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Tagged: Election law

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FAN.9.1 (First Amendment News) — McCutcheon Wins: Supreme Court strikes down aggregate limits law

Only minutes ago the U.S. Supreme Court handed down its ruling in McCutcheon v. FEC, the aggregate limits campaign finance case.

Link to opinion is here.

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

The issues before the Court were: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

Commentary: SCOTUSblog (Amy Howe): “The Court rules in the Chief’s opinion that the aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.”

 Lawyers: Supreme Court

For Appellant Shaun McCutcheon: Erin Murphy (lead counsel) & Paul Clement

For Appellant RNC: James Bopp, Jr. (NB: Though the NRC brief was prepared by Mr. Bopp, Ms. Murphy argued the case for both McCutcheon and the RNC)

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

  • Lower Court opinion (per Judge Janice Rogers-Brown) (argued by James Bopp, Jr., for Appellant)

Selected Supreme Court Briefs

  • Cert. Petition of Shaun McCutcheon & RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant Shaun McCutcheon (Michael T. Morley, counsel of record)
  • Reply Brief of Appellant Republican National Committee  (James Bopp, Jr., counsel of record)
  • Amicus Brief of Sen. Mitch McConnell (Bobby Burchfield, counsel of record)
  • Amicus Brief of the Cato Institute in support of the Appellant (Ilya Shapiro, counsel of record)
  • Amicus Brief of Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in support of the Appellant (J. Joshua Wheeler, counsel of record)
  • Brief of Appellee FEC (S.G. Donald Verrilli, Jr., counsel of record)
  • Amicus Brief of Brennan Center for Justice in support of Appellee (Daniel Kolb, counsel of record)
  • Amicus Brief of Americans for Campaign Reform in support of Appellee (Charles Fried)
  • Amicus Brief of Democratic Members of the U.S. House of Representatives in support of Appellee (Paul M. Smith, counsel of record)
  • Amicus Brief of Representatives Chris Van Hollen & David Price in support of Appellee (Seth Waxman, counsel of record)
  • Amicus Brief of Professor Lawrence Lessig in support of Appellee (Douglas T. Kendall, counsel of record)
  • For Additional Briefs, go here (ABA site)

Books, Symposia & Articles

  • SCOTUSblog Symposium on McCutcheon (forthcoming, 2014) (contributors: Jan Witold Baran, Richard Hasen, Burt Neuborne, Ilya Shapiro, & Fred Wertheimer)
  • SCOTUSblog Symposium on McCutcheon (Aug., 2013) (contributors: Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, David Skover, & Adam Winkler)
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FAN.8 (First Amendment News) — Shaun McCutcheon to write e-book

Ever the entrepreneurial figure, Shaun McCutcheon, the man at the center of the latest campaign finance storm known at McCutcheon v. FEC, has decided to take his case to yet a higher plateau — he’s writing an e-book titled Outsider Inside The Supreme Court — A Decisive First Amendment Battle. “It’s mainly about the actual [experience of being] an activist plaintiff (a DC ‘outsider’),” he told me. The work will be an e-book consisting of nine chapters. According to Mr. McCutcheon, the e-book is being written with significant assistance from Richard E. Cohen, a seasoned correspondent for Congressional Quarterly and the National Journal. Cohen, who has written on politics (see, e.g., here) and campaign finance issues (see, e.g., here), reportedly began working on the writing project with Mr. McCutcheon in late November or early December of last year. (Mr. Cohen is no newcomer to the subject of campaign finance laws. See, e.g., his “Giving till It Hurts: 1982 Campaign Prompts New Look at Financing Races,” National Journal, Dec. 18, 1982.)

SM_Book_Cover_ConceptsHere is the opening paragraph from the first chapter of the forthcoming e-book: “I strongly believe in Freedom of Speech and your right to spend your money on as many candidates and political activities as you choose. Free political speech and assembly are especially important to the future, because we can’t change anything in Washington, DC if we can’t change whom we send to Washington. Supporting those we believe will bring about change – and doing so through transparent contributions — is a good thing.” (emphasis added) He goes on to note: “So I filed a lawsuit, which was argued before the United States Supreme Court on Oct. 8, 2013. As I write this I’m waiting on the High Court’s ruling. This e-book is about the case, and the legal and political forces that drive it.”

Not to be overlooked is his attorney, Erin Murphy, who argued his case in the Supreme Court. He quotes her early on in the work: “‘By prohibiting contributions that are within the modest base limits Congress has already imposed to combat the reality or appearance of corruption,’ Erin Murphy—a former clerk to Chief Justice Roberts, who has become a Supreme Court litigator with a Washington D.C. law firm—told the Justices, ‘these limits simply seek to prevent individuals from engaging in too much First Amendment activity.’”

Some of the other chapters (which are each 3,000 words or fewer) concern:mcc-shaun

  • How Shaun McCutcheon first got actively involved in politics
  • How his case evolved
  • The various attorneys (notably Dan Backer) with whom he has worked on his case
  • How the media has covered the case and controversy, and
  • How the Court will ultimately rule in his case.

McCutcheon’s aim is to provide “a rare inside perspective of the evolution of an important court case from the view of an Alabama businessman.” To that end, he hopes that his account “will help demystify an important part of how our government operates.”

The e-book is slated to come out sometime shortly after the Court rules in McCutcheon. Read More

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Stanford Law Review Online: The Hunt for Noncitizen Voters

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

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NVRA (National Voter Registration Act) vs. Voter ID and Other Voter Access Challenges

In the ongoing battle to improve access to elections and expand the electorate, civil rights groups have often used the Voting Rights Act of 1965 (and its amendments) as the preeminent weapon.  The most transformative legislation to come out of the civil rights movement, the VRA changed the complexion of this country’s elected bodies and increased access to political power for minorities through muscular remedies.  However, it is the NVRA (National Voter Registration Act), the VRA’s lesser known, younger cousin of sorts, that has been stealing headlines this week.

Sandwiched between the VRA and the more recent Help American Vote Act (HAVA)d passed in 2002, the 1993 NVRA is sometimes overlooked as a significant linchpin of voter access.  Indeed, the NVRA has played an important role in securing expanded registration opportunities for marginalized populations.  And, in the face of stringent voter ID laws that suppress voter turnout and shrink the electorate, both offensive strategies and defensive tools are needed.  The NVRA continues to prove that it can be effective on both fronts.

Also known as the “Mot0r Voter” law, the NVRA was enacted in 1993 to help standardize the voter registration process for federal elections which varied widely throughout the states.  In an effort to decrease this disparity, the NVRA requires state agencies to give a voter registration application to all individuals applying for or renewing a driver’s license, or applying for (or receiving) services at certain other public offices, such as public assistance benefits.  The NVRA also requires states to “accept and use” registration by mail for federal elections.  Both of these important aspects of the law were the subject of the NVRA’s prominence this week.

On Tuesday, the Ninth Circuit Court of Appeals issued a fractured, en banc opinion in Gonzalez v. Arizona in a challenge to Arizona’s Proposition 200 that requires prospective voters in Arizona to show proof of U.S. citizenship in order to register to vote.  The NVRA requires states to “accept and use” federal voter registration applications where applicants affirm that they are citizens of the United States and that they meet other voting prerequisites.  Although states retain the right to reject deficient applications under the NVRA, the Ninth Circuit held that the NVRA does not permit states to independently verify citizenship status by requiring proof of citizenship for registration for federal elections.  The court also addressed important claims under the VRA which others have analyzed here and here.  However, it was the NVRA that ultimately yielded a coup.

Since its inception, the NVRA has provided registration access to countless recipients of public benefits and government services and has permitted states to reject and purge registrations on a variety of grounds.   Nonetheless, states have repeatedly attempted to
undermine the law, as evidenced by the Arizona case, and in some instances evade implementation of the NVRA altogether. Wednesday’s important settlement victory against the State of Georgia is one in a long line of NVRA enforcement actions led by the Department of Justice and civil rights groups to force states to abide by their duty to expand registration opportunities.  For years, Georgia refused to implement the NVRA’s registration requirements to the fullest extent of the law.  The settlement in NAACP v. Kemp, however, now requires Georgia’s public assistance agencies to provide voter registration every time they apply for or renew benefits, or when they submit a change of address, including when these acts occurs via remote communications such as by telephone, internet or mail. Georgia’s stringent voter id laws still present independent challenges to voter access, especially since the popular Georgia Compass (or EBT (electronic benefits) card is not a photo id.   This makes continued enforcement of the NVRA all the more important to increase the overall number of registered voters.

As noted earlier, Georgia is not alone in its obstinance in implementing the NVRA.  Over half a dozen states refused, on constitutional grounds, to implement provisions of the Act when it first became effective until DOJ brought enforcement litigation, successfully defending the NVRA’s constitutionality.  And, the battle wages on.  Most recently, DOJ filed a complaint against the State of Louisiana, alleging that the State and its public assistance and disability agencies failed to offer voter registration opportunities  in violation of the NVRA.  DOJ filed a similar complaint against the State of Rhode Island that was resolved by consent decree in 2011, as were complaints against Illinois and Arizona, a repeat offender, in 2008.

Given the incessant proliferation of voter ID statutes, the NVRA’s role in increasing the number of registered voters is increasingly important.  Both the Arizona and Georgia cases underscore the need both to enforce the provisions of NVRA and protect against its circumvention by clearly defining the limits between federal and state authority under the Act.  While the Supreme Court likely will be the final arbiter as to whether stringent vote ID laws like Arizona’s can supplant the rights created under the NVRA, the NVRA remains a significant player in the body of laws that protect and safeguard voting rights.

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Viewpoint, Voting, and Structuring the Electorate

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read More