The law of politics and the politics of law: election law, campaign finance, legislation, voting rights, initiatives, redistricting, and the Supreme Court nomination process
Rick Hasen's web log

Independence Day Blogging Break

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

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

Enjoy the Fourth. Back on Tuesday.

"Balls, strikes and absentee ballots"

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

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

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

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

The EAC has issued this press release.

"New Look at Election Spending Looms in September"

The WSJ offers this report.

"Washington Post Sells Access, 25,000+"

Very interesting. UPDATE: Well that was quick.

"November 2006 Undervote Analysis"

Mark Shelden reports.

Persily: Exhausted by Exhaustion

Nate Persily sends along this guest post:

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

First, just to be clear, I specifically said in my post that the Court might reach the constitutional issues posed by the coverage formula. As I said, "Of course, each of these situations presents the possibility that the Court will deal with the larger issue of the law's constitutionality. And if we view the NAMUDNO decision as simply a warning shot to Congress, maybe the Court will shoot more directly if Congress does not act soon (which was my initial response to the decision)." I would also add that congressional inaction and the absence of moves by DOJ to encourage and achieve bailouts would make this aggressive move more likely. To be sure, the Court has not boxed itself into a corner with NAMUDNO. Its freedom to strike down the VRA rests only on the vitality and willingness of the five members who vote to do so.

Also, it is wrong to suggest that I ignored the possibility of a facial challenge that squarely presents the issue of the constitutionality of the coverage formula. That was the first scenario I described: "a covered jurisdiction could argue that Congress has exceeded its authority under the Enforcement Clauses by requiring the jurisdiction to submit its voting law changes for federal approval." The Court might resolve that challenge by rejecting it, but nevertheless strongly suggesting the jurisdiction ought to be eligible for bailout should it bring such an action.

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

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

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

"The Rhetoric of a 'Stolen' Election"

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

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

CQ Politics offers this report.

Pildes: Confusion About the Future of Voting-Rights Litigation

Rick Pildes sends along this guest post on NAMUDNO:

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

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

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

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

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

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

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

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

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

"EAC Releases Report on Voter Registration"

Details here.

Using Technology to Push "Weekend Voting Act"

See here.

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

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

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

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

Star Tribune

Pioneer Press

"Franken will grill Sotomayor on campaign finance"

The Minnesota Independent reports.

"The 'Absentee' Senator"

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

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

This is an important development:

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

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

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

NAMUDNO and Citizens United Loom Large in Supreme Court Term Retrospectives

NY Times

Washington Post

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

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

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

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

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

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

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

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

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

The government then states:

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

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

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

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

UPDATE: More on this topic here.

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

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

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

Ned Foley offers this analysis.

"Why Norm Coleman Lost"

Politico reports.

"Campaign Finance Case and the Vote on Sotomayor"

BLT reports.

"Court opens door to possibility of corporate political spending"

The Hill offers this report.

"Preserving Our Institutions: Presidential Succession"

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

Coleman Concedes

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

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

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

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

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

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

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

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

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

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

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

Thoughts on Citizens United, All in One Place

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

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

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

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

"Supreme Court prepares to strike down campaign spending restrictions"

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

" Delay in 'Hillary" case scares campaign reformists"

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

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

TPM offers this extensive report.

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

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

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

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

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

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

How About Bush v. Gore?

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

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

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

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

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

More Citizens United News and Commentary

NY Times

USA Today

Wall Street Journal

Washington Post

AP

Politico

Brennan Center

Hans von Spakovsky

My Slate piece on today's developments is here.

"Thoughts on This Term and the Next"

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

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

Michael Richardson explains.

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

See here.

"Special prosecutor appointed in Shaffer case"

The latest on the Clarksburg anonymous campaign speech prosecution.

Reminder of the Day

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

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

"Why Has the Roberts Court Suddenly Gone Minimalist?"

Jack Balkin ponders.

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

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

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

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

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

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

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

Additional Briefing Ordered in Citizens United [UPDATED]

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

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

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

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

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

08-205 CITIZENS UNITED V. FEDERAL ELECTION COMMISSION

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

Reactions to the Citizens United Order

Trevor Potter (Campaign Legal Center)

Reid Cox (Center for Competitive Politics)

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

UPDATE: Fred Wertheimer

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

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

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

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

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

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

The Citizens United Order

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

June 29, 2009

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

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

"How Ricci Will Affect the Voting Rights Act"

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

What Does the Citizens United Order Mean?

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

Order in Citizens United

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

This is very big. More coming.

Citizens United to Be REARGUED

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

earlier postings below

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

[more to come]

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

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

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

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

"Pawlenty Waiting on Court Ruling"

Political Wire reports.

Dahlia Lithwick Talks NAMUDNO, Citizens United, Etc.

Listen here.

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

Quoted in this LA Times article:

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

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

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

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

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

Rick Pildes's latest.

"Democrats Work To Avoid 2008 Primary Strife"

ABC News offers this report.

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

The San Diego Union-Tribune offers this report.

"Fixing the Voting Rights Act"

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

"Can the Voting Rights Act Survive Another Challenge?"

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

Question of the Day

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

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

More on Port Chester

Here.

Derfner on NAMUDNO

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

Kang: The Continuing Relevance of Section 5

Michael Kang sends along the following guest post:

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

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

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

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

"Club for Growth aims to drain Specter"

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

"Thoughts on the FEC and Its Troubles"

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

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

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

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

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

Here is what I've prepared for the Supplement:

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

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

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

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

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

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

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

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

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

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

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

We'll see on Monday.

"Voting Rights and the High Court"

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

Linda Campbell on Justice Thomas's Opinion in NAMUDNO

See here.

"Judicial Statesmanship On Voting Rights"

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

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

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

"Veteran Latino-rights advocate charged with voter fraud"

The LA Times reports.

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

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

"DOJ responds in Port Chester voting rights case"

LoHud.com reports.

"Conyers backs off probe of ACORN"

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

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

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

Epstein: NAMUDNO and the Dilemma of Observational Equivalence

David Epstein sends along this guest post:

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

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

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

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

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

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

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

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

FEC Unanimously Adopts New AO and Audit Procedures

CCP has the details.

More Statistical Evidence of Vote Manipulation in Iran?

See here.

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

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

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

Keyssar's "Right to Vote," Revised Edition

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

Find All the TAPPED Posts on NAMUDNO

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