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)

Saturday, June 28, 2003
Blogger Independence Week I'm taking a week off from blogging. Time to recharge. Back on July 7. Happy Independence Day.


posted by Rick 8:57 AM
. . .
More on Vieth case The New York Times offers this report.


posted by Rick 7:56 AM
. . .
"Democrats Discovering Campaign Law's Cost" The Washington Post offers this report.


posted by Rick 7:54 AM
. . .
Friday, June 27, 2003
More on California recall See Dan Weintraub here, on Sec. Shelley's response to his query about signature verification. Longtime California political observer Tony Quinn e-mails the following comment: "I don't think Shelley will succeed in keeping the issue off a fall ballot. Even if they only verify the 375,000 in hand June 16, there will be 1.3 million in hand by July 16, and he will be forced to report that number July 23. That gives the counties one month to verify the 1.3 million, and that will be enough time that he cannot delay it until March."


posted by Rick 9:20 PM
. . .
"Experts: Redistricting Decision Aids Democrats" The Washington Post offers this report.


posted by Rick 9:12 PM
. . .
More on Vieth The jurisdictional statement is here. The reply brief is here. The questions presented are the following:
    1. Whether the District Court erred in effectively concluding that voters affiliated with a major political party may never state a claim of unconstitutional partisan gerrymandering, thereby nullifying this Court's decision in Davis v. Bandemer, 478 U.S. 109 (1986).

    2. Whether a State presumptively violates the Equal Protection Clause when it subordinates all traditional, neutral districting principles to the overarching goal of drawing a congressional redistricting map that achieves maximum partisan advantage for members of one political party.

    3. Whether a State exceeds its delegated power under Article I of the Constitution when it draws congressional-district boundaries to ensure that candidates from one political party will consistently capture a supermajority of the State's congressional seats even if those candidates win less than half the popular vote statewide.

Sam Hirsch reports that oral argument will probably be early next year. These are big questions, and it is sure to be interesting to follow.

posted by Rick 6:02 PM
. . .
Humeless and Humorless Not on FOX today. If you ever do see me on FOX talking about the recall, let me know. UPDATE: A reader reported seeing me on a different FOXNews show. E-mail me if you know which one. FURTHER UPDATE: I was on FOX report. A whole sentence! Not bad from a one hour interview.


posted by Rick 3:47 PM
. . .
"High Court Weighs Congressional Districts" Here is the A.P. report on the Vieth case.


posted by Rick 2:54 PM
. . .
Supreme Court to Give Guidance on Partisan Gerrymandering Claim First Recognized in Davis v. Bandemer So here I am writing for the second time today about the partisan gerrymandering case Davis v. Bandemer. The Supreme Court's decision to take the Vieth case (see three posts below this one) will directly implicate the meaning and vitality of Bandemer. The case presents a very interesting question of when, if ever, a redistricting done to benefit one party at the expense of another party is unconstitutional. In Bandemer, the Court set the bar very high in a murky opinion. This is definitely one to watch. More later.


posted by Rick 11:42 AM
. . .
Hume? Now they say I'll be on this evening (6 pm eastern and midnight eastern). We'll see.


posted by Rick 10:40 AM
. . .
Summary affirmance in voting case From SCOTUSblog:
    Summary Affirmance in Voting Rights Case
    The Court today summarily affirmed the judgment of the three-judge court dismissing a claim under section 5 of the Voting Rights Act in No. 02-1577, City of East Combes, Texas v. East Rio Hondo Water Supply, 244 F. Supp. 2d 778 (S.D. Tex. 2003).



posted by Rick 9:58 AM
. . .
Supreme Court takes new elections case This morning, in its final order before recessing until the September 8 campaign finance argument, the Court granted probable jurisdiction in Vieth v. Jubelirer, no 02-1580, a challenge to Pennyslvania congressional districting. The lower court opinion is Vieth v. Commonwealth of Pa., 241 F. Supp. 2d 478 (D. Pa. 2003) (three-judge court).


posted by Rick 7:32 AM
. . .
Sodomy and redistricting Those who work in the redistricting business can surely see a connection between these two subjects. But there is a different connection: Yesterday, news about the important redistricting decision in Georgia v. Ashcroft was overshadowed by news about the sodomy decision in Lawrence v. Texas. Go back in history to June 30, 1986: news about the important redistricting decision in Davis v. Bandemer (recognizing, but placing a high bar on claims of, partisan gerrymandering) was overshadowed by news about the sodomy decision in Bowers v. Hardwick. (Bowers was overturned in Lawrence yesterday.)


posted by Rick 6:50 AM
. . .
L.A. Times article on Georgia v. Ashcroft See here.


posted by Rick 6:39 AM
. . .
Hume-less? Looks like I got bumped from FOX by Supreme Court coverage. We'll see if they run the piece at a later time.


posted by Rick 6:38 AM
. . .
Thursday, June 26, 2003
"Shelley slows the recall count" Dan Weintraub has quite a scoop over on his blog, regarding the California secretary of state's apparent plan to delay the verification of signatures in the recal process, to push the process to the March date preferred by Democrats.


posted by Rick 9:03 PM
. . .
More Georgia v. Ashcroft news The Washington Post story is here. Law.com's article is here. This article notes that the attorney general is asking the Georgia Supreme Court to declare moot the state lawsuit over the governor's authority to withdraw the appeal in the Supreme Court.

The updated New York Times article is here. The updated A.P. story is here.

posted by Rick 8:58 PM
. . .
South Carolina Campaign Finance News "Samford Signs Campaign Finance Reform into Law." (Thanks to Ed Feigenbaum for the pointer.)


posted by Rick 4:38 PM
. . .
In the law reviews Frances Hill publishes Targeting Exemption for
Charitable Efficiency: Designing a Nondiversion Constraint,
, 56 SMU Law Review 675 (2003). Donald B. Tobin has published Anonymous Speech and Section 527 of the Internal Revenue Code, 37 Georgia Law Review 611 (2003). (Thanks to Steven Sholk for the pointers.)


posted by Rick 4:36 PM
. . .
Me on t.v. I am supposed to be on FOXNews tonight on the Brit Hume show (some time between 9-10 pm eastern) talking about the rules for a recall election in California. CORRECTION: It is 9-10 Pacific, or 12-1 am Eastern. (Apparently it was already on for the first time at 6 pm eastern.


posted by Rick 2:51 PM
. . .
Reporting on Georgia v. Ashcroft The New York Times offers "Court Endorses a New Approach to Redistricting." The Atlanta Journal-Constitution offers "Justices order court to re-examine Georgia election map." The A.P. offers "Court Gives States Boundary Leeway."


posted by Rick 2:36 PM
. . .
What does Howard Bashman know about a possible Supreme Court retirement? There is no question that Howard's How Appealing is the source for getting the fastest and best information about what is going on in the appellate world. Howard either has good information or ESP. This morning, he suggested that a major federal appellate court case was about to come out. Three hours later, he brought the news of the Moussaoui decision in the Fourth Circuit.

Now we get two hints about a Supreme Court retirement:
    No retirement(s)? Just because no Justice announced from the bench of the Supreme Court of the United States this morning that he or she is retiring doesn't mean that such an announcement won't come at some other time soon.

    When to move off tenterhooks: The idea of a U.S. Supreme Court Justice announcing retirement from the bench on the last day of the Term is a bit overrated. Why hold your colleagues captive for that, and why share the spotlight (or divert the spotlight from today's newsworthy rulings)? Instead, in recent memory, the announcement usually comes from behind a podium before the press corps. Accordingly, I would suggest waiting until the end of the day tomorrow before moving off the tenterhooks.


What does Howard know and when will the rest of us know it?


posted by Rick 12:43 PM
. . .
Comments on Georgia v. Ashcroft decision Before today, the Supreme Court had decided eleven cases by a 5-4, vote, with Justice O'Connor in the majority in each case. Today it decided its twelfth and thirteenth, and one is the redistricting case Georgia v. Ashcroft (the other is Stogner v. California).

Georgia v. Ashcroft, a 5-4 opinion written by Justice O'Connor, is an extremely important case under section 5 of the Voting Rights Act. Section 5 requires certain covered jurisdictions (mainly, but not only, in the South) to seek "preclearance" from the Justice Department (or a special three judge court in Washington, D.C.) before making any change in a voting practice or procedure. Preclearance should be granted if the state or local body can prove the change has no "discriminatory purpose or effect." Under the earlier Beer v. United States case, 425 U.S. 130 (1976), a discriminatory effect is proven when the change "would lead to a retrogression in the position of racial minorities with respect to the effective exercise of the electoral franchise."

Background In the past, beginning with Beer, the "non-retrogression" analysis was fairly mechanical. Assuming the state has the same number of voters (and same percentage of minority voters), the question was basically whether the percentage of majority-minority districts (that is, districts in which a majority of voters from a protected racial minority could elect a representative of their choice) stayed the same or went up. Retrogression occurred only if the number went down.

In the lower court in the Georgia case, the Democratic Georgia legislature in drawing Senate lines decided to "unpack" some majority-minority districts by spreading out African-American voters (reliable Democratic voters in Georgia) into more districts. This meant that Democrats could create more districts in which there was a chance to elect a Democrat, through coalitions between black and white voters. Because the plan decreased the percentages of African-Americans in three districts from 55-60% to around 50%, the federal government took the position that the districts should not be precleared because they made it less likely that African-Americans in the districts could elect a candidate of their choice. The lower court agreed, and denied preclearance of the plan.

The Supreme Court's holding Today's opinion requires a richer, more nuanced, and perhaps unadministrable test for determining how to measure retrogression, or what it means for racial minorities to "effective[ly] exercise" their "electoral franchise." The majority rejects a pure mechanical count of the number of majority-minority districts. Slip op at 16 ("In assessing the totality of the circumstances, a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice.") Instead, "any assessment of retrogression of a minority group's effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect candidates of their choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan." Slip op. at 15.

After incredulously stating that the standard in section 5 is "simple," slip. op. at 16, the Court explained that there are both different theories of representation that a jurisdiction may use in determining effective exercise of political power by minorities and different means of measuring such effectiveness.

1. The number of majority-minority jurisdictions remains relevant, but "it cannot be dispositive or exclusive."

2. "[A] state may choose to create a certain number of 'safe' districts in which it is highly likely that minority voters will be able to elect the candidates of their choice." "Alternatively, a state may choose to create a greater number of districts in which is likely--although perhaps not quote as likely as under the benchmark plan---that minority voters will be able to elect candidates of their choice." (On this point, the majority (as well as the dissent) cited the indispensable article by Rick Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L. Rev. 1517 (2002).) The state gets to choose, based on whether it prefers substantive or descriptive representation.

3. "[T]he other highly relevant factor in a retrogression inquiry is the extent to which a new plan changes the minority group's opportunity to participate in the political process...Thus, a court must examine whether a new plan adds or subtracts 'influence districts'--where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process." (Here, the court relied upon the important empirical work by David Lublin, and Cameron, Epstein, and O'Halloran---citing also Swain, Grofman, Handly and Lublin, and Pildes.)

4. "In addition to influence districts, one other method of assessing the minority group's opportunity to participate in the political process is to examine the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts."

5. "And it is also significant, though not dispositive, whether the representatives elected from the very districts created and protected by the Voting right Act support the new districting plan."

Looking at the evidence from the state as a whole, the Court concluded that "Georgia likely met its burden of showing nonretrogression." But it vacated and remanded to the District Court to "reweigh all the facts in the record in the first instance in light of our explication of retrogression."

Initial thoughts

1. In the short run, the opinion is good for Democrats Democrats in the Georgia legislature supported the redistricting plan because it provided a way of moving reliable Democratic voters into a larger number of districts. The "packing" of minority voters into majority-minority districts tended to benefit Republicans.

2. Will the long run implications of the decision favor state governments that would discriminate on the basis of race? The four dissenters worry not only that the test is unadministrable (see point 4 below), but also that it will help states discriminate against minority voters: "[I]f in subsequent cases the Court allows the State's burden to be satisfied on the pretense that unquantifiable influence can be equated with majority-minority power, § 5 will simply drop out as a safeguard against the 'unremitting and ingenious defiance of the Constitution' that required the procedure of preclearance in the first place." Dissent slip. op. at 6.

3. Lack of partisanship on the Supreme Court? It is good to see an opinion helping Democrats (at least in the short run) being supported by the most conservative Justices on the Court and opposed by the liberals. Though perhaps one can point to the long-term potential consequences I flagged in number 2 above to make a counter-argument.

4. Administrability The dissent is no doubt right that this new test for non-retrogression will be much harder to administer. The majority said the old test was itself "fact intensive," slip. op. at 21, but of course the facts of racially polarized voting are easy to measure. The new standards set forth above involve measuring things for which either (1) there are no hard data (e.g., how much influence does a majority-minority member have in a legislature?) or no data at all (e.g., did the state decide to decrease the number of majority-minority districts because it had read Pitkin's theories on representation or because it wanted to discriminate against minority voters?). In the constitutional context, I have praised the Court for coming up with initially unmanageable standards, so that the contours of constitutional rights can be fleshed out with experience from lower court cases over time. Perhaps the new multi-factor test of the Court in the section 5 context can be defended on this basis as well. I'll have to think about it more. It certainly makes work harder for the Justice Department's preclearance division, and creates more work for election lawyers.

5. A Congressional Rewrite? If the Court has it "wrong" here as a matter of statutory interpretation, Congress may well fix the problem before the next round of redistricting. Section 5 comes up for renewal before Congress in 2007, or it sunsets.



posted by Rick 10:02 AM
. . .
"Is Shelley the New Katherine Harris?" Dan Weintraub, at his excellent California Insider blog, weighs in here on the California Secretary of State's position on the effect of a Davis resignation on the recall process.


posted by Rick 9:58 AM
. . .
Links to Georgia v. Ashcroft opinions Majority opinion; concurring opinion; additional concurring opinion; dissenting opinion.


posted by Rick 8:02 AM
. . .
Georgia v. Ashcroft decided It is a 5-4 decision. Here is the syllabus:
GEORGIA v. ASHCROFT, ATTORNEY GENERAL, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
No. 02–182. Argued April 29, 2003—Decided June 26, 2003
Georgia’s 1997 State Senate districting plan is the benchmark plan for
this litigation. That plan drew 56 districts, 11 of them with a total
black population of over 50%, and 10 of them with a black voting age
population of over 50%. The 2000 census revealed that these num-
bers had increased so that 13 districts had a black population of at
least 50%, with the black voting age population exceeding 50% in 12
of those districts. After the 2000 census, the Georgia General As-
sembly began redistricting the Senate once again. It is uncontested
that a substantial majority of Georgia’s black voters vote Democratic,
and that all elected black representatives in the General Assembly
are Democrats. The Senator who chaired the subcommittee that de-
veloped the new plan testified he believed that as a district’s black
voting age population increased beyond what was necessary to elect a
candidate, it would push the Senate more toward the Republicans,
and correspondingly diminish the power of African-Americans over-
all. Thus, part of the Democrats’ strategy was not only to maintain
the number of majority-minority districts and increase the number of
Democratic Senate seats, but also to increase the number of so-called
“influence” districts, where black voters would be able to exert a sig-
nificant—if not decisive—force in the election process. The new plan
therefore “unpacked” the most heavily concentrated majority-
minority districts in the benchmark plan, and created a number of
new influence districts, drawing 13 districts with a majority-black
voting age population, 13 additional districts with a black voting age
population of between 30%–50%, and 4 other districts with a black
voting age population of between 25%–30%. When the Senate
adopted the new plan, 10 of the 11 black Senators voted for it. The
Georgia House of Representatives passed the plan with 33 of the 34
2 GEORGIA v. ASHCROFT
Syllabus
black Representatives voting for it. No Republican in either body
voted for the plan, making the votes of the black legislators necessary
for passage. The Governor signed the Senate plan into law in 2001.
Because Georgia is a covered jurisdiction under §5 of the Voting
Rights Act of 1965, it must submit any new voting “standard, prac-
tice, or procedure” for preclearance by either the United States At-
torney General or the District Court for the District of Columbia in
order to ensure that the change “does not have the purpose [or] effect
of denying or abridging the right to vote on account of race or color,”
42 U. S. C. §1973c. No change should be precleared if it “would lead
to a retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise.” Beer v. United
States, 425 U. S. 130, 141. In order to preclear its 2001 plan, Georgia
filed suit in the District Court seeking a declaratory judgment that
the plan does not violate §5. To satisfy its burden of proving nonret-
rogression, Georgia submitted detailed evidence documenting, among
other things, the total population, total black population, black voting
age population, percentage of black registered voters, and the overall
percentage of Democratic votes in each district; evidence about how
each of these statistics compared to the benchmark districts; testi-
mony from numerous participants in the plan’s enactment that it was
designed to increase black voting strength throughout the State as
well as to help ensure a continued Democratic majority in the Senate;
expert testimony that black and nonblack voters have equal chances
of electing their preferred candidate when the black voting age
population of a district is at 44.3%; and, in response to the United
States’ objections, more detailed statistical evidence with respect to
three proposed Senate districts that the United States found objec-
tionable—Districts 2, 12, and 26—and two districts challenged by the
intervenors—Districts 15 and 22. The United States argued that the
plan should not be precleared because the changes to the boundaries
of Districts 2, 12, and 26 unlawfully reduced black voters’ ability to
elect candidates of their choice. The United States’ evidence focused
only on those three districts and was not designed to permit the court
to assess the plan’s overall impact. The intervenors, four African-
Americans, argued that retrogression had occurred in Districts 15
and 22, and presented proposed alternative plans and an expert re-
port critiquing the State’s expert report. A three-judge District Court
panel held that the plan violated §5, and was therefore not entitled to
preclearance.
Held:
1. The District Court did not err in allowing the private litigants to
intervene. That court found that the intervenors’ analysis of the plan
identifies interests not adequately represented by the existing par-
Cite as: 539 U. S. ____ (2003) 3
Syllabus
ties. Private parties may intervene in §5 actions assuming they meet
the requirements of Federal Rule of Civil Procedure 24, NAACP v.
New York, 413 U. S. 345, 365, and the District Court did not abuse its
discretion in allowing intervention in this case, see id., at 367. Mor-
ris v. Gressette, 432 U. S. 491, 504–505, in which the Court held that
that the decision to object belongs only to the Attorney General, is
distinguished because it concerned the administrative, not the judi-
cial, preclearance process. Morris itself recognized the difference be-
tween the two. See id., at 503–507. Pp. 11–13.
2. The District Court failed to consider all the relevant factors
when it examined whether Georgia’s Senate plan resulted in a retro-
gression of black voters’ effective exercise of the electoral franchise.
Pp. 11–27.
(a) Georgia’s argument that a plan should be precleared under §5
if it would satisfy §2 of the Voting Rights Act, 42 U. S. C. §1973, is
rejected. A §2 vote dilution violation is not an independent reason to
deny §5 preclearance, because that would inevitably make §5 compli-
ance contingent on §2 compliance and thereby replace §5 retrogres-
sion standards with those for §2. Reno v. Bossier Parish School Bd.,
520 U. S. 471, 477. Instead of showing that its plan is nondilutive
under §2, Georgia must prove that it is nonretrogressive under §5.
Pp. 13–15.
(b) To determine the meaning of “a retrogression in the position
of racial minorities with respect to their effective exercise of the elec-
toral franchise,” Beer, supra, at 141, the statewide plan must first be
examined as a whole: First, the diminution of a minority group’s effec-
tive exercise of the electoral franchise violates §5 only if the State can-
not show that the gains in the plan as a whole offset the loss in a par-
ticular district. Second, all of the relevant circumstances must be
examined, such as minority voters’ ability to elect their candidate of
choice, the extent of the minority group’s opportunity to participate
in the political process, and the feasibility of creating a nonretrogres-
sive plan. See, e.g., Johnson v. De Grandy, 512 U. S. 997, 1011–1012,
1020–1021. In assessing the totality of the circumstances, a minority
group’s comparative ability to elect a candidate of its choice is an im-
portant factor, but it cannot be dispositive or exclusive. See, e.g.,
Thornburg, 478 U. S., at 47–50. To maximize such a group’s electoral
success, a State may choose to create either a certain number of
“safe” districts in which it is highly likely that minority voters will be
able to elect the candidate of their choice, see, e.g., id., at 48–49, or a
greater number of districts in which it is likely, although perhaps not
quite as likely as under the benchmark plan, that minority voters
will be able to elect their candidates, see e.g., id., at 88–89
(O’CONNOR, J., concurring in judgment). Section 5 does not dictate
4 GEORGIA v. ASHCROFT
Syllabus
that a State must pick one of these redistricting methods over the
other. Id., at 89. In considering the other highly relevant factor in a
retrogression inquiry—the extent to which a new plan changes the
minority group’s opportunity to participate in the political process—a
court must examine whether the plan adds or subtracts “influence
districts” where minority voters may not be able to elect a candidate
of choice but can play a substantial, if not decisive, role in the elec-
toral process, cf., e.g., Johnson, supra, at 1007. In assessing these in-
fluence districts’ comparative weight, it is important to consider “the
likelihood that candidates elected without decisive minority support
would be willing to take the minority’s interests into account.”
Thornburg, 478 U. S., at 100 (O’CONNOR, J., concurring in judgment).
Various studies suggest that the most effective way to maximize mi-
nority voting strength may be to create more influence or coalitional
districts. Section 5 allows States to risk having fewer minority rep-
resentatives in order to achieve greater overall representation of a
minority group by increasing the number of representatives sympa-
thetic to the interests of minority voters. See, e.g., id., at 87–89, 99.
Another method of assessing the group’s opportunity to participate in
the political process is to examine the comparative position of black
representatives’ legislative leadership, influence, and power. See
Johnson, supra, at 1020. Maintaining or increasing legislative posi-
tions of power for minority voters’ representatives of choice, while not
dispositive by itself, can show the lack of retrogressive effect. And it
is also significant, though not dispositive, whether the representa-
tives elected from the very districts created and protected by the
Voting Rights Act support the new plan. Pp. 15–21.
(c) The District Court failed to consider all the relevant factors.
First, although acknowledging the importance of assessing the
statewide plan as a whole, the court focused too narrowly on proposed
Senate Districts 2, 12, and 26, without examining the increases in
the black voting age population that occurred in many of the other
districts. Second, the court did not consider any factor beyond black
voters’ comparative ability to elect a candidate of their choice. It im-
properly rejected other evidence that the legislators representing the
benchmark majority-minority districts support the plan; that the
plan maintains those representatives’ legislative influence; and that
Georgia affirmatively decided that the best way to maximize black
voting strength was to adopt a plan that “unpacked” the high concen-
tration of minority voters in the majority-minority districts. In the
face of Georgia’s evidence of nonretrogression, the United States’ only
evidence was that it would be more difficult for minority voters to
elect their candidate of choice in Districts 2, 12, and 26. Given the
evidence submitted in this case, Georgia likely met its burden of
Cite as: 539 U. S. ____ (2003) 5
Syllabus
showing nonretrogression. Section 5 gives States the flexibility to
implement the type of plan that Georgia has submitted for preclear-
ance—a plan that increases the number of districts with a majority-
black voting age population, even if it means that minority voters in
some of those districts will face a somewhat reduced opportunity to
elect a candidate of their choice. Cf. Thornburg, supra, at 89
(O’CONNOR, J., concurring). While courts and the Justice Department
should be vigilant in ensuring that States neither reduce minority
voters’ effective exercise of the electoral franchise nor discriminate
against them, the Voting Rights Act, as properly interpreted, should
encourage the transition to a society where race no longer matters.
Pp. 21–27.
(d) The District Court is in a better position to reweigh all the
facts in the record in the first instance in light of this Court’s explica-
tion of retrogression. P. 27.
195 F. Supp. 2d 25, vacated and remanded.
O’CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
KENNEDY, J., and THOMAS, J., filed concurring opinions. SOUTER, J.,
filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER,
JJ., joined.


posted by Rick 7:56 AM
. . .
More on Recall and resignations Four posts below this one is my analysis of the question whether Governor Davis may derail the recall election by retiring. My conclusion: he certainly cannot do so once the secretary of state has certified the election. But has the secretary of state taken a different viewpoint? This Roll Call piece (registration required) says the following: "Meanwhile, a spokeswoman for the California secretary of state’s office told Roll Call this week that it is unclear whether a scheduled recall election would proceed if Davis resigns before it takes place." The California Secretary of State's website apparently offers no explanation, though I would be very interested in hearing one.


posted by Rick 6:39 AM
. . .
McCain-Feingold and the "Necklace Thingie" Shortage See this Washington Post report.


posted by Rick 6:36 AM
. . .
Wednesday, June 25, 2003
Soft money news from Rhode Island See this Providence Journal article. (Thanks to Bob Stern for the pointer.)


posted by Rick 2:05 PM
. . .
A possible O'Connor Retirement and BCRA Speculation has now shifted from a Rehnquist retirement to an O'Connor retirement tomorrow. (See here and here (second item)--I had the same thought as Dahlia Lithwick that Justice O'Connor's willingness to give an interview right after the affirmative action cases might be a signal that she is trying to do a little image managing for history here.)

What would a retirement mean for the fate of BCRA in the Supreme Court? I had earlier noted that a Rehnquist retirement could doom the fate of certain BCRA provisions. I made these comments on the (perhaps overly pessimistic assumption) that Justice O'Connor could well vote with Justices Kennedy, Scalia, Thomas and a Rehnquist replacement to strike down certain aspects of the law. I am now less certain of Justice O'Connor's vote after Beaumont, for reasons stated here.

If Rehnquist stays and O'Connor goes, this increases the chances of significant parts of BCRA being upheld. You have the likely coalition of Rehnquist, Breyer, Ginsburg, Souter, and Stevens voting to uphold the law, leaving Kennedy, Scalia, Thomas, and a possible replacement to vote against. So that is a 5-3 or 5-4 vote.

If this thinking is correct, it might explain why O'Connor but not Rehnquist would agree to retire now. If Rehnquist retires, he runs the serious risk of a 4-4 split in the BCRA case. If O'Connor retires, she poses much less of a risk of such a split.

We'll know tomorrow.


posted by Rick 1:49 PM
. . .
The Recall and a Davis resignation Robert Novak incorrectly writes here that Governor Gray Davis "could derail the recall at any time prior to the actual balloting by just quitting." Daniel Weintraub of the Sacramento Bee corrects this error on his blog (links to both via Mickey Kaus): "The state elections code says the election goes forward if Davis quits after the petitions have been filed. It's not entirely clear what 'filed' means, but I think it means when a sufficient number to trigger the election have been filed. It could even be sooner. It is most definitely not the date of the election itself."

Weintraub appears to have it absolutely right. Elections Code section 11302 states that "If a vacany occurs in an office after a recall petition is filed against the vacating officer, the recall election shall nevertheless proceed." The section also provides that the vacancy is filled under usual succession rules (meaning the Lt. Governor becomes governor), but only until the winner of the recall election is declared qualified.

So when is a recall petition "filed" pursuant to 11302? There is no relevant caselaw that I could find. Section 11101 provides that "each section of a recall petition shall be filed with the elections official of the county in which it was circulated." A section is simply a page (or set of pages) from the recall petition with signatures on it. There is no single "filing." These sections are then counted by the election officials, with results sent to the secretary of state. when there are enough signatures, the Secretary of States certifies that there are enough signatures. 11102. Some petition sections have already been filed. So at the earliest, it is too late now for Davis to resign to prevent triggering a recall election. At the latest, once (if) the Secretary of State certifies, it should be too late for Davis to prevent the election from going forward. Not that anyone thinks Davis would actually resign before certification, but yet another gap in the recall statutes. (For more gaps, see here.)
UPDATE: Mickey Kaus responds here.




posted by Rick 9:46 AM
. . .
"Next for CFR Backers: Fixing the Presidential Campaign System" Norman Ornstein writes this oped in Roll Call (registration required).


posted by Rick 7:16 AM
. . .
Tuesday, June 24, 2003
Recall news The Washington Post offers "California Recall Bid Organizers Cite Gains; Effort Still Short of Needed Signatures". The New York Times offers "California Digs In, Not Out, of a Crisis." (The article appears to make a mistake about the timing of the recall effort; it must qualify by September 2 to be successful. If it qualifies earlier, the election could take place in October or November, rather than in March 2004.) For a little anti-recall humor, click here (need audio; give it time to load).
UDDATE: The Los Angeles Times offers "Recall Drive at 40% of 1st Goal," which explains more clearly than the New York Times article how the deadline for turning in petitions works with the date of the potential election. You can also find "Republicans mixed on Davis Recall."


posted by Rick 8:55 PM
. . .
"Senate Panel Votes to Limit Filibusters" A.P. offers this report. The Democrats did not even show up for the vote. So much for the promised bipartisanship.


posted by Rick 9:45 AM
. . .
"N.Y. OKs Winner-take-All GOP Primary" A.P. offers this report.


posted by Rick 8:55 AM
. . .
"Davis Seeks to Shift Recall Focus" The Los Angeles Times offers this report.


posted by Rick 7:56 AM
. . .
Solum's response on the 25 years and stare decisis Larry responds here with a typical thoughtful post. One wonders what Larry will make of this report.


posted by Rick 7:36 AM
. . .
Georgia v. Ashcroft: Which Supreme Court Will Blink First? The Atlanta Journal Constitution offers "Judges to Decide GOP Redistricting Challenge" about a new one person, one vote claim brought by Georgia Republicans against the Congressional redistricting. It also includes the following regarding the pending Georgia v. Ashcroft/Baker v. Purdue standoff:
    The U.S. Supreme Court is expected to rule Thursday on a Georgia case that asks how much minority voting strength can be reduced without violating the Voting Rights Act.

    If the justices rule in Georgia's favor, a previous state Senate map preferred by Democrats would replace the one now in effect. The current map was adopted after a three-judge panel in Washington rejected its predecessor.

    The third matter is before the Georgia Supreme Court. That court is to decide whether Republican Gov. Sonny Perdue had the authority to force Baker, a Democrat, to drop the U.S. Supreme Court appeal.

    Ten days after the U.S. Supreme Court agreed to take Georgia's redistricting case, Perdue ordered Baker to drop the appeal and, after Baker refused, eventually sued.

    The state Supreme Court is scheduled to release rulings on Monday, but a decision could come as late as December.

Might the U.S. Supreme Court put its case off until next term, as some have suggested to me, to force the state's hand?


posted by Rick 7:35 AM
. . .
"'Millionaire's Amendment' Could Help Burr in Senate Race" A.P. offers this report out of North Carolina. See also this article from the Charlotte Observer.


posted by Rick 7:28 AM
. . .
"FCC fight helps energize Common Cause" See this oped at the Boston Globe.


posted by Rick 7:27 AM
. . .
Rehnquist retirement/BCRA again See this inaptly titled article from The Hill, which includes the following:
    Edward Lazarus, author of Closed Chambers and a former Supreme Court clerk said:

    “The fact that they took this campaign finance reform case and scheduled it for a September argument and that it engenders very strong feelings, one has to wonder whether the Chief [Justice William Rehnquist] … will step down."...

    Carter Phillips, a Supreme Court practitioner at the Washington office of Sidley Austin Brown & Wood, said: “The tradition of the chief justice is to retire upon his replacement. But his replacement is not going to be ... [in office] by September” to hear the arguments in the campaign finance reform case.

    If Rehnquist retired before hearing McConnell v. FEC, the court could split 4-4, and a tie reaffirms the lower court’s ruling without a written opinion.

    “It’s an unacceptable outcome,” Phillips said.


posted by Rick 7:25 AM
. . .
Monday, June 23, 2003
Favorite quote from the Atlantic article Seth Gitell's "The Democratic Party Suicide Bill" from the July/August Atlantic still is not posted online. I picked up a copy at the newstand. Here's may favorte quote, from Joseph Sandler, DNC counsel, though speaking in a private capacity. "[H]e calls the law 'a fascist monstrosity.' ...'It is grossly offensive...and on a fundamental level it's horrible public policy, because it emasculates the parties to the benefit of narrow-focus special interest groups. And it is a disaster for the Democrats. Other than that, it's great.'"


posted by Rick 9:48 PM
. . .
Beaumont oped Adam Morse writes "Still Awash in Cash: The high court's decision in FEC v. Beaumont plugs one campaign finance loophole, but others remain open" in Legal Times (registration required).


posted by Rick 8:01 PM
. . .
The Affirmative Action Cases and the Judicial Filibuster In response to the Harvard student e-mail about the 25 year time period mentioned in the law case today, Howard Bashman wrote: "Obviously, that sentence from Justice O'Connor's opinion will mean whatever five or more Justices serving on the Court some twenty-five years from now decide that it means."

The unwritten assumption here is that affirmative action programs are safe for the next 25 years. That is wishful (or perhaps, depending on one's politics, not wishful) thinking. Eventually, a president will get to replace Justice O'Connor. If it is President Bush, and he fulfills his promise to replace retiring Justices with Justices in the mold of Justices Scalia and Thomas, the Court could well reverse this holding much sooner than in 25 years. I doubt that respect for stare decisis would hold back a new (more) conservative majority.

We already see signs of conservatives making affirmative action a new litmus test for nominees. See this just posted New York Times article. No doubt liberals will do the same. This gives more reasons for a liberal filibuster. Although I have been disputing Larry Solum's claims of a downward spiral on judicial nominations, I am beginning to see one on the horizon with the next Supreme Court nomination. Perhaps the best course will be for the Justices to wait to retire until after the next election. By then, President Bush may have a mandate, in which case Democratic resistance will likely crumble, or Republicans will no longer have the control to attempt to force through a nominee opposed by centrist Democrats. Otherwise, it is hard to imagine how the confirmation battle will go. My prediction if there is an O'Connor retirement: Bush tries to push through a very conservative African-American or Latino candidate, probably a woman. Democrats filibuster. After that, I find the future hard to predict.


posted by Rick 4:54 PM
. . .
No Georgia v. Ashcroft decision today The Supreme Court announced decisions in five of the 10 cases remaining, including the affirmative action cases (one upheld, one not: see here). No opinion today in the Georgia redistricting case. The Court will next announce opinions on Thursday. That gives the Supreme Court of Georgia a few more days to decide its opinion in the underlying case. Not that they want to be the first to blink....


posted by Rick 7:50 AM
. . .
More Westar The Washington Post offers this report.


posted by Rick 7:12 AM
. . .
"Shortchanged Campign Ruling" Bruce Fein offers this oped in today's Washington Times on the Supreme Court's Beaumont ruling.


posted by Rick 7:05 AM
. . .
Roll Call on Westar and AFL-CIO v. FEC Today's Roll Call features "Watchdog Seeking Senate Westar Probe" and "Court Ends the FEC's Release of Probe Files" (registration required for each article). The latter article states: "An FEC spokesman said the agency’s lawyers were still studying the opinion and had no comment on whether it would be appealed."


posted by Rick 7:01 AM
. . .
Sunday, June 22, 2003
Part II of L.A. Times series on Congressional Family Members as Lobbyists It has been posted here.


posted by Rick 9:40 PM
. . .
Another article on the Court mentions the BCRA case as an indication that the Chief Justice Won't Retire Soon See this Los Angeles Times article.


posted by Rick 9:38 PM
. . .
"The Logic of Money" The Washington Post offers this editorial, connecting last week's Supreme Court decision in Beaumont to the upcoming BCRA case in the Supreme Court.


posted by Rick 9:33 PM
. . .
Georgia v. Ashcroft coming? It is anyone's guess if tomorrow will be the last day of the United States Supreme Court term, with 10 cases remaining to be decided. If it is not, we co not know if the potentially important redistricting case of Georgia v. Ashcroft will be issued tomorrow or not. By the close of business Friday, the Supreme Court of Georgia had not issued any opinion in Baker v. Purdue which has (had?) the potential to moot Georgia v. Ashcroft. United States Supreme Court opinions are released at 10 am Eastern Time tomorrow morning. With much of the focus on the affirmative action and sodomy cases, it may be a bit before we hear anything about the redistricting case.


posted by Rick 3:29 PM
. . .
"The $2000 Campaign Apertif" The New York Times has this editorial about President Bush's fundraising.


posted by Rick 3:26 PM
. . .
"Feinstein Says No to Recall Bid* The Democratic senator rules out her candidacy, to the relief of Davis' supporters, who saw her as the biggest potential threat in a possible vote." The Los Angeles Times offers this report.


posted by Rick 7:46 AM
. . .
Saturday, June 21, 2003
Two interesting Washington Post articles mentioning McCain-Feingold See "For Rehnquist Watchers, No Signs of a Retirement " and "GOP Aims for Dominance in 'O4 Race."


posted by Rick 8:32 PM
. . .
Circumventing contribution limits through hiring Member of Congress's family The Los Angeles Times tomorrow features "A Washington Bouquet: Hire a Lawmaker's Kid; Stiffer rules are making it harder to direct cash to a congressman. But you can still put his family on the payroll." This is the first of two parts. Thanks to Howard Bashman for the pointer.


posted by Rick 9:04 AM
. . .
"Some Say Inquiry Could Lead to Overhaul in Picking Judges" The New York Times offers this report, which includes the following statement: "The election of judges has been a process little understood by the public, and long sheltered from great scrutiny. But according to the lawyers and others involved in the Brooklyn case, Justice Garson, facing arrest on charges of accepting money and gifts from lawyers, made his own sort of admission. Judgeships in Brooklyn, he told investigators, could be bought from Democratic party officials, and four judges, he said, were rumored to have done just that."


posted by Rick 8:33 AM
. . .
"Massachusetts Legislature Repeals Clean Elections Law" The New York Times offers this report.


posted by Rick 8:24 AM
. . .
Friday, June 20, 2003
More on AFL-CIO v. FEC case The A.P. offers this report. In my initial read of the case, it looks like the Court got it about right. On page 17 of the slip opinion, the court endorses the idea that the FEC may be able to release additional information about its investigations to serve the twin purposes of "deterring future violations and promoting Commission accountability." But it must craft new regulations to do so in a way without unnecessarily infringing on the First Amendment rights of those under investigation by the FEC. The court was particularly disturbed that the FEC was going to release 10,000 to 20,000 pages of material on AFL-CIO election strategy that it had not even reviewed before it decided not to proceed further with the investigation.
I have no idea if the FEC will take up the invitation to craft more narrowly tailored regulations.


posted by Rick 10:07 AM
. . .
"Mass May Repeal 'Clean Elections Law'" A.P. offers this report.


posted by Rick 10:00 AM
. . .
More on NY judicial conduct cases See this article in the ABA Journal e-Report. (Thanks to Steven Sholk for the pointer.)


posted by Rick 9:44 AM
. . .
Michael Barone replies to my posts on Hispanics and Estrada In response to my most recent post on the topic, political analyst Michael Barone sent me the following comments, which he gave me permission to post here:
    You're referring to Sergio Bendixen's survey. Bendixen is a Democratic pollster and in my experience I have found him to be competent and honorable. But he is a Democrat and presumably anti-Estrada.

    I think Bendixen's survey underlines the point that I made off of the pro-Estrada Committee for Justice survey. And that is that there is a fairly high threshold awareness of the Estrada issue among Hispanics-- ordinarily, one would think, a low informational group when it comes to federal judicial appointments. The confusion with Erik Estrada may exist--although is he really a big star still? I simply don't know, and just ask the question.

    I think Bendixen is right to say that Bush and the Republicans have not yet many points on the issue among voters today. But Bendixen is also my source for the statement in my column that Spanish- dominant Hispanics are the fastest-growing and most fluid segment of the electorate (I had a long and illuminating discussion with hime on this point). They are much less committed to the Democratic party than English-dominant Hispanics. And so I think there is a big opportunity for the Bush campaign to use this issue with Hispanics, especially Spanish-dominant Hispanics. I used to be a political pollster, and I know that you can raise the salience of an issue with an intensive free and paid media campaign. The Bush campaign, with $200 million, will be able to saturate Spanish-language media any time it wants to. They've got the raw material (the Democrats are blocking Estrada and subjecting him to a different standard than any nominee has ever been subjected to). And what can the Democrats say in response? That they're blocking Estrada because they believe that he could otherwise be nominated to the Supreme Court where he might vote to overcome Roe v. Wade? Are Hispanic voters really eager to block a Hispanic from the Supreme Court? Do they care as much as the Democrats' feminist constituency about preserving Roe v. Wade? You don't have to believe that Latinos are 1950s incense-burning Irish Catholics backing Church doctrine on every point to believe that they aren't particularly sympathetic to abortion rights. Polling shows they're a little less pro-abortion rights than the population generally.

    I think Bush and the Republicans have got a great issue here that they can develop and on which they can win votes. And I think that Karl Rove figured this out long before I did.

Thanks for writing!

posted by Rick 7:34 AM
. . .
AFL-CIO v. FEC decided Thanks to the reader for alerting me that the D.C. Circuit has just released this opinion, which begins:
    Unique among federal administrative agencies, the Federal Election Commission has as its sole purpose the regulation of core constitutionally protected activity —‘‘the behavior of individuals and groups only insofar as they act, speak and associate for political purposes.’’ FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981). As a result, Commission investigations into alleged election law violations frequently involve subpoenaing materials of a ‘‘delicate nature TTT represent[ing] the very heart of the organism which the first amendment was intended to nurture and protect: political expression and association concerning federal elections and officeholding.’’ Id. at 388. At the close of such investigations, a Commission regulation has long required public release of all investigatory file materials not exempted by the Freedom of Information Act. In this case, the subjects of a now-closed investigation challenge the regulation as inconsistent with both the Federal Election Campaign Act and the First Amendment. We hold that the regulation, though not contrary to the plain language of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups’ strategic documents and other internal materials.


Judge Henderson (one of the three BCRA judges) issued a concurring opinion.


posted by Rick 7:26 AM
. . .
Thursday, June 19, 2003
"Free Speech, Inc." See this essay by Lisa J. Danetz of the National Voting Rights Institute on corporate free speech rights. The issue may get some clarification in Nike v. Kasky, one of the cases remaining to be decided this term. I have been wondering whether footnote 5 of FEC v. Beaumont might play in the Nike decision. There, the Court writes: "Within the realm of [campaign] contributions generally, corporate contributions are furthest from the core of political expression, since corporations' First Amendment speech and associational interests are derived largely from those of their members, and the public in receiving information. A ban on direct corporate contributions leaves individual members of corporations free to make their own contributions and deprives the public of little or no material information." (Citations omitted)

posted by Rick 8:16 PM
. . .
Miguel/Erik Estrada, continued Following up on this post, a reader was kind enough to send me the entire survey that was the basis for the Washington Times article. The polling questions look less problematic than the last poll, though there were still enough earlier questions before the pollsters got to the Estrada question to make me wonder about this poll too. In any case, both polls indicate that Hispanics (like most other Americans) are not paying much attention to the Estrada filibuster, and that has been my main point.


posted by Rick 5:13 PM
. . .
"Court restricts input on campaign finance" See this A.P. report with a rather inaccurate headline, discussing the briefing order in the BCRA case.


posted by Rick 5:03 PM
. . .
More talk of a 4-4 tie on BCRA leading to a retirement delay See this Christian Science Monitor story.


posted by Rick 4:59 PM
. . .
"Vote Rigging Suspected in Virtual Primary" A.P. offers this report, which begins: "More than a million Internet users will be invited to vote in a virtual Democratic primary next week, but this most modern of elections is facing age-old allegations of vote-rigging."


posted by Rick 3:35 PM
. . .
"Bizzare" shapes and political gerrymandering The Fourth Circuit decided an interesting political gerrymanding case today, Duckworth v. State Administrative Board. (Thanks very much to a reader for passing the case along.) The plaintiff tried to use the allegedly bizarre shape of the district to prove that the defendants had engaged in an unconstitutional partisan gerrymander, favoring Democrats over Republicans. The theory that bizarre shape matters to an equal protection claim made its appearance in racial gerrymandering cases, beginning with the Supreme Court's decision in Shaw v. Reno.

The Fourth Circuit rejected the argument as applied to political gerrymanders:
    Discriminatory political effects instead emanate from majority action that establishes political mechanics that preclude minority participation, to some degree, in the political process writ large. Bizarre looking congressional districts do not imply such action because, despite their strange appearance, all affected voters still have a congressional representative, cast equally weighted votes for that representative, and so enjoy true representation — the essence of participation in the political process. There is thus no rationale for inferring from a district’s appearance that it has discriminatory political effects, as opposed to non-discriminatory political effects."

The court then went on to try to explain why it believed that shape could be relevant in the racial context but not in the partisan context. It concluded: "Ultimately, [plaintiff] complains simply that more Democrats than Republi-cans live in his district, and thus that Republican candidates are bound to lose. This outcome is not evidence of discriminatory effect. To the contrary, it is the embodiment of democratic representation: the majority of people selecting their choice of representative."


posted by Rick 12:58 PM
. . .
Supreme Court issues order on briefing in BCRA cases The order, available here, reads as follows:
    The briefs of the parties who were plaintiffs in the District Court are not to exceed 50 pages for the opening
    briefs and 20 pages for the reply briefs, except that the plaintiffs in No. 02-1674 may file an opening brief not to
    exceed 75 pages, and the political party plaintiffs in Nos. 02-1727, 02-1733, and 02-1753 may file a consolidated
    opening brief not to exceed 100 pages. The Solicitor General may file a brief not to exceed 140 pages, and the intervenor-defendants may file a brief not to exceed 75 pages.




posted by Rick 11:37 AM
. . .
"For 2004 Convention, GOP Raises $91 Million in a Hurry" The New York Times offers this report.


posted by Rick 9:03 AM
. . .
Supreme Court order today in BCRA case? The Court is due today to let the parties know how many pages they will have for their briefs. Stay tuned.


posted by Rick 7:36 AM
. . .
Hispanics and Estrada, continued I have been blogging on and on about how the Miguel Estrada confirmation controversy is low salience, not resonating in the public. I have been told by some Republicans that internal polling shows the issue is resonating among Hispanics, though the only evidence thus far was a poll of questionable validity that I blogged about here.

Now comes word of another poll (I haven't seen the poll so I cannot comment on its validity) that finds the issue has very little salience among Hispanic voters. According to this article in the Washington Times (link via How Appealing), "Hispanics Tune Out Estrada Filibuster," 61% of Hispanics had not even heard of the controversy, and among those Hispanics supporting Estrada, "it was clear many of those who supported Mr. Estrada were also confusing him with actor Erik Estrada, who was on the 1977-1983 television police drama 'CHiPS' and is now a popular Spanish-language soap-opera star."


posted by Rick 7:31 AM
. . .
California recall news and commentary My oped on the California recall, "The recall - a minefield in California election law," appeared in today's San Diego Union-Tribune. It begins:
    California voters are being asked to sign petitions to recall Gov. Gray Davis. Recall supporters need over 897,000 valid signatures to qualify the recall for the ballot. Given the governor's current unpopularity and the large amounts of money that Rep. Darrell Issa, R-Vista, and others are pouring into the effort to collect signatures, the betting is that the recall will qualify for the ballot, perhaps as early as the fall.

    Before California voters decide to sign a recall petition, they should first consider four troubling aspects of the special rules governing recall elections that may make them think twice.

In other recall news and commentary, the San Francisco Chronicle offers "Soft money limits tested in Davis recall campaign: Issa accused of violating federal fund-raising law". The San Jose Mercury News offers "Majority would vote to oust Davis, polls show" and "Demos say they won't run in recall".

Cuauhtemoc Ortega offers this oped in the New York Times. Nick Schulz has this oped in the Los Angeles Times. The Vero Beach Press Journal offers this editorial. The Long Beach Press Telegram weighs in here. Tim Cavanaugh offers this commentary at Reason Online.


posted by Rick 7:11 AM
. . .
Wednesday, June 18, 2003
George Will Will offers this oped on Democrats and McCain-Feingold. Will refers to a forthcoming article in the July/August 2003 Atlantic. The article is not on the website, but here is a summary that is available:
    The Democratic Party Suicide Bill by Seth Gitell

    Democrats knew that campaign-finance reform would cripple their fundraising ability—but they backed the idea anyway, largely on principle. Republicans knew that it would give their party an even bigger edge than it already had—but they staunchly opposed it, also largely on principle. The fate of McCain-Feingold ultimately rests with the Supreme Court. But principle has already cost the Democrats plenty.


posted by Rick 9:16 PM
. . .
Texas rumors of special session for re-redistricting appear true See here (and thanks for the congrats, Brett).
UPDATE: See this Houston Chronicle report.


posted by Rick 8:28 PM
. . .
"Ky. Gov. Pardons 4 in Re-election Case" A.P. offers this report. Thanks to Ed Feigenbaum for the pointer.


posted by Rick 3:04 PM
. . .
Business as usual or downward spiral? Here's the latest piece of evidence in my ongoing debate with Larry Solum over whether we are in a downward spiral on judicial nominations (Larry's position) or business as usual (my position). From today's Roll Call editorial entitled "Oppression" (registration required) that support's Larry's position:
    Where Congress is concerned, the old truism that "what goes around comes around" needs to be amended. Around here, it comes back around with a vengeance, creating a precedent for more vengeance the next time. In the Senate, Republicans blocked President Bill Clinton’s judicial nominations in the Judiciary Committee and now Democrats are filibustering President Bush’s nominees. When a Democrat next becomes president, Republicans surely will filibuster his (or her) nominees.

    When Democrats ruled the House, as we’ve been reminded lately by The New Republic and The Washington Post, they treated Republicans with contempt, especially by passing closed rules which barred the GOP from offering amendments on the floor. Republicans bitterly complained, and justifiably so. In its cover piece this week on the current "oppressed" condition of House Democrats, TNR’s Michael Crowley unearthed a 1993 statement from Rep. Tom DeLay (R-Texas) accusing the Democrats of "squelching and squashing the minority." As the Post recalled, Rep. David Dreier (R-Calif.) lamented in 1994, "All we are asking for is fair treatment on both sides of the aisle here."


posted by Rick 7:26 AM
. . .
Campaign finance news and commentary The Christian Science Monitor offers this editorial. Taking a different postion, James Kilpatrick offers this op-ed (written before Beaumont, but I only discovered it now). Here is yesterday's Los Angeles Times story on Beaumont that was not on the website until now. Roll Call does not seem to have covered the Beaumont decision.


posted by Rick 7:17 AM
. . .
Will Texas Legislature go into special session for redistricting? Jim Dedman posts a rumor along these lines here.


posted by Rick 7:11 AM
. . .
E-mail down, blogger down Last night both my e-mail and blogger were down. If you tried to send me anything last night or this morning, try again, it did not come through.


posted by Rick 7:08 AM
. . .
Tuesday, June 17, 2003
More on Corporate First Amendment rights and Beaumont. Readers interested in these questions might read Adam Winkler, The Corporation in Election Law, 32 Loyola LA L.Rev. 1243 (1999), and Robert H. Sitkoff, "Corporate Political Speech, Political Extortion, and the Competition for Corporate Charters," 69 U. Chi. L. Rev. 1103 (2002).


posted by Rick 3:26 PM
. . .
Briefing page limits for BCRA briefs to be set at June 19th Conference See the latest notation on this page from the Supreme Court website.


posted by Rick 2:12 PM
. . .
What is going on with Georgia v. Ashcroft and Baker v. Purdue? Georgia v. Ashcroft, a potentially very important redistricting case, is one of the last ten cases remaining on the Supreme Court's calendar for this term. (See this list at How Appealing.) As How Appealing notes, the case "could become moot at any second depending on how the Supreme Court of Georgia rules in a companion case," Baker v. Purdue. In that case, the Republican governor of Georgia is trying to get the Democratic attorney general of Georgia to withdraw the appeal.
Is the United States Supreme Court holding the opinion for the outcome in the Supreme Court of Georgia? Is the Georgia Supreme Court holding its opinion in the hopes it could duck the state law issue as moot? Oral argument was heard on an expedited basis in the Georgia court, but no word. Recall that in the New Jersey dispute over who got to run on the ballot as a Democrat in the Senate race last year, the New Jersey Supreme Court issued a short order to resolve the election law dispute and then issued an opinion much later, after it had time to craft something more substantial. Why isn't that approach being used here?


posted by Rick 11:04 AM
. . .
"Excluded 2000 Candidates Ask FEC for Help" The A.P. offers this report, which begins, "Former third-party presidential candidates who were excluded from debates in 2000 asked election officials Tuesday to block the Commission on Presidential Debates from sponsoring next year's forums."


posted by Rick 11:03 AM
. . .
New law review articles Peyton McCrary has published "Bringing Equality to Power: How the Federal Courts Transformed the Electoral Structure of Southern Politics, 1960-1990," 5 U. Pa. J. Const. Law. 665 (2003). Richard K. Neumann, Jr. has published "Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally?," in the Spring 2003 issue of the Georgetown Journal of Legal Ethics (I don't have the full cite yet). Thanks to Steven Sholk for the pointers.


posted by Rick 9:35 AM
. . .
Supreme Court declines to hear case involving Kentucky campaign finance criminal charges See newspaper articles here and here. Thanks to Ed Feingenbaum for the pointers.


posted by Rick 9:31 AM
. . .
Will the FEC improve its website and ability to get campaign finance information out to the public? Informed sources tell me that "there is also growing sentiment on improving the Web site. As you may know, the FEC's info staff has committeed to posting public documents from closed enforcement matters, but other improvements e.g. in searching and indexing are in the works."

posted by Rick 9:28 AM
. . .
Bush's fundraising From this PubliCampaign press release: "Officials with the Bush-Cheney ’04 re-election campaign are telling reporters that they expect to raise at least $170 million for next year’s presidential primaries. In inflation-adjusted dollars, that is more money than the combined amounts raised for the presidential primaries by Ronald Reagan in 1980 and 1984, George H.W. Bush in 1988 and 1992, and Bob Dole in 1996."


posted by Rick 9:23 AM
. . .
Is Beaumont important news for BCRA? Bob Bauer says "no" here on the election law listserv. I take strong issue with Bob's post. (By the way, both Ed Still and I on our blogs incorrectly predicted before oral argument that this case could have come out the other way. So much for Bob's "no one---not one person" language.)

Bob may be right about the problem with using the "rebuke" language in some press release, and he may be right that I'm overreading the "historical prologue," but my view is that this case is big news. I've already given my detailed analysis, but let me just give a few headlines here, and Bob can refute them one-by-one if he likes:

1. The Court reaffirms and bolsters Austin's rationales for limits on corporate campaign finance activity. Austin is a case that has been considered somewhat shaky as precedent. Austin is a key case toward upholding the constitutionality of BCRA's separate segregated funds requirement for corporations and unions extended to "electioneering communications."

2. The Court reaffirms and strengthens the anti-circumvention rationale, mentioned in Colorado Republican II and extended to justify limits on corporate election activity. This supports BCRA's soft money ban.

3. The Court changes its views as to the merits of limiting the First Amendment rights of corporations, at least in the context of elections. (Note Jan Baran's unconvincing counterspin in the Washington Times piece linked below, where Baran suggests that Nike v. Kasky would be more on point.)

4. The majority managed to keep Justice O'Connor's votes on all these propositions, where, given her dissent in Austin, one might have thought to be quite difficult.

Not news?
UPDATE: Bob Bauer responds here.


posted by Rick 7:31 AM
. . .
Even more Beaumont news and commentary The Boston Globe offers "Supreme Court Backs Campaign-Gift Limits.". The Washington Times offers "Campaign Fund-Raising Caps Imposed on Non-Profits." Todd Gaziano writes this op-ed in USA Today. The Charlotte Observer offers "Supreme Court affirms ban on donations by nonprofits." The Denver Post offers this editorial. The Los Angeles Daily News offers "High court upholds ban on contributions." (The Los Angeles Times story does not yet appear to be posted on the newspaper's website.)
UPDATE: The Wall Street Journal runs this short article.



posted by Rick 6:34 AM
. . .
Monday, June 16, 2003
More news and commentary on Beaumont The New York Times offers "Ban on Corporate Contributions Upheld" and an editorial, "A Trio of Good Rulings." The Washington Post offers "Nonprofits Bound by Donation Rules." The Atlanta Journal-Constitution offers "Court Upholds Ban on Advocacy Group Donations." Law.com offers "High Court Rules in Campaign Finance, Defendant Drugging Cases."
.

posted by Rick 8:22 PM
. . .
The other Supreme Court case today with a possible impact on BCRA? All the attention has been focused on FEC v. Beaumont, but the Court decided another case today with some potential to affect the BCRA case. In Virginia v. Hicks, the Supreme Court said some things about the First Amendment "overbreadth" doctrine that could be relevant to the Court's discussion of the "electioneering provisions" of BCRA. (If you don't know why, see this post.)

In Hicks, the Court confirms that it is an empirical inquiry into the extent of the relative amount of constitutional applications of the law to unconstitutional applications of the law that matter. Perhaps what is most significant about today's case for BCRA purposes is Justice Souter's short concurrence (joined by Justice Breyer). There is a discussion of a "denominator" problem that sounds very much like it could have been written with the lower court BCRA opinions in mind.


posted by Rick 5:17 PM
. . .
More on Schumer and the FEC In response to my post here, a reader points me to this Byron York column on the topic.


posted by Rick 5:12 PM
. . .
More on Hispanic voters and the salience of the Estrada controversy I blogged here on this topic most recently. See Michael Barone's U.S. News column for a different view.


posted by Rick 5:07 PM
. . .
More commentary on FEC v. Beaumont Reuters is here. AP offers this report and this report. Knight Ridder's report is here. Mickey Kaus blogs here and Stuart Buck responds here. Nina Totenberg offers this audio report on Beaumont and the relevance of BCRA to Supreme Court retirements.


posted by Rick 5:01 PM
. . .
Beaumont is Very Good News for Supporters of the McCain-Feingold law In his case preview of Federal Election Commission v. Beaumont, 539 U.S. ___ (2003) (decided today) in the Election Law Journal, Fred Woocher wrote that "the case that was reportedly thought to be too 'insignificant' by some FEC commissioners to warrant a petition for certiorari to the Supreme Court may well end up providing great insight into how the Court will rule in what is shaping up to be its most important campaign finance reform decision since Buckley v. Valeo." Fred Woocher, Beaumont v. Federal Election Commission: A Pre-Cursor of More Important Things to Come?, 2 Election Law Journal 255, 260-61 (2003). When Fred wrote those words I was skeptical, but it turns out he is absolutely right. The opinion is very significant for the pending BCRA (McCain-Feingold dispute), and in all ways it helps the law's defenders.

First a capsule summary, then a few initial insights on the relevance of this case to BCRA.

Capsule summary Briefly stated, the question in the case was whether it was constitutional to prevent ideological corporations (such as the plaintiff in this case, the North Carolina Right to Life--NRCL) from making unlimited campaign contributions to candidates for federal office. Federal law requires all corporations to make any contributions or expenditures through a corporate PAC, rather than directly, and there are limits on who can contribute, and how much, to the PAC. In Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (MCFL), the Supreme Court held it unconstitutional to prohibit independent expenditures by ideological corporations that do not take significant corporate or union money.

The lower court in Beaumont held that NRCL was entitled to an exemption as an MCFL-type corporation, and that the rationale behind MCFL's prohibition on independent expenditures applied to prevent the government from limiting contributions as well. MCFL, however, had some language distinguishing limits on contributions from limits on expenditures, and an earlier Supreme Court case, FEC v. National Right to Work Committee, 459 U.S. 197 (1982) (NRWC), strongly suggested that a ban on contributions by corporations was constitutional, even as applied to ideological corporations.

In Beaumont, six justices, in an opinion written by Justice Souter, relied on MCFL and NRWC to uphold the ban on contributions by ideological corporations.

Insights

1. Very strong reaffirmation of campaign finance laws limiting corporate and union involvement in the electoral process. The Court could have written a very brief opinion, primarily what appears in the opinion in Part I.B, spelling out how MCFL and NRWC control the outcome in the case. But the opinion does much, much more in ways that strongly suggest the Court will uphold the electioneering communications provisions of BCRA---these are the rules that require corporations and unions to pay for "issue ads" featuring the name or likeness of a candidate for federal office in a certain time period before an election using funds from a separate segregated fund (or PAC). Beaumont's analysis strongly supports the idea that Congress acted constitutionally in imposing this requirement.

a. The opinion extols the virtues of longstanding limits that Congress has placed on corporations and unions. It gives a completely unnecessary "historical prologue" (slip. op. at 8) explaining the unique purposes that corporate/labor union separate funds requirement serves. This discussion supports Congress's need to regulate the rise in "issue ads."

b. In setting forth the interests served by the requirements, the opinion stresses the dangers of political war chests created with the help of the corporate form. It also points to the law's role in protecting shareholders or members from corporate spending on political speech that is not in line with the shareholders' or members' interests. It then adds yet another interest (slip. op. at 7): "restricting contributions by various organizations hedges against their use as conduits for 'circumvention of [valid] contribution limits.'" Again, these rationales could be used to support Congress's issue ad provisions.

c. The opinion minimizes the First Amendment protections for corporations. In footnote 5, the Court writes: "Within the realm of contributions generally, corporate contributions are furthest from the core of political expression, since corporations' First Amendment speech and associational interests are derived largely from those of their members, and the public in receiving information. A ban on direct corporate contributions leaves individual members of corporations free to make their own contributions and deprives the public of little or no material information." (Citations omitted) This language is quite significant in that the Court in the past had, especially in Bellotti (cited in this Beaumont footnote), had rejected the idea the corporations were entitled to fewer First Amendment protections. Of course, this footnote again strengthens the arguments for constitutionality of congressional provisions regulating corporate and union issue ads.

d. Justice Souter in the opinion appears to do the impossible: he simultaneously appears to resurrect the analysis of Austin v. Michigan Chamber of Commerce (a case upholding a ban on corporate independent expenditures) and at the same time do so obliquely enough to keep Justice O'Connor's vote. O'Connor dissented in Austin, and her vote in the BCRA case on the issue ad requirements is expected to be important, especially if the Chief Justice retires. Souter quotes enough from Austin to suggest that the majority believes that too much corporate wealth in the political process can be corrosive to the system without actually quoting the key language from Austin on this point. Perhaps a BCRA opinion upholding the issue ad provision can be crafted the same way.

2. The case is good news for the soft money provisions of the BCRA. There is ample language in the opinion reaffirming Congressional power to prevent corruption through conduits and to control the perception of corruption in the electoral process. The Court strongly reaffirms that contribution limits are not subject to strict scrutiny, and that the legislative body passing such limits need not provide much empirical evidence to support any contribution limit that lacks "novelty." These statements are strong indications supporting the rationale behind Congress's soft money ban.

In short, there is only good news in this opinion for supporters of BCRA.



posted by Rick 9:14 AM
. . .
Beaumont and BCRA At first glance, I think this case is very good news for supporters of key parts of the McCain-Feingold (BCRA) law. More analysis to come soon.


posted by Rick 7:52 AM
. . .
FEC v. Beaumont decided The Supreme Court has reversed the lower court. Justice Souter wrote the opinion for the Court available here. Justice Kennedy's concurrence is here. Justice Thomas issued a short dissent here, joined by Justice Scalia.


posted by Rick 7:23 AM
. . .
More Los Angeles Times recall coverage Today the paper offers "Issa Banking on Big Payoff in Recall Drive", and a George Skelton Capitol Journal column entitled "A Davis Recall Election Would Shake Up Political Landscape." Although the first article listed is the second in a week giving a detailed profile of Issa's recall efforts, none of the articles have even mentioned the questions surrounding whether Issa has broken the McCain-Feingold law through soliciting money for the recall. Other newspapers have covered this in detail. The Times ran a brief story on the complaint May 29 (see archive link here), but no follow-up.


posted by Rick 7:08 AM
. . .
"Ruling Due on Senate Map" See this Atlanta Journal-Constitution article on Georgia v. Ashcroft.


posted by Rick 7:05 AM
. . .
Sunday, June 15, 2003
California Recall News and Commentary The Oakland Tribune offers "Davis Recall Would Begin Wild Ride." Peter Schrag writes in theNew York Times Week in Review "California Revolts, Again."


posted by Rick 8:16 PM
. . .
Saturday, June 14, 2003
"Fund-Raising Push by Bush Will Put Rivals Far Behind" The New York Times offers this report.


posted by Rick 3:03 PM
. . .
Washington Post articles on campaign finance See "FEC Settles Case Against N.J. House Member" and "Agency Questions Westar Provisions."


posted by Rick 10:09 AM
. . .
More speculation that BCRA case scheduling means Rehnquist won't retire soon See this article in USA Today. (Link via the new "snazzy" "How Appealing".)


posted by Rick 10:04 AM
. . .
Campaign finance incidents may earn support for law Knight-Ridder offers this report.

posted by Rick 8:29 AM
. . .
Friday, June 13, 2003
More on Westar Rep. Conyers wants an investigation. See this A.P. article.


posted by Rick 5:00 PM
. . .
More FEC fines in the news See this A.P. report The article notes that the $210,000 fine against N.J. Representative Mike Ferguson "is the sixth largest assessed by the FEC since 1980, according to the commission's Web site." So maybe the Schumer $130,000 fine (see two posts below) is not so noteworthy after all.


posted by Rick 4:58 PM
. . .
Trading Votes for Sterilization Be sure not to miss this Wall Street Journal article, which begins: "During the last local election in this northeastern Brazilian town, Sarah da Silva and her sister accepted a curious favor in exchange for their votes. Instead of offering cash or medicine, a candidate paid for the two mothers to be sterilized." (Thanks to Steven Sholk for the pointer.)


posted by Rick 7:52 AM
. . .
Schumer and the FEC A "regular reader" of the blog writes to ask about coverage of the FEC's enforcement action against Sen. Schumer's 1998 campaign committee. The reader points to this post by Geitner Simmons, suggesting that the New York Times has avoided coverage of this issue, ostensibly for political reasons. (The post contrasts Times coverage of charges against Republican Senator Spector.)

I know very little of the charges brought against Schumer, or whether or not a $130,000 fine against him is newsworthy. I would be interested in others' comments on the nature of the charges. According to this Newsday article cited in the post, "Last month, Schumer's 1998 campaign committee was cited by the FEC for accepting about 765 contributions totaling about $915,000 that exceeded allowable limits. It was ordered to refund $120,455 and slapped with a $130,000 civil fine."


posted by Rick 7:48 AM
. . .
Thursday, June 12, 2003
Whew! My book manuscript is off the the publisher and finally out of my hair. You should be able to get your copy of The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (New York University Press 2003) at some point in September. In the meantime, you can preorder the book from Amazon.com or Barnes and Noble now. The Barnes and Noble price is $8 cheaper, but if someone orders my book from Amazon now, my ranking might increase from its current ranking of 2,294,155 to somewhere in the 1,000,000 range.


posted by Rick 3:14 PM
. . .
Hispanics and Estrada Every time I make the claim on this blog that the Estrada filibuster is a low salience issue (see, for example, here), I have heard from various sources that internal Republican polling shows that the issue is resonating among Hispanic voters (see, for example, here), voters that are very important to Republican election plans in 2004. As I said earlier, I have not seen any of this internal polling, so the claim is very difficult to judge.

Now the Committee for Justice has released the results of its poll of Hispanic voters. If the internal Republican polling is anything like this, it is simply not credible. As David Bernstein put it here, "[i]t's laughably biased in favor of Estrada. Basically, the pollsters asked a series of 'questions' designed to make Estrada look great, and the nomination process unfair, without providing any of the Democrats' counter-arguments. If I was teaching a class on polling, this one would get an F." Let's see if anyone can send me the internal Republican poll to see if it is any better.


posted by Rick 2:55 PM
. . .
More speculation on Rehnquist retirement and BCRA From this article in the Wall Street Journal:
    The possibility of a Rehnquist resignation also has set off a guessing game about the outcome of the extensive campaign-finance law enacted last year. The Supreme Court, whose term doesn't begin until October, has agreed to expedite the case by convening in September to hear arguments. This action, of course, has fed speculation that the chief justice doesn't plan to leave.

    Jan Baran, an lawyer specializing in election issues, says proponents of the new law hope to win Chief Justice Rehnquist's vote. Indeed, Mr. Ornstein, who headed a working group that helped shape the law, says the bill "is designed to try to fit within the framework that Rehnquist embraced" in a number of campaign-finance cases the court has heard over the years.

    But will Chief Justice Rehnquist be presiding when the case is decided? Washington is still feverishly trying to find out the answer to that one.

UPDATE: See Howard Bashman's monthly appellate column, also discussing how BCRA may affect the nomination process.


posted by Rick 10:41 AM
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