Election Law
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The law of politics and the politics of law: election law, the California recall, campaign finance, legislation, voting rights, initiatives, redistricting

Rick Hasen's web log (blog)

Friday, March 21, 2003
Are we in a "Downward Spiral" on Judicial Nominations? Larry Solum says yes here. In response to my comments that Democratic filibuster tactics are tit-for-tat for earlier Republican opportunities, Larry argues:
    Both Democrats and Republicans perceive that their own moves are tit for tat, but that the moves of the other side are escalation. In other words, we face a problem of asymmetrical perceptions. This is one of the important preconditions for a downward spiral. If each side perceives that the other sides moves are escalatory, then each side sees escalation on their own part as the rational move. Hence, the Republican discussion of "going nuclear"--see Rick's original discussion and then scroll up in his blog for further posts. If I am right about the downward spiral, the consequences can be profound. The end-point of politicization is very grim indeed--with judges openly battling for political agendas, ordinary tort and contract cases turning into the opportunity for the distribution of pork, and the political branches retaliating against the judiciary when there are differences in party control. We don't want to go there.

I think it is important to separate out stated motives and actual motives. Just as I don't believe Democrats who say they oppose Estrada because they don't have enough information, I don't believe Republicans who say that Democrats' moves are escalatory. They both make these claims for the same reason: trying to obtain political advantage. Thus, Democrats can avoid responding to charges that they are imposing ideological litmus tests (they are, just as Republicans are---I am reminded of Sen. Helms blocking all Democrats to the 4th Circuit on grounds that the court did not need any more judges to handle its caseload), and Republicans can claim that Democrats are taking "unprecedented" action against a nominee. What is escalating now is primarily the rhetoric, though I agree that rhetoric alone may cause an escalation.

I also think Larry's parade of horribles is a bit too horrible. We are talking about politicization on the few (but important) ideological issues that matter most to the parties---abortion, affirmative action, etc. In most cases heard by most federal judges, I continue to believe that ideology has little or nothing to do with the decisions they render. In that context, they are the virtuous judges that Larry writes about so eloquently.


posted by Rick 1:09 PM
. . .
Republican advantage so far under BCRA See this Washington Post story.


posted by Rick 8:52 AM
. . .
More precedent for blocking an entire slate of nominees A reader writes:
    I checked my recollection on Lexis, and it was Sen. Conrad Burns of Montana who put holds on all 9th Cir. nominations from some time in 1995 until early in 1996--I couldn't find the exact dates--to try to force a vote on his bill to split the circuit. It turns out that this was a favored tactic of Burns in the Clinton years. He put holds on Joel Klein's appointment to head the Antitrust Division as well as on a number of less prominent Executive Branch appointments in order to get leverage on various legislative issues.



posted by Rick 7:54 AM
. . .
Thursday, March 20, 2003
New article on 501(c)(3)s and elections Steven H. Sholk published "Election Year Activities of Section 501(c)(3) Organizations," a comprehensive guide to the rules under the Federal Election Campaign Act and the Internal Revenue Code, in Tax Notes Today (electronic version) on February 13, 2003. It is summarized in the March 2003 issue of The Exempt Organization Tax Review on pages 317 and 430. It is available on Lexis, and from Tax Analysts as Doc 2003-3855; 2003 TNT 30-31.


posted by Rick 4:42 PM
. . .
Filibusters continued Larry Solum at this post links to a National Review Online article mentioning that the two Democratic senators from Michigan are "blue slipping" all nominees from Michigan for the Sixth Circuit. Larry calls this part of a downward spiral, but it seems more to me like simple tit-for-tat, and not necessarily escalation. The NRO article notes:
    The Levin/Stabenow maneuver is the culmination of a conflict that has been years in the making and involves Democratic accusations that Republicans mistreated appeals court nominees selected by President Clinton.

    When President Bush took office, Levin and Stabenow demanded that he renominate two Clinton appeals court nominees from Michigan, Helene White and Kathleen McCree Lewis, whose nominations had not been acted on by the GOP-controlled Senate. White is married to Sen. Levin's cousin.

    In a letter sent yesterday to White House counsel Alberto Gonzales, Levin, and Stabenow wrote, "On more than one occasion, the White House counsel has stated that some nominees during the previous administration were wrongly treated....We have said repeatedly that it would be wrong for the president to seek confirmation of his nominees to the Michigan seats on the Sixth Circuit before the acknowledged wrong was corrected."

    The White House has refused the demand, saying that it would be an unprecedented surrender of the president's constitutional authority to nominate federal judges.


A source from the Senate also takes issue with my claim that Estrada is not a national issue. The source points to numerous editorials about the Estrada controversy, and their lopsided position favoring an end to the filibuster. To me, editorial page opinion does not reflect national passion about an issue. Editorial page writers loved to write about campaign finance reform, even though the issue was of low salience to most Americans. The source also suggest some internal polling supports the position that voters care about the issue, but this claim is hard to evaluate in the absence of the polling data.

UPDATE: Larry Solum says here that "it is at least unusual to use the blue-slip procedure to block all Presidential nominees from an opposition party state." Not so. Senator Helms blocked EVERY 4th Circuit nominee from North Carolina during the Clinton administration.


posted by Rick 11:05 AM
. . .
On Recess Appointments to the Supreme Court A reader points out that recess appointments to the Supreme Court have some precedent. He's right. Here's a brief description of the history from Gary J. Edles, Temporary Judges; Recent Experience from the United States and Great Britain, Federal Lawyer, July 2001:
    [Three prior articles point out that more than 300 federal judges have received this form of temporary appointment during the nation's history. Fifteen of these appointments have been to the U.S. Supreme Court. George Washington made six recess appointments, including Chief Justice Rutledge, who sat for six months and participated in the decisions in two cases before the Senate rejected his nomination. One article notes that recess judicial appointments were common during the early days of the republic and "[a]t no time during this early period did opposition ... [to] the practice make its way into the public record, either in Congress or the courts." Chief Justice Warren and Justice Brennan were more recent recess appointees to the Supreme Court. In fact, Chief Justice Warren heard oral arguments in Brown v. Board of Education while awaiting Senate confirmation and, following his confirmation, went on to write the Court's unanimous opinion in the case. However, two recess appointees to the Fifth Circuit decided not to sit on controversial civil rights cases during the 1960s until the Senate confirmed them.
    Most recess appointees ultimately received Senate confirmation. But many were controversial. Harvard professor Henry Hart argued that Chief Justice Warren's recess appointment would "violate the spirit of the Constitution, and possibly also its letter."

This history convinces me even more of the possibility of a Bush recess appointment to the Supreme Court this summer.
By the way, the three articles Edles cites with more extended discussion are: Paul Ferris Solomon, Answering the Unasked Question: Can Recess Appointees Constitutionally Exercise the Judicial Power of the United States? 54 U. CIN. L. REV. 631, 632 (1985); Virginia L. Richards, Temporary Appointments to the Federal Judiciary: Article II Judges? 60 N.Y.U.L. Rev. 702 (1985); Thomas A. Curtis, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 COLUM. L. REV. 1758 (1984).



posted by Rick 9:58 AM
. . .
FEC Criticism of BCRA court timing According to this A.P. article, FEC chair Ellen Weintraub and Vice-Chair Brad Smith have called on the three-judge court hearing the case to decide it as soon as possible. Who would have thought bombs would fall on Baghdad before the lower court would have issued its opinion in this case?


posted by Rick 8:58 AM
. . .
Responses to My Post on Going "Nuclear" on Estrada I have received some interesting comments about my post (that appears immediately below) and the earlier linked post regarding Kondracke's comments.

One reader writes:
    A recess appointment of Estrada would hardly be a "nuclear" option. While filibusters of judicial nominees are exceedingly rare, recess appointments of judges are historically rather common. A recess appointment here would make excellent sense - the Dems' nominal reason for filibustering Estrada is that he doesn't have a "track" record - that argument would hardly make sense after he's been on the bench even a few months and had written a few opinions. And it is exceedingly unlikely that the Dems would be able to portray Estrada as some kind of extreme right-wing monster on the basis of a few months worth of opinions, which is what they would have to do in order to keep the Southern Democrats (Landrieu, Edwards, Graham) on the plantation. Net result - Estrada's nomination would pick up enough votes to sail through.

    I think the "nuclear" option is most likely to keep the Senate in session 24/7 and force the Dems to talk non-stop, rather than letting them get away with this filibuster light schedule. The Dems may be uncomfortable doing this as the war in Iraq gets underway.

I think that this reader is correct about recess appointments. We have seen recess appointments to the courts before, most recently by President Clinton. What would be unprecedented and ratchet things up even more would be a Bush recess appointment to the Supreme Court. I also agree with the reader that a recess appointment of Estrada now would make it easier to appoint him to the Supreme Court later, by removing the argument (which I think is spurious anyway) that Democratic senators don't have enough information about Estrada to make a decision about him. That would require enough Democrats to argue that Estrada is ideologically too extreme, and that a brief stint on the D.C. Circuit doesn't show much about how Estrada would act as a Supreme Court Justice.

If all Lott meant by his comment was a 24/7 filibuster, that's not news. Lott said months ago that he would have done that had he remained majority leader. That does not seem "nuclear" to me. That leaves the possibility of changing the filibuster rules, a risky strategy for all involved.

Another reader argues that I am wrong in saying that "Democratic actions were hardly unprecedented." This reader says that "as a matter of history the important test is of course whether a supermajority of Senators has ever been required for confirmation, as is the case here – not whether a member of the majority party could have 'blue-slipped' a nominee."

I treat the two situations as identical, because the only way to get around a blue slip is with a supermajority vote. To claim otherwise makes a distinction without a difference. One need look no further than Senator Helms' blocking of any Clinton nominee to the 4th Circuit to prove my point. Of course, there are many other examples of blue slips or silent filibusters accomplishing precisely what the Democrats are doing now. Republicans are smart to require an actual filibuster to increase the salience of the issue. Has it worked? Certainly the issue has fired up editorial page writers, those in the Beltway, and the many thoughtful readers of
How Appealing. But it has not become a national issue. Things will be different if there is a filibuster of a Supreme Court nominee.


posted by Rick 8:20 AM
. . .
Wednesday, March 19, 2003
Going "Nuclear" on Estrada nomination The Republicans have accused the Democrats of "going nuclear" on the Estrada nomination by filibustering it. As I argued in this post, Democratic actions were hardly unprecedented. (I also claimed the rhetoric used (Kondracke called the filibuster the Democrats' "dirty bomb") sought to subtly equate Democrats with terrorists.)

Now comes word via this Washington Times article that Republicans are considering their own "nuclear option:"
    [Lott] said he had thought of a strategy that could put Mr. Estrada up for a confirmation vote needing only 51 votes as opposed to the 60 now required to invoke cloture. He declined to elaborate, warning that his idea is "nuclear."
    Sen. Rick Santorum, Pennsylvania Republican and party conference chairman, said for now Republicans are content holding occasional cloture votes to portray Democrats as obstructionists. No date is set for the next cloture vote.
    After Easter, he said, party leaders would roll out a new strategy that would place greater pressure on Democrats, but declined to say what the new strategy would entail.


So what could the "nuclear" strategy be? Two possibilities spring to mind.

(1) The Senate Republicans could declare that the filibuster rules are no longer in effect. How could they do so? Wouldn't that rule change be subject to a filibuster itself? Not if the 51 Republicans declare that the rules enacted by prior Senate bodies do not bind the current Senate. Such a move might lead to a lawsuit by Senate Democrats, but that is the kind of question that should be viewed by the courts as none of the courts' business, a "political question." The Supreme Court majority likely would agree, especially given that the rule favors the Republicans.

(2) 51 Senators could urge Estrada be given a recess appointment, which would begin when the Senate is in recess and end when the current session of this Senate ends before the 2004 elections. Estrada could then be brought up later. Don't write off this possibility being used this summer if Bush cannot get a Supreme Court nominee through the filibuster process.

Are either of these realistic possibilities? I believe they are, but both present dangers for Senate Republicans. The first strategy is dangerous if Republican senators believe that in the near to mid-term they might be in the minority in the Senate. Given the razor-thin Republican majority, it is hard to imagine much confidence in the future (maybe that changes with Iraq). Will the Republicans really want to take the chance that in the near future they lose the ability to filibuster a Democratically controlled Senate?

The other possibility, recess appointment, risks making the Senate a less important institution. This is one place where the interests of the administration and the interests of the Republicans in the Senate may differ. Indeed, President Bush does not need 51 votes to make the recess appointment. Using such an appointment for the Supreme Court, if that comes later this summer, would be a large escalation of an already out of control political confirmation process.


posted by Rick 12:34 PM
. . .
Washington Post Weighs in on Delay in BCRA Ruling See the editorial here. The editorial leaves out a very salient fact: the delay may mean that the case will be decided differently, assuming we have a change in Supreme Court Justices. I have made this argument in detail here.


posted by Rick 12:19 PM
. . .
A "Wonderful Feeling" on Bush v. Gore Justice Scalia, speaking today in Cleveland, said in response to a student's question that "it was 'a wonderful feeling' to have led the Supreme Court's rejection of a recount of the Florida vote, thus handing the election to Bush." You can read the longer account of his talk--and his exclusion of C-SPAN from broadcasting it--in the Cleveland Plain Dealer at this link.

UPDATE: Richard Winger informs me that the Scalia comment was made yesterday at a speech at John Carroll University, not at the Cleveland City Club.


posted by Rick 12:15 PM
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Tuesday, March 18, 2003
More on how BCRA is Changing Fundraising The Washington Post offers this report.


posted by Rick 7:15 AM
. . .
Monday, March 17, 2003
Interesting Poll of Political Consultants and their Views of the BCRA American University conducted a poll of political consultants on a variety of topics. According to the poll's executive summary, here is what the consultants had to say about the BCRA:
    A substantial number of consultants believe the BCRA will expand the role of the parties at the state level –at the expense of their role at the national level.
    Many consultants feel that the ban on soft money will force funding away from the national parties and into state campaigns.
    Consultants also see more political power being given to special interest groups and independent expenditures due to tough restrictions on the national level –which means less power for the political parties.
    Some consultants expect the helpfulness of services which can beprovided by third party organizations to be adversely affected by the BCRA.
    Party services which can be easily displaced by independent expenditures, such as campaign funding and coordinated advertisements, are expected to be adversely affected by the BCRA.
    Consultants are split as to whether key party services, such as Get Out the Vote operations and opposition research, would be affected one way or the other
    A number of consultants feel the BCRA ban on soft money will have a negative impact on campaigns in the 2004 election cycle.
    Consultants predict an increase of third party campaigns –decreasing the importance of parties –and other negative consequences.
    Many consultants also feel the BCRA will have little effect as parties discover new methods of fundraising and loopholes in the law.
    Some consultants believe the BCRA restrictions on issue ads will have a positive effect on campaigns as a result of less negative campaigning.
    However, others think the prohibition on issue ads will increase third party campaigns, moving money away from parties, as well as shifting methods of campaigning away from media advertising.
    Another one in three consultants do not think these restrictions will have any effect or do not expect the ban to be upheld by the Supreme Court.

You can access the entire report
here.

posted by Rick 3:47 PM
. . .
A.P. Report on Native Americans and campaign finance law See the article, "Tribes Enjoy Advantage Over Gaming Donors," here.


posted by Rick 3:41 PM
. . .
Marston on judicial selection debate Brett Marston has some interesting observations about the debate on judicial selection I've been having with Larry Solum. The link to the particular post is not working, but this is a link to Marsontalia. He generally agrees with my view of the intractability of the judicial selection process. He then makes these observations:
    By academic training as well as sentiment I find Rick Hasen's argument more persuasive, at least to the extent that he argues that the political nature of Supreme Court judging cannot be denied, and any change to the nominations process should take that into account. This is basically Chuck Schumer's position as well. Is it surprising that a Senate Democrat is pushing the "Court is political" argument? Not really.

    Hasen bases his case on his recent work on election law. Hasen also makes a recommendation to the judiciary that they should refrain from creating new, controversial equality rights and should instead leave that area of policy to the legislature. If your goal is to reduce the partisanship in the nominating process, this strategy probably would only produce minimal gains, though. And still the dilemma exists: do we really want to rely on legislatures to refrain from punishing gays and lesbians through sodomy laws? You can redefine the issue as one of privacy and avoid the "new equality right" problem, but that's a sleight of hand, really.

My goal (in proposing my brand of judicial minimalism) is not primarily to reduce partisanship in the nominating process; rather, it is to provide some constraint to both liberal and conservative judicial activists on the Supreme Court. As for the sodomy issue, my work does not address it directly, as I deal with core and contested rights directly in the electoral process. The sodomy question would be what the core and contested principles of privacy (or sexual privacy) would and should be---a difficult question well beyond my area of expertise. I don't think it is a slight of hand to give this answer. The question of what privacy rights the Court should recognize is different from the question of how much the Court should structure the workings of our political system.


UPDATE: Larry Solum responds to Marston here.


posted by Rick 8:16 AM
. . .
Saturday, March 15, 2003
Federal Funds Help States Aid Election Reform So says this report in the Washington Post.


posted by Rick 8:46 PM
. . .
Friday, March 14, 2003
Early Primary Season and the Democrats Today's lead editorial in the New York Times complains that the new Democratic rules for presidential primaries will create chaos---as states move their primaries earlier and earlier, "the result will look more like a Marx Brothers movie, a jammed stateroom of stock characters, mugging in a frenzy of slapstick democracy." The editorial makes a good point. The argument is something like a classic collective action problem. Each state's Democratic party wants more influence over the nominee, yet when everyone goes earlier, the result is a bad process that leads to a worse nominee with a lessened chance to beat the Republican.

The dilemma would be easier to understand if there were not a centralized body that could require states to adhere to a rational schedule. But there is---the Democratic National Committee. So why did the national committee move to this model rather than the more rational (from the Democrats' view) rotational system proposed in the Times editorial? Perhaps there is something in the structure of the DNC's decisionmaking that led to this breakdown.


posted by Rick 8:36 AM
. . .
Thursday, March 13, 2003
First Leahy, then Will, Now Hatch Accused of Hypocrisy on Filibuster Issue My earlier posts have chronicled charges that Senator Leahy and columnist George Will have both changed their positions on the filibuster depending upon whether Democrats or Republicans can use the weapon. Now a detailed set of charges has been made here against Senator Hatch by People for the American Way.


posted by Rick 12:37 PM
. . .
New Article about African-American public opinion on Majority-Minority districts Katherine Tate has published "Black Opinion on the Legitimacy of Racial Redistricting and Majority-Minority Districts," in Vol. 97, No. 1 (Feb. 2003) of the American Political Science Review, pp. 45-56. Here is the abstract:
    Minority–majority districts are highly controversial. To assess the degree to which black positions on this controversial matter were well-thought-out and fixed, questions based on Sniderman and Piazza's (1993) “counterargument” technique were included in the 1996 National Black Election Study. Black opinion instability on the issue of race and redistricting reveals the complexity of mass attitudes and the reasoning process and reflects the manner in which a set of clashing interests and core values is balanced and prioritized. Although a large majority of blacks voiced initial opposition to creating districts where blacks and Hispanics are the voting majority, most blacks changed their position in response to the counterargument. This asymmetry suggests that blacks more strongly favor the goal of increasing minority representation than the principle of color blindness in Congressional redistricting. Education and racial identification are key predictors of black opinion on racial redistricting. Less educated blacks and weak racial identifiers were less supportive of minority-majority districts and racial redistricting practices. These results support the revisionist perspective among public opinion scholars that rational, thinking individuals can hold wavering opinions upon questioning because they generally encapsulate a set of contradictory values and interests.



posted by Rick 10:01 AM
. . .
Finishing Up Debate with Solum on Judging and the Confirmation Process Larry Solum filed his latest (and perhaps last) response here. I had better be careful what I write: my last post generated four very long responses from Larry, that you can follow back on his Legal Theory blog if you like.

Larry's bottom line is "convergence;" namely, that at least in the short run, his "neoformalist" view of judging cannot be put in place and we would do well to implement more minimalist judging along the lines I proposed earlier---with Supreme Court justices, at least in the election law cases, following social consensus on the meaning of equality much of the time, and deferring to political branches elsewhere.

Larry focuses his post on ways to depoliticize the judicial confirmation process. I much much less sanguine than he is that we can do so in the current partisan atmosphere. For example, I reject the idea that Republicans and Democrats can choose credible third parties to evaluate judicial nominees using non-partisan "neutral" criteria. Assuming we can't, there is of course a vicious cycle where judges chosen in political confirmation processes tend to be more politicized upon taking office.

I therefore focus my energy on depoliticizing the judges once they are in---what arguments can be made that it is rational for judges to pull back from the brink? Larry ends with asking me whether I would accept his neoformalism as a long run solution. I'll punt on this one. Keynes said that in the long run we are all dead, and I wonder if Larry or I will live long enough to see the minimalist, less politicized judiciary in place that would be a precursor to grander models of jurisprudence.

Thanks to Larry for a very enlightening (at least to me!) debate. One of the main lessons I draw from it is that calls by politicians to confirm judges and move beyond politics are likely to fail, and, more cynically, may be just another attempt to gain political advantage.


posted by Rick 9:22 AM
. . .
Wednesday, March 12, 2003
More speculation on BCRA timing and potential for stay FOX News offers this report.


posted by Rick 9:48 AM
. . .
Democracy is just too expensive Consider this A.P. story on how Republicans in five states are looking to scrap presidential primaries.


posted by Rick 7:24 AM
. . .
Tuesday, March 11, 2003
BCRA and solitication of funds by federal candidates in local campaigns Ed Still on his Votelaw blog reports:
    Several Virginia state and local officeholders who will be up for election this year have asked the FEC for an advisory opinion on the amount and kind of involvement federal officeholders can have in their campaigns.

The advisory opinion request is here. This is one to watch.


posted by Rick 3:05 PM
. . .
President's Letter on ending filibusters In this letter, President Bush wants the Senate to change Senate rules so that judicial nominees would get a straight up or down vote, regardless of who is president and which party is in power. Of course, changing the rules now benefits the president and his party. So, assuming Senators think this is a good idea (I'm not so sure it is on the merits), to avoid the windfall to Bush now, why not have the Senate adopt the rules, effective after the next presidential election?


posted by Rick 10:21 AM
. . .
BCRA debate See this report from the Desert Sun.


posted by Rick 9:03 AM
. . .
The latest guessing on the BCRA case timing Tony Mauro reports the following in the article The High Court's Incredible Shrinking Docket:

    The wild card for the Court's docket may be the set of cases testing the constitutionality of the Bipartisan Campaign Reform Act, still pending before a three-judge panel in U.S. District Court for the District of Columbia. Lawyers had advised the panel that it would have to rule by mid-February to guarantee that it would be reviewed by the Supreme Court this term. February has come and gone, and there is no decision yet.

    But the general feeling is that the Supreme Court will do whatever it can -- including keeping its session open through the summer -- to get the issues resolved well in advance of next year's presidential election. Even if an appeal of whatever the panel decides is heard orally in May or June, the Court could issue a ruling during the summer. In recent years, it has issued certiorari grants through the summer, so a decision is not inconceivable.

Thanks to Mark Glaze for the pointer.


posted by Rick 7:29 AM
. . .
Monday, March 10, 2003
Compton election contest decision Last year, the election law world was buzzing with news that a trial court in California had reversed the mayoral and city council elections in Compton California based upon the theory of social scientist Jon Krosnick that the election results were skewed because of the "primacy effect:" the tendency of voters to vote for the candidate first on the ballot. (I have some issues with Krosnick's social science, but that's for another time.) What was so unprecedented was that on the basis of this effect, the court did not simply order a new election, but instead made the losers of the elections into the winners. The Court of Appeal quickly stayed the trial court ruling, and today it issued its opinion on the merits.

As to the mayoral race (which got the most attention), the court did not reach the ballot order issue. The court simply held that there was no error in the ballot order used. (Interestingly, the court held it is not an equal protection violation to use a randomized ballot---so assuming Krosnick's theory is correct it is ok to use a lottery to give one candidate an advantage over another.) But as to one of the city council candidates, the court confirmed what I have long argued (beginning when I had consulted for the city of Compton): that a court cannot shift votes from one candidate to another based on the ballot order effect. Here's the most relevant language from the opinion:
    In this case, the trial court found a total of 144 illegal votes had been cast in the runoff election, but found it impossible to determine in whose favor (other than the nine illegal votes for Irving) the illegal votes had been cast. Even if we were to assume that all 144 illegal votes had been cast for Irving, subtracting 144 illegal votes from Irving’s total would still have left her the victor with 5,270 egal votes to Andrew’s 4,863 legal votes. Therefore, the illegal votes cast for Irving did not change the result of the election, and there was no other candidate with more legal votes than Irving. Given Irving’s disqualification from taking office due to her offenses against the elective franchise, the trial court should have entered a judgment “annulling and setting aside the election.”
    (§ 16603, italics added.)

    Instead, in a ruling unprecedented, to our knowledge, in this country, the trial court shifted 295 legal votes from Irving to Andrews based solely on the 3.32% primacy effect assumed to be enjoyed, on average, by those listed first on the ballot. While many courts and legislatures have recognized the advantage afforded to candidates whose names are listed first on the ballot, no judicial or statutory authority exists to reverse the given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.”

    Election results may only be challenged on one of the grounds specified in section 16100. (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192.) Name-order error occurring in the absence of fraud and resulting purely from unintentional clerical error, as in this case, is not a valid ground for an election contest under section 16100. The fact that 295 legal votes may have been cast for Irving solely because her name was erroneously listed first on the ballot does not, in itself, impeach the integrity of those 295 votes. Legal votes randomly cast by the least informed or least interested voters are entitled to the same weight as legal votes cast by the most highly educated and informed voters in our society. The legality or illegality of a vote cast by a qualified voter in a lawful manner does not depend upon the voter’s motive or purpose in voting a certain way. (See Bush v. Head (1908) 154 Cal. 277, 281-82.) To shift 295 legal votes to “correct” the votes “randomly” cast for Irving solely as a result of her erroneous advantageous ballot position (and to award those same “random” votes to Andrews based solely on the primacy effect theory) would be, without any lawful justification, to disenfranchise those 295 voters. (See Shinn v. Heusner (1949) 91 Cal.App.2d 248, 252 [To invalidate lawfully cast absentee votes “would be, without warrant to disfranchise these voters.”]; Dennen v. Jastro (1913) 23 Cal.App. 264, 267 [Clerk’s inadvertent error in listing the same candidate twice, as the nominee of two different political parties, “should not disenfranchise the entire vote of the district and vitiate the election, unless it be made to appear that by reason of the irregularity the result was different from what it would otherwise have been, or that it prevented the voter from freely, fairly, and honestly expressing his choice of the candidate for the office.”]; Nelson v. Robinson (Fl. App. 1974) 301 So.2d 508 [A candidate’s unfavorable ballot position which allowed voters to exercise free choice after a reasonable study of the ballot, does not constitute a violation of equal protection.]; Roberts v. Byrd (Ky. 1961) 344 S.W.2d 378, 381 [Clerk’s failure to rotate names every 50 ballots did not void the election.]; Bees v. Gilronan (Ohio Com. Pl. 1953) 116 N.E.2d 317 [In the absence of fraud, election officials’ failure to properly rotate candidates’ names on the voting machine ballots did not invalidate the election.].)


posted by Rick 3:10 PM
. . .
Supreme Court denies ballot access case Richard Winger reports: "Today the US Supreme Court refused to hear Cartwright v Perdue, a challenge to the Georgia petition requirement for minor party and independent candidates for US House. 02-1082. The petition is 5% of the number of registered voters. No minor party has used in the 60 years that it has existed, and no independent has used it since 1964."


posted by Rick 8:47 AM
. . .
Sunday, March 09, 2003
Judiciary as a political body As Larry Solum works on Part 2 of his latest response in our debate (Part one is here), he might look at today's New York Times magazine cover story on the politicization of the judiciary in the Fourth Circuit.


posted by Rick 11:53 AM
. . .
Review of Raskin book The Washington Post offers this brief review of Jamie Raskin's book, mentioned in a post earlier this week.


posted by Rick 11:48 AM
. . .
Saturday, March 08, 2003
Paper on the Guarantee Clause, Yes the Guarantee Clause Any practicing election lawyers out there might think an academic paper on the Guarantee Clause would (at best) provide some interesting history, but would say little about how the real world of election law works. I hope to put this argument to rest in a draft paper I have just posted to SSRN. It is entitled: "Leaving the Empty Vessel of "Republicanism" Unfilled: An Argument for the Continued Non-Justiciability of Guarantee Clause Cases." Here is the abstract:
    Many commentators trace the beginning of the end of the political question doctrine to the Supreme Court's 1962 Baker v. Carr decision. In Baker, as Mark Tushnet has explained, the Court domesticated the doctrine by reducing it from an amorphous prudential doctrine to a set of six legal rules. If the political question doctrine continues to have any vitality, it is in the area of foreign and in cases raising "Guarantee Clause" claims. I ignore the foreign affairs area and focus on the Guarantee Clause. Cases raising Guarantee Clause claims now stand on the cusp of justiciability.

    In Part I, I argue that there is good reason to believe that the Court will soon consider claims arising under the Guarantee Clause. First, as a textual matter, the argument for non-justiciability is weak. Second, the prudential rationale offered by the Court in Baker v. Carr for not deciding Guarantee Clause claims - that the Guarantee Clause is "not a repository of judicially manageable standards" - has failed to hold up in the face of the Court development of manageable standards in other areas of the law. Thus, all that stands in the way of justiciability is weakly-reasoned (though longstanding) precedent.

    In Part II of this Chapter, I argue that the Court should nonetheless continue to treat cases raising Guarantee Clause claims as non-justiciable. The most likely claims advanced under the Clause would challenge the initiative process (or particular initiatives) and provide additional arguments for Court intervention in election law, particularly voting rights, disputes. The success of such claims would further entrench courts in political regulation with little benefit and at a great potential cost. It also may have unintended consequences for those who see the clause as the next means of advancing a liberal activist agenda on the Court - it may just as well promote a conservative activist agenda. Thus, the history of the Guarantee Clause could well parallel the history of the Equal Protection Clause from its liberal use in post-Baker cases to more conservative uses in cases like Bush v. Gore. I conclude that both liberal and conservative Court Justices concerned about the over-involvement of the courts in political regulation would do well to keep the political question doctrine on life support, if only to insure that Guarantee Clause claims remain non-justiciable.



posted by Rick 1:37 PM
. . .
Friday, March 07, 2003
New Jersey redistricting Sam Hirsch reports on the election law listserv:
    Late yesterday, the New Jersey Supreme Court issued a stay pending appeal, which will allow New Jersey's 2003 state-legislative elections to proceed under the current districting plan. That plan had been upheld by three-judge federal courts in Page v. Bartels and Robertson v. Bartels and had resulted in the election in 2001 of record numbers of African-Americans, Latinos, and Asian Americans to the New Jersey Legislature. But the plan had been struck down by the State's intermediate appellate court on January 22, 2003, because it divided Newark and Jersey City into three districts each, allegedly in violation of the New Jersey Constitution. The Court has scheduled oral argument on the merits for April 28, 2003.

    Here is a link to yesterday's ruling (including concurring and dissenting opinions): http://www.judiciary.state.nj.us/opinions/supreme/m728.pdf

    Sam Hirsch




posted by Rick 1:28 PM
. . .
More on California campaign finance disclosure controversy Following up on the controversy noted in this post, the Los Angeles Times offers this story.


posted by Rick 9:08 AM
. . .
A decent (but non-justiciable?) constitutional argument against the filibuster Writing a Wall Street Journal op-ed, Dean Doug Kmiec makes a good argument against current filibuster practices:
    The cleaner constitutional argument is not to attack the filibuster head-on, but to raise serious objection to its entrenchment -- that is, to the Senate rule that prevents a new Senate from changing the cloture rule without a two-thirds vote. Senate Rule V provides that the rules of the Senate shall continue from one Congress to the next unless amended by two-thirds of those present and voting.

    This violates fundamental law as old as Sir William Blackstone, who observed in the mid-18th century that "Acts of Parliament derogatory from the power of subsequent parliaments bind not." Likewise, the Supreme Court has repeatedly held that the legislature does not have the power to bind itself in the future. As the Court stated in Ohio Life Ins. and Trust Co. v. Debolt (1853), for the political process to remain representative and accountable, "every succeeding Legislature possesses the same jurisdiction and power . . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."


Now where have I heard this before? Consider the abstract of Catherine Fisk and Erwin Chemerinsky, The Filibuster, 49 Stanford Law Review 181 (1997):

    Professors Fisk and Chemerinsky then discuss the constitutionality of the filibuster. They first conclude that a judicial challenge to the Senate rules that permit it would be justiciable if brought by proper plaintiffs. They then conclude that, although the filibuster itself is not unconstitutional, the Senate rule that prohibits a majority of a newly elected Senate from abolishing the filibuster is unconstitutional because it impermissibly entrenches the decisions of past Congresses.


So this is interesting. Professor Chemerinsky and Dean Kmiec rarely agree on anything. Might Dean Kmiec's new embace of this argument (I don't recall that he made it before the Senate changed hands---if he did, please let me know) have anything to do with who is now using the filibuster for which purposes?

Fisk and Chemerinsky argue that the issue is justiciable (that is, could be heard by the courts). Kmiec doesn't address this issue. It seems to me there is a strong argument against Court involvement. The Constitution commits the choice of rules in the Senate to the Senate. Can we imagine the Supreme Court getting involved again in such a political question? It is hard to believe. I think any constitutional argument will have to be made in the Senate itself. More pragmatically, given the razor-thin margin of Republican control, would the Republicans really want to give up the filibuster?





posted by Rick 7:22 AM
. . .
Thursday, March 06, 2003
Fallout from Torricelli matter When the Torricelli withdrawal took place, I took the position that if legislators don't like courts rewriting ambiguous laws (the question here was whether the NJ Democrats could replace Torricelli with fewer than 59 days before the election), they should write less ambiguous statutes. (Hasen, Richard L., Let Courts Fill in Gaps, Nat'l L.J., Nov. 4, 2002, at A20.) This report suggests New Jersey is moving in that direction.


posted by Rick 11:55 AM
. . .
Cleta Mitchell on Shays-Meehan lawsuit Cleta Mitchell has an oped in today's Roll Call (full text not on line without a subscription) in which she criticizes Reps. Shays and Meehan for their lawsuit challenging the FEC's implementation of the BCRA.
Mitchell says:
    Not only have BCRA’s architects been sly about their legislation, Shays and Rep. Marty Meehan (D-Mass.) have now asked a federal court to overturn the Federal Election Commission’s newly promulgated regulations on, among other things, “coordinated expenditures,” in hopes of making BCRA’s prohibitions and restrictions even worse.

    The FEC in early February defined “coordinated expenditures” as those made for a public communication (radio, TV, print advertisements, direct mail or telephone calls to 500 or more people) in the “state or district” of a federal officeholder or candidate by someone other than a candidate or political party (citizens’ groups and unions) within 120 days of a primary or general election at the “request” or “suggestion” of a federal candidate or political party or agent of either or using a common vendor or former employee of a candidate or after “substantial discussion” or material involvement with the federal candidate, party or agent. And that’s the simple explanation.

    Any such expenditure becomes an in-kind “contribution” to a candidate or political party subject to the BCRA limits and prohibitions. Which means that any incorporated citizens organization (NARAL Pro-Choice America, National Rifle Association, Sierra Club, etc.) or labor union that makes expenditures lobbying Congress through public advocacy will be guilty of illegal campaign contributions if their communication is deemed by the FEC to be coordinated.

    Yet Shays and Meehan argue that the regulations don’t go far enough.

    The regulations now apply only to public communications made in the 120 days preceding a primary or a general election. Although that covers two-thirds of every election year, in the odd-numbered years, citizens and citizens’ organizations may engage in lobbying activities and grassroots organizing without having to worry about going to jail for inadvertently making illegal campaign contributions. Shays and Meehan want to eliminate the 120-day window and make all public communications subject to government enforcement, regardless of when in the Congressional session — or the election cycle — they occur.


I haven't studied the Shays-Meehan suit in any detail, but I don't follow Mitchell's argument that the FEC regulation means that any corporation or union making expenditures lobbying Congress will be guilty of coordination if FEC says so. I presume the FEC would not say so unless the communications through public advocacy were made at the request or suggestion of the federal candidate or after substantial discussion with the candidate, party or agent. And it seems that the Shays-Meehan suit would simply eliminate any requirement that the coordinated expenditure include express words of advocacy or defeat of a candidate for office. Coordinated expenditures have the same corruptive potential whether they include such words of express advocacy or not.


posted by Rick 11:41 AM
. . .
Defending Leahy In response to my immediately preceding post, a reader e-mails:
    I don't think you're being fair to Senator Leahy. The Republican obstruction
    of Clinton candidates WORKED. I think its like carpet bombing cities in WW2:
    once one side adopted a tactic previously thought to be immoral, the other
    side couldn't afford its clean hands any more.

Thanks for writing.


posted by Rick 9:47 AM
. . .
What Senator Leahy and George Will have in common Earlier I criticized George Will's commentary suggesting that the filibuster is unconstitutional. It turns out, as many bloggers have pointed out, Will took the opposite position years ago when Republicans filibustered Democratic nominees. Others have pointed out that Senator Leahy, those years back, said he would not filibuster judicial candidates. Now, here he goes engaging in a filibuster. Commentator Ed Lazarus in his Findlaw column is shocked about Will's behavior:
    I confess that I'm a sucker. I believe in these kinds of things - integrity, truth, certain absolute moral values, a right thing to do. Maybe it's all that Plato I read in college. I've always believed here is such a thing as a "true" answer (even if we cannot know it with certainty), and that there are ways of discerning better from worse, whether in argument or music or literature.

I find the conduct of both Leahy and Will not shocking, but expected.


posted by Rick 8:31 AM
. . .
Front-loading of Democratic primaries The New York Times reports in this article that a large number of states are planning on holding their primaries for Democratic presidential nominee early in the season---thanks to a change in Democratic party rules. The large field and the absence of a Democratic front-runner may make this a risky strategy.


posted by Rick 8:10 AM
. . .
Controversial campaign contributions The Los Angeles Times has this interesting front page article today detailing how some last-minute campaign contributions by an insurance company went unreported until after the election and may have deprived Democrats in the assembly of a 2/3 majority that would have allowed them to pass budget proposals without cooperation with Republicans.


posted by Rick 8:06 AM
. . .
Why Should Democrats Compromise? It is interesting that Volokh Conspiracy contributor Philippe de Croy argues here that to end the stalemate over Estrada, the Republicans should give up Estrada and the Democrats should agree not to filibuster other controversial nominees like Pickering or Owens. I don't see the political logic of the argument. After all, the Democrats are now winning. Why would they give up a strategy that is working? To move on to Iraq? The Repubilcans will need to do that when the cloture votes fail.


posted by Rick 7:26 AM
. . .
Wednesday, March 05, 2003
Morton Kondracke on Estrada filibuster Morton Kondracke wrote a commentary Monday in Roll Call entitled "Estrada Filibuster Escalates Partisan War Over Judiciary." Roll Call declined to publish my letter to the editor about the piece. Here it is:
    Dear Editor:

    In his March 3, 2003 commentary ("Estrada Filibuster Escalates Partisan War Over Judiciary") Morton Kondracke accuses Senate Democrats of using "the legislative equivalent of a dirty bomb to block" the nomination of Miguel Estrada to the D.C. Circuit. Kondracke earlier had accused Democrats of using the "nuclear option" in going after Estrada.

    Aside from the inflammatory nature of Kondracke's rhetoric (is he subtly trying to associate Democrats with terrorists?), Democratic tactics are hardly unprecedented. In the past, Republican and Democrat senators used the equivalent of the neutron bomb: it destroyed the judicial nominee but left the Senate standing. All that a senator had to do was to threaten a filibuster (to put a "hold" on a nominee) to stop action on that nominee in its tracks. In addition, the Judiciary Committee gave essentially a veto power to the two Senators from the state in which the judge would sit. Scores of Clinton-era nominees (certainly some very qualified candidates) were killed with this neutron bomb, and although some protested, it hardly got the news attention Estrada has gotten.

    Kondracke also seems to take at face value the view that some Democrats are opposing Estrada because they lack sufficient information. Although it is true that Estrada has refused to answer some basic questions (such as his position on cases like Roe v. Wade---the Estrada quotes in Kondracke's article hardly settle the matter), both Democrats and Republicans have a pretty good idea of his likely conservative judicial philosophy. That's why conservative interest groups are working as hard as they can to get Estrada confirmed and liberal interest groups are fighting the nomination hard. Because Estrada is a possible candidate for a future Supreme Court vacancy, the stakes are even higher.

    The real issue is neither unprecedented Democratic tactics nor insufficient information. It is the extent to which the senators should consider political ideology in deciding whether or not to confirm nominees. Most senators apply ideological tests but don't admit it. They pretend it is about judicial "qualifications" or "experience." Ideology is why so many Clinton nominees were blocked by Republicans in the Senate and Bush nominees blocked by Democrats. Yet only a few senators, such as Charles Schumer (D-NY), have the courage to admit that political ideology is important to the Senate's role to "advise and consent" on judicial nominations.

    The reason senators should consider ideology in approving judicial nominees is that judges on federal appeals courts, and especially Justices on the Supreme Court, make political decisions in deciding important constitutional cases. In deciding cases involving issues like abortion or affirmative action, there is simply not enough guidance in the constitutional text or history to meaningfully constrain judicial decisionmaking. Judges may need to act as though they are "finding law" rather than making it, but in difficult cases, they are making value judgments, not engaging (or solely engaging) in textual interpretation.

    The Senate's power over nominations is much like the House's power to impeach for "high crimes and misdemeanors:" it is a political decision made by a political body. The question should be whether Estrada is too far ideologically from the mainstream that Democrats should block his nomination. If the political price for a filibuster is too high, the Democrats will relent. If not, the Republicans will relent. And that is as it should be.



posted by Rick 9:02 AM
. . .
Election law books department This week sees the release of Jamie Raskin's new book, Overruling Democracy: The Supreme Court Versus the People. From a very different political perspective, next month features the release of the paperback edition of Brad Smith's book Unfree Speech: The Folly of Campaign Finance Reform. The paperback edition features a new preface by Smith.


posted by Rick 8:30 AM
. . .
Tom Mann on Estrada filibuster Writing in today's Roll Call, the consistently perceptive Tom Mann makes the following observations:
    So the Senate Democrats’ resort to a filibuster on the Estrada nomination is not unprecedented but it is highly unusual and extreme by Senate conventions. It is the latest escalation in what has been an intensifying “War of the Roses” between the parties in Washington. Earlier episodes included divisive battles over the Supreme Court nominations of Robert Bork and Clarence Thomas; the winter 1995-96 budget fights that led to government shutdowns; and the long-running independent counsel investigations of Clinton, leading to his impeachment by the Republican House.

    That war is partly a consequence of razor-thin majorities in the Congress, the increasing ideological polarization between the parties, and the extension of the permanent campaign to the Congress. It has intensified as a result of the circumstances and leadership style of George W. Bush’s presidency.


One question to consider is what strategies politicians might use to get out of the escalating cycle. Mann suggests that Bush must "take pre-emptive action by submitting a more balanced ticket of judicial nominees and engaging in genuine negotiation and compromise with both parties in Congress. That seems most unlikely." I'm afraid he's right. Just wait for the next Democratic president putting forth judicial nominees and the Republican filibuster. Then we can watch each side accuse the other of hypocrisy.


posted by Rick 8:21 AM
. . .
Tuesday, March 04, 2003
Justice Scalia again tries to inject himself into the Estrada confirmation battle See the AP story here.


posted by Rick 8:56 PM
. . .
Department of Half-Baked ideas in the Estrada matter So one of the claims floating out there is that the filibuster is anti-democratic/anti-majoritarian. I have already pointed out elsewhere that the Senate itself is a non-majoritarian institution (giving as many seats to Wyoming as to California). Might it be said that at least in the case of the Estrada filibuster, the filibuster serves majoritarianism? I haven't done all the math, but just consider that both Senators from New York and California support the filibuster. If we assign to Senators the number of people they represent from their state (given two senators, give each half the state's population), it may well be that the filibuster supports what the majority of people want.


posted by Rick 8:49 PM
. . .
More on Georgia v. Georgia v. Ashcroft available here.


posted by Rick 7:22 AM
. . .
Monday, March 03, 2003
Ongoing debate with Larry Solum on the Role of Ideology in Judicial Selection I should have known better than to get into a jurisprudential debate with Larry Solum, a Loyola Law School colleague and one of the country’s leading jurisprudential theorists. Larry’s latest post is here, and if you follow the links there you can see the set of exchanges between us.

Let me begin by saying that Larry is of course right that I was making both a positive and a normative claim. The positive (or descriptive) claim is that in the hard constitutional cases, the Justices of the Supreme Court do not see themselves bound by text, history, or precedent. Larry appears to disagree a bit about this. (He says: "[Rick's position is close to the CLS position of] Law is Politics! Of course, that is precisely the position that I am arguing is neither necessary (as a matter of fact) nor desirable (as a matter of political and legal philosophy.")

I can’t do justice to my positive argument here; my book shows the point through an exhaustive analysis of the most important election law cases from Baker v. Carr to Bush v. Gore. Maybe the Court has acted differently (in a more principled way?) in other areas; I don't know. In the election law area, I claim that both liberals and conservatives have deviated from text, history, or precedent to reach the results that they have wanted. The book uses the Harper poll tax case to make the point most directly. Harper was almost a 6-3 summary affirmance of the lower court case upholding the poll tax. Justice Goldberg initially wrote an impassioned draft dissent (reprinted in an appendix to my book). Justice Black, who voted to affirm, didn't like where the dissent was going, and called for a full hearing. He got burned. Three Justices changed their vote in the next year on full hearing---overruling the Breedlove precedent upholding the poll tax along the way. The Constitution wasn't amended that year. No history or text changed. Three justices just changed their minds. (Justice Fortas, who replaced Goldberg, took the same position with Goldberg and concurred in Douglas's majority opinion.)

What explains the reversal? Certainly not text, history, or precedent. And this is not a liberal disease. I make the same criticism of conservative opinions including Shaw v. Reno and Bush v. Gore. The Justices are making value judgments about what political equality should require. And they are making the decisions as a matter of constitutional law.

No Justices on the Court have confined themselves to text, history, or precedent in the election law area, and there is not a single Justice sitting on the Court today who adheres to Justice Frankfurter’s position in Baker v. Carr---neither Justice Thomas nor Justice Ginsburg is ready to march out of the political thicket. Indeed, conservatives like Judge Posner have a new-found appreciation for Supreme Court intervention in the political process in light of the Florida election controversy. So what to do?

I don't believe that we can realistically expect the Justices to keep out of the political process (or stick to text, history, and precedent) in the election law cases. That might be the best solution (I don’t say in the book and I’m not sure I'd say so in any case---since I'm not a jurisprudential theorist, my grand ideas are not worked out well as Larry's are), but it is completely unrealistic. So my normative theory is one of second best. I offer two normative prescriptions. (These are my versions of minimalism, which differ from Sunstein’s and have some affinity to Dorf and Sabel’s “Democratic Experimentalism”):

(1) The Justices should move slowly when deciding political equality cases advancing novel theories of equality. The more novel the holding, the murkier the rule articulated by the Court should be. This lets the Court see what kind of damage the new rule can do by looking at what happens in the lower courts. The best thing to say (and there is not much) about the Bush v. Gore opinion is that its equal protection holding is opaque. Let's see what happens in the lower courts before enshrining any federal rights to oversee the nuts and bolts of elections.

(2) More controversially, I claim that the Court should protect three “core” political equality values, but leave contested political equality claims to the political process. This argument takes a long time for me to make in the book, but my basic idea is that aside from some basic democratic principles (such as no denial of the right to vote based upon someone’s race or religion) which the Court should protect regardless of social consensus, the Court should recognize as core rights only those political equality claims about which society has reached a near consensus. Harper was thus rightly decided, because all but four states had abolished the poll tax. Justice Harlan's dissent shows the extent of consensus (though he uses consensus to argue against the result in Harper). The Court’s role was to police the outliers. (I added the information about text, history, and precedent in my hypo for Larry's benefit, not to claim these factors should be dispositive.) And City of Mobile v. Bolden was right too, because the argument for more proportional representation went well beyond social consensus about what democracy requires. (By the way, Harper is a case usually hailed by liberals and City of Mobile a widely derided case.)

A corollary to my principle is that the Court should defer to the legislature’s adoption of a contested view of political equality. Thus, the Court was right to uphold the Voting Rights Act, which adopted proportionality much like the claim advanced in City of Mobile v. Bolden. But the Court was wrong to reject political equality as a compelling rationale for campaign finance regulation in Buckley v. Valeo.

One big problem in the election law area is self-interest, however, and the Court must engage in close means-ends scrutiny to police self interested legislative action in the name of political equality. That's another point (tangential to this debate) that I develop in the book.

When the Court goes beyond these rules, it runs the risk of changing social consensus. That’s what happened when the Court adopted a strict one person, one vote rule in Reynolds v. Sims. It changed the consensus, so that the principle of equally weighted voting is now in the core. Moving beyond consensus runs serious dangers of changing political expectations.

(Larry asked about reaffirming Roe. For me, this is a much harder case than reaffirming Reynolds (and well outside my area of expertise) because the Court did not create social consensus. So that rule doesn’t work to uphold Roe. My intuition in the abortion context would be to reaffirm Roe because (and this is not something I have explored in the book or thought about in any depth) I would recognize certain rights of privacy and bodily autonomy that do not depend upon social consensus---analogous to those core equality rights that exist beyond social consensus. But I haven't given this nearly the thought that I have to election law issues.)

I argue at the end of the book that both conservative and liberal the Justices would do best to try to avoid creating new contested political equality rights as a matter of constitutional law, and both groups might be better off if they did so. I suggest various signaling devices like dicta to move toward this new equilibrium.

In the end, I don’t claim to have discovered “The Truth” about the meaning of the Constitution. The decisions made in election law cases are political, and we would all be better off if we acknowledged this fact.

Bringing this back to the Cook nomination and Cohen's critique (where Larry and I started), if we fail to acknowledge the political nature of judging, we still will get Justices confirmed who will vote on the basis of ideology, but we will disable the decisionmakers from considering ideology in advising and consenting on nominations.

Post Script Larry thinks he's Perry White and promises a further response.


posted by Rick 5:57 PM
. . .
New draft by Sam Issacharoff Samuel Issacharoff (Columbia) has posted Law, Rules, and Presidential Selection (forthcoming Political Science Quarterly) on SSRN. Thanks to Larry Solum for the pointer.


posted by Rick 3:59 PM
. . .
Fear of McCain-Feingold Robert Novak reports here that "[f]ear of violating the new McCain-Feingold campaign finance reform act was so high that no member of Congress attended a Republican Governors Association (RGA) reception paid for by corporate interests." Assuming this is true, it raises two questions: (1) is this a correct reading of McCain-Feingold? (I think not). (2) If it is true, and McCain-Feingold does prohibit such activities, would it violate the First Amendment? The answer may depend upon one's views of whether corporations should be seen as having first amendment rights worthy of protection---an issue the Supreme Court answered affirmatively by sidestepping it in Bellotti.


posted by Rick 9:49 AM
. . .
Sunday, March 02, 2003
Politics and the administration of the Voting Rights Act One of the questions at issue in the Branch v. Smith case (decision expected any time from the Supreme Court) is the extent to which the Justice Department may have adminsitered preclearance provisions of the Voting Rights Act to favor Republicans in the State of Mississippi. Here is a story from the Washington Times alleging the Justice Department has similar partisan motivation in challenging a Pennsylvania jurisdiction's accommodations for Hispanic voters.



posted by Rick 9:03 AM
. . .
Saturday, March 01, 2003
Georgia v. Georgia v. Ashcroft Georgia's (Republican) governor has now sued Georgia's (Democratic) attorney general to get the attorney general to withdraw Georgia's appeal in Georgia v. Ashcroft. The case concerns a very important question about the meaning of "nonretrogression" under section 5 of the Voting Rights Act. You can access the latest Atlanta-Journal Constitution article here.


posted by Rick 8:19 AM
. . .
Friday, February 28, 2003
The vacuous content of political speech accompanying slate mail In this earlier post, I described the practice of California slate mailers combining their political endorsements with political messages from a non-profit group. The advantage of such bundling is the ability to use a lower postal rate available to non-profits (but not for pure political mail). I received my first piece of slate mail along these lines today. It is the "Voter Information Guide" like I have received many times before, listed endorsed candidates for office. (California law requires that those paying for space be marked by an asterisk,and this particular guide features all but one candidate so designated.) The back of the mailing features the "Policy Institute Newsletter" published by "Policy Issues Institute, Separate Segregated Fund." And what is the important news that the Institute brings to me? Three things: A new state law allows voters to obtain permanent absentee status; poll workers are needed to work at the polls; and look out for hanging chad. The last piece of news is particularly interesting in that the Institute urges me to contact my member of Congress to support the "Help America Vote Act of 2001." Someone might have noticed that the 2002 version of the Act passed many months ago, and is now being implemented.


posted by Rick 9:09 PM
. . .
Mandatory Voting Here's a Findlaw article by John Dean calling for mandatory voting. I have explored the issue in detail in Richard L. Hasen, Voting Without Law?, 44 U. PA. L. REV. 2135 (1996).


posted by Rick 2:18 PM
. . .
Wrong as promised I predicted here that the district court would issue the BCRA decision today. Wrong again. So now we are over a month late on the opinion. The judges must be having a much harder time than they initially anticipated. I wonder if they have been in contact with the Supreme Court, and have received some other deadline to get the case handed down in time for a Supreme Court decision in June.


posted by Rick 2:08 PM
. . .
L.A. Times Follow-Up on Native Americans and Campaign Finance story See the link here following up on yesterday's post.


posted by Rick 8:49 AM
. . .
Thursday, February 27, 2003
They Report, They Decide Here's the following from a FOX News story on the Estrada filibuster:
    The decision to call for a "cloture" vote on an appellate court nominee overturned more than two centuries of Senate precedent and rewrote the constitutional definition of "advise and consent." Never before has a nominee been caught this deep in the web of Senate politics.


This is supposed to be a "news" story. As my earlier post taking on George Will today noted, the Democrats' actions hardly are a constitutional amendment. The practice of a minority in the Senate blocking appellate (and even district court) nominees goes back quite far. Consider how Jesse Helms blocked every Clinton nominee to the Fourth Circuit. The Republicans may have made the issue salient by requiring a real filibuster (good, so everyone knows what is at stake), but no one should imagine that the Democratic tactics now are any different from Senate business as usual.


posted by Rick 9:27 PM
. . .
Native Americans and compliance with campaign finance laws A federal court has rejected the sovereign immunity claim of a Native American tribe and required it to comply with otherwise applicable campaign finance laws. See the AP report here.


posted by Rick 3:24 PM
. . .
BCRA opinion timing Here is a hunch with no basis in fact: I predict that we see the BCRA opinion tomorrow. What is so special about tomorrow? It is the end of February, and perhaps the judges (or the Supreme Court on the sly) are working with an end of February deadline rather than an end of January deadline as originally expected. I have often been proven wrong; this time the proof will come more quickly.

posted by Rick 12:57 PM
. . .
Problems at Votehere too See this article from USA Today.


posted by Rick 11:26 AM
. . .
Foreign nationals buy control of Election.com See the Newsday story here. (Thanks to a poster on the Votingtech list for the pointer.) The company is one of the groups administering internet absentee military voting for President in 2004.


posted by Rick 9:49 AM
. . .
George Will's misunderstanding of the Constitution and the filibuster In an op-ed here (thanks to How Appealing for the pointer), George Will makes the following argument:

    The president, preoccupied with regime change elsewhere, will occupy a substantially diminished presidency unless he defeats the current attempt to alter the constitutional regime here. If at least 41 Senate Democrats succeed in blocking a vote on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the Constitution effectively will be amended.

    If Senate rules, exploited by an anticonstitutional minority, are allowed to trump the Constitution’s text and two centuries of practice, the Senate’s power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president’s power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.


In the first place, if the 60-vote "effectively" amended the Constitution, the amendment happened long ago. The only difference between Democratic tactics now and Republican and Democratic practices in the past is that the issue is more salient. In the past, a Senator simply had to threaten a filibuster to defeat a judicial nomination. Why was Will not complaining when Republicans used this tactic to defeat Clinton nominees?

More importantly, the filibuster rule does not "effectively" amend the Constitution. The Constitution provides that the Senate (itself a non-majoritarian institution) can craft its own rules. Senators can change that rule tomorrow if they like. But Senators have found the filibuster useful for many decades.

Finally, Will argues that the Senate is somehow using an un unconstitutional standard for evaluating judges (citing Alexander Hamilton who said that there must be "special and strong reasons" for turning down a presidential nominee). This reminds me of the impeachment debate. The standards that the Senate uses under its advise and consent powers are much like the standards the House must use to judge "high crimes and misdemeanors" under impeachment: it is an inherently unreviewable political decision.

The solution to the Estrada problem is a political one. If the political costs of the filibuster are too high, the Democrats will have to abandon it. If not, the Republicans will have to relent.

posted by Rick 7:57 AM
. . .
Wednesday, February 26, 2003
Those who know best worryThe New York Times reports here that computer scientists in Silicon Valley are worried about electronic voting machines that do not include a paper record.


posted by Rick 9:30 AM
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Ideology and judicial nominations, Part 3 Larry Solum responded here to my earlier post on whether Senators should consider ideology in approving judicial nominees. Larry's bottom line is that I am "unduly pessimistic about the possibility of realizing or restoring the rule of law. Even in constitutional cases, there is the text, the original meaning, and the doctrine of stare decisis. Law can be politics, but it does not have to be politics." He then wonders about the implications of my argument for judicial review.

Fair enough, and scholars like Mark Tushnet have made the argument against judicial review along precisely these lines. As for whether "text, original meaning and the doctrine of stare decisis" are significant constraints, consider the following two questions to be determined by the new Supreme Court Justice applying neutral principles:

1. You are back in 1966 before Harper v. Virginia Board of Elections: Should a poll tax be declared in violation of the Equal Protection Clause, which provides that no state shall deprive any person of equal protection of the laws? Original meaning and stare decisis suggest the poll tax is constitutional. (The best reading of history is that the equal protection clause was not meant to apply to political rights, and the earlier Breedlove case upheld poll taxes.) All but four states have overturned poll taxes.

2. It is 1992 before Casey. You believe Roe v. Wade was wrongly decided, but you believe strongly in the principles of stare decisis. How should you rule?

On the tough questions, I just don't see text, original meaning, and the doctrine of stare decisis as either dispositive or necessarily the only correct bases upon which to decide such cases. Such decisions are inherently political.

I believe there are ways for the Supreme Court to constrain itself, as developed in my book. The arguments depend upon both liberal and conservative activists pulling back from the brink of mutually assured destruction through writing more minimalist decisions.


posted by Rick 8:01 AM
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Tuesday, February 25, 2003
RNC Response to McCain Yesterday I posted here a comment on John McCain's letter to the chair of the GOP claiming that the GOP is engaging in scare tactics regarding how onerous it is to comply with the BCRA. I have just received this letter from the RNC responding to McCain:


    Dear Senator McCain:

    This letter is in response to your misunderstanding concerning the Republican National Committee's ("RNC's") attempt to inform and discuss with its own Members the implications of the Bipartisan Campaign Reform Act ("BCRA"). Specifically, many of our Members have questioned their continuing involvement with the raising and the spending of non-federal money for state and local party committees because that involvement impacts generically on elections held every two years when there are always federal candidates on the ballot.

    Many provisions of the BCRA are difficult to understand, even by Members who supported the legislation. In fact, your colleague Representative Matsui of California - who voted for the BCRA - recently was quoted in the New York Times commenting on the law's fine print, "I didn't realize what all was in it...we have cautioned members: `You have to really understand this law. And if you have any ambiguity, err on the side of caution.' " The RNC shares this cautionary approach, and I can assure you that RNC attorneys have done, and will continue to do, everything they can to present factually and legally accurate information to RNC members and those who want to participate in the American political process. I'm certain you can appreciate the difficult position that all Americans are placed in when attempting to understand the hundreds of pages of your new restrictions.

    As you are aware, the new law severely restricts the RNC and its agents from participating in state and local political activity. Therefore, many of our Members are legitimately concerned as to when, as elected members of the RNC by Republican voters in their respective states for the specific purpose of representing them on the National Committee, they can divest themselves of that role and act as "ordinary citizens" and not as the agents of the RNC.

    Based on their concerns, we have discussed with them the "wearing of two hats" that is referred to in the prepared "fact sheet" which you have attached to your letter. Unfortunately, our Members cannot take solace in the "two hat theory" because they find it difficult to separate their roles and because of the severe penalties included in the new law. Adding to the confusion is the fact that primary sponsors of BCRA are currently challenging the Federal Election Commission's regulatory definition of "agency," which they characterize in court papers as too permissive.

    Discussion at the RNC Winter Meeting attempted to address these and related issues with our Membership. Contrary to your assertions, RNC attorneys did not state that "the new law requires every local and county committee to register with the FEC." It was, though, made clear to our Members that anything classified as "federal election activity" would be subject to federal regulation. The BCRA expansively considers certain get-out-the-vote and generic campaign activity conducted by political parties, including state and county parties, to now be "federal election activity." The letter of the law indicates that if a county party wanted to increase turnout in the mayor's and dogcatcher's races on Nov. 2, 2004, and ran a radio advertisement encouraging voters to "Vote Republican! Vote for Smith for Mayor and Jones for Dogcatcher on Nov. 2," that advertisement would now be considered to be "federal" election activity, and therefore regulated by federal rules. The "fact sheet" you attached to your letter concedes this same point.

    With all due respect to your personal understanding of how you intended to regulate state and local party activities, until we hear with some finality from the courts the RNC is obligated, in providing guidance to our Members, to rely on the plain language of BCRA and Federal Election Commission Regulations. I am confident that, based on the law and FEC rules, our attorneys have provided that guidance in an accurate and professional manner. Although the RNC has serious constitutional, practical, and equitable concerns with the BCRA, we are nonetheless fully committed to complying with the current law. We appreciate your stated desire to provide accurate and reliable legal information, and to that end I strongly encourage you to contact the RNC's Chief Counsel, who is always available to discuss with you this complex and sometimes confusing set of legal requirements placed upon political parties.

    Sincerely,


    Marc Racicot




posted by Rick 3:01 PM
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Ideology and judicial nominations, continued My Loyola Law School colleague Larry Solum has this post on his important blog, Legal Theory, in which he takes on this New York Times op-ed by Adam Cohen. Cohen challenges one of President Bush's judicial nominees, Deborah Cook. Much of Larry's post takes issue with Cohen's discussion of a case that Cook decided---a case raising res judicata and evidence issues about which Larry knows a great deal.

I don't object to Larry's claim that Adam Cohen got the facts wrong. My problem is with Larry's statement about the meaning of the Cohen op-ed on the larger question of judicial nominations: Larry says: "More than ever, opponents of judicial nominations oppose candidates on the basis of political ideology--a trend that threatens to do fundamental damage to the rule of law." He continues: "If the current trend towards the politicization of the federal judiciary continues, then every judicial nomination (not just Supreme Court nominations) can become an ideological battleground. The nomination and selection process will become a strategic game, with each side seeking to create a third political branch. But if the judiciary is just another political branch, then there is no reason to consider its resolution of disputes to be authoritative--to be binding on citizens and the other branches of government. If we produce a judiciary that lacks the judicial virtues and personifies the vice of result-orientation, getting the result the judge wants rather than the result the law requires, we are inviting trouble--because the rule of law is a fragile thing."

With all due respect to Larry, we already live in an era of both liberal and conservative judicial activism. We have a judiciary that is just another political branch. How else to explain the wild swings in judicial activism between the Warren court on the one hand and the Burger and Rehnquist courts on the other than to realize that in the most important cases, particularly cases of a constitutional dimension heard by the Supreme Court and, to a lesser extent by the lower appellate courts, there are no "neutral" principles of law to apply? (My forthcoming book defends this claim in detail in the context of the Supreme Court's political equality cases from Baker v. Carr to Bush v. Gore.) That is why it is appropriate for both Democrats and Republicans to take political ideology into account in choosing whether to support or oppose nominees for federal appellate judgeships.


posted by Rick 12:05 PM
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No regulation of negative political advertising by PACS Not surprisingly, the Ninth Circuit has struck down an Arizona law, passed to curb "negative" political advertising, providing that "within ten days before an election, a political action committee advocating the election or defeat of any candidate must mail a copy of the communication to the candidate at least twenty-four hours in advance." (Quoting the opinion, not the statute.) The case, Arizona Right to Life v. Bayless is available at this link. Among other problems, the law was underinclusive, targeting only political committees.


posted by Rick 11:35 AM
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Ginsburg on Bush v. Gore I reported earlier here some recent remarks Justice Scalia made about the Bush v. Gore decision. According to an article in the Fulton County Daily Report, Justice Ginsburg made some remarks about the case at a recent Georgia State dinner in her honor:

"Ginsburg said Bush v. Gore was not on the level of the Dred Scott decision, the infamous 1856 holding that blacks had no rights under the Constitution. But, like Dred Scott, she said Bush v. Gore was only 'a moment in history.'

"'I don't think any lawyer would be wise to cite it as precedent,' she added, looking serious while the students tittered. 'It just happened.'"


posted by Rick 8:49 AM
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Monday, February 24, 2003
McCain and the Meaning of the BCRA Senator John McCain, one of the major sponsors of the BCRA, sent this letter to the chair of the GOP claiming that the GOP is engaging in scare tactics regarding how onerous it is to comply with the BCRA. The letter goes on to provide "clarification" on the meaning of the law. The AP in this report quotes a GOP spokesperson as saying: "Senator McCain may know what he intended the law to say, but the rest of the world can only act based on what the law says." Even if the GOP may be exaggerating the scope of the problems, there is no question that the BCRA is a very complex statute that is difficult to understand on first read. That is why these "McCain Feingold schools" have developed. See here and here.


posted by Rick 3:04 PM
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Court declines Casino case The Supreme Court today denied cert in Casino Association of La. v. Louisiana, Docket 02-466. The case upheld the right of the state to bar casino operators from making campaign contributions on grounds that such contributions tend to foster corruption. Other lower courts have upheld the right to impose special campaign finance restrictions on other groups, such as liquor licensees and lobbyists. The Supreme Court has never addressed the issue, except in the context of corporations and labor unions.


posted by Rick 9:42 AM
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Campaign mail and non-profits The Los Angeles Times reports at this link that campaign consultants sending slate mail (campaign advertisements popular in California elections) have found a way to obtain a 15%-20% discount on mailings. The slate mailers send out their mail through a non-profit group that adds its own messages to part of the mailing. By doing so, the slate mailers can take advantage of lower postal rates.


posted by Rick 9:22 AM
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