"Trump orders states to require proof of citizenship in federal elections" — can he do that?

 The WaPo article quotes "election experts" who, unsurprisingly, say he can't.

Trump’s order directs the Election Assistance Commission to change the federal voter registration form to require voters to provide government-issued documentary proof of citizenship. Under his order, voters could use passports or REAL IDs to prove citizenship but not birth certificates....

“The aim here is voter suppression pure and simple,” UCLA law professor Rick Hasen wrote on his blog. ... Hasen questioned the legality of the measure because the president does not oversee the Election Assistance Commission.

"Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument?"

"It Likely Means No Trial for Trump on Election Subversion Before the Election."

Rick Hasen asks and speculates at Election Law Blog.

Hasen quotes the Supreme Court's order:

The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.

The new episode of the Advisory Opinions podcast begins with a discussion of the cert grant, and co-host David French observes that the motion for a stay would have required the Court to opine on the likelihood of success on the merits. The Court avoided that by granting cert. 

The request to treat the stay application as a petition for a writ of certiorari came from Special Counsel and reflects the interest in speeding things up. The Court granted that request, but those who want speed wanted the cert grant denied. Now that cert is granted, the speed demons criticize any taking of time. The Court should be neutral and at least has self-interest in appearing neutral. It shouldn't be for or against speed — rushing or dragging its heels.

IN THE COMMENTS: Kevin surprises me with "Rushing or dragging? That cannot be allowed":

"Will the U.S.Supreme Court Keep Donald Trump Off the Ballot ? Some Initial Thoughts."

From Rick Hasen at Election Law Blog. 

It is... imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible. Voters need to know if the candidate they are supporting for President is eligible....

In the end the legal issues are close but the political ramifications of disqualification would be enormous.... 

Voters need to know if the candidate they are supporting for President is eligible.... and voters need to know if they need to fight for the candidate they are supporting on the substantive merits and not just rely on his opponent's being "disqualified" on some wild legal theory.

"After nearly a decade of Trump convincing many in the public that all charges against him are politically motivated, he’s virtually inoculated himself..."

"... against political repercussions for deadly serious criminal counts. He’s miraculously seen a boost in support and fundraising after each indictment.... A trial is the best chance to educate the American public, as the January 6 House committee hearings did to some extent, about the actions Trump allegedly took to undermine American democracy and the rule of law. Constant publicity from the trial would give the American people in the middle of the election season a close look at the actions Trump took for his own personal benefit while putting lives and the country at risk...."

Writes Richard Hasen in "U.S. v. Trump Will Be the Most Important Case in Our Nation’s History" (Slate).

It is an egregious abuse of power to criminally prosecute someone for the purpose of educating the public and generating publicity for your political position. 

"Only a move as extraordinary as eliminating a constitutional right in place for half a century could transform the court into an institution like any other in Washington, where rival factions disclose secrets in the hope of obtaining advantage...."

"In an editorial last week, The Wall Street Journal expressed concern that Chief Justice Roberts was trying to persuade Justices Kavanaugh and Barrett to take his narrower approach. The point of the leak, then, may have been to lock in the five-justice conservative majority. 'I would be wary of jumping to a conclusion that the leaker is necessarily someone who opposes overturning Roe v. Wade,' said Richard L. Hasen, a law professor at the University of California, Irvine. Kermit Roosevelt, a law professor at the University of Pennsylvania, said the source was probably trying to increase the price of switching positions.... Professor Hasen said there was another benefit to the right from the disclosure of the draft opinion. 'This kind of leak could in fact help the likely future majority overturning Roe if it deflects the conversation to the question of Supreme Court secrecy and the danger of leaks to the legitimacy of the process'...."

From "A Supreme Court in Disarray After an Extraordinary Breach/The leak of a draft majority opinion overruling Roe v. Wade raises questions about motives, methods and whether defections are still possible" by Adam Liptak (NYT).

MEANWHILE: Alan Dershowitz tells Fox News: "I think this was leaked by a liberal law clerk who is trying to change the outcome of the case – either by putting pressure on some justices to change their mind or by getting Congress to pack the court even before June, which is very unlikely."

"In a per curiam (unsigned) opinion on the shadow docket, over the dissent of Justices Kagan and Sotomayor, the Supreme Court has rejected a redistricting plan that a divided Wisconsin Supreme Court had adopted..."

"... for drawing state assembly and senate districts.... The [Wisconsin] court adopted the [Democratic] Governor’s maps, and those maps added another majority-minority district around Milwaukee. The governor added this district saying it was required by the Voting Rights Act... The Supreme Court’s opinion today says either the Governor or the Supreme Court misapplied the Supreme Court’s VRA and racial gerrymandering precedents... The state supreme court should have considered under strict scrutiny 'whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.'... [T]he Court used a case in an emergency procedural posture to reach out and decide an issue.... It decided these issues in ways hostile to minority voting rights without giving a full opportunity for airing out the issues and pointing out how this will further hurt voters of color."

Writes Rick Hasen at Election Law Blog.

Here's the opinion. 

Why do only Sotomayor and Kagan dissent? What about Breyer? From "The Supreme Court’s Astonishing, Inexplicable Blow to the Voting Rights Act in Wisconsin" by Mark Joseph Stern at Slate

Only Sotomayor and Kagan noted their dissents; it’s possible that Justice Stephen Breyer dissented as well, but chose not to note it. (This opacity is a perennial problem with the shadow docket.) He may have simply decided not to publicize his disagreement—choosing, perhaps, not to rock the boat months before his retirement. It is difficult, if not impossible, to believe that Breyer agreed with the majority, since he has publicly opposed its approach to the VRA in innumerable cases.

"A federal district court opinion issued in Pennsylvania Saturday laid bare both the dangerousness and vacuousness of Mr. Trump’s litigation strategy."

"Rudy Giuliani, acting as one of the president’s lawyers, failed to persuade Judge Matthew Brann — an Obama-appointed Federalist Society member and former Republican official — to disenfranchise nearly seven million Pennsylvania voters and to let the state legislature name a slate of presidential electors. The court held that the Trump campaign offered a 'Frankenstein’s monster' of a legal theory and that the complaint was full of nothing more than 'strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.'... Dilatory tactics like delaying certification or recounts will be rejected by courts or governors, and not even a single state legislature (much less three) seems eager to incur the wrath of the American people through a power grab that would violate the rule of law, trigger massive street protests and call the legislators’ own elections into question.... By the time President-elect Biden takes the oath of office, millions of people will wrongly believe he stole the election.... Mr. Trump’s false claims will delegitimize a Biden presidency among his supporters.... Mr. Trump’s litigation strategy also will make things worse when it comes to voting rights.... These unsuccessful lawsuits will... provide a false narrative to explain how it is that Mr. Biden declared victory and serve as a predicate for new restrictive voting laws in Republican states...."

From "Trump’s Legal Farce Is Having Tragic Results/There is nothing funny about the Republican Party’s multipronged attack on voting rights" by Rick Hasen (NYT).

"There is no question some ballots will be mailed to people who have died, or moved or are no longer eligible to vote."

"But that almost never translates into those ballots being returned by someone else as a voted ballot, an act which would be a felony. And even when isolated instances like this happen, they don’t swing presidential elections.... There is also no question that some election administrators... will make errors in handling ballots. There are weak links in our election process.... There are a few steps that election administrators and the media should take given that we are going to have an imperfect election and given that these imperfections may be cynically manipulated by political operatives who want to throw the election results into doubt.... The media need to report claims of misfeasance in elections with caution.... The days leading up to November’s election may be rocky. But competence, patience, transparency and perspective are the best antidote to attempts to manipulate small-scale election problems into a full blown crisis."

From "Don’t fall for claims of voter fraud. Political operatives want to turn errors into a way to throw the election" by Richard L. Hasen (L.A. Times).

"Even before the virus struck, Republicans and Democrats were girding for a record number of voting rights lawsuits throughout the states..."

"... over voter identification provisions, the location of polling sites, and moves to purge voter rolls. But the pressure to move to more voting by mail has intensified the maneuvering, and shifted its focus to absentee balloting....  Richard L. Hasen, a professor of law and political science at the University of California, Irvine... [said] 'We know that voter fraud, while very rare, more commonly occurs with absentee ballots than in-person balloting... [but w]hile there are legitimate reasons to worry about increased vote by mail... it’s not legitimate to fear increased vote by mail because it means that more voters would be able to vote'....  'I hope not, but I fear Wisconsin is a preview of what we’re about to see in the rest of the country,' said Ben Wikler, the chairman of the Wisconsin Democratic Party. Mr. Wikler said that the Republicans had been seeking to stick to the April 7 in-person election date to ensure low turnout, which, he said, would be a potential boon to Mr. Kelly, the conservative judge up for re-election. 'I think it creates a perceived opportunity, even if the public health consequences are ghastly,' Mr. Wikler said. He later tweeted that the Supreme Court decision would 'consign an unknown number of Wisconsinites to their deaths.'"

From "Wisconsin Election Fight Heralds a National Battle Over Virus-Era Voting" (NYT).

I love the Hasen quote: "there are legitimate reasons to worry about increased vote by mail... it’s not legitimate to fear increased vote by mail." Legitimate to worry but not legitimate to fear? I can imagine babbling out such a thing, but why did the Times print that quote? Of course, he's just trying to say what is always said on this subject, that making voting easier also makes it less secure and the 2 major parties emphasize the pros or cons based on their own interest in winning elections. It's easy to pick your party and know which side to come out on.

Wikler is, of course, openly on the Democratic side, and he's seizing hold of the new argument: DEATH!!!  That's a solid addition to the old argument that Republicans want to disenfranchise minority voters.

Meanwhile, here I am in Wisconsin on election morning, completely accepting my own disenfranchisement. I'm one of those citizens who always vote, but I'm not voting today and I did not request an absentee ballot. I did not like the procedure for requesting an absentee ballot (committing to voting absentee for the entire year and uploading a photo of my driver's license to a government website). And the level of social distancing I've chosen for myself — I don't go to the grocery store, though it's open — is inconsistent with going through my polling place. I don't believe that voting would consign me to my death. In fact, I'm not particularly afraid at all. I just have my preferences and I've made my decision. And it actually fits with my political preference: aloofness.

"Why Democrats Should Not Call the Georgia Governor’s Race 'Stolen'/There are three important reasons to cool this rhetoric..."

"... despite Brian Kemp’s odious voter suppression efforts," cautions lawprof Richard Hasen (at Slate). The 3 reasons:

First, rhetoric about stolen elections feeds a growing cycle of mistrust and delegitimization of the election process, an attack pushed by President Trump and other Republicans who have been yelling “voter fraud” every time they are behind in the count. I’ve already set out my fear that Trump could refuse to concede the 2020 presidential election if he is ahead in the count on election night and then ballot counts inevitably shift toward Democrats as the counting continues....

Second... Saying Kemp tried to suppress Democratic votes and saying the election was stolen are two different things, and making charges of a stolen election when it cannot be proved undermines Democrats’ complaints about suppressive tactics. If Democrats can’t prove it, some people will think the suppression is no big deal when it really is....

[Third] It focuses attention on the wrong question: whether there was enough suppression to change election outcomes....

ADDED: Let me expand on Hasen's first point: Fomenting cynicism about elections might hurt Democrats more than Republicans. Democrats are the ones who need to mobilize more of the people who are inclined to sit things out, and the idea that the everything's fake and rigged isn't going to motivate people to participate.

Will North Carolina have to redraw its congressional districts before the 2018 elections?

It's possible, since the new decision from the 3-judge district court can go straight to the Supreme Court but to a set of 8 Justices who've been split 4-4 on political gerrymandering.

Rick Hasen analyzes the possibilities at "BREAKING: Divided Three Judge Court Holds North Carolina Congressional Redistricting an Unconstitutional Partisan Gerrymander, Considers New Districts for 2018 Elections":

The court has opened the possibility of giving the state the chance to draw new maps, or maybe appointing a special master, all in line with the idea of replacing the districts with cured districts in time for the 2018 elections, where primaries have already been held...

A few weeks ago, I thought of writing a piece for Slate arguing that now would be the perfect time for the three-judge court to act in this case, because the Court is divided 4-4 and in that case the lower court ruling would stand. But given that primaries are done, and ballots needing to be printed very soon, I thought it would be too late for a lower court to try it.

And it could be that if [the lawyer for the state legislature Paul] Clement goes to SCOTUS, Justices Breyer and Kagan could agree that it is too late and agree on an order to delay this until the Court can consider the issue as a whole next term and before the 2020 elections....

But if the lower court orders new districts for 2018, and the Supreme Court deadlocks 4-4 on an emergency request to overturn that order, we could have new districts for 2018 only, and that could help Democrats retake control of the U.S. House.

Imagine running for Congress and at this late stage, not knowing where the lines around your district are? Imagine being a voter and not knowing which set of candidates is the one that relates to you? What if you've given money and time to a campaign that you now don't know is even your district? What if you've worked on convincing fellow citizens to vote for your candidate and now you don't know if they were the right ones to talk to — you should have been debating with somebody else... and you're still not sure who? I think even the possibility that the lines will be drawn before the coming election is unfair to the candidates and the citizens who've taken an interest in them. Obviously, the Supreme Court should immediately stay the 3-judge court's order. All 8 Justices should agree.

Rick Hasen at Election Law Blog tries to read the cert. petition in the Wisconsin John Doe case, but finds it hard because of redactions (even in parts of the questions presented).

But he finds what he calls "two meaty issues":

First, it seems pretty clear to me that the Wisconsin Supreme Court mangled U.S. constitutional campaign finance law to let elected officials like Gov. Scott Walker coordinate with outside groups on an unlimited basis with groups taking unlimited campaign contributions from whatever source so long as the outside groups avoid express words of advocacy like vote for or vote against. The second issue is whether those Justices on the WI Supreme Court who benefitted from the outside spending by the very groups before the court should have recused themselves from hearing the case. The number of redactions involving the actions of controversial state Supreme Court Justice David Prosser are remarkable in and of themselves.

But Hasen doesn't think the Court is likely to take the case — especially in its current 4-4 condition.

If a liberal Supreme Court Justice replaces Scalia, how many 5-4 conservative precedents will the new 5-person liberal majority overturn?

This is the question that's waking me up in the middle of the night.

I'm thinking of the cases that are coming up in my Constitutional Law classes this week, wondering which ones were decided 5-4, and imagining saying: But if Justice Scalia had died earlier and been replaced by an Obama nominee, this case would have gone the other way. So the case you have read and its inverted version, with the dissents as the majority, are essentially equally good law, distinguished not by reason and logic, but by the hardiness or fragility of the human body. Yes, you need to see that this is the precedent now, but you need also to know that it may be the other way around by the time you graduate. It's naive self-deception to learn the cases as a statement of the law. They are only temporary resting places. And yes, I've devoted my life to teaching people like you about these scurrilous writings, but they were somewhat satisfyingly anchored by this Justice whose time on the Court has spanned my teaching career, who wrote with engaging clarity and vigor. Now comes the deluge of muddled repositionings, couched in tedious verbiage and, bobbing woozily in the muddy water, you will spot a few bright-colored floaty toys, the overrulings.

But first come the articles, written by law professors, like: "How Scalia’s Death Could Shake Up Campaign Finance/It might be the opening reformers have been waiting for," by Richard L. Hasen. Maybe the new liberal majority — if it comes to be — will overturn Citizens United. And yet:

... Supreme Court justices of whatever stripe are reluctant to easily overturn precedent.... It does not look good for Supreme Court precedent to swing like a pendulum, or for lower court judges to ignore Supreme Court rulings, making the boundary between law and politics look ever more porous.

I boldfaced the word "look." I expect the justices to to tend to appearances. It won't look like a pendulum swinging or an ever more porous boundary. It also won't look readably Scaliaesque. The coherence of the changes will be explained in long, complicated opinions that no one will want to read, but that law professors will have to continue to assign and explain.

"It is easy to read the Supreme Court’s 5-to-4 decision in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama as a mostly inconsequential case..."

"... giving a small, and perhaps only temporary, victory for minority voters in a dispute over the redrawing of Alabama’s legislative districts after the 2010 census," writes Richard Hasen at SCOTUSblog.

Indeed, although the Supreme Court sent this “racial gerrymandering” case back for a wide and broad rehearing before a three-judge court, Alabama will be free to junk its plan and start over with one that may achieve the same political ends and keep it out of legal trouble. But Justice Antonin Scalia in his dissent sees the majority as issuing “a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections.” Time will tell if Justice Scalia’s warning against the implications of what he termed a “fantastical” majority opinion is more than typical Scalian hyperbole....

 ADDED: Here's the PDF of the opinion, which I can't read just yet.

"If the court puts Texas back under federal preclearance, it will be a victory for Eric Holder and the Department of Justice..."

"... which is using lawsuits in Texas and North Carolina as test cases to try to restore preclearance to those states that seem to be engaging in the most discrimination. The DOJ got lucky to draw as the trial judge in the Texas voter ID case Judge Nelva Gonzales Ramos, an Obama appointee who drafted a well-reasoned and comprehensive opinion slamming the state of Texas for discriminatory and unconstitutional conduct."

Writes lawprof Richard Hasen at Talking Points Memo.

"It is not a coincidence... that judges appointed by Republican and Democratic presidents have divided along party lines in these cases."

"I do not believe this is because Republicans dislike Obamacare and Democrats like it. It is because Republican presidents now appoint judges who stick to textualism even when it leads to harsh results while Democratic presidents are more likely to choose judges who will look at the big picture and the human costs, when they’re parsing the words of a law."

Writes lawprof Richard L. Hasen.

My question for Hasen: But if a judge is going to look at the big picture and the human costs, won't that perception include his likes and dislikes?

I think the answer must be yes, and if so, I believe Hasen — wittingly or unwittingly — conceded that textualism does constrain a judge. Yes, this person — this Scaliaesque entity — will not save us from harsh results, but at the same time, this means that the textualist's idea of what results are, in fact, harsh never becomes part of the analysis.

ADDED: What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists? (Maybe that isn't what's happening, but we can assume it is, for the purpose of discussion.) Why isn't that what a liberal should like best (aside from preventing any Republican Presidents from ever appointing any judges)? What would the nontextualist conservative do with clearly written statutes that seem "harsh" to him or impose what he calculates as "human costs"? Does Professor Hasen really want this character's "big picture" trumping the words of legislatures?

AND: I'm trying to imagine what this out-and-proud conservative creative-rewriter of statutes would do. Imagine an arch-conservative President appointing stalwart conservatives with strong visions of the good who feel free to fix statutes to save us from harsh results and human costs. Obviously, Hasen would hate that, and yet it's so tempting to excoriate the textualist conservatives for their textualism, even when you know damned well you'd really hate their nontextualist work. But I think most laypersons think textualism is what a judge should do, and a judge who emerges from the cloak of textualism is much easier to criticize.

ALSO: A textualist may think he can discipline legislators into writing their statutes clearly, but what can such a project mean with a sprawling text like the Affordable Care Act? Did anyone even read it? Was any legislator in a position even to perceive the loose ends that needed tying up? The original act was intended to coerce the states by putting all of the Medicaid funding at risk. The Supreme Court saved Obamacare by rewriting the statute so that only the Medicaid extension would be lost, otherwise the spending power would not have supported the scheme.

A Scalia majority would have taken the entire statutory scheme down in 2012, and we wouldn't be talking about this new set of cases.

In the new cases, no one can find the text needed to make the federal exchange work, and it's no surprise that there's nothing in the text that addresses the remnant of the ACA that was left after the Supreme Court saved us from what Chief Justice Roberts — in his Republican-appointed nontextuality — might have considered a "harsh result."

Federal district judge halts the John Doe investigation into conservative groups and the Scott Walker recall campaign.

Here's the Milwaukee Journal Sentinel News report:

In his 26-page decision [PDF], U.S. District Judge Rudolph Randa in Milwaukee told prosecutors to immediately stop the long-running, five-county probe into possible illegal coordination between Walker's campaign, the Wisconsin Club for Growth and a host of others during the 2011 and 2012 recall elections.

"The (Wisconsin Club for Growth and its treasurer) have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is 'ingrained in our culture,'" Randa wrote, quoting from a recent U.S. Supreme Court decision.

"Circumvent" is a funny word there. The assumption should be that we are free except to the extent that the government has validly restricted us. A bigger question is whether the campaign finance statutory law that we do have is valid, given free speech rights.

"I had never heard of such limits. Somebody... showed me a chart on the federal rules of campaign giving that was so complicated..."

"... I could barely make any sense of it. On the advice of their lawyers, most people simply comply with these rules and don’t raise questions. As an American engineer in the land of the free, I wanted to understand just exactly why my First Amendment rights were being limited."

Said Shaun McCutcheon, the McCutcheon in McCutcheon v. Federal Election Commission, decided yesterday, in his favor.

My Supreme Court case wasn’t about throwing out sensible limits on money in politics. It was narrowly focused on the “aggregate limits” for contributions under the federal election campaign law—the maximum amount that anybody can give to a number of candidates and national party committees combined. The case was not about base limits: $2,600 (for either a primary or general election) or $5,200 (for a primary and general election combined) to a single candidate in a two-year election cycle, or the separate amounts of $32,400 to a party committee or $5,000 to some PACs and $10,000 to state parties. Congress and the courts have determined that these limits are so low that they don’t pose any risk of corrupting candidates or our political system.

It was the aggregate limits on giving to the candidates and committees that made no sense to me. The consequences of these rules were absurd. I could give the legal amount of $2,600 to 17 different candidates. But if I give that same legal amount to an 18th candidate, it constitutes a violation that somehow corrupts the system.

Lawprof Richard L. Hasen has a piece in Slate that's called — dramatically — "Die Another Day." Die another day, because X hasn't "died" in McCutcheon, but McCutcheon is a step toward the death of X, which should distress us, if we care about X. So even if you, like Shaun McCutcheon, think it makes no sense to stop a person from giving $2,600 to one too many candidates, you're supposed to be mad about the Supreme Court opinion because it portends further damage to the entity that's lumbered over the landscape for so long under the banner "Campaign Finance Reform." It's lost a few limbs along the way, but it's not dead yet. What it lost in McCutcheon was perhaps a useless appendage, capable only of flailing about and hurting well-meaning folk like Mr. McCutcheon, but Hasen wants you to take alarm, because McCutcheon foretells death!!!... death to whatever it is at the core of Campaign Finance Reform that we ought to want to keep.

McCutcheon is "subtly awful," Hasen says, revealing his awareness that ordinary readers may, like Shaun McCutcheon, think the aggregate limits make no sense and therefore the Court got it right. The Court "sidestepped... the question of whether to apply 'strict scrutiny'" because the difference between strict scrutiny and the less demanding form of scrutiny ("exacting scrutiny") didn't affect the outcome because the government's asserted interest had so little to do with aggregate limits. If the level of scrutiny wasn't raised, then what's "awful"? Or is it "awful" to Hasen precisely because he can't find anything unsubtle? You need something dramatically awful to stir up the public's antagonism toward the Supreme Court, so Hasen's idea is that Chief Justice Roberts is devilishly subtle.

Roberts, the subtle devil, has done 3 things that Hasen wants us to find ominous.

First, Roberts said the government could only justify its restrictions of campaign contributions in pursuit of the interest in preventing quid pro quo corruption. Hasen says: "Equality, for example, is a forbidden interest under the First Amendment." He means: The government can't justify restricting freedom of speech on the ground that it is trying to promote equality.

Second, Roberts performed "exacting scrutiny" in a manner that seemed rather... exacting. See the devious subtlety? Hasen does:

Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?

Hasen — to my amusement — goes directly from noting Roberts's avoidance of "an opinion that dramatically adopts strict scrutiny" to "Third and most dramatically..." Most dramatically? I thought the whole idea was that Roberts was doing 3 things that were subtle and not dramatic, that he was the no-drama guy. In that context, what does it mean that the third thing was the most dramatic? This is practically a Zen koan. What is the sound of one hand clapping and what is the drama of no drama? Is the most dramatic subtlety the thing that is most subtle? It's so subtle, it's dramatic. I am deafened by the silence and dazzled by the darkness.

But let's plod on, across the legal landscape, where the wounded entity Campaign Finance Reform stumbles toward its Roberts-dug grave. There's a third thing to be explicated. It's dramatic, we've been warned. Here it is:

Third and most dramatically, the court seems to open the door...

Egad! It's the dramatic semblance of opening a door.

... for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. 

How did Roberts seem to open that door? Because that ban is based on wanting to stop citizens from buying access to elected officials, and Roberts seemed insufficiently concerned about that problem. At this point, Hasen resorts to a long Roberts quote, which I suspect few of his (or my) readers will take the trouble to absorb, so let me just tip you off that it contains the buzzword of this post "dramatically":

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.

Roberts subtly-dramatically values "join[ing] together to further common political beliefs," and he's inclined to characterize widely distributed contributions in that light and to resist the government's attempt to lump them together with bribery and the quid pro quo contributions that are hard to distinguish from bribery.

Having set out those 3 subtle/dramatic things, Hasen tells his readers not to be "fooled by Roberts’ supposed restraint." I don't think Roberts is trying to "fool" anyone, and the modest framing of the opinion is real: Roberts did not elevate the level of scrutiny beyond "exacting" and he did not recognize a government interest beyond preventing bribery and quid pro quo corruption.

And I don't think Roberts purports to take what is traditionally called a position of judicial restraint, which is: deference to the acts of legislatures, presuming their constitutionality. Roberts is taking the First Amendment seriously and stepping up to the classic judicial role of saying what it means and enforcing constitutional rights. That's what typically gets called judicial activism by those who like something the legislature has done and who don't have much respect for the particular version of the constitutional right asserted in a case.

But Hasen, who likes campaign finance reform legislation and doesn't respect the version of the First Amendment asserted in McCutcheon, found it hard to call Roberts activist. That's what was so frustrating, so devious: If you're going to be activist, be activist out in the open where it's easy for your opponents to attack you as activist. But no, the serpent was subtle....

"Divided D.C. Circuit Panel Upholds Constitutionality of Voting Rights Act, Teeing Up Issue for Supreme Court."

The Shelby County case is explained by Rick Hasen over at the Election Law Blog.

From the dissenting opinion by Judge Williams:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?...

It goes without saying that racism persists, as evidenced by the odious examples offered by the majority.... But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old.

"Next time Holder speaks, someone should run to a judge for a TRO."

"And file a race-discrimination suit against whoever’s hosting him. Every single time...."

That's mainly a joke, but this isn't:

... I anticipate that South Carolina (and Texas) will take the preclearance decisions to a three judge court in DC, with direct appeal to the U.S. Supreme Court.  I further expect that in this litigation, South Carolina (and Texas) will argue, among other arguments, that Section 5 of the Voting Rights Act is unconstitutional...

If review is expedited — which seems likely — the Supreme Court will be looking at this question and perhaps striking down the provision during the 2012 campaigns. Which party would be helped by that issue? Democrats will be positioned to preen about their concern for racial equality, and that puts Republicans in the position of championing the importance of leaving states alone to do things their own way, which — for some people at least — is a reminder of the bad old days when there clearly was discrimination and some states — mainly the states that are now stuck with the preclearance procedure — pontificated about "states' rights."

Nevertheless, I think the Republicans will be better off if this becomes an issue. First, people who reflexively impose that "bad old days" template are probably already voting for Democrats. Second, huge majorities of Americans support voter ID requirements, which means that few people buy into the race pandering. Third, playing the race card backfires once people clearly see that's all that's going on. And fourth, there really is something screwy about treating a few states differently from the other states, and if if a high-profile Supreme Court case makes people notice this strangeness, they'll be suspicious of the politicians and lawyers who strain to make the argument that it's right.