Amicus briefs in support of appellants in Evenwel v. Abbott

Last week, amicus briefs in support of appellants in Evenwel v. Abbott were due. The following parties submitted briefs. I'll add the PDFs of each as I can find them (from counsel).

American Civil Rights Union

Eagle Forum Education & Legal Defense Fund, Inc.

Project 21

Tennessee State Legislators and The Judicial Education Project

Cato Institute and Reason Foundation

Mountain States Legal Foundation

Demographers Peter A. Morrison, et al.

Center for Constitutional Jurisprudence

Immigration Reform Law Institute

Judicial Watch, Inc., et al.

City of Yakima, Washington

Arizona appeals court reverses conviction of voter who voted in both Colorado and Arizona in 2010

Arizona law prohibits any voter from "knowingly vot[ing] more than once at any election." Ariz. Rev. Stat. § 16-1016(2). Carol Hannah sent a mail-in ballot in Colorado for the Colorado elections, and she subsequently voted in person in the Arizona general election held November 2, 2010. She was found guilty at a jury trial.

On appeal, in State v. Hannah, 2015 WL 4538536 (Ariz. Ct. Ap. July 28, 2015), the court noted that this was not prohibited by the statute, even though the elections were held on a single day pursuant to federal law:

The State argues the Arizona and Colorado elections held on November 2, 2010 were part of one election, relying on congressional regulations that designate a specific day to select candidates for Congress and the President in a singular, regular election. See 2 U.S.C. § 1 (setting the day for “the regular election held in any State” to choose Senators); 2 U.S.C. § 7 (establishing “the day for the election” of Representatives and Delegates to Congress); 3 U.S.C. § 1 (setting date for “every election” of President and Vice President).

We recognize the elections held on the first Tuesday following the first Monday of November in every even-numbered year are sometimes referred to as “national elections” because they, collectively, include the selection of all the members of the House of Representatives and one-third of the members of the Senate. However, these state elections are held on the same day as a matter of administrative and practical convenience in an attempt "'to remedy more than one evil arising from the election of members of Congress occurring at different times in the different States.'" Foster v. Love, 522 U.S. 67, 73 (1997) (quoting Ex parte Yarbrough, 110 U.S. 651, 661 (1884)). But, within that singular time constraint, each state conducts a separate election for the selection of its Senators and Representatives as constitutionally provided. See U.S. Const. art. I, § 4, cl. 1 (reserving to the states the authority to prescribe the time, place, and manner of holding elections for its Senators and Representatives); United States v. Classic, 313 U.S. 299, 311 (1941) (stating that under the Elections Clause, “the states are given, and in fact exercise wide discretion in the formulation of a system for the choice by the people of representatives in Congress”).

Thus, the elections held in Arizona and Colorado on November 2, 2010, although occurring on the same day, were separate and discrete elections, held in two different states. While the evidence is sufficient to permit a finding that Hannah cast a ballot in both Arizona and Colorado on November 2, 2010, the evidence is insufficient to show Hannah voted “more than once in any election,” such that her vote received more weight than that of any other citizen, where there is no evidence that any candidate appeared on both ballots and 2010 was not a presidential election year. The evidence is therefore insufficient to support a conviction for illegal voting in violation of A.R.S. § 16–1016(2), and we reverse the conviction.

Of note, however, is that other problems may exist with Hannah's decision to vote in two states:

Although we reverse Hannah's conviction, we do not mean to imply that voting in elections held in two separate states on the same date is otherwise proper or lawful. Such conduct raises serious questions regarding whether Hannah was a qualified voter in both Arizona and Colorado in November 2010. However, the State does not dispute Hannah was qualified to vote in the Arizona election, and Hannah was not charged with casting a vote while not qualified to do so. See A.R.S. § 16–1016(1) (“A person is guilty of a class 5 felony who ... [n]ot being entitled to vote, knowingly votes.”). Whether Hannah was qualified to cast a ballot in the Colorado election is a matter for Colorado to address in the interpretation and application of its own law. We likewise express no opinion as to whether Hannah's conduct constitutes a violation of federal law. See, e.g., 52 U.S.C. § 10307(e) (prohibiting voting more than once in a federal election).

It's an interesting little statutory interpretation question with a constitutional dimension, and it invites scrutiny and more careful drafting of other kinds of double-voting laws in an age where early voting is increasingly widespread.

Where are they now? Supreme Court clerks, OT2005

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003 and October Term 2004, here's what the clerks from October Term 2005 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links often aren't the best source material). Note that Chief Justice William Rehnquist passed away at the beginning of the term and was replaced by Chief Justice John Roberts, and clerks for both are designated under the Roberts clerks. Also note that Justice Samuel Alito replaced Justice Sandra Day O'Connor in the middle of the term, and I did the best I could breaking down their clerks.

Chief Justice John G. Roberts

Daniel P. Kearney, Jr. (Yale 2004 / J. Roberts (D.C. Cir.)), counsel at WilmerHale

Mark W. Mosier (Chicago 2004 / Rehnquist / Tacha), partner at Covington

Ann E. O'Connell (George Washington 2004 / Rehnquist / Magill), assistant to the Solicitor General, DOJ

Michael S. Passaportis (Virginia 2004 / Rehnquist / Wilkinson), unknown

Kosta Stojilkovic (Virginia 2004 / J. Roberts (D.C. Cir.)), AUSA, E.D. Va.

Justice John Paul Stevens

Jean Galbraith (Berkeley 2004 / Tatel), professor at Penn

Daniel J. Lenerz (Stanford 2002 / S. Williams / Thompson (M.D. Ala.)), civil division, appellate staff, DOJ

Sarah Eddy McCallum (Georgetown 2002 / Walker (2d Cir.) / Rakoff), AUSA, S.D.N.Y.

Samuel Spital (Harvard 2004 / H. Edwards), partner at Holland & Knight

Justice Sandra Day O'Connor

Tali Farhadian Weinstein (Yale 2003 / Garland), AUSA, E.D.N.Y.*

Benjamin J. Horwich (Stanford 2003 / Becker / V. Walker (N.D. Cal.)), attorney at Munger Tolles**

Amy N. Kapczynski (Yale 2003 / Calabresi), professor at Yale

Sasha Volokh (Harvard 2004 / Kozinski), professor at Emory**

*Also clerked for previous term with Justice O'Connor.

**Also clerked for Justice Alito upon his confirmation.

Justice Antonin Scalia

John C. Demers (Harvard 1999 / O'Scannlain), VP & assistant GC, Boeing

Scott P. Martin (Columbia 2004 / Kozinski), partner at Gibson Dunn

D. John Sauer (Harvard 2004 / Luttig), partner at Clark & Sauer

Evan A. Young (Yale 2004 / Wilkinson), partner at Baker Botts

Justice Anthony Kennedy

David M. Cooper (Stanford 2004 / J. Roberts (D.C. Cir.)), counsel at Quinn Emanuel

Randy J. Kozel (Harvard 2004 / Kozinski), professor at Notre Dame

Jeffrey A. Pojanowski (Harvard 2004 / J. Roberts (D.C. Cir.)), professor at Notre Dame

Zachary S. Price (Harvard 2003 / Tatel / Blake (D. Md.)), professor at Hastings

Justice David H. Souter

Jeanne C. Fromer (Harvard 2002 / Sack), professor at NYU

Meaghan McLaine VerGow (Harvard 2004 / Garland), counsel at O'Melveny

Jon D. Michaels (Yale 2003 / Calabresi), professor at UCLA

Allison Orr Larsen (Virginia 2004 / Wilkinson), professor at William & Mary

Justice Clarence Thomas

Chantel Febus (George Washington 2002 / E. Jones / Lamberth (D.D.C.)), counsel at Proskauer

James C. Ho (Chicago 1999 / J. Smith (5th Cir.)), partner at Gibson Dunn

John M. Hughes (Chicago 2004 / Luttig), partner at Bartlit Beck

Ashley E. Johnson (Vanderbilt 2004 / Luttig), counsel at Gibson Dunn

Justice Ruth Bader Ginsburg

Lori Alvino McGill (Columbia 2003 / Tatel), partner at Quinn Emanuel

Joshua Civin (Yale 2003 / Reinhardt), counsel,  Montgomery County Public Schools

Rebecca Deutsch (Yale 2002 / Katzmann / Rakoff (S.D.N.Y.)), assistant general counsel for law and policy, Consumer Financial Protection Bureau

Anna-Rose Mathieson (Michigan 2003 / Boudin), partner at California Appellate Law Group

Justice Stephen Breyer

Danielle Gray (Harvard 2003 / Garland), partner at O'Melveny

Kathryn E. Judge (Stanford 2004 / Posner), professor at Columbia

Jonathan Kravis (Yale 2004 / Garland), AUSA, D.D.C.

John H. Longwell (Georgia 1999 / D. Ginsburg / V. Walker (N.D. Cal.)), counsel, ING

Justice Samuel Alito

Adam G. Ciongoli (Georgetown 1995 / Tatel / Bea), counsel, Campbell Soup Company

Horwich (from O'Connor)

Hannah Clayson Smith (BYU 2001 / Thomas (S. Ct.) / Alito (3d Cir.)), counsel, The Becket Fund for Religious Liberty

Volokh (from O'Connor)

A few thoughts:

The law professor drought is over! Well, last year, I wondered about a sharp drop-off in academic placements, from 14 for OT2003 to just 3 for OT2004. They're back! Nine are teaching at top flight law schools.

Who needs to become a partner? I count 6 former clerks working at law firms in an attorney or counsel role rather than as partner.

Otherwise, it's the usual mix of government or public interest lawyers, private practitioners, and academics one might otherwise expect.

Fictional Attorney of the Month: Rudy Baylor

In 1997, Francis Ford Coppola directed a cinematic version of John Grisham's novel, The Rainmaker. The all-star cast is led by Matt Damon as Rudy Baylor, a newly minted lawyer from Memphis who escaped a life of poverty and lands the case of a lifetime.

Rudy takes a job as an ambulance chaser--literally visiting victims in the hospital to try to get clients--before running into Deck Shifflet, played by Danny DeVito. Rudy finds an insurance case involving Donny Ray, a 22-year-old dying of leukemia whose claims had been denied. Deck helps him out, and the two take on a powerful insurance company and its suite of attorneys.

The film has a number of roles and smaller story lines that slowly intertwine in Rudy's development. It offers not simply a very realistic look at the hard life of a novice plaintiff's attorney scrapping for fringe cases and confronting a powerful and slippery defense team, but also the ethical and moral questions that a new attorney confronts in his own life and in the practice of law generally. It is not exactly an uplifting film for the young lawyer. But Rudy's tenacity, skill, and introspection are worth of thoughtful examination.

California bar votes to cut exam from three days to two

In March, I covered the news that the California bar was considering cutting the length of the bar exam from three days to two. Today, Above the Law reports that the bar's board of trustees has unanimously approved the change, which should take effect July 2017.

The proposal (PDF) called for five one-hour essay questions and a 90-minute performance test on one day, and the 200-question multistate bar exam (MBE) on another day. The essays and the multiple choice component would each receive half the weight in the final score.

This post has been updated.

Fictional Attorney of the Month: The King of Hearts

Alice's Adventures in Wonderland tells of a rather silly kingdom. And Alice observes the trial of the Knave of Hearts.

She easily identifies the King of Hearts as the judge "because of his great wig." She watches jurors writing their names in the event they forget them before the end of the trial.

As the trial begins, the judge/king accuses the Knave of Hearts of stealing the queen's tarts. But the King of Hearts has little sense in running a trial.

"Consider your verdict," the King said to the jury.

"Not yet, not yet!" the Rabbit hastily interrupted. "There's a great deal to come before that!"

"Call the first witness," said the King; and the White Rabbit blew three blasts on the trumpet, and called out, "First witness!"

At one point, the King of Hearts warns the Hatter to give his evidence or face execution on the spot, or that the Hatter must remember evidence or be executed. Certainly an intemperate judge. And then, as judge, he cross-examines a witness on the contents of the tarts, only to complain to the Queen, "Really, my dear, you must cross-examine the next witness. It quite makes my forehead ache!" And when Alice takes the stand (by now, a giantess), the king cites "Rule Forty-two. All persons more than a mile high to leave the court," which he claims is the oldest rule in the book, until Alice remarks that it ought to be numbered one if that were the case.

An executive acting as judge? This month's Fictional Attorney of the Month.

Quick thoughts on Arizona State Legislature v. Arizona Independent Redistricting Commission

Sixteen months ago, I highlighted a largely-unnoticed case in which Arizona's state legislature challenged a delegation of power over its power to draw congressional districts from itself to an independent redistricting commission, a delegation that occurred via ballot initiative. I noted the three-judge panel district court's decision, was the first to mention Paul Clement's involvement in the case, and had a few thoughts from oral argument. Now have a decision (PDF).

The opinion written by Justice Ginsburg, in a 5-4 vote, affirmed the three-judge panel and permits the independent redistricting commission. (This vote total is deceptive: two justices would have dismissed the case for lack of jurisdiction, effectively allowing the law to remain on the books; so, in theory, 7 justices agreed with the result in some remote way, but only 5 agreed on the merits of the constitutional claim.)

First, the case permits the legislature to have standing, distinguishing it from Raines v. Byrd, in which individual members attempted to assert standing. This, I think, portends poorly for the legislators suing in Hickenlooper v. Kerr, the Guarantee Clause case I've written about before.

Second, the opinion spends a substantial amount of time emphasizing that federal statute permits the exercise of power here. But that only addresses half the question: the other half the constitutional question, because if Congress lacked the power to authorize such an exercise of power, then the statute would fall, too.

Third, on the Elections Clause issue, the bulk of the analysis turns on a generous definition of the word "legislature," including the power to delegate authority:

To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.
As well in Arizona, the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do.

Fourth, Chief Justice Roberts pens the principle dissent relying on several core arguments: that the word "Legislature" relating to the election of Senators is instructive; the definition of the legislature; etc.

But, he also writes about the power of delegation, with some doubt:

The majority concedes that the unelected Commission is  not “the Legislature” of Arizona. The Court contends instead that the people of Arizona as a whole constitute “the Legislature” for purposes of the Elections Clause, andthat they may delegate the congressional districting authority conferred by that Clause to the Commission. Ante, at 25. The majority provides no support for the delegation part of its theory, and I am not sure whether the majority’s analysis is correct on that issue. But even giving the Court the benefit of the doubt in that regard, the Commission is still unconstitutional.

Fifth, the sides dispute the functionalist definition of "legislature." From Justice Ginsburg:

THE CHIEF JUSTICE, in dissent, features, indeed trumpets repeatedly, the pre-Seventeenth Amendment regime in which Senators were “chosen [in each State] by the Legislature thereof.” Art. I, §3; see post, at 1, 8–9, 19. If we are right, he asks, why did popular election proponents resort to the amending process instead of simply interpreting “the Legislature” to mean “the people”? Post, at 1. Smiley, as just indicated, answers that question. Article I, §3, gave state legislatures “a function different from that of lawgiver,” 285 U. S., at 365; it made each of them “an electoral body” charged to perform that function to the exclusion of other participants, ibid. So too, of the ratifying function. As we explained in Hawke, “the power to legislate in the enactment of the laws of a State is derivedf rom the people of the State.” 253 U. S., at 230. Ratification, however, “has its source in the Federal Constitution” and is not “an act of legislation within the proper sense of the word.” Id., at 229–230.
Constantly resisted by THE CHIEF JUSTICE, but well understood in opinions that speak for the Court: “[T]he  meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932) (citing Smiley, 285
U. S. 355). Thus “the Legislature” comprises the referendum and the Governor’s veto in the context of regulating congressional elections.

Chief Justice Roberts also addresses the functionalism argument of "legislature":

As a matter of ordinary language and common sense, however, a difference in function does not imply a difference in meaning. A car, for example, generally serves a transportation function. But it can also fulfill a storage function. At a tailgate party or a drive-in movie, it may play an entertainment function. In the absence of vacancies at the roadside motel, it could provide a lodging function. To a neighbor with a dead battery, it offers an electricity generation function. And yet, a person describing a“car” engaged in any of these varied functions would undoubtedly be referring to the same thing.

Sixth, the Court struggles with congressional election precedent (more on this later--I have much to say!). It examine Baldwin v. Trowbridge, as Congress examined whether to seat someone elected pursuant to the state legislature's rules or the constitutional rules. From Justice Ginsburg:

The House Elections Committee, in a divided vote, ruled that, under the Elections Clause, the Michigan Legislature had the paramount power.
As the minority report in Baldwin pointed out, however,the Supreme Court of Michigan had reached the opposite conclusion, holding, as courts generally do, that state legislation in direct conflict with the State’s constitution is void. Baldwin, H. R. Misc. Doc. No. 152, at 50. The Baldwin majority’s ruling, furthermore, appears in tension with the Election Committee’s unanimous decision in Shiel just five years earlier. (The Committee, we repeat,“ha[d] no doubt that the constitution of the State ha[d]fixed, beyond the control of the legislature, the time for holding [a congressional] election.” Shiel, H. R. Misc. Doc. No. 57, at 351.) Finally, it was perhaps not entirely accidental that the candidate the Committee declared winner in Baldwin belonged to the same political party as all but one member of the House Committee majority responsible for the decision.

And from Chief Justice Roberts:

The House Elections Committee explained that the Elections Clause conferred power on “the Legislature” of  Michigan to prescribe election regulations. “But,” the Committee asked, “what is meant by ‘the legislature?’ Does it mean the legislative power of the State, whichwould include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country?” Id., at 47. The Committee decided, and the full House agreed,that “the Legislature” in the Elections Clause was the “legislature eo nomine”—the legislature by that name, a representative body.
The report cites a Michigan Supreme Court precedent that allegedly reached a contrary result, but that case turned entirely on state constitutional questions arising from a state election—not federal constitutional questions arising from a federal election. . . . In any event, to the degree that the two precedents are inconsistent, the later decision in Baldwin should govern
[n.3] The majority’s suggestion that Baldwin should be dismissed as an act of partisanship appears to have no basis, unless one is willing to regard as tainted every decision in favor of a candidate from the same party as a majority of the Elections Committee.

Seventh, Justice Scalia (joined by Justice Thomas) writes that this is not within the Article III power of the courts, particularly citing the shaky foundation of Coleman v. Miller as a basis for asserting authority over the case. And Justice Thomas (joined by Justice Scalia) noted that this case is not truly about deferring to state ballot initiatives, as the Court has felt comfortable striking down such regulations before.

Not many surprises in the opinions, I don't think. But, there is much to delve into in the months ahead.