloads for the last 12 months (5/18/2009 SSRN survey).

Our decline in Peer Assessment may have been caused by the magazine itself. Last fall US News changed the name it assigns to our school on the survey ballot. The ballot that US News distributed in the fall of 2008, which produced our 2.3 Peer Assessment score, referred to us as "Loyola Marymount University." On ballots for all prior years going as far back as I can find, we were called "Loyola Law School." In other words, the first time the ballot called us by a different name, our score fell by a magnitude nearly unprecedented in the history of the magazine's survey of Peer Assessment. No other school's name was changed on the 2008 ballot.

This drop in score following a name change is not surprising. While we are part of Loyola Marymount University, and proud of it, we have been known as Loyola Law School for 80 years. That name has been used in all our branding efforts. Most law school professors and deans know us by that name. We use that name consistently in an effort to avoid confusion with two other schools that have "Loyola" in their names. By changing what we are called on the survey ballot, the magazine may have confused some respondents. To add to the confusion, the version of the rankings published in spring 2008 called us Loyola Marymount University in print, but was based on a survey ballot sent in the fall of 2007 that called us Loyola Law School.

In early May I wrote the director of data research for US News and requested that the magazine return to calling us Loyola Law School. I provided him with the data described above. I also gave him a letter from the President of Loyola Marymount University making the same request and affirming that we are referred to as Loyola Law School even within the university itself. I have referred him to the Best Practices of the American Association for Public Opinion Research, which cautions researchers to take great care in matching question wording to the concepts being measured because the manner in which questions are asked can greatly affect survey results. He admitted to me in writing that the magazine changed what we are called on the ballot without considering whether a name change might affect survey results.

I had hoped that this problem would be easy to resolve. Frankly, I could not understand why US News would want to survey opinion about us by referring to a name that we do not use. The director of data research for US News tells me that the magazine wants to be consistent in the form of names it uses for schools. I hope that, in the end, the magazine will come to realize that its responsibility to give its readership reliable data is more important than format rules.

I have been promised a decision this month. I will keep you posted.

"Irving Could Appeal Election Ruling"

KERA reports.

"No Gridlock at the FEC"

The Republican FEC commissioners have written this letter to the editor of the NY Times.

New California Opinion on What Documents Must Be Attached to a Referendum Petition

See here.

Another Exchange with Judge Sotomayor on Campaign Financing

Exchange with Senator Cornyn:

CORNYN: Let me turn to another topic. In 1996, when you -- after you'd been on the federal bench for four years, you wrote a law review article -- the Suffolk University Law Review. And this pertains to campaign financing.

You said, quote, "Our system of election financing permits extensive private, including corporate, financing of candidates' campaigns raising again and again the question of whether -- of what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate."

CORNYN: You said, "Can elected officials say with credibility that they're carrying out the mandate of a democratic society representing only the generally public good when private money plays such a large role in their campaigns?" Judge Sotomayor, what is the difference, to your mind, between a political contribution and a bribe?

SOTOMAYOR: The context of that statement was a question about what was perking through the legal system at the time and has been, as you know, before the Supreme Court since Buckley v. Vallejo. In Buckley...

CORNYN: I -- I agree, your honor. But what -- my question is, what, in your mind, is the difference between a political contribution and a bribe?

SOTOMAYOR: The question is, is a contributor seeking to influence or to buy someone's vote? And there are situations in which elected officials have been convicted of taking a bribe because they have agreed in exchange for a sum of money to vote on a particular legislation in a particular way. That is -- violates the federal law.

The question that was discussed there was a much broader question as to, where do you draw that line as a society? What choices do you think about in terms of what -- what Congress will do, what politicians will do?

I've often spoken about the difference between what the law permits and what individuals should use to guide their conduct. The fact that the law says you can do this doesn't always mean that you as a person should choose to do this.

And, in fact, we operate within the law. You don't -- you should not be a lawbreaker. But you should act in situations according to that sense of what's right or wrong.

We had the recent case that the Supreme Court considered of the judge who was given an extraordinary amount of money by a campaign contributor, dwarfing everything else in his campaign in terms of contributions, funding a very expensive campaign.

CORNYN: In fact -- in fact -- in fact, that was not a direct contribution to the judge, was it?

SOTOMAYOR: Well, it wasn't a direct contribution, but it was a question there where the Supreme Court said, the appearance of impropriety in this case would have counseled the judge to get off, because...

CORNYN: Let's get back to my question, if I can, and let me ask you this. Last year, President Obama set a record in fundraising from private sources, raising an unprecedented amount of campaign contributions. Do you think, given your law review article, that President Obama can say with credibility that he's carrying out the mandate of a democratic society?

SOTOMAYOR: That wasn't what I was talking about in that speech. I don-t -- I don't know...

CORNYN: Well, I realize he wasn't elected in 1996, but what I'm -- what I'm getting at is, are you basically painting with such a broad brush when it comes to people's rights under the First Amendment to participate in the political process, either to volunteer their time, make in-kind contributions, make financial contributions? Do you consider that a form of bribery or in any way improper?

SOTOMAYOR: No, sir.

CORNYN: OK. Thank you.

SOTOMAYOR: No, sir.

CORNYN: Thank you for your answer.

"Federal judge orders Irving to adopt single-member districts for city council"

The Dallas Morning News offers this report. You can read the federal district court's 43-page opinion on VRA section 2 liability here.

"SCHUMER, CHAMBLISS & NELSON ANNOUNCE KEY SENATE COMMITTEE UNANIMOUSLY APPROVES BIPARTISAN BILL TO MAKE VOTING EASIER FOR MILITARY VOTERS"

See this press release.

"FEC Ready to Consider Competing Drafts Of Advisory on 'Political Committee' Status"

BNA reports ($): "The Federal Election Commission is set to consider July 16 two competing draft advisory opinions regarding a key legal issue -- 'political committee' status -- with the dueling drafts suggesting that the FEC commissioners may again be headed for deadlock over a contentious question of campaign finance law. The rival rulings drafted by FEC staff attorneys respond to a request for an advisory opinion (AO 2009-13) on behalf of a consulting company called Black Rock Group. The company is headed by two veteran political professionals with strong ties to Republican candidates and organizations, Carl Forti and Michael Dubke."

Judge Sotomayor Exchanges on Election Law Issues

With Senator Cardin on NAMUDNO:

CARDIN: In the Northwest Austin Municipal Utility District No. 1 v. Holder, one justice on the court in dictum challenged Congress's authority to extend this civil rights case. Now, I say that knowing your view about giving due deference to Congress, particularly as it relates to expanding and extending civil rights protections.

So my question to you is, tell me a little bit about your passion for protecting the right of vote, to make sure that the laws are enforced as Congress intended to guarantee to every American the right to participate at the voting place.

SOTOMAYOR: When we speak about my passion, I don't think that the issue of guaranteeing each citizen the right to vote is unique to me or that it's different among any senator or among any group of people who are Americans. It is a fundamental right. And it is one that you've recognized, Congress has addressed for decades and has done an amazing job in passing a wide variety of statutes in an effort to protect that right.

The question that a court would face in any individual situation is whether an act of Congress conflicts with some right of either the state or an individual with respect to the issue of voting. There could be other challenges raised on a wide variety of different bases, but each case would present its own unique circumstance.

There is one case involving the Voting Rights Act where I address the issue of the right to vote. And in that case, I issued a dissent on an en banc ruling by my court. For the public who may not understand what en banc ruling means, when the whole court is considering an issue. In that case, if it wasn't 13, it may have been 12 members of the court, or a complement of 13 judges, but I right now can't remember if we were a full complement at the time of considering an issue.

The majority upheld a state regulation barring a group of people from voting. I dissented on a very short opinion, one paragraph opinion, saying, 'These are the words of Congress in the statute it passed, and the words are that no state may impose a' -- and I'm paraphrasing it now. I'm not trying to read the statute, but no condition or restriction on voting that denies or abridges the right to vote on the basis of race.

I noted that, given the procedural posture of that case, that the plaintiff had alleged that that's exactly what the state was doing. And I said, "That's the allegation on the complaint." That's what a judge has to accept on the face of the complaint. We've got to give him a chance to prove that, and that to me was the end of the story.

Exchange with Senator Franken on NAMUDNO:

[Franken:] I want to talk about Northwest Austin utility district number one, the holder, the recent Voting Rights Act case. And Senator Cardin mentioned it, but he -- he didn't get out his pocket Constitution, as I -- I am. The 15th Amendment was passed after the Civil War. It specifically gave Congress the authority to pass laws to protect all citizens' right to vote.

And it said, Section 1, Amendment number 15, section one, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude." Section two -- this one's important. "The Congress shall have power to enforce this article by appropriate legislation," -- the Congress.

Well, Congress used that power to -- the power vested in them under Section two -- when it passed the Voting Rights Act of 1965. Now, the Voting Rights Act has an especially strong provision, section five, that requires states with a history of discrimination to get preapproval from the Justice Department on any changes that they make in their voting regulations.

Congress has reauthorized this four times as recently as -- the last time was 2006. And the Senate supported it by a vote of 98 to zero. Every single senator from the state covered by Section 5 voted to reauthorize it. So now it's 2009, and we have this case, the Northwest Austin Utility district number one. And Justice Thomas votes to hold Section 5 unconstitutional. He said it went beyond the mandate of the 15th Amendment because it wasn't necessary any more. That's what he said.

Now, when I read the 15th Amendment, it doesn't say -- it doesn't contain any limits on Congress' power. It just says that we have it. It doesn't say if necessary the Congress shall have power to enforce this article. It just says that we have the power.

So it is my understanding that the 15th Amendment contains a very strong, very explicit and unambiguous grant of power to the Congress. And because of that, the courts should pay greater deference to it. And my question is is that your view?

SOTOMAYOR: As you know, some of the justices in that recent decision expressed the view that the court should take up the constitutionality of the Voting Rights Act and review of its continuing necessity. Justice Thomas expressed his view.

That very question, given the decision and the fact that it left that issue open is a very clear indication that that's a question that the courts are going to be addressing, if not immediately the Supreme Court, certainly the lower courts. And so expressing a view -- agreeing with one person in that decision or another, would suggest that I have made a prejudgment on this question.

FRANKEN: So that means you're not going to tell us? (LAUGHTER) I didn't mean to finish your sentence.

SOTOMAYOR: No, no, no, no. All I can say to you is I have one decision, among many, but one decision on the Voting Rights Act (inaudible) the recent reauthorization by Congress but a prior amendment where I suggested that these issues needed -- issues of changes in the Voting Rights Act should be left to Congress in the first instance.

My jurisprudence shows the degree to which I give deference to Congress' findings whether in a particular situation that compel or doesn't or leads to a particular result is not something that I can opine on because, particularly, the issue you're addressing right now is likely to be considered by the courts.

The ABA rule says no judge should make comments on the merits of any pending or impending case. And this clearly would be an impending case.

FRANKEN: OK. It's fair to say, though, in your own decision, you gave deference to Congress just like you answered by neutrality thing saying it's up to Congress.

SOTOMAYOR: Well...

FRANKEN: It feels like this is very explicitly up to Congress.

SOTOMAYOR: I gave deference to the exact language that Congress had used in the Voting Rights Act and how it applied to a challenge in that case.

To the extent that the majority believed that -- and there was a lot of discussion among the variety of different opinions in the case as to whether this individual could or could not prove his allegation, and there was a suggestion by both sides that he might never be able to do it -- my point was a legal one. These are Congress' words. We have to take them at their word.

And if there's an end result of this process that we don't like, then we have to leave that to Congress to address that issue. We can't fix it by ruling against what I viewed as the expressed words of Congress.

Senator Feingold on Caperton and Citizens United:

FEINGOLD: Thank you, Mr. Chairman. Judge, again, of course, thanks for your tremendous patience.
I'd like to start by talking for a moment about the recent Supreme Court decision in Caperton versus Massey. I consider this a significant case that bears upon the flood of special interest money that threatens to undermine public confidence in our justice system.

The facts of this case are notorious. John Grisham used them as an inspiration for his novel "The Appeal." A jury in West Virginia returned a $50 million verdict for a large coal company. And pending the appeal, the company's CEO spent $3 million to elect an attorney named Brent Benjamin to the state supreme court.
That was a huge amount of money, relatively speaking, more than the amounts spent by all of Benjamin's other financial supporters combined. Benjamin won the election, because a West Virginia Supreme Court justice, and lo and behold, he voted to overturn that $50 million verdict against his main campaign contributor.

Twice he refused to recuse himself in the case despite his obvious conflict of interest. And last month the Supreme Court held that Benjamin's failure to recuse himself was intolerable under our Constitution's guarantee of due process of law.

The court also noted approvingly that most states have adopted codes of judicial conduct that prevent this kind of conflict. And to that end, I commend the Wisconsin Supreme Court's plan to revise its recusal rules to provide additional safeguards that protect judicial impartiality.

You've been a judge for many years and you many have seen examples when you thought a judge should have withdrawn, although hopefully none were as egregious as this case.

In your opinion, what additional steps should judges and legislators take to ensure that the judiciary is held to the highest ethical standards and that litigants can be confident that their cases will be handled impartially?

SOTOMAYOR: Senator, I would find it inappropriate to make suggestions to Congress about what standards it should hold judges to or litigants. That's a policy choice that Congress will consider.
I note that the American Bar Association has a code of conduct that applies to litigants. The judicial code has a code of conduct for judges. And as you noted in the state system where judges are elected, many states are doing what I just spoke about, making -- passing regulations.

Caperton was a case that was taken under the local rules of the Supreme Court presumably that exercises supervisory powers over the functions of the courts. And it presented obviously a significant issue because the court took it and decided the case.

At issue fundamentally is that judges, lawyers, all professionals must on their own abide by the highest standards of conduct. And I have given a speech on this topic to students at Yale at one point where I said, the law is only the minimum one must do, personally one must act in a way in cases to ensure that you're acting consistent with your sense of meeting the highest standards of the profession.

FEINGOLD: Thank you, Judge. As I'm sure you know, on the last day of the term, the Supreme Court ordered that a pending case involving federal election law called Citizens United versus FEC be reargued in September.

It's quite possible that you will be a member of the court by then. I do not intend to ask you how you'd rule in that case, but I do want to express my very deep concern about where the Supreme Court may be heading and then pose a general question to you.

In 2003, the court in a 5-4 ruling upheld the McCain-Feingold bill against constitutional challenge. I believe that ruling accurately applied the court's previous precedents and recognized that Congress must have the power to regulate campaign finance to address serious problems of corruption and the appearance of corruption.

Since the arrival on the court of its two newest members, the court seems to have started in another direction on these issues, striking down or significantly narrowing two provisions of the law, the millionaires' (ph) amendment to the Davis case and the issue ad provision in Wisconsin Right to Life.

Several justices have even argued that corporations and living persons should have the same constitutional rights to support their chosen candidates and that Austin v. Michigan Chamber of Commerce, a case rejecting that idea, should be overruled.

Austin is premised on what I believe is an absolutely reasonable conclusion that the political activities of corporations may be subjected to greater regulation because of the legal advantages given to them by the states that allow them to amass great wealth.

In scheduling rearguement in the Citizen United case, the court specifically asked the parties to address whether Austin should be overruled. If the court does that and depending on how exactly it rules, Judge, it may usher in an era of unlimited corporate spending on elections that the nation has not seen since the 19th century. Without addressing the specifics of the Citizen United case, I'd like to ask you what the Constitution and the Supreme Court's precedents generally provide about the rights of corporations and what the current state of the law as far as corporate participation in elections is, as you understand it.

SOTOMAYOR: Senator, I have attempted to answer every question that's been posed to me. You have noted that Citizens United is on the court's docket for September. I think it's September 9th. If I were confirmed for the court -- to the court, it would be the first case that I would participate in.

Given that existence of that case, the very first one, I think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that I'm going into that process with some prejudgment about what precedent says and what it doesn't say and how to apply it in the open question the court is considering. I appreciate what you have said to me. But this is a special circumstance, given the pendency of that particular case.

FEINGOLD: And, frankly, Judge, I -- I probably would say the same thing if I were in your shoes, given -- given -- given the -- the facts as -- as they are. I appreciate the opportunity to express what I wanted to say about that. And with that, Mr. Chairman, I am going to use up less than half of my time.

"Demos Announces Two Key Appointments in Democracy Program"

Demos: Brenda Wright moves up; Tova Wang moves in.

2009 Election Law Casebook Supplement Now Available

The 2009 Supplement to Lowenstein, Hasen, and Tokaji, Election Law--Cases and Materials (4th ed. 2008), is now available for download at this link:

http://electionlawblog.org/archives/2009-supp-final.pdf

The Supplement is up-to-date, and includes edited versions of NAMUDNO and Caperton v. Massey, along with notes about the pending Citizens United case and updates on election controversies and campaign financing issues from the 2008 election.

The cover of the Supplement reads: "Permission is hereby granted to instructors assigning the Lowenstein, Hasen, and Tokaji casebook to distribute this Supplement free of charge to students who have purchased the casebook. All other redistribution is prohibited without the permission of the authors."

For more information about the casebook, contact Carolina Academic Press.

Senate Rules Committee Adopts Sen. Bennett Amendments on Military Voters Bill

You can watch the hearing here. Because there was no quorum, a final vote on passing this measure out of the committee was delayed, but its outcome is not in doubt. The committee approved Ranking Member Bennett's proposed amendments, and he is coming on as a co-sponsor. This should sail through the committee. See also this Pew Center on the States press release.

Fuller Opinion in Euclid Voting Rights Act Section 2 case

On June 29, I reported on this order in a Euclid, Ohio voting rights case in which the U.S. opposed a cumulative voting/limited voting remedy. The judge then promised a fuller opinion, and I have now posted it here. The opinion raises fascinating issues related to remedying VRA violations and the role of considering differential turnout in the process. I expect we'll hear more on this, either in this case or others, such as the Port Chester case.

Judge Sotomayor Questioned about NAMUDNO, Hayden v. Pataki

See the live blog entries here at SCOTUSBlog, beginning at 10:11 am. When a transcript is available later, I'll post it. And if anyone hears a discussion about campaign finance, let me know. I'm not listening to the hearings. (Last night Stephen Colbert said "I'm a little drowsy, I spent the whole day watching the Sotomayor hearings... It was like watching Ambien colored-paint dry.")

"Viewpoint: If My Election Isn't Broken, Don't Fix It: The Limits of Voter Confidence Measures and Public Opinion on Election Reform"

Molly Reynolds offers these thoughts.

Getting Tougher to Get an ID for Voting in Indiana?

See here.

Can the California Judiciary Fix California's Structural Budget Problems Through Election Law Litigation?

The LA Times offers Cries for reform of California government come from all sides, mentioning a constitutional convention and other possible fixes.

But could the judiciary be cajoled to fix California's budget problems through an election law challenge? See this article in today's Los Angeles Daily Journal on a new lawsuit seeking to invalidate a provision of the California Constitution passed in 1933 requiring a 2/3 vote on the budget. The lawsuit, filed as an original writ petition in the California Supreme Court (Young v. Schmidt, petition too large a file to upload (UPDATE: Petition and related documents are here)), contends the measure is an unconstitutional initiated revision of the state's constitution under the state Supreme Court's opinion in Strauss v. Horton (the recent Prop. 8 case). My first question is whether this suit is barred by the doctrine of laches. If not, this could get very interesting.

"Sotomayor: Bush-Gore case brought needed change"

AP offers this report. Does anyone know if searchable transcripts are being made available of the questioning of Judge Sotomayor? UPDATE: Here is the transcript containing the Bush v. Gore exchange:

KOHL: Judge, Bush v. Gore. Many critics saw the Bush v. Gore decision as an example of the judiciary improperly injecting itself into a political dispute. In your opinion, should the Supreme Court even have decided to get involved in Bush v. Gore?

SOTOMAYOR: That case took the attention of the nation, and there's been so much discussion about what the Court did or didn't do. I look at the case, and my reaction as a sitting judge is not to criticize it or to challenge it even if I were disposed that way because I don't take a position on that.

The Court took and made the decision it did. The question for me, as I look at that sui generis situation, it's only happened once in the lifetime of our country, is that some good came from that discussion. There's been and was enormous electoral process changes in many states as a result of the flaws that were reflected in the process that went on.

That is a tribute to the greatness of our American system which is whether you agree or disagree with a Supreme Court decision, that all of the branches become involved in the conversation of how to improve things. And as an indicated, both Congress, who devoted a very significant amount of money to electoral reform in certain of its legislation -- and states have looked to address what happened there.

So far, it does not appear from the transcripts that the issue of campaign finance has come up.

New Lawsuit Challenges Bar Code as Violating Right to Secret Ballot in Washington State

See this press release. More here.

FEC Republican Commissioners Go on the Offensive

Caroline Hunter (Roll Call): "Any superficial allegations about what has happened over the past year reflect fundamental misperceptions about why the commission exists and how the commission operates. As borne out by the FEC's deliberately crafted and statutorily prescribed structure, limitations and powers, the law is not currently as some envision it."

Don McGahn (Politico): "One choice is for commissioners to reject this activist approach, regardless of how the resulting 'deadlock' is portrayed. I have done just that."

"New Case Study Documents Successful Turnaround of Missouri's Public Agency Registration Program"

Project Vote has issued this release on this new report.

"Yup'ik-Speaking Voters To Receive Additional Language Assistance In The City Of Bethel, Alaska"

The ACLU has issued this press release. More information about the case here.

"On Campaign Finance Board, Sotomayor Balked at Overstepping Law"

This post appears at "The Caucus" blog of the NY Times.

"Nominee to FEC Pits Lawyers v. Senators"

The Hill offers this report.

"Senate Confirms Obama's Pick to Lead 2010 Census"

AP offers this report.

Judge Sotomayor and Election Law

As the confirmation hearings get underway, here is a link to my analysis of her election law opinions. Here is a link to a NYT article on Judge Sotomayor and campaign finance. UPDATE: Here is the earlier Politico story on Judge Sotomayor and campaign finance.

You can find a whole series of reports on Judge Sotomayor's record compiled here.

"Who's Standing in the Way of FEC Reform?"

Eliza's latest.

E.J. Dionne on Judge Sotomayor and Citizens United

See here.

"Experts: Minn. election law needs improvement"

See here.

More Leaks on How Ricci Was Decided in 2d Circuit

In this June 8 post, I noted how someone at the 2d Circuit had leaked to Adam Liptak of the NY Times some facts about the internal deliberations of the 2d Circuit panel considering the Ricci case, a panel including Judge Sotomayor. Now there's been another leak. Someone told Stuart Taylor that the summary order of the panel got the attention of the entire 2d Circuit en banc when Judge Cabranes read about the case in a local New Haven newspaper.

These kinds of leaks in cases still alive before the courts (Ricci is being remanded) are very unusual.

"Olson Promises Battle Over Campaign Finance Laws"

BLT offers this report, quoting Olson as follows: "Why is it easier....to dance naked, burn a flag, or wear a shirt saying 'Fuck the Draft' in a courthouse--these are all Supreme Court decisions--than it is to advocate the election or defeat of a president? That cannot be right."

New Speech or Debate Ruling from DC Circuit

Details here.

Who Should Argue Citizens United?

I certainly think Deputy Solicitor General Malcolm Stewart should not reargue the case for the government. Here are my comments about Stewart after the first oral argument, and here are Dahlia's. Indeed, it is no exaggeration to say that had Stewart not made some of the comments he made, this case might have already been decided on narrow statutory grounds.

I don't know if there's some way for Marty Lederman, at OLC, to get permission to argue for the SG's office, but he knows more about the Austin line of cases than anyone else I know. Marty was a key contributor in writing this amicus brief in WRTL, and he's helped me with other pro bono projects supporting Austin as well (all before he went into government service).

Another possibility is Neal Katyal, who did an excellent job arguing NAMUDNO (in fact, all three oral advocates in that case were excellent). I would not like to see Citizens United as the first appellate argument for SG Kagan. I wonder if it is possible for the government to share time with the Congressional sponsors, and give Seth Waxman a chance to argue (or maybe Paul Clement would like to do some pro bono work for the supporters of BCRA)?

I'm sure this is all being discussed behind closed doors. Since I'm not privy to any of those discussions, I thought I'd put some thoughts out here.

"Senate to Begin Consideration of Census Chief"

Roll Call reports.

Stuart Taylor on the Citizens United Reargument

Here. He concludes: "The justices can and should excise the unconstitutional Wellstone amendment while leaving the restrictions on business corporations and unions intact." In this way, he's with Mickey Kaus. But there's no hint of expanding MCFL or drawing a profit/non-profit line in the Court's order on reargument.

"Spakovsky Likely Headed Back To Voting Rights Agency, In Volunteer Post"

TPM reports.

"SCHUMER, CHAMBLISS & NELSON ANNOUNCE BIPARTISAN BILL TO GUARANTEE MILITARY BALLOTS FROM OVERSEAS NEVER GO UNCOUNTED"

The following press release arrived via email (with no mention of a expected broader VRM legislation):

U.S. Senator Charles E. Schumer (D-NY), the Chairman of the Senate Committee on Rules and Administration, together with Senators Saxby Chambliss (R-GA) and Ben Nelson (D-NE), announced Thursday that they have introduced bipartisan legislation to ensure that all ballots cast by U.S. troops deployed overseas are counted in upcoming elections. Calling the issue an urgent priority, the Senators also announced that they plan to gain committee approval for the legislation at a meeting next Wednesday. It could then be added as an amendment to a Defense Department authorization bill due to hit the Senate floor Monday.

The bill, called the Military and Overseas Voters Empowerment Act ("MOVE Act"), comes after a Rules Committee survey last May of seven key states showed that as many as one in four ballots cast by military voters went uncounted in last year's presidential election. The bill introduced today would fix several of the flaws responsible for such widespread disenfranchisement. Among other provisions, it requires that all states provide military voters with ballots no later than 45 days prior to the election, so that they have adequate time to complete and return them. The bill would also provide in most cases for a 10-day grace period for ballots to be received after Election Day, so long as they were postmarked in time.

The legislation also requires states to provide ballots via the internet or over fax. Additionally, it beefs up the Federal Voting Assistance Program (FVAP) at the Department of Defense, which is the main source of election-related information and assistance for many members of the military. The legislation, S. 1415, also addresses problems the military and overseas voters face in registering to vote from outside the U.S. It would bar states from rejecting military ballots for lack of a "Notary" signature--a feat difficult to achieve in the bases of Iraq and Afghanistan.
...
At a May hearing, the Senate Rules Committee released a study showing that as many as 25% of troops stationed overseas went uncounted in 2008. Schumer said the estimate was based on figures provided to the committee by election officials in seven of the states with the highest number of deployed troops. In 2008, military personnel and some civilians hailing from these states requested 441,000 ballots in order to vote from overseas locations, as allowed by the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Of those, 98,633 were never received back by the election officials in the U.S. and so were declared "lost" ballots. Another 13,504 were received but rejected for various reasons including a missing signature or failure to notarize, as is required in some states. When combined, these two categories amount to 112,137 voters in those seven states--or 25.42% of the 441,000 who requested ballots--being disenfranchised, the study found.

The impediments included: Difficulties in registering to vote from overseas; not receiving ballots early enough; and obstacles to returning the ballots in time to be counted. According to testimony at the Rules Committee hearing, even ballots that arrive on time are sometimes rejected for minor, non-election related technicalities, such as not being on a certain kind of paper.

The bill would address these and other problems by:

*Guaranteeing that military and overseas ballots will be counted if sent by Election Day;

*Ensuring that states send out ballots a minimum of 45 days in advance of the election so military and overseas voters will receive them in time

*Improving awareness and use of a failsafe ballot that voters can use if their ballots are lost in the mail;

*Prohibiting states from rejecting a marked absentee ballot solely on the basis of a missing notary signature, paper size, and other restrictions

*Giving more resources to the Department of Defense Voting Assistance Offices who provide voting information and support to service men and women and their families;

*Establishing standards for record-keeping on military and overseas voting statistics; and

*Encouraging greater enforcement of the military and overseas voting statutes.

Schumer, as Rules Chairman, also announced Thursday that the Rules Committee will meet next Wednesday to consider the MOVE Act. After that, the senators will seek to insert the language as an amendment on the Defense Reauthorization Act as soon as next week.

"New Republican Sonia Sotomayor attack: campaign cash"

Politico offers this report.

NPR's "Dollar Politics" Series

Andrea Seabrook & Peter Overby are doing a series of NPR reports called Dollar Politics. It looks at Congress and interest groups in relation to major legislative issues: health care, energy policy and financial regulation.

The first story was about the growth of the lobbying industry, and the web version of the story featured a panoramic photo of the audience at the first Senate markup of a health-care bill. NPR identified as many lobbyists as it could and invited people to identify others.

The second story covered the lobbyists at that markup, why they went, whom they represented. This morning's story looks at the relationship between lobbying and campaign money. Later today there will be a follow-up about the photo, and more to come.

Very interesting.

"Voting Rights Groups Sue to Force States to Register Low-Income Voters; Suits Filed Against Indiana and New Mexico for Violating the National Voter Registration Act"

Demos has issued this release.

Interesting Profile of Pierce O'Donnell in LA Times

This Michael Hilzik column states: "Federal prosecutors, incidentally, don't agree that the case is finished. They've appealed the dismissal of the first two counts to the U.S. 9th Circuit Court of Appeals, which won't render a decision for months. But O'Donnell and his lawyer, George Terwilliger III, are treating the dismissal as a done deal with the self-confidence that almost makes you think they know something the prosecutors don't. Possibly they assume the liberal appeals court will uphold the dismissal or that the Democratic Justice Department in Washington will pull the plug before the appellate panel speaks." I don't know what O'Donnell or Terwilliger are thinking, but I find it extremely hard to believe that the DOJ would pull the plug on this appeal (background here and here). Judge Ortero's ruling, if left undisturbed, will create a gaping hole in the law barring conduit contributions.

"Promises to Keep"

The NY Times editorializes on campaign finance issues.

"A way forward on campaign finance"

Michael Barone's column in the Washington Examiner.

Minnesota Law Review Publishes Symposium on Law and Politics in the 21st Century

Lots of interesting stuff here.

"Barack Obama could preside over demise of modern campaign finance"

Politico offers this important report.

"Will Supreme Court roll back campaign finance and protect free speech?"

Brad Smith has written this oped.

Pildes: Citizens United and Disfavored Speakers

Rick Pildes sends along this guest post:

There' s an essential, foundational question underlying campaign-finance regulation and the Citizens United case that I don't think has been adequately appreciated. I would like to generate some insight and discussion about it. The question is whether it is or should be permissible for government to decide that certain speakers can be disfavored in the context of regulating campaign contributions or spending. Note that this is a different kind of justification for regulation than either of the two most commonly debated: anti-corruption or Austin-like equality justifications. The paradigm for testing this question is foreign donors or spenders. Current federal law bans foreigners from both contributing to candidate and from making independent expenditures for election communications. I assume there is no issue about the first part of this provision. But is the spending ban constitutional? Should it be? If so, why?

If we take the Bellotti view, then it would seem this ban is unconstitutional. Bellotti says that it's not the speaker whose First Amendment rights are being protected in that decision, so the question is not whether foreigners have First Amendment rights under the US Constitution. Bellotti says that more debate, whatever the source, is a First Amendment value because of the right of listeners (Americans) to hear the message. The more, the better. In addition, there's a strong view within the Court that independent spending can never be corrupting, by definition. So again, on that view, it would seem this ban on foreign spending would be problematic.

On the other hand, if this ban is indeed constitutional, or if it seems it ought to be, then what follows? Assuming the above doctrinal points, on what principle could this ban be justified? It would have to be, it seems, because there are certain sources of information/spending that can legitimately be treated as "not properly part" of the American electoral process. This is not because of a corruption concern, or at least, not the kind the cases yet recognize. And it's not because of any general equality concern. It's because the Constitution would permit Congress to recognize that some speakers, some sources, can legitimately be disfavored in regulating election speech.

If that's true, then the question is what principle defines the category of properly disfavored speakers? The initial, intuitive one would seem to be those outside the American democratic process, legitimately. Other than foreigners, how should that category be defined? Does it include corporations, which of course are not voters. If not, why not? I don't have any immediate answers to these questions, but they seem to me unavoidable and essential as the Court revisits the foundational issues in the relationship between the First Amendment and campaign-finance regulation.

CLC Blog on "Unity 08" Litigation

See here.

"MINNESOTA'S $50 POLITICAL CONTRIBUTION REFUNDS ENDED ON JULY 1"

The Campaign Finance Institute has released this report.

Pildes: Hanging In on Bailing Out

Rick Pildes sends along this guest post:

A number of us have been trying to work out the implications of the Court's NAMUNDO decision for the next constitutional challenge to Section 5. I now want to address Armand Dernfer's brief analysis, which I had promised to do.

Armand, like Nate Persily, is focused on the potential significance the statute's escape valve, the bailout option, will have for the next case. But they are making quite different arguments; though the differences are subtle, they are important. Armand argues that how effective bailout turns out to be could well affect the Court's ultimate conclusion as to whether Section 5 is constitutional. The easier bailout is, or the more often areas manage to bailout of the statute, the more likely the Court is to find the new Section 5 to be constitutional. In essence, Armand envisions that the Court will address the facial constitutionality of Section 5, but that the Court might uphold it if the bailout system turns out as a general matter to be an effective, meaningful option. Nate's suggestion instead was that the Court might never address the facial constitutionality of Section 5 because the Court will entertain only as-applied challenges. As a practical matter, a great deal is at stake in the difference, including whether Congress would have to revisit the Act in the wake of the Court's next decisions.

In principle, Armand's view has some legal weight. If Congress were to redesign bailout, for example, and make it a more frequently used option, that could affect the Act's constitutionality. That is partly why many of us urged Congress to examine the bailout option in more detail in 2006. Way back in 1982, Congress decided bailout had not been working as intended; it amended the Act in 1982 to make bailout easier. But as it turned out, those amendments had almost no practical effect. It's still not entirely clear why. There are a number of possibilities, including that the statutory formula is inappropriately onerous; that there are practical obstacles to collecting information necessary to bailout that Congress was not and is not aware of; that there is ignorance about the existence of the bailout option; and that it is too politically charged for jurisdictions to take the initiative to seek bailout. At the least, I would have preferred (as I testified) that Congress explore the reasons and then, if necessary, decide how the statute might be best structured. As I said in my earlier post, the more minimal the actual burden of bailout, the less significant the coverage formula becomes, which could well affect the Court's constitutional judgment.

Though Armand's analysis seems plausible in principle, I do wonder, however, about whether it could play out in practice. I see two practical obstacles. One is that it depends on how much additional experience with the bailout process emerges before the Court faces the next constitutional challenge to the Act. If that challenge emerges relatively soon, the record regarding bailout won't look any different, or much different, than it was in the Court's recent decision. Only if enough time passes before the Court next faces the issues, and enough jurisdictions seek and obtain bailout, would the record be significantly different.

Second, the Court's decision expands the number of jurisdictions that can seek bailout, but it does nothing to change the content of what's required for bailout, and Congress did nothing on that front either. The decision has no effect on the large, principal entities the Act covers, the 9 states and the approximately 900 counties. If those areas continue not to bailout in the next several years, just as they have not bailed out in meaningful numbers since 1982, then even if time passes before the Court faces the next challenge, bailout might look just as non-minimal an act then as it looks now. Perhaps some smaller jurisdictions that could not seek bailout before will now bailout successfully. But I wonder how much bailout will look to the Court like a truly meaningful escape valve in a way that affects the constitutionality of Section 5 if it continues to be the case that none of the main covered entities manage, for whatever reason, to bailout.

In sum, Armand's argument seems legally plausible to me, but I think the practicalities will stand in the way of that argument being able to be made effectively in the next few years. The wise course, it seems to me, would be for Congress to examine why bailout has not turned out as envisioned and, if there are inappropriate statutory barriers to proper bailout, to address those. I do not expect Congress to do that, however.

Beth Garrett's Review of Elhauge's "Statutory Default Rules" Book

Here, in the Harvard Law Review.

Profile of NAMUDNO Plaintiff's Lawyer Greg Coleman

Here, in the Austin-American Statesman. A snippet: "When he has a choice of cases, Coleman said he looks for pro bono work that fits his philosophy. He took the Voting Rights Act case largely for free, with only a 'five-figure' contribution for expenses from the Project on Fair Representation, an advocacy group that challenges race-based government policies, Coleman said."

In the Election Law Mailbag

Criminal Disenfranchisement in an International Perspective (Alex Ewald and Brandon Rottinghaus eds., Cambridge 2009)

Steven F. Huefner, Congressional Searches and Seizures: The Place of Legislative Privilege, 24 Journal of Law and Politics 271 (Summer 2008) (no web link available)

Does the Presence of Direct Democracy Cause a Decrease of Trust in Government?

That's the conclusion of this new study by Joshua J. Dyck in American Politics Research.

"Understanding the Labyrinth: New York's Ballot Access Laws"

This item appears in the Gotham Gazette.

Will Citizens United Feature Prominently in the Sotomayor Confirmation Hearings?

NLJ says yes.

Mark Shelden on Residual Votes and the Democracy Index

See here. Looking forward to Heather's reply.

Rep. Kalin Responds to WSJ Coleman-Franken Editorial

Minnesota State Representative Jeremy Kalin sends along this letter to the editor of the Wall Street Journal:

Dear WSJ Editors,

I am a business-oriented Democratic lawmaker and a regular reader of the Wall Street Journal. I often look to the Journal for a straight-forward and honest business perspective. If only Tuesday's editorial on the Franken-Coleman Minnesota Senate race, "The 'Absentee' Senator," was as accurate as your stock reports.

Just about the only accurate point of the editorial was the central focus on absentee ballots during the administrative recount and subsequent election contest.

For decades, Minnesota law has unfortunately limited absentee voting to four explicit reasons. In my first session in the State House, I chief-authored two bills to reduce the red-tape and other hurdles to absentee voters. One bill, the Military and Overseas Voting Act, was signed into law and increased turnout among overseas absentee votes in 2008 by more than 400%. The other bill, addressing domestic absentee voting, was vetoed by Governor Tim Pawlenty.

During the trial, former Senator Norm Colema'’s lawyers argued the policy behind my (vetoed) "no-fault" absentee voting bill. Citizens' fundamental right to vote, whether on Election Day or through an absentee ballot, should not be denied because of a technicality. While Coleman was right on the issue, he was wrong on the law. Because of the 2007 veto, Minnesota's outdated and burdensome law is still in place.

Both former Senator Coleman and Senator-elect Franken's lawyers were indeed aggressive advocates for their client. But while both sides wanted more and more votes counted, no fewer than 12 judges tempered the lawyers' zealousness through sober and strict adherence to the letter of Minnesota's election law. It's been noted repeatedly that these judges were appointed by governors of 3 different parties, including several appointed by Republican Governor Pawlenty.

Rather than jumping to partisan hyperbole, the Journal's editorial writers would have been wise to read the Minnesota Supreme Court's easily understood and unanimous decision. Minnesota's nearly 3 million ballots were counted and recounted in public, and every minute of the trial was open to the public.

Unfortunately, the Wall Street Journal's editorial writers risk being lumped in with partisan zealots like Rush Limbaugh, who suggest Minnesota and Iran could be lumped in together. Nothing could be further from the truth.

Had Norm Coleman received more votes than Al Franken, Minnesota would have accepted that result as well, because Secretary of State Mark Ritchie ensured the process was fair, legal and transparent. The Journal must recognize this fact.

Absent a correction from the Wall Start Journal, it will be a long time before I can take the Journal's editorial pages seriously again.

Sincerely,
Jeremy Kalin
Minnesota State Representative, district 17b
North Branch, MN

"Is Now Really The Time To Loosen Corporate Spending? The Supreme Court Takes An Aggressive Posture On Rethinking Political Finance Limits"

Eliza's latest.

Republican FEC Commissioners Side with DCCC in Dispute Concerning Whether Disclaimers are Necessary with Telephone Polls (including so-called Push Polls)

See this recently-posted statement of reasons.

"McCain, Feingold Team Up Again Over FEC"

The Washington Post offers this report.

"Pure Overreach"

The NY Times offers this editorial on Citizens United.

John Yoo on NAMUDNO

See here.

George Will on NAMUDNO

See here.

Doug Chapin on Alec Ewald's "The Way We Vote"

Here.

Independence Day Blogging Break

It has been a very busy period for the blog---November's election did not end until this week's Coleman-Franken decision. The Supreme Court's important ruling in Caperton, the judicial elections case, was followed by the Supreme Court's surprise ruling in NAMUDNO (leading to a revival of my guest post series on VRA renewal, with some excellent contributions from scholars about the decision and the future). Right after that came the Citizens United order, which portends a major development in campaign finance law. I'm writing a more extensive piece on these developments, but not this weekend. More pleasant diversions (and blessedly spotty internet coverage) await.

Thanks to all my readers, who have been sending me tips and their perspectives all year (and pushing me on points of disagreement), and to my excellent guest bloggers.

Enjoy the Fourth. Back on Tuesday.

"Balls, strikes and absentee ballots"

Brian Rice offers this commentary on Coleman-Franken at MPR.

"Commentary: Supreme Court's Unexpected 'Judicial Minimalism' in Voting Rights Case"

Paul Smith and Joshua Block have written this piece for law.com.

"Federal Grants Give States Edge in Collecting Precinct-Level Election Data"

The EAC has issued this press release.

"New Look at Election Spending Looms in September"

The WSJ offers this report.

"Washington Post Sells Access, 25,000+"

Very interesting. UPDATE: Well that was quick.

"November 2006 Undervote Analysis"

Mark Shelden reports.

Persily: Exhausted by Exhaustion

Nate Persily sends along this guest post:

Rick Pildes takes me to task for suggesting the Court might perpetually avoid the constitutional shortcomings of the coverage formula for the VRA. He mistakes my speculation and kremlinology of the Court for a legal argument, so only a few words are necessary in response.

First, just to be clear, I specifically said in my post that the Court might reach the constitutional issues posed by the coverage formula. As I said, "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)." I would also add that congressional inaction and the absence of moves by DOJ to encourage and achieve bailouts would make this aggressive move more likely. To be sure, the Court has not boxed itself into a corner with NAMUDNO. Its freedom to strike down the VRA rests only on the vitality and willingness of the five members who vote to do so.

Also, it is wrong to suggest that I ignored the possibility of a facial challenge that squarely presents the issue of the constitutionality of the coverage formula. That was the first scenario I described: "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 Court might resolve that challenge by rejecting it, but nevertheless strongly suggesting the jurisdiction ought to be eligible for bailout should it bring such an action.

It is also possible, as Pildes suggests, that the Court would take that opportunity to declare the coverage formula unconstitutional for the same reasons it raised constitutional doubts in NAMUDNO. I gather he deems it either impossible or very unlikely that the Court might do what I suggest. Obviously, Pildes could be right that if bailout is viewed as burdensome, let alone futile, then the jurisdiction could argue that it should not be subjected either to coverage or to bailout. In this regard Pildes compares the state of Georgia to an unmarried woman forced to seek court approval for an abortion.

I guess I see the bailout option differently, or more to the point, I think the Court might. We may have an honest disagreement as to what legal options are available to the Court. I think this disagreement may revolve more around our perception as to Justice Kennedy's willingness to resolve the constitutional issues when other options are available (or around whether the bend-over-backwards quality of NAMUDNO was a ticket to that train only). In the series of cases where the Roberts Court has eschewed facial challenges for as-applied ones, or has opted for statutory, instead of constitutional, grounds for a decision, I see the possibility (though nothing close to certainty) that it will do so again. Of course, NAMUDNO could be to the next VRA case what Wisconsin Right to Life looks like it will be for Citizens United: a prelude to bolder action.

Just to be clear, as my erroneous and contemporaneous postings on the NAMUDNO oral argument attest, I thought the Court was going to strike down section 5 in NAMUDNO itself. So, the most I can muster in predicting the next case, not yet even conceived, is to say that the Court, once again, might find a way out of the constitutional controversy.

"The Rhetoric of a 'Stolen' Election"

Ned Foley offers this well-deserved criticism of this morning's WSJ editorial on Coleman-Franken.

"McCain and Feingold Use 'Hold' to Pressure Obama on FEC Picks"

CQ Politics offers this report.

Pildes: Confusion About the Future of Voting-Rights Litigation

Rick Pildes sends along this guest post on NAMUDNO:

In the wake of the Supreme Court's decision to avoid resolving the constitutionality of Section 5 for now, some confusion has emerged about legal questions concerning the next challenge. In particular, Nate Persily suggested that the recent decision suggests the Court might "perpetually avoid" ever addressing the constitutionality of Section 5. Nate imagines a kind of Catch-22: if any covered entity seeks to argue the Act is unconstitutional, the courts will tell it to try to bailout. If it succeeds, the case goes away. If it does not, then the entity is properly covered and cannot complain about the Act. Hence, the Court will never decide whether Section 5 is constitutional or not. As a matter of law, I think this suggestion is incorrect. Nothing in the Court's recent decision leads to this conclusion. And the law concerning federal courts and constitutional litigation is also inconsistent with the Catch-22 Nate suggests.

First, in NAMUNDO itself, the water district expressly conceded that its constitutional claim would dissolve if it were permitted to seek bailout. The Court expressly relied on this concession, even quoting it in the opinion's text. That's not surprising: without this concession, it would have been much harder for the Court to avoid the constitutional issue. In the next challenge, I would not expect to see a similar concession, if an entity indeed wants to put the Court in a position in which it must face the larger question.

Second, Nate presents four scenarios in which the next challenge might arise. But I believe he misses the most obvious and important one. Suppose a state like Georgia (which filed a brief arguing that Section 5 was unconstitutional) wants to get out from under Section 5 and challenges its constitutionality. The state might do this by seeking a declaratory judgment that it no longer must seek preclearance. Or the state might bring an action in response to a DOJ decision not to preclear some change. The heart of Georgia's argument would be that it should not have to seek bailout, or prove its eligibility for bailout, because the very fact that Georgia has been singled out for this burden is what makes the Act unconstitutional. The central argument, under either the rational basis test or the "congruence and proportionality" standard, is that the Act exceeds Congress' enforcement powers because Congress did not adequately justify singling out Georgia (and other covered areas) from non-covered areas from the burdens of Section 5. That is the argument a number of Justices pursued actively at argument; it's the argument to which the opinion expresses some degree of openness. If it's unconstitutional for Congress to single Georgia et. al. out in this way, then the Court cannot avoid that question by telling Georgia to go seek bailout.

The problem is that Section 5 involves a classification (covered and non-covered states) and the state of Georgia would be challenging the validity of that classification. As a legal matter, it is not an answer to that kind of challenge for a statute to create an escape valve from the classification; it's the classification itself that is at issue. Suppose a state required unmarried but not married women to seek court approval (an escape valve, akin to bailout) for an abortion; if an unmarried woman challenged the constitutionality, it would be no answer for a court to conclude that the judicial bypass provided a constitutionally-adequate escape valve, so that the Court could avoid the constitutional question. Even if Congress could require all women to seek judicial approval, the Court would hold the unmarried/married classification unconstitutional. Or suppose a public school system presumed students of one race should be put in "remedial" schools rather than regular schools, but those students could take a test and if they scored high enough, escape this system by being moved to the better schools. Surely the escape valve of the test is no basis for avoiding the question whether any race-based presumptive classification like this is constitutional.

Now take Section 5 itself: suppose Congress had decided which states to cover in a transparently arbitrary way, say by flipping a coin, but the bailout option existed. If the classification in the statute were unconstitutional -- as it obviously would be in this hypothetical-- then I think it's easy to see why the bailout escape valve is not sufficient to avoid the constitutional question of whether Congress has exceeded its power in the first place by forcing jurisdictions to go through the bailout process. The same applies to the actual Section 5: If the Court believes the coverage formula is unconstitutional, then by definition the Court has decided there is a constitutional injury to which the option of bailout is not an adequate answer (perhaps if a statutory escape valve involved a completely de minimis or trivial act, such as filing a formal paper that would be approved automatically, the answer might be different, but no one thinks the current bailout structure under Sec. 5 imposes a trivial burden like that).

I've tried to illustrate as a matter of basic legal analysis why this "perpetual avoidance" suggestion is wrong. I could also provide many Court cases illustrating these points, but perhaps the most direct is Northeastern General Contractors, which was unanimous on the point relevant here. The Court held that being subjected to an unconstitutional process creates a constitutional injury, whether or not the particular plaintiff was entitled to the benefit at issue or not. The Court held that it had to reach the merits of a constitutional challenge to a 10% set-aside for minority businesses, regardless of whether the plaintiff could show that any particular contract would have been awarded to it or any other non-minority bidder but for the set-aside. In other words, being forced to go through an unconstitutional process is itself constitutional injury here and now, one that the Court does not, and under its doctrine cannot, avoid.

Thus, as a purely legal matter, I do not think Nate's analysis of "perpetual avoidance" is correct. And my analysis says nothing about any kind of special solicitude the Court might have for laws that single out states, like Section 5 --even though it is clear from NAMUNDO itself, from the Court's 11th Amendment cases, and from Justice Kennedy's repeated concerns for the "equal dignity" of the states, that the Court is likely to be even more aggressive in protecting the states from unconstitutional classifications than it might be for other classifications. Instead, my point is more basic than that: the Court does not avoid holding unconstitutional classifications unconstitutional merely because a covered person or entity can pursue an escape option the law also creates.

To be clear, I am not expressing any view on whether Section 5 is constitutional. The point is that, if the Court believes it is, the Court by definition has decided there is a constitutional injury to which the option of bailout is not an adequate answer. NAMUNDO and established law, as well as the simple logic of challenges to the classifications a law creates, do not provide any support for this notion of perpetual avoidance; indeed, the last two point powerfully in the other direction. In addition, I am not predicting that the Court will address the constitutionality of Section 5, either soon or down the road. That first depends on whether jurisdictions decide to mount future challenges. And the Court has many discretionary doctrines to avoid the issue, including by not agreeing to hear any such case in the first place. Indeed, Indeed, the Court can change the way it handles cases like this, but that would require a doctrinal change. But Nate writes that maybe "the Court has placed itself in a position" where it would never have a legal basis for confronting the constitutionality of Section 5. That is rather clearly wrong. Nothing in NAMUNDO itself, or existing law, requires that conclusion.

One last note: Armand Derfner has made what I read as a quite different point from Nate's about the possible relevance of bailout. My initial reaction is there's somewhat more to Armand's point, and if I have anything useful to say about it, I will another time. But this post has gone on long enough.

"EAC Releases Report on Voter Registration"

Details here.

Using Technology to Push "Weekend Voting Act"

See here.

A Bit More on Citizens United and the "Incurable Defect"

Following up on this post, a few readers have written to say that the Court would still have jurisdiction over the issue, pointing me to Stern and Gressman pointing out that the Court's rules are not jurisdictional, but prudential, and arguing that once the Court has a First Amendment issue before it, it can resolve it in whatever way it pleases.

I think it is right to say that there is no jurisdictional bar to the Court using Citizens United to overrule Austin and/or the relevant portion of McConnell. Still, it would be aggressive and against the Court's own rules and usual practice to reach issues that (1) were abandoned and dismissed by stipulation of the parties in the lower court, and (2) not included in the jurisdictional statement or even well connected to those issues.

More Legal Analysis of Yesterday's MN Supreme Court Ruling in Coleman-Franken

Star Tribune

Pioneer Press

"Franken will grill Sotomayor on campaign finance"

The Minnesota Independent reports.

"The 'Absentee' Senator"

WSJ Editorial Page accuses Al Franken of "effectively st[ea]l[ing]" the election. UPDATE: More on the "stealing" meme here.

"John McCain, Russ Feingold reunite to block Barack Obama's FEC pick"

This is an important development:

In a surprising move that invokes memories of a bitter skirmish during Obama's annihilation of McCain in last year's presidential election, Feingold (D-Wis.) and McCain (R-Ariz.) have placed a hold on the FEC nomination of Democratic labor lawyer John Sullivan, POLITICO confirmed Tuesday. Their hold could reverberate in Congress, the White House, the 2010 midterm elections and beyond.

In a statement issued in response to POLITICO's inquiries, the lawmakers signaled they would release the hold only if Obama taps two additional nominees to fill expired seats on the six-member independent panel, which critics contend is systematically deregulating campaign rules.

The article quotes Meredith McGehee of the Campaign Legal Center as follows: "Doing something about the FEC without doing something about the McGahn problem is just unacceptable... [T]his is a guy who is basically implementing a deregulatory ideology in violation of both the spirit and letter of the law."

The Center for Competitive Politics is not pleased with the hold. [CORRECTED: The original post said "Center for Responsive Politics" and I'm sure both CRP and CCP are offended by my confusing the two groups!]

NAMUDNO and Citizens United Loom Large in Supreme Court Term Retrospectives

NY Times

Washington Post