Antonin Scalia

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National: Post-Scalia supreme court could start to turn tide on voting rights restrictions | The Guardian

Just over a week after the death of Antonin Scalia, legal experts are seeing signs that a newly configured supreme court may lead to a modest expansion of voting rights after years of setbacks. Although a new justice is unlikely to be appointed before election day, a court deadlocked between four conservatives and four liberals could still have a significant effect during a presidential election year in which activists on both sides of the partisan divide will be banging on the door of the country’s highest court to settle disputes over restrictive voting rules and racial discrimination. “It’s starting pretty much immediately,” said Dan Tokaji, an election law specialist at Ohio State University’s Moritz School of Law. “You’re going to start seeing cases challenging voting rules like you do in every election … These cases tended to be decided on a 5-4 vote, so Justice Scalia’s absence could be very important.”

Full Article: Post-Scalia supreme court could start to turn tide on voting rights restrictions | Law | The Guardian.

Voting Blogs: Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation | Election Law Blog

Justice Antonin Scalia has died in Texas at the age of 79.  Let me begin with condolences to his family, friends, and former clerks who were fiercely loyal to him (and he to them). Whatever you thought of Justice Scalia’s politics and jurisprudence, he was an American patriot, who believed in the greatness of the United States and in the strength of American courts to protect the Constitution’s values as he has seen them. He also wrote the most entertaining and interesting opinions of any Justice on the Court. I was just in the early stages of a project to evaluate Justice Scalia’s legacy, and I will have much to say later on about Justice Scalia’s impact on the judiciary where his views on constitutional originalism and new textualist statutory interpretation have have played a key role in the development of American jurisprudence and argumentation in the federal courts. But let’s begin here with the implications for the Court’s current term, its impact on the 2016 election, and on the Nation as a whole.

Full Article: Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation | Election Law Blog.

National: Scalia’s absence could shape election rules | Politico

Justice Antonin Scalia’s death is certain to have an impact on the political debate in this year’s elections, but it could also have a far more direct effect on the elections themselves. There are numerous challenges to Republican-led congressional redistricting plans and new voter ID laws likely to come under Supreme Court scrutiny. Scalia had been a reliable vote for allowing such redistricting plans and voting rules. A new justice nominated by President Barack Obama and confirmed by the Senate would almost certainly shift the court in the direction of stricter voting rights enforcement and a greater willingness to take account of race when considering redistricting and election law matters. But the more likely scenario in the near term — deadlock over Scalia’s replacement — could have a similar effect by leaving the court less likely to come up with the five votes required to set precedents on such matters and to issue emergency stays in challenges to last-minute voter ID and election-law changes coming up from lower courts.

Full Article: Scalia's absence could shape election rules.

North Carolina: Scalia’s death could have quick impact on redistricting case | News & Observer

As the political battles heated up over who should replace Justice Antonin Scalia on the U.S. Supreme Court, lawyers familiar with North Carolina’s redistricting case and other high-profile lawsuits took time on Sunday to weigh what impact the conservative jurist’s death might have on their cases. The North Carolina redistricting case, which invalidated the state’s 1st and 12th congressional districts, is one that could see a different outcome now, legal analysts speculate. Some analysts say Scalia’s death makes it much more likely that North Carolina’s March 15 primary elections will be delayed – at least in the congressional races. Until a new justice is appointed – and U.S. Senate Majority Leader Mitch McConnell has promised a delay for anyone President Barack Obama nominates – there could be a succession of 4-to-4 vote standoffs among the remaining justices. In such cases where there is a tie, the lower court ruling stands as if the high court had never heard the case. But as has been proven often during the two weeks since the federal court ruling describing North Carolina’s 1st and 12th districts as racial gerrymanders, there are few simple answers with a redistricting case.

Full Article: Scalia’s death could have quick impact on NC redistricting case | News & Observer.

North Carolina: Scalia’s death could have quick impact on redistricting case | News & Observer

As the political battles heated up over who should replace Justice Antonin Scalia on the U.S. Supreme Court, lawyers familiar with North Carolina’s redistricting case and other high-profile lawsuits took time on Sunday to weigh what impact the conservative jurist’s death might have on their cases. The North Carolina redistricting case, which invalidated the state’s 1st and 12th congressional districts, is one that could see a different outcome now, legal analysts speculate. Some analysts say Scalia’s death makes it much more likely that North Carolina’s March 15 primary elections will be delayed – at least in the congressional races. Until a new justice is appointed – and U.S. Senate Majority Leader Mitch McConnell has promised a delay for anyone President Barack Obama nominates – there could be a succession of 4-to-4 vote standoffs among the remaining justices. In such cases where there is a tie, the lower court ruling stands as if the high court had never heard the case.

Editorials: New Florida voting map tough to unravel | Joe Brown/The Tampa Tribune

Recently released documents related to the decennial redistricting process in Florida show that the firm in charge, Data Targeting, made a concerted effort to benefit the state’s Republican Party and keep it all out of the sunshine. One email even made note of the need to converse over the phone instead of by email. I’m not surprised. Back in July, Circuit Judge Terry Lewis ruled that Republican operatives “made a mockery of the Legislature’s proclaimed transparent and open process of redistricting.” The 538 pages of records show that’s exactly what happened. While redistricting always has been a kind of behind-closed-doors process, what was different this time around was Florida’s Fair Districts amendment passed by 63 percent of voters. Not only were the state’s open-government laws violated, the amendment states in part that “congressional districts or districting plans may not be drawn to favor or disfavor an incumbent or political party.” The next step is up to the Florida Supreme Court. The groups that filed the original challenge will argue that the revised map approved by Judge Lewis after last summer’s special legislative session doesn’t fix the many violations of the amendment. Oral arguments are set for March 4. 

Full Article: New voting map tough to unravel | TBO.com, The Tampa Tribune and The Tampa Times.

Editorials: Does Supreme Court Want Truthier Elections? | Noah Feldman/Bloomberg

Was a vote for the Affordable Care Act a vote for “taxpayer-funded abortion”? Sounds like a question of opinion, doesn’t it? But when a pro-life advocacy group called the Susan B. Anthony List said as much about then-Congressman Steve Driehaus’s vote during the 2010 election cycle, Driehaus filed an action charging them with making a false statement about his voting record, a crime under Ohio law. Driehaus lost the election, and the case was never decided. But the SBA folks still wanted the federal court to strike down the Ohio law as unconstitutional. Yesterday, the Supreme Court allowed their challenge case to go forward — and that tells us something important about the future of election law. Because the Ohio court never got a chance to find SBA guilty or not guilty of making a false statement about Driehaus’s voting record, no court has yet addressed the question of whether Ohio can outlaw such false statements altogether. The Supreme Court restricted its unanimous decision, written by Justice Clarence Thomas, to the threshold question of whether SBA could go to court seeking to have the law overruled when there were no present charges against it. The court held that the answer was yes.

Full Article: Does Supreme Court Want Truthier Elections? - Bloomberg View.

Editorials: Supreme Court ruling: As if we don’t have enough money in politics already | Jessica A. Levinson/Los Angeles Times

Thank you, Supreme Court. Before your decision Wednesday in McCutcheon vs. FEC, Americans were confined to giving a measly total of $48,600 in campaign contributions to federal candidates (enough for about nine candidates) and a total of $74,600 to political action committees. That means individuals were subject to aggregate contributions limits totaling a mere $123,200. Of course, individuals could, and still can, give unlimited sums to independent groups, such as so-called super PACs and other nonprofit corporations. Much of this giving remains undisclosed. For instance, super PACs such as Restore Our Future, American Crossroads, Priorities USA Action and others spent almost $830 million in the 2012 election. Talk about constraints on one’s ability to participate in our electoral processes. And how many people were handcuffed by these limits? Well, fewer than 600 donors, or 0.0000019% of Americans, gave the maximum amount under those oh-so-restrictive limits, according to the Center for Responsive Politics. And 0.1% of 310 million Americans give $2,500 or more in political campaigns. Well, good news for you big donors: no more pesky aggregate contribution limits. Sure, you are still limited to giving only $5,200 per federal candidate ($2,600 for the primary and $2,600 for the general) and $5,000 annually per PAC. But now you can directly support as many candidates as you want.

Full Article: Supreme Court ruling: As if we don't have enough money in politics already - latimes.com.

Editorials: Conservatives’ 17th Amendment repeal effort: Why their plan will backfire. | David Schleicher/Slate

ver the past year, an increasingly central plank of conservative and Tea Party rhetoric is that constitutional change is needed and that the 17th Amendment in particular, which gives state residents the power to elect senators directly, should be repealed. (Previously, senators were selected by the state legislatures). Hard-right figures across the country, from Sen. Ted Cruz (R-Texas) to Georgia Senate candidate Rep. Paul Broun to a steady drumbeat of state officials, have now called for repealing the amendment and giving the power to select senators back to the state legislatures. Radio host Mark Levin’s book The Liberty Amendments, calling for repeal, among other constitutional changes, was the best-selling book on constitutional law last year. Clearly this is an idea with legs. This boomlet of energy for repealing the 17th Amendment is not the first in recent memory. Back in 2010, repeal was similarly endorsed by a bevy of conservative bigwigs from Justice Antonin Scalia to Gov. Rick Perry to now-Sens. Mike Lee (R-Utah) and Jeff Flake (R-Ariz.). Back then, support for repeal was mocked in Democratic campaign ads as kooky, but perhaps it’s time to concede that it is no longer a fringe idea. Given the ascendance of the right flank of the GOP, it’s worth taking the argument for repeal seriously.

Full Article: Conservatives’ 17th Amendment repeal effort: Why their plan will backfire..

Editorials: The Supreme Court needs to get smarter about politics | Trevor Potter/The Washington Post

At one point during the oral argument Tuesday in the case of McCutcheon v. Federal Election Commission, Justice Antonin Scalia remarked that he didn’t understand the legislation in question. “This campaign finance law is so intricate that I can’t figure it out,” he said. “It might have been nice to have the, you know, the lower court tell me what the law is.” Scalia meant to be playful. But as the argument progressed, it became clear that the justices really don’t know enough about money in politics. They expressed skepticism about “wild hypotheticals that are not obviously plausible” — when in fact we’ve already seen those scenarios play out. They talked a lot about the FEC’s “earmarking” and “coordination” rules, but they didn’t seem to recognize that those rules are impossible to police and that a dysfunctional FEC isn’t doing much policing anyway. And the conservatives on the court seemed to fail to understand what leads to corruption or the appearance of corruption — with Justice Samuel Alito going so far as to suggest that giving a very large check to a political fundraising committee isn’t inherently a problem, because the committee could take the money and burn it. “Well, they’re not,” replied Solicitor General Donald Verrilli. “They are not going to burn it.”

Full Article: The Supreme Court needs to get smarter about politics - The Washington Post.

National: Supreme Court Again Weighs Spending Limits in Campaigns | New York Times

The Supreme Court on Tuesday seemed prepared to strike down a part of federal campaign finance law left intact by its decision in Citizens United in 2010: overall limits on direct contributions from individuals to candidates. The justices seemed to divide along familiar ideological lines, and they articulated starkly different understandings of the role of money and free speech in American politics. “By having these limits, you are promoting democratic participation,” Justice Ruth Bader Ginsburg said. “Then the little people will count some and you won’t have the super-affluent as the speakers that will control the elections.” Justice Antonin Scalia responded, sarcastically, that he assumed “a law that only prohibits the speech of 2 percent of the country is O.K.” Chief Justice John G. Roberts Jr., who probably holds the crucial vote, indicated that he was inclined to strike down overall limits on contributions to several candidates, but perhaps not separate overall limits on contributions to several political committees.

Full Article: Supreme Court Again Weighs Spending Limits in Campaigns - NYTimes.com.

Editorials: How Close Will the Supreme Court Get to Ending Campaign-Finance Laws? | Garrett Epps/The Atlantic

“Chutzpah,” wrote the late Leo Rosten, “is that quality enshrined in a man who, having killed his mother and father, throws himself upon the mercy of the court because he is an orphan.” Here’s another example: Mr. Chief Justice and may it please the Court, three years ago, in Citizens United v. Federal Election Commission, this Court tore a gaping hole in the system of campaign-finance regulation designed by Congress over 30 years. The result has been disastrous: a flood of dark money that now dominates elections, drowning out ordinary citizens and even the candidates and parties themselves. The solution to this problem is simple: This Court should tear another gaping hole in what’s left of the system so that the rich can give more—maybe much more—directly to the candidates and parties. What could possibly go wrong? That, in essence, was the message delivered to the Court Tuesday by lawyers for Alabama businessman Sean McCutcheon and the Republican National Committee. His attorney argued that because Citizens United unleashed “independent expenditures” while allowing the government to limit the amount of money contributed directly to campaigns, rich people are giving to PACs rather than to candidates or party committees. Why not let us wet our beaks too?

Full Article: How Close Will the Supreme Court Get to Ending Campaign-Finance Laws? - Garrett Epps - The Atlantic.

Editorials: The Long Shadow of Citizens United | Jesse Wegman/New York Times

Technically speaking, the Supreme Court’s controversial 2010 ruling in Citizens United v. Federal Election Commission was not up for reconsideration on Tuesday, when the court heard oral arguments in the first major case of its new term. But the shadow of that earlier decision lurked as the justices attempted to get to the heart of the current case, McCutcheon v. F.E.C., which is about whether overall political-contribution limits violate the First Amendment’s guarantee of free speech. (At least some of the limits appear to be in trouble.) In Citizens United, the court held that the First Amendment permitted unlimited campaign-related spending by corporations and labor unions, and not just individuals. The 5-member majority rejected arguments by the government and others that opening the door to a massive influx of corporate cash would lead to political corruption. Tuesday’s case, by contrast, involved federal limits on direct contributions to candidates and party committees. Since 1976, the court has held that limits on such contributions are constitutional, but limits on outside spending are not. Shaun McCutcheon, an Alabama businessman, sued the federal government after he ran up against the limits — currently set at $123,200 — and wanted to give more.

Full Article: The Long Shadow of Citizens United - NYTimes.com.

Editorials: Plan B for Voting Rights | New York Times

Voting-rights advocates generally don’t look to Justice Antonin Scalia for comfort. During oral arguments earlier this year in Shelby County v. Holder, the case in which the Supreme Court struck down a central part of the Voting Rights Act of 1965, Justice Scalia called the act a “perpetuation of racial entitlement.” But a growing circle of legal scholars is focusing on a lower-profile ruling — issued one week before the Shelby County decision and written by Justice Scalia — that may point the way to a new approach to protecting voting rights. The 7-to-2 decision, in Arizona v. Inter Tribal Council of Arizona, struck down an Arizona law requiring anyone who wanted to vote to provide proof of citizenship. It said the state could not impose a rule that was more restrictive than the federal “motor voter” law, which requires only a sworn statement of citizenship by the voter.

Full Article: Plan B for Voting Rights - NYTimes.com.

Arizona: Accepting Scalia’s Offer, Arizona Sues Obama Administration On Voting Rights | TPM

Arizona and Kansas have taken Supreme Court Justice Antonin Scalia’s suggestion and sued the Obama administration in a continuing effort by both states to require proof of citizenship in order to register to vote. The lawsuit, filed Wednesday, was announced by Arizona’s Attorney General Tom Horne and Secretary of State Ken Bennett, and joined by Kansas Secretary of State Kris Kobach, a high-profile architect of restrictionist laws, including Arizona’s Senate Bill 1070. The issue involves the 1993 National Voter Registration Act, also known as the “motor voter” law, which requires states to let people register to vote simply by attesting they are citizens, when renewing their driver’s license or applying for social services. A 2004 law adopted by the voters in Arizona added the requirement that people registering to vote also provide proof of citizenship. The Supreme Court struck down that law earlier this year, concluding that it is trumped by the motor voter law. Arizona, the court ruled, could not add new requirements to the form prescribed by the federal law. But during oral arguments in March, Scalia expressed his bafflement that Arizona did not launch a broader assault on the constitutionality of the NVRA form, written by the Election Assistance Commission. The state simply contended in that case that its proof of citizenship law did not violate the federal law. Even Scalia disagreed with that, voting against Arizona in the ruling, but also giving them a valuable tip in his 7-2 majority opinion.

Full Article: Accepting Scalia’s Offer, Arizona Sues Obama Administration On Voting Rights | TPMDC.

Editorials: A New Strategy for Voting Rights | Ari Berman/The Nation

Hank Sanders grew up in segregated, rural southern Alabama and in 1971 moved to Selma—the birthplace of the Voting Rights Act. Before the VRA, only 393 of the 15,000 black voting-age residents in Dallas County, where Selma is located, were registered to vote. Less than a year later, after federal registrars arrived in August 1965, more than 10,000 black voters had been added to the rolls. Sanders experienced firsthand how the VRA transformed Selma and the rest of the country. In 1983, he became the first African-American state senator from the Alabama Black Belt since Reconstruction, representing a new majority-black district created by the VRA. Thirty years later, Sanders watched in disbelief this June as the Supreme Court overturned the centerpiece of the VRA in Shelby County v. Holder. “It’s the most destructive Supreme Court decision in my lifetime,” Sanders said. “It reverses the very foundation of all the progress that we have made.” Reactions in Selma, he said, “ranged from shock to resignation.” The Court’s conservative majority struck down Section 4 of the law, which determines how states are covered under Section 5—the vital provision that requires states with the worst history of racial discrimination in voting, dating back to the 1960s and ’70s, to clear electoral changes with the federal government. Without Section 4, there’s no Section 5. The most effective provision of the country’s most important civil rights law is now a ghost unless Congress resurrects it. 

Full Article: A New Strategy for Voting Rights | The Nation.

Editorials: Time to provide a right to vote | Frank Askin/NJ.com

So, American citizen, you think you have a right to vote for your federal representatives? Think again. U.S. Supreme Court Justice Antonin Scalia just disabused you of that notion — although in a backhanded sort of way. In his majority opinion earlier this month striking down the Arizona law requiring voters to produce documentary evidence of citizenship in order to cast a ballot, Scalia stated in no uncertain terms that the Constitution allows Congress to “regulate how federal elections are held, but not who may vote in them.” Notably, not one of the liberal members of the court challenged his assertion. The actual language of the Constitution gives Congress the power to override state laws governing the “time, place and manner” of conducting federal elections. Many scholars believed that the term “manner” was broad enough to encompass the qualifications of voters. But the Scalia opinion took pains to disavow the one Supreme Court opinion which seemed to suggest just that. In 1970, in the case of Oregon vs. Mitchell, the court upheld a congressional enactment requiring states to allow 18-year-olds to vote in federal elections.

Full Article: Time to provide a right to vote: Opinion | NJ.com.

Editorials: Conservative Supreme Court Justices Hypocritical on Voting Rights | US News and World Report

Most reaction to this week’s Supreme Court ruling on the Voting Rights Act will center on whether the court was right that the law (or at least its Section 5) is outdated. But under the approach long advocated by the court’s majority that very argument is itself outdated. The conservative vision of an unchanging Constitution – that means for all time what the Framers meant when they wrote it –  has triumphed on the court, in which case, it doesn’t matter whether times have changed and the VRA is “outdated.” If it was constitutional when adopted, it should still be constitutional today. In short, the VRA’s invalidation by those who trumpet conservative values is really about just one thing: hypocrisy. For years, conservatives have argued for a theory of constitutional interpretation called “originalism.” Originalism asserts that a constitution must mean what its framers originally intended it to mean – at least until that constitution is formally changed through the required mechanism of amendment. Liberals, in contrast, tend to argue that a constitution must be a “living document” that changes and grows with the times. 

Full Article: Conservative Supreme Court Justices Hypocritical on Voting Rights - US News and World Report.

Editorials: The Supreme Court’s Constitutional Hypocrisy | Ari Berman/The Nation

In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.” Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.” Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?

Full Article: The Supreme Court's Constitutional Hypocrisy | The Nation.

Editorials: Justice Scalia Hates Judicial Review, Except When He Doesn’t | Dashiell Bennett/The Atlantic

Earlier today, Justice Antonin Scalia wrote a scathing dissent to the decision to strike down the Defense of Marriage Act, saying “we have no power under the Constitution to invalidate this democratically adopted legislation.” So why was it okay to take apart the democratically adopted Voting Rights Act just one day earlier? Scalia’s DOMA dissent was a blistering and angry on most of his fellow justices and their “legalistic argle-bargle.” He even went after Samuel Alito, who voted on his side. The crux of his argument was that the law — which passed in 1996 — was a legitimate act of Congress, and it’s not the job of the Supreme Court to tell everyone what every single law means. That’s a mistake that “spring[s] forth from the same diseased root: an exalted conception of the role of this institution in America.”

Full Article: Justice Scalia Hates Judicial Review, Except When He Doesn't - Dashiell Bennett - The Atlantic Wire.