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Why Wasn't Citizens United a 9-0 Decision in Favor of Citizens United?
This is my first in a series of posts in which I will highlight some interesting, though somewhat "inside baseball," posts about campaign finance and legislation issues in the U.S. Supreme Court's Citizens United decision. Most of these observations appear...
Posted in Election Law on July 8, 2010 02:10 PM
Indiana Supreme Court, on 4-1 Vote, Rejects State Constitutional Challenge to Voter ID Law
You can read the opinion in League of Women Voters v. Rokita here. This case came after the United States Supreme Court held that Indiana's law did not violate the federal Constitution, and after an intermediate appellate court in the...
Posted in Election Law on June 30, 2010 07:50 AM
Initial Thoughts on Doe v. Reed
I have now had a chance to read the decision in Doe v. Reed. In broad brush strokes, the Court did what I predicted they would do: a broad majority voted that disclosure of the names of the signers of...
Posted in Election Law on June 24, 2010 11:22 AM
Doe v. Reed: When and What Will Happen?
There are eleven cases left for the Supreme Court to decide this term, but three of them relate to the "honest services" question. There will be decisions tomorrow and Monday. From what I'm hearing, the term is likely to end...
Posted in Election Law on June 23, 2010 08:16 PM
Rep. van Hollen, Backed by the Wilmer Hale Team, Argues Against Expediting the RNC Soft Money Case
Via SCOTUSblog, comes this opposition to the RNC's motion to expedite Supreme Court review of the as-applied soft money challenge. The opposition suggests that this could be a case for summary affirmance---which is a reasonable argument in this case....
Posted in Election Law on May 4, 2010 02:02 PM
Doe v. Reed: A Sigh of Relief on Campaign Finance Disclosure
I have generally been sounding the alarm about the Roberts Court and election law, on its approach to everything from campaign finance to the Voting Rights Act to election administration issues such as voter identification. There are various explanations for...
Posted in Election Law on April 28, 2010 08:18 PM
The Surprising Citizens United-Prop. 8 Case Connection at the Supreme Court
While we were all (wrongly!) guessing that the Supreme Court had been busy putting the finishing touches on the Citizens United opinion, the Court was actually busy putting the finishing touches on something else, a 5-4 unusual order barring the...
Posted in Election Law on January 13, 2010 04:58 PM
"Making Sense of Facial and As-Applied Challenges"
Alex Kreit has posted this very interesting and important draft on SSRN (forthcoming William and Mary Bill of Rights Journal.). Here is the abstract: This article challenges the conventional understanding of "facial" and "as-applied" challenges. Under the Supreme Court's jurisprudence,...
Posted in Election Law on November 25, 2009 08:10 AM
"Introduction: Developments in Election Law"
I have posted this draft on SSRN (forthcoming, Loyola of Los Angeles Law Review). Here is the abstract, with links to each article described included in the abstract: This is a brief introduction to the Loyola of Los Angeles Law...
Posted in Election Law on October 26, 2009 07:58 AM
Live Blogging the Audio Release of the Citizens United Re-Argument
[UPDATE: With the argument broadcast now complete, you can read my Initial Thoughts on the Citizens United oral argument here.] I will update this post throughout the morning as the audio is released. Refresh your browser or click here to...
Posted in Election Law on September 9, 2009 07:54 AM
Pildes: Hanging In on Bailing Out
Rick Pildes sends along this guest post: A number of us have been trying to work out the implications of the Court's NAMUNDO decision for the next constitutional challenge to Section 5. I now want to address Armand Dernfer's brief...
Posted in Election Law on July 7, 2009 04:22 PM
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...
Posted in Election Law on July 1, 2009 02:46 PM
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...
Posted in Election Law on June 30, 2009 09:27 PM
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...
Posted in Election Law on June 26, 2009 09:38 AM
Persily: Perpetual Constitutional Avoidance?
Here is a guest post from Nate Persily: In the immediate aftermath of the NAMUDNO decision, I shared the view espoused by many that this was a placeholder decision that urges Congress to act so that the Supreme Court won't...
Posted in Election Law on June 24, 2009 08:39 PM
Scott Rafferty wrote the following post on the election law listserv, which I reprint here with permission: Rick points to Gerry Hebert's detailed analysis of the distinction between "facial" and "as-applied" challenges in NAMUNDO, arguing that the procedural abandonment of...
Posted in Election Law on May 15, 2009 08:00 AM
"Weighty Considerations: Facial Challenges and the Right to Vote "
Nihal Patel has written this student comment for the Northwestern University Law Review. Here is the abstract: In 2008, the Supreme Court stressed the difference between "facial" and "as-applied" review in a number of important decisions. Although this reasoning was...
Posted in Election Law on April 28, 2009 02:07 PM
Nate Persily, who has written one of the key articles about the renewal of section 5 of the Voting Rights Act, has just posted two of his newest pieces on SSRN. This Minnesota Law Review piece (with Jennifer Rosenberg) discusses...
Posted in Election Law on April 27, 2009 10:12 PM
Philip Peisch has written a quite good student note, Procurement and the Polls: How Sharing Responsibility for Acquiring Voting Machines Can Improve and Restore Confidence in American Voting Systems for the Georgetown Law Journal. It offers a nuanced defense of...
Posted in Election Law on March 31, 2009 09:43 PM
"Facial and As-Applied Challenges Under the Roberts Court"
Gillian Metzger has posted this draft on SSRN, which deals extensively, though not exclusively, with election law cases....
Posted in Election Law on February 19, 2009 08:24 PM
Persily on the Roberts Court and Election Law
Nate Persily has posted Fig Leaves and Tea Leaves in the Supreme Court's Recent Election Law Decisions (forthcoming, Supreme Court Review). Here is the abstract: This Article, which will appear in the Supreme Court Review, reads the fig leaves and...
Posted in Election Law on February 2, 2009 08:57 AM
Initial Thoughts on the Supreme Court's Opinion in Crawford, the Indiana Voter Identification Case
Today's much anticipated decision in Crawford v. Marion County Election Board is a significant win for those who support stricter voter identification laws, even if they support such laws for partisan purposes. It will encourage further litigation, because it relegates...
Posted in Election Law on April 28, 2008 08:17 AM
In Shocker, Supreme Court on 7-2 Vote Upholds Washington State Primary
You can find the Court's opinion here. The Court, and particularly Justice Roberts, leaves open the possibility of an as-applied challenge to the law later upon proof that voters are actually confused by the designations of the candidates' party preferences...
Posted in Election Law on March 18, 2008 07:25 AM
The Indiana Voter ID Case: Bush v. Gore All Over Again?
I have now had a chance to review the transcript in Crawford, the Voter ID case argued in the Supreme Court today, as well as a number of reports from oral argument. We are likely looking at another conservative-liberal split...
Posted in Election Law on January 9, 2008 01:21 PM
Still More on Crawford Oral Argument
Chris Elmendorf sent the following thoughts to the Election Law listserv, and he's given me permission to reprint his very important comments here: I too attended oral argument this morning. Two aspects of the dialogue were striking. First, Paul Smith...
Posted in Election Law on January 9, 2008 12:18 PM
Elmendorf on the Crawford Case
Chris Elmendorf has posted Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?) on SSRN (forthcoming, Hastings Constitutional Law Quarterly). Here is the abstract: During October Term 2007, the Supreme Court will hear...
Posted in Election Law on January 4, 2008 02:17 PM
Bob Bauer notes that the issue is now before the FEC in its Electioneering Communications rulemaking. Bob and I had a spirited discussion about this at ASPA and at the dinner after my APSA panel where I presented the views...
Posted in Election Law on October 8, 2007 08:54 AM
Interesting Jurisprudential Issue in Supreme Court's Recent Campaign Finance Case, FEC v. WRTL
Two Justices (in this case C.J. Roberts and Justice Alito) announce the controlling test on a constitutional issue (in this case which types of broadcast ads mentioning candidates may be paid for with corporate or union treasury funds). The seven...
Posted in Election Law on August 5, 2007 12:35 PM
"Madison Center Petition for FEC Rulemaking to Protect Genuine Issue Ads"
See here. Regardless of what one thinks of the WRTL ruling of the Supreme Court, and the specific proposal of the James Madison Center, a rule from the FEC put in place before the 2008 election season gets into full...
Posted in Election Law on July 19, 2007 10:25 AM
The ACLU and Electioneering Communications
At pages 25-26 of the transcript in WRTL, Seth Waxman made the following statement in response to a question by Justice Alito about whether setting up a PAC to run issue ads before an election would be "impractical:" [The ACLU]...
Posted in Election Law on April 30, 2007 09:36 AM
Justice Alito, Path Dependency, and Stare Decisis: A Bit More on the WRTL Argument
There's been a great deal of commentary already on the WRTL argument heard yesterday (transcript) by the Supreme Court. I posted my initial thoughts here---note that my point "3" got garbled in my rush to write the post before the...
Posted in Election Law on April 26, 2007 09:30 AM
Initial Thoughts on Oral Argument in WRTL
Before oral argument in WRTL begun this morning, the Court ruled 5-4 in two death penalty cases, with Justice Kennedy siding with the four more liberal Justices in striking down capital sentences. Justice Kennedy's vote could again prove critical in...
Posted in Election Law on April 25, 2007 08:56 AM
Today's Supreme Court Abortion Decision and the Upcoming Campaign Finance Argument in WRTL
Today the Supreme Court by a 5-4 vote upheld a facial challenge to the federal partial birth abortion ban. Abortion issues are quite removed from campaign finance regulation, but in this case, there are two connections between the Carhart case...
Posted in Election Law on April 18, 2007 09:39 AM
Why I (Hope and) Expect the Supreme Court Won't Revisit McConnell v. FEC in the WRTL Case
As Marty Lederman has noted, Jim Bopp's request to file an oversized brief in the WRTL case (granted by the Chief Justice to a 70 page brief) includes a request for more pages to brief the question whether the Supreme...
Posted in Election Law on March 15, 2007 09:03 AM
Briffault/Hasen Amicus Brief in Wisconsin Right to Life Case
Richard Briffault and I (along with our co-counsel David Ettinger of Horvitz and Levy and Marty Lederman of Georgetown) have written this pro-bono amicus brief supporting the FEC and the congressional intervenors in the Wisconsin Right to Life case being...
Posted in Election Law on February 22, 2007 03:51 PM
More Denniston on the Maine Campaign Finance Case
In response to my post on the Maine campaign finance case (linking to his earlier post on the same case), Lyle Denniston of SCOTUSblog emails along the following comments: Thanks for linking to my post on the new electioneering comm....
Posted in Election Law on May 15, 2006 07:22 AM
So states the Campaign Legal Center's Gerry Hebert in this press release regarding Christian Civic League v. Maine, being heard Monday before a three-judge court in Washington DC. Here is the context of Gerry's remark: During discovery last week, FEC...
Posted in Election Law on April 19, 2006 03:46 PM
The plaintiffs in WRTL have asked for expedited review of the case on remand to a special three-judge court in Washington D.C. From the press release: Wisconsin Right to Life has asked the District of Columbia District Court to expedite...
Posted in Election Law on February 1, 2006 08:20 AM
WRTL: Lyle Denniston reports on SCOTUSBlog: "The Supreme Court ruled on Monday, without dissent, that it has not barred all challenges to actual operation in practice of federal campaign finance restrictions. It ordered a lower court to reconsider an "as-applied"...
Posted in Election Law on January 23, 2006 07:36 AM
You can now access here the preview I have written for the ABA's Supreme Court Previews on the Wisconsin Right to Life v. FEC case. Republished with permission of the ABA. A snippet: This case could turn out to be...
Posted in Election Law on January 17, 2006 08:36 AM
Supreme Court Election Law Preview
The Supreme Court currently has no oral arguments scheduled in election law cases, but that could soon change. At least four significant cases are working their way toward consideration by the Court. Here is a summary and some predictions: Vermont...
Posted in Election Law on September 26, 2005 01:50 PM
Election Law Cases I Am Watching for Possible Eventual Decision by the Supreme Court
With the Supreme Court having issued its decision in Clingman v. Beaver, I thought it would be useful to list election law cases I'm watching for eventual resolution by the Supreme Court: Landell v. Sorell This is the Second Circuit...
Posted in Election Law on May 27, 2005 09:05 AM
Bauer on the As-Applied BCRA Case (WRTL)
See here. My earlier coverage is here....
Posted in Election Law on May 26, 2005 07:40 AM
Appeal in As-Applied Challenge to BCRA
The James Madison Center has filed this brief in the Supreme Court raising an as applied challenge to the electioneering communications provisions of BCRA. The gist of the case is that BCRA's ban on broadcast ads paid for with corporate...
Posted in Election Law on May 24, 2005 01:00 PM
Bauer on WRTL As-Applied Challenge
See here....
Posted in Election Law on September 13, 2004 08:29 AM
I had an enjoyable and productive trip to Australia, New Zealand, and Hawaii. I spoke about campaign finance issues in the U.S. elections at the University of New South Wales and at Griffith University (Brisbane). Radio National Breakfast (the equivalent...
Posted in Election Law on September 1, 2004 10:07 PM
"Group Plans to Challenge Law on Blackout Period for Ads"
The New York Times offers this report. You can find the group's press release here. Marty Lederman weighs in here on why there are reasons to believe the suit may well be rejected. Let me offer another: the kind of...
Posted in Election Law on July 28, 2004 07:52 AM
Some Initial Analysis: Title I (Soft Money)
In the main, I am not surprised that the Court upheld the soft money provisions of the law. As I had argued in this Election Law Journal article, most of the constitutional issues surrounding soft money were in effect already...
Posted in Election Law on December 10, 2003 01:09 PM