Friday, May 01, 2015
Indeterminacy in Judicial Election Law
http://electionlawblog.org/wp-content/uploads/williams-yulee.pdf
Two days later I still havent finished reading Williams-Yulee v Florida Bar.
A somewhat divided court upheld Florida' ban on in-person solicitation by judicial candidates.
It's a bookend case to MN GOP v White, which held that judicial candidates have a right to campaign and speak out on issues.
The point of this blog post is to point out how this is one more case emphasizing the unknowability of election law these days. The court was sharply divided, 5-4. The court did not speak with one voice.
The Chief Justice's opinion was joined in part by the 4 liberals, but Ginsberg wrote separately for Breyer.
So where does that leave the law of judicial elections, and election law generally? We don't know. For every case, one can point to an equal and opposite case. For every Williams v Rhodes that holds strict scrutiny, there's a Jenness v Fortson that holds lax scrutiny on similar facts.
For every McIntyre, there's a Citizens United muddying the waters and leaving the state of the law unknowable. For every Harmon v Forssennius, there's a Crawford v Marion County.
We end up left with two things.
1. Judges base judgments on their personal preferences because there are no rules or standards without counter-rules and counter-standards.
In the 7th circuit, the law of voter ID hasn't changed, but the personal preferences of Judge Posner have changed, and we may someday see this play out.
2. Qualified immunity becomes de facto absolute immunity. When nothing is clearly established,
election officials have carte blanche to violate their oaths of office without consequence. At most they get overruled or enjoined, someday. Perhaps this is good news for lawyers, since there will plenty to sue about.
http://electionlawblog.org/wp-content/uploads/williams-yulee.pdf
Two days later I still havent finished reading Williams-Yulee v Florida Bar.
A somewhat divided court upheld Florida' ban on in-person solicitation by judicial candidates.
It's a bookend case to MN GOP v White, which held that judicial candidates have a right to campaign and speak out on issues.
The point of this blog post is to point out how this is one more case emphasizing the unknowability of election law these days. The court was sharply divided, 5-4. The court did not speak with one voice.
The Chief Justice's opinion was joined in part by the 4 liberals, but Ginsberg wrote separately for Breyer.
So where does that leave the law of judicial elections, and election law generally? We don't know. For every case, one can point to an equal and opposite case. For every Williams v Rhodes that holds strict scrutiny, there's a Jenness v Fortson that holds lax scrutiny on similar facts.
For every McIntyre, there's a Citizens United muddying the waters and leaving the state of the law unknowable. For every Harmon v Forssennius, there's a Crawford v Marion County.
We end up left with two things.
1. Judges base judgments on their personal preferences because there are no rules or standards without counter-rules and counter-standards.
In the 7th circuit, the law of voter ID hasn't changed, but the personal preferences of Judge Posner have changed, and we may someday see this play out.
2. Qualified immunity becomes de facto absolute immunity. When nothing is clearly established,
election officials have carte blanche to violate their oaths of office without consequence. At most they get overruled or enjoined, someday. Perhaps this is good news for lawyers, since there will plenty to sue about.
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