Thursday, September 29, 2005

No actual news at the moment, just a few thoughts with respect to some of what Rick has posted today at the electionlawblog.

New York Times
Hasen properly takes the Times to task for its editorial on Sorrell.
The Times makes two points and gets them both wrong.
The Times says "deference to legislatures" and "uphold precedent."
Hasen points out that upholding binding precedent, Valeo, requires the second circuit be reversed. This is the most likely outcome. But the Times is also wrong when it points to deference to legislatures. As a federalist advocate of limited government, I think a bit of deference is useful, on both federalism and separation of powers grounds. This is strongest when the constitution is vague, as in Lochner and substantive due process. (I am, though, a fan of Lochner, except that it was too weak; it should have struck down the regulation as a taking.) It gets weaker when there is a textual right arguably violated by the legislature, particularly where as here the violation is deliberate with malice aforethought, not merely an unintended consequence. But the standard exception to deference to the legislature are cases that deal with the process by which the legislature is elected. This was a main point of Valeo - that such restrictions require exacting scrutiny. Rehnquist got this exactly wrong in McConnell, where he denied a preliminary injunction, saying that acts of congress are presumptively valid. He was wrong, and contradicted precedent on this point. Election laws involving self-dealing by the legislature and which impose burdens on electioneering are not entitled to any presumption of validity.
There are cases all over the map on this point - Munro, Jenness, Burdick, Twin Cities, Valeo, Anderson, Norman v Reed, Rhodes.
If we follow the precedent of Valeo [and Cooper v Aaron]the court should subject the statute to exacting scrutiny and strike down the spending limits based on stare decisis. What Valeo meant by exacting scrutiny was actually very lax, and most recent cases use strict scrutiny. It's the difference between legitimate interests and compelling interests. Nobody knows quite what a compelling interest is, but it's a strong test.
I would go further. In the unlikely event I'm chosen to replace Justice OConnor, I would say, "we reverse the erroneous decision of the second circuit which refused to follow our binding precedent in Valeo. We do not today reconsider the merits of that ruling, but have taken the case to empasize that we are a Supreme Court, and the constitution is the supreme law of the land. Neither the Vermont legislature nor the Second Circuit may overrule our decisions. Had the case come to us by the usual route, of lower court making a good faith effort to follow our decisions, we would discuss the state interests and evaluate the case on it merits. Today we need not do so, but reverse on the procedural ground that the court below failed to follow binding precedent."

Ok, on to Wisconsin. I do not believe that Roberts will vote or argue to overturn either McConnell or Austin. Rather, he will vote to narrow those two cases by siding with Bopp and finding an MCLF type as-applied challenge. McConnell limited McCain-feingold by striking down the part creating an 18-year waiting period for political donations. WRtL will limit it by creating a very narrow exception, so that each electioneering communication can have its companion lawsuit, and keep Bopp in business. Someone will bring a challenge to "stand by your ad" which is unconstitutional under existing precedent but was not reached in McConnell. There may be litigation involving as applied challenges to the Millionaires amendment.
Some of the state electionning communications laws may fall, as not having been as carefully drafted. And generally, McConnell will chipped away at before we see a case which solidly requires it be overruled or upheld. The timing of how soon that happens could be impacted by who is chosen to replace O'Connor. I'm just saying I do not expect WRtL to overrule Mcconnell or Austin, but I do expect it to prevail in the Roberts court, as long as the request for relief is narowly tailored - havent seen the wording of the question presented, but the general idea is Bopp is trying to carve out a narrow exception, which he can then widen over the years.

Andrew Young
Andrew Young was a congregationalist minister who got involved in using voting rights as a key to the integration of the South. He's now supporting voter ID, which he knows will be used to suppress black votes. I think it's an astute choice. His point is that if ID is needed to vote, we'll start to do something about the ID mess, which oppresses the poor and the black in ways that go far beyond voting.

Sorrell v. Randall,
Neil Randall was a Libertarian Party candidate for the Vermont Legislature. More than that, I think he was a member of the legislature who became a Libertarian. That's notable only because they have so few - I can think of about 6 Libertarian state legislators ever, none currently that I know of.
Louisiana - Much is being made of the partial destruction of New Orleans as a factor in LA becoming more GOP, with national implications. But that's mostly silly. We could be talking instead about how the diaspora of New Orleans democrats will help democrats throughout the region. There has been no net shift in voters. Maybe the
new democratic neighbors won't be such good neighbors after all, and the GOP will pick up votes from those upset at the plantation mentality of the New Orleans evacuees. Maybe the evacuees will find in adversity new strength, get jobs, buy houses, and become republicans. Any electoral fallout is more about the spin of who is to blame - Bush looked bad, and the local democrats looked bad.
Less likely is that the country will use the incident as a moral for thinking about the purposes of government. The view held by Bush and the Democrats is that government must be omniscient omnibenevolent and omnipotent, so if Bush fails to hold back the winds and tides he has failed us. An opposing view, once held by GOP and Dems, is that function of government is to protect rights and serve as an umpire, and should not be in the business of subsidies for people who choose to live under sea level, choose to have children out of wedlock, choose not to save for retirement, and so forth. That when the government becomes a player in the game, it's no longer a very good umpire.
However, this sort of introspection is unlikley to have any measurable effect on voting patterns. Enough ranting for now. Off to check the news.

Comments: Post a Comment

This page is powered by Blogger. Isn't yours?