Several commentators, most notably John Elwood on Volokh Conspiracy and Tony Mauro for the Legal Times, have considered the possible reasons and consequences of the Court’s rather delinquent decision. earlier this year I took a look at the cases from OT07 that took longer-than-expected and the stats generally support what the pundits have said. The average number of days for an opinion is about 92. The longest opinions from OT07 were 202 and 232 days, respectively. US v. Williams took 202 days, split 7-2, and had three opinions. US v. Santos took 232 days, split 5-4, and had four opinions.

The case with the greatest number of opinions was Department of Revenue of KY v. Davis. It took 197 days, split 7-2, and had seven opinions (Souter(m), Stevens(c), Roberts(c), Scalia(c), Thomas(c), Kennedy(d), Alito(d)).

On the other hand, McConnell v. FEC took about 92 days, split 5-2, and had three majority opinions, three concurrences, and two dissenting opinions. Notably, the decision in McConnell was released on December 10, 2007, relatively early in the year for an opinion and not even on the last day for opinions before the break (another opinion was released on December 15)!

In my opinions, the number suggest that the Citizens United decision will be as far reaching as people expect but I think there will be far less division than the McConnell opinions. The Court could probably churn out an opinion in a week if each of the Justices was to simply write an opinion for himself or herself and the Court issue nine opinions. In an effort to fulfill some of his nomination pledges, the Chief Justice may be placing a greater emphasis on writing a majority opinion (that I expect he will write) that can drag along a majority for the crux of his argument.

Related posts

• Supreme Introductions (December 20, 2008)
• Which Justices Write The Most 9-0 Opinions? 5-4 Opinions? (February 27, 2009)
• Which Justice Is The Most Talkative? (November 8, 2007)

Hansen posits up some interesting analysis and I absolutely agree with his parting shot that this was an excellent set of oral arguments and each of the advocates was impressive. I’m not typically a big fan of election law (stemming solely from the fact that there are only a few fields of law about which I know less), but I thought the arguments today were fascinating and each of the advocates provided an example of superlative advocacy.

Related posts

• Thoughts on the Citizens United Delay (December 15, 2009)
• Northwest Austin Municipal Utility District and the Future of Section 5 (June 24, 2009)
• Initial Thoughts on Rearguments in Citizens United (September 9, 2009)

Solicitor General Kagan did a fantastic job for her first oral argument. Her position was a difficult one and the Justices who disagree with her position certainly held no punches. Chief Justice Roberts, in particular, went after her position and commented on some aspects of the SG’s uncomfortably paternalistic position. Admittedly though, this was an interest set of arguments because each Justice seemed more clear than usual in the position they would be taking.

I’d recommend this set of oral arguments to anyone with an interest in the Court. The parties made some pretty interesting, well-laid out claims. As soon as we get the transcript I’m sure the (laugher.) count will be very high. You can find an audio recording from c-span here.

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Kagan May Not Argue Until OT09 (April 14, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)

The case will be the first heard by Associate Justice Sonia Sotomayor––and it should be one that she feels very comfortable with. Back in May, the New York Times noted that Sotomayor, who was appointed by New York City Mayor Ed Koch in 1988 to be one of the first members of that city’s Campaign Finance Board, has long been interested in issues of campaign finance. Although the finance regulations that govern New York City politics vary considerably from federal rules, Sotomayor’s experiences on the Board will surely make her a valuable resource to the Court as it considers whether FEC regulations apply to the film Hillary: The Movie.

Unlike Souter, who was relatively inactive towards the beginning of his tenure, Sotomayor is expected to be a vocal presence on the high Court from the very beginning. Perhaps she will even author the opinion (or, more likely, the dissent) in Citizens United.

An aside: I can’t help but notice that Sonia Sotomayor is the only Justice to have been personally and professionally involved with a campaign finance commission. Perhaps the time she spent serving as “a wise Latina woman” on a Board that was in part tasked with encouraging minority participation in local politics was just the sort of experience she was referring to back in 2001…

Arguments in this case should be interesting. How often do we see three all-star advocates battling it out over an issue of enormous consequence in front of a new Justice during a special hearing?

Reply briefs are due this coming Wednesday.

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The structure of the opinion is fairly interesting. Section I A presents a fairly sympathetic timeline of events leading up to the reauthorization of the pre-clearance requirement in 2006. Section I B mentions a brief history of the MUD district and the decision below, which held that the district wasn’t a “political subdivision.”

Section II is devoted almost solely to discussing the flaws in Section 5 of the VRA. After starting with a brief ode to the “undeniable” “historical accomplishments” of the VRA, noting that the Act now requires a heightened level of justification in-part because of its widespread success over the last 40 years. Chief Justice Roberts then thrashed the act for a slew of problems before eventually avoiding the constitutional issue.

One of the biggest questions this case presents is about why the traditionally liberal Justices, presumably supporters of Section 5 at its core, issued no clarifying concurring opinion about Section 5. There is a chance, and I think a very good one, that those judges hoped to send a unified message to Congress by joining only the Chief Justice’s majority opinion. If they had penned a four-Justice opinion concurring in judgement, there would be an increased chance that Congress would not heed the warning of the Court. The liberal Justices may see this nearly unanimous opinion as their best way of ensuring that Congress takes the Court’s warning seriously enough to make changes that will withstand review several years from now.

The Chief Justice penned an opinion that will make Judicial minimalists swoon. On its face, the opinion reads like a textbook example of judicial restraint (excuse the imprecise term) and the Chief Justice claims to move only as far as necessary to dispose of the case at hand. 30-years from now, if the Chief Justice’s lasting legacy is one of minimalism and incrementalism, this opinion will likely be one of his most famous. On the other hand, this may prove to be the calm-before-the-storm if the Court revisits Section 5 in the next few years and fulfills its promise to evaluate the section on its core constitutional issue.

Analysts have frequently brought up comparisons to Palm County Board of Commissioners and Bush v. Gore. After the Florida election fiasco in 2000, the Supreme Court issued a per curiam opinion telling the Florida Supreme Court, in effect, that it needed to reconsider some of its procedural findings or the Court would be forced to step in and intervene. The Florida Supreme Court didn’t take the hint and the Supreme Court then issued what is now considered to be one of the most politically-charged opinions of all-time.

Regardless of the path the courts and Congress take as a result of this opinion, one thing is certain: the Court’s opinion in NWAMUDNO represents a very serious warning to Congress. The Robert’s Court has not been unwilling to tackle very serious Constitutional questions such as the scope of the Second Amendment (Heller), privacy (Carhart), and the death penalty (Kennedy, Baze), and questions of race have been no exception (Parents Involved, Ricci). It will be interesting to see how seriously Congress deals with the issue and when, not if, the Court decides to revisit this issue at it’s core.

Related posts

• Initial Thoughts on Northwest Austin v. Mukasey (January 10, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)
• Supreme Court Releases Opinions in Pearson, Fitzgerald, Locke, and Waddington (January 21, 2009)

The arguments made were certainly very interesting. Justice Scalia, while criticizing the near-unanimity with which Congress passed the VRA extension, made this observation:

You know, the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.

I wasn’t aware of an such law, but the concept seems silly. The fact that something is so clear as to illicit a unanimous judgement doesn’t seem to in any way suggest a particular path for its reasoning. Justice Scalia’s hypothesis that Congress has a bias in favor of maintaining the status quo with regards to the VRA might be correct, but I just don’t see it playing into the equation here. Both sides are trying to argue the VRA on its merits and I’m not sure political bias of congress has a major role to play in this case as a balancing factor.

Justice Kennedy brought up some soverignty issues that I didn’t expect to see during oral arguments:

[Y]et the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other. And does the United States take that position today?

The sovereignty issue seems a bit odd to me. When the VRA was passed in 1965, Congress used a test to determine which localities met certain conditions and if so, the pre-emption clause was applied to them and they were forced to comply with Section 5. Petitioners argue that the conditions that were at play in 1965 no longer apply and that if the same test was used today, only parts of Hawaii would fall under Section 5, but I the argument that the test was used to unfairly infringe upon the sovereignty of some states while leaving others alone seems bizarre.

Anyways, the arguments are definitely worth a listen if you have a few moments to spare.

Related posts

• Northwest Austin Municipal Utility District and the Future of Section 5 (June 24, 2009)
• Northwest Austin and the Forthcoming Ricci Decision (June 24, 2009)
• Initial Thoughts on Northwest Austin v. Mukasey (January 10, 2009)

Related posts

• Kagan May Not Argue Until OT09 (April 14, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)
• C-SPAN Releases Oral Argument Audio Request History (April 16, 2010)

§5 of the Voting Rights Act, now 42 U.S.C 1973(c), forces certain ‘covered jurisdictions’ to have voting procedures pre-cleared by a three-judge panel from the District Court for the District of Columbia, per 28 U.S.C 2284. All appeals are immediately directed towards the Supreme Court and bypass the Court of Appeals.

If localities wish to change their voting procedures or practices, they must

institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f)(2) of this title

However, per §4 of the VRA and 42 U.S.C 1973(b) localities may ‘bail out’ of the program if they have had no infractions of the VRA in the last 10 years.

In the case here, the Northwest Austin Municipal Utility District Number One complied with §5 of the VRA and brought a case under §4 of the VRA in the US District Court for the District of Columbia in order to apply for a bail out. The district argued that they were eligible for the bailout per §4 based on their impeccable record of guaranteeing voter rights. Alternatively, they argue that §5 is unconstitutional when set to the congruence-and-proportionality test set out in City of Boerne v. Flores (1997). They maintain that if a district with a record like this one cannot activate a §4 bail out, §5 effectively binds districts indefinitely.

On May 30, 2008, the district court ruled against the district holding that (1) the district is not an ‘political subdivision’ as defined in the section and therefore is not eligible for §4 relief, (2) the rational-basis test is the appropriate test for concerns under the fifteenth amendment and §5 satisfies said test, and finally (3) §5 also passes the more stringent congruence-and-proportionality test.

The VRA gives the district the opportunity to appeal directly to the Supreme Court and therefore their case not heard by any intermediate appellate court. In one of their briefs to the Supreme Court (here), the district argues that, among other reasons, the election of Barack Obama shows that the United States political arena has changed drastically from the one that existed when the VRA was passed in 1965.

There is no warrant for continuing to presume that jurisdictions first identified four decades ago as needing extraordinary federal oversight through §5 remain uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.

The brief for the appellant, the district, is due on February 19 and the response from the appellee will be due on March 20. The court will almost certainly hear arguments during the April sitting, which begins on April 20 and lasts until April 29.

Related posts

• Northwest Austin Municipal Utility District and the Future of Section 5 (June 24, 2009)
• Northwest Austin and the Forthcoming Ricci Decision (June 24, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)

On December 10th, Senate Majority Leader Harry Reid decided to celebrate Blagojevich’s 52nd birthday by drafting a letter soliciting his resignation. The letter, which was subsequently co-signed by the entire Democratic caucus, includes this warning:

Please understand that should you decide to ignore the request of the Senate Democratic Caucus [to resign as Governor] and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

The Majority Leader is referring to Article 1, § 5, Clauses 1-2 of the Constitution of the United States, which read:

Section 5. [Clause 1] Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

[Clause 2] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Due to the impeachment proceedings and Blagojevich’s newfound support for a special election, the chances are very good that no one will ever have to answer the question of whether or not Reid actually has the authority not to seat an appointed Senator. On face, this question would appear to be judicial taboo, plainly fitting the parameters for what Federal Judges often call “non-justicable political questions.” But seeing as how it is isn’t very polite to threaten someone with a constitutional power that you don’t have, some people are starting to ask some questions.

In Powell v. McCormack 395 U.S. 486 (1969), the Supreme Court held 8-0 (with Justice Fortas ironically not voting due to his own political scandal) that the House of Representatives did not have the authority to “exclude” a constitutionally-eligible person from serving in Congress. Representative Adam Clayton Powell (D-NY) – who brought the case against the Speaker, the House Clerk, the Sergeant at Arms, and even the Doorkeeper of the House – alleged that the House’s decision to exclude him (as made in House Resolutions 1 and 278, both in 1967) was unconstitutional. Powell, who was accused of misusing travel funds and paying his wife an unearned Congressional salary, fit the constitutional requirements for office as stated in Article 1, § 2, Clause 2. The United States District Court for the District of Columbia dismissed the case for lack of jurisdiction; the Appeals Court ruled that it did have jurisdiction, but that the matter was, in fact, a non-justicable political question. The Supreme Court accepted review, and heard arguments on April 21, 1969.

In the majority opinion, Chief Justice Warren wrote that the Court’s analysis of Article I § 5

demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Thus, it would seem that Harry Reid lacks the authority to refuse to seat a duly-appointed Senator assuming he or she meets the constitutional requirements. The Senate could, of course, vote to expel the member with a 2/3 majority. And it would also be prudent to note that no self-respecting politician would accept a Blagojevich appointment at this point anyway.

In the end, it appears that this a pretty cut-and-dry sort of thing. Harry Reid either misspoke, intending to threaten an expulsion, or else someone needs the Majority Leader of the United States Senate a copy of the Constitution.

Related posts

• Justice Stevens and Roe v. Wade’s Initial Reception (July 30, 2007)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)

A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

I don’t think Team Obama should get too comfortable with the Court’s denial of [Donofrio] since [Wrotnowski] IS distributed for Dec 12 conference.

It’s important to remember that the “safe harbor” deadline–the date when Secretaries of State can begin constitutionally locking their states’ Electoral College votes–is today, December 9th. Thus, there is no reason for the Obama team to be anything less than totally comfortable: as long as the case is not heard and ruled upon by the end of business today (which it won’t be because it is not on the docket), the Court will concretely guarantee Obama 365 electoral votes. Game over.

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Court Appears to Deny Stay in Donofrio v. Wells (December 6, 2008)

The case had been rejected by Justice Souter, the Justice who presides over that circuit, before it was refiled with Justice Thomas, who opted to refer it to the Court at-large. It was rejected by the Court in conference last Friday. Note that the case was submitted to the court on the eve of the election.

Here is what the docket reads:

Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008 Application (08A407) denied by Justice Souter.
Nov 14 2008 Application (08A407) refiled and submitted to Justice Thomas.
Nov 19 2008 DISTRIBUTED for Conference of December 5, 2008.
Nov 19 2008 Application (08A407) referred to the Court by Justice Thomas.
Nov 26 2008 Supplemental brief of applicant Leo C. Donofrio filed. (Distributed)
Dec 1 2008 Letter from applicant dated November 22, 2008, received.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)

The Supreme Court’s decision to deny review functionally ends the viability of any conspiracy theory concerning Obama’s citizenship. Even if the Court were to have accepted review, the case would have to have been heard and ruled upon before the “safe harbor” date for Electoral College votes, which is this coming Tuesday, December 9th. The other possibility was that the Court could stay the meeting of the Electoral College, slated for December 15th, pending review.

The denial means that there are now no legal barriers to stop Obama from locking in his 365 Electoral Votes on Tuesday, en route to becoming the 44th President of the United States.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)

I would wish that I could take my vote back. But is there a constitutional claim imbedded in my (hypothetical) buyer’s remorse?

On cursory inspection, the Constitution appears to answer this question by reserving the dating of elections as a power of the states. Article 1, Section 4 provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

But in 1999, the Voting Integrity Project brought suit against the Secretary of State of Texas in the United States District Court for the Southern District of Texas, alleging that portions of Texas Election Code pursuant to early voting violated 2 USC 7, which states:

“Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States…of the United States, of Representatives and Delegates to the Congress…”

In Voting Integrity Project v. Bomer (99-20757), the District Court denied VIP’s motion for summary judgment and, on appeal in 199 F.3d 773 (5th Cir. 2000 00:00:00), the Fifth Circuit Court of Appeals affirmed. The Supreme Court declined to review the decision.

The Fifth Circuit’s decision is a fascinating read that draws heavily on Foster v. Love 522 U.S. 67 and U.S. v. Classic 313 U.S. 299. The decision provides three basic reasons why early voting is not de facto unconstitutional.

First,

Because the election of federal representatives in Texas is not decided or “consummated” before federal election day, the Texas scheme is not inconsistent with the federal election statutes as interpreted by the court in Foster.

Second, the Court could not

“logically hold that Texas’ system of unrestricted advanced voting violates federal law without also finding that absentee balloting–which occurs in every state– violates federal law.

And, finally, the Court could not

conceive that Congress intended the federal election day statutes to have the effect of impeding citizens in exercising their right to vote.

There is certainly a lot of room for debate here, and I would be very curious to see what the Supreme Court would have to say. Clearly the bulk of the decision is in the Court’s first point. The second reason occurs to me as something of a cop out, not really speaking to the issue at hand. The third reason seems backwards: is it not true that the right to vote is best exercised when the most information is available? If not, why not just vote in all states on a rolling basis? After all, having an “election day” or even an “election period” (ie: an election day preceded by two weeks of early voting) inherently impedes the right to vote by making it impossible to vote outside of these temporal boundaries.

The Court’s first justification rests entirely on Foster’s definition of “election”; specifically it calls into question whether the act of voting is completed upon the casting of a vote or upon its counting. If the Court had interpreted the act of voting to be complete upon its casting, then I firmly believe they would’ve overturned the District Court. This surely would’ve generated a lot of media attention, and might have given the case a better chance of being heard by the SCOTUS. The stare decisis inherent in the Circuit Court’s deferral to Foster is palpable, and, at times, the decision itself seems to beg for higher review. For example, the entire crux of the decision depends on an interpretation of “the final act of voting,” yet the majority opinion itself notes that

there is room for argument about just what may constitute the final act of selection within the meaning of the law [emphasis mine]

For now, most of the debate surrounding early voting is happening in the states. In 2006, a Maryland Circuit Court Judge for Anne Arundel County ruled that early voting violated a provision of the state constitution that called for all elections to be held on the same, “election day.” Connecticut has had similar debates, and a few people on the internet have recently been calling for a cases similar to VIP to be filed in other states. I, for one, think something like the hypothetical I described earlier would bring some much needed attention to the issue. But unless Obama’s been unfaithful to Michelle, this is just an interesting what if.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)

Lloyd Karmeier, the winner of a $9.3 million campaign for the Illinois Supreme Court in 2004, was supported by $350,000 in direct contributions from employees, lawyers and others directly involved with the insurer State Farm and/or its then pending appeal, and by an additional $1 million from larger groups of which State Farm was a member, or to which it contributed. Almost immediately upon taking the bench, he cast a vote ending proceedings on a $456 million claim against State Farm. A St. Louis Post-Dispatch editorial put it this way: “Although Mr. Karmeier is an intelligent and no doubt honest man, the manner of his election will cast doubt over every vote he casts in a business case.”

James Sample concludes that the the biases resulting from donations might be worse than we thought. Worth a read.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Looking Ahead to New York State Board of Elections v. López Torres (August 4, 2007)

Of course, leave it to the Republicans to monkeywrench a Florida election again. It turns out that Republican majorities in Florida and Michigan (which wants to have its electoral bonanza on January 15th) voted to move up the dates, apparently against the will of Democrats in the state (I say “apparently” because Dems could just being using this as an excuse).

Regardless of who is to blame…

Many argue that Florida will benefit from an earlier primary date because candidates will directly address the issues of the Florida electorate. I’m not entirely sure that will be the case. It’s not like the candidates will change or alter their platform to appeal to Florida voters. And empirically the issues brought up in Iowa, New Hampshire, and other early primary/caucus states haven’t been the top legislative priorities for presidents post-election.

The argument that states like Florida lose electoral clout by not having an early primary are absurd. States with large numbers of votes in the electoral college (Florida, California, etc.) seem to be the ones wanting earlier primaries, and yet they’re also the states that get the most attention in the months leading up to the election. In fact, the whole point of having Iowa, New Hampshire, South Carolina and Nevada host early primaries is that they won’t be getting any attention during the final straightaway.

There’s also the race to the bottom front argument, where states will try to beat each other to the earliest primary date. In fact, I honestly don’t know why Michigan doesn’t move its primary date to tomorrow. Or maybe January 15th can be the primary for the 2016 election, yes?

Last note: this may be the most frightening picture of Hillary ever taken. If this doesn’t kill her campaign, nothing will.

Related posts

• YouTube 4 President (June 14, 2007)
• WSJ Op-ed on Judicial Elections (March 22, 2008)
• When Mitt Met Hillary (July 5, 2007)

Based on the substantial body of evidence before me, I conclude that the plaintiffs have made a compelling showing that the New York system is designed to freeze the political status quo, in which party leaders, rather than the voters, select the Justices of the Supreme Court. By preventing competition among candidates and deterring voter participation, the system is successful in fact at achieving that goal.

Also hugely important was the discussion of the people of New York’s efficacy in this determination:

I note finally that it is of no consequence that the party leaders discussed here in are themselves periodically subject to election by party members. A system in which an elected official has, as one of her many official duties, the job of selecting the members of the judiciary is the very definition of an appointive system. The Constitution of New York, however, could not state more plainly that an elective system is required. N.Y. Const. art. VI, § 6(c). In any event, New York law does not provide county and district leaders any official role in the nomination process (unless they happen to have also been elected as delegates). Therefore, voters cannot be expected to provide any check on party leaders’ judicial selections by voting those leaders out of office for exercising poorly a discretion with which they are not vested.

In August of 2006, The Second Circuit affirmed.

Here’s where this case becomes interesting. In 1974, the Supreme Court held 8-1 in American Party of Texas v. White (415 U.S. 767) that it is “too plan for argument” that intraparty competition can be resolved equally fairly by either direct election or primary. It seems to me that this case elucidates one example of the two systems working in a manner that is not equally fair, and, thusly, it may be impossible for the Court to uphold the ruling of the 2nd Circuit without overlooking stare decisis.

On a side note, the term “stare decisis” is frequently thrown around by legal pundits to invoke the idea of legal precedent. In reality, the full legal term is “stare decisis et non quieta movere” – or “stand by decisions and do not move that which is quiet.” The commonly removed predicate is perhaps unwisely commonly removed. In my opinion, any full interpretation of this term must acknowledge that the quieter something lies, the less it deserves to be awoken. For example, overturning Griswold v. Connecticut, widely considered the basis for Roe, would call into question (ie: awaken) an impossibly long list of salient legal dilemmas. For extended example, overturning White not only alters election law in New York, but so too in 30 other states with identical procedures.

Another issue to consider is established by the second of the Questions Presented. Also in 1974, the Court held in Storer v. Brown (215 U.S. 724) that candidates may not run as independents within six months of having been a registered member of another party. The Attorney General of New York, acting as de facto counsel for that state, argues that the Second Circuit’s ruling that all candidates should be allowed a “realistic opportunity to participate” may violate Storer (if applicable). The constitutionality of freezing out minority candidates is thus also at play. This case joins Washington State Grange v. Washington Republican Party, discussed at length here, in inquiring about the legality, purpose, scope, fairness, and inherency of primary systems. This Amicus brief jointly filed by of the Cato Institute, Reason Foundation, and the Center for Competitive Politics explains the vitality of this case more clearly than I could hope to. Regardless, it seems to me that this Court stands a chance to fundamentally alter (or clarify) election law to an extent not fully matched in the last 23 terms.

You can always find more information about upcoming cases before the court at our 2007 Term Case Index

Related posts

• WSJ Op-ed on Judicial Elections (March 22, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)