SCOTUS Watch: Montana, Arizona in the Court

Posted by AzBlueMeanie:

While I am waiting for SCOTUSblog to report what happened today at the Thursday Conference of the Justices, here is a preview from Cormack Early at SCOTUSblog, Thursday round-up : SCOTUSblog:

Campaign finance is also back in the news, with the Court scheduled to consider American Tradition Partnership, Inc. v. Bullock, the challenge to the Montana Supreme Court ruling upholding a statute that bans corporate spending in state elections, at its Conference today. Coverage comes from David G. Savage and Melanie Mason of the Los Angeles Times and Ariane de Vogue of ABC News.  Marcia Coyle of Law.com profiles Anthony Johnstone, the University of Montana law professor leading the effort to save the Montana law. Sarah Wheaton of the Caucus blog of The New York Times reports that David Axelrod, communications director for President Obama’s reelection campaign, floated the idea of a constitutional amendment to permit stronger regulation of campaign finance; more detailed proposals in the same vein come from Geoffrey R. Stone, writing in the Huffington Post, and Laurence H. Tribe, writing in Slate.

A constitutional amendment to reverse Citizens United v. FEC is gaining public support. I propose that all candidates for state or federal office should be asked this question: "Would you sponsor and support a constitutional amendment to the United States Constitution / Arizona Constitution to declare that corporations are not people and that money is not speech to reverse Citizens United v. FEC?" If the candidate responds no, he or she should not be elected to office.

Arizona was also back in the Court on Wednesday. Lyle Denniston reports, New Arizona election plea (UPDATE) : SCOTUSblog:

Arizona state officials asked the Supreme Court on Wednesday to allow election officials there to demand that all voters show proof of citizenship before they may register to vote.   The divided en banc Ninth Circuit Court ruled in April that the citizenship proof requirement conflicts with a 1993 federal law passed to make it easier for individuals to sign up to vote.  The state took its plea for a delay of that ruling, for the duration of this year’s election season, to Justice Anthony M. Kennedy, who has the option of acting alone or referring the issue to his eight colleagues.  The application (11A1189) was filed in Arizona v. Gonzalez, et al.  The en banc Ninth Circuit, over three judges’ dissents, had denied a stay last week.

The dispute over the citizenship requirement in Arizona has strung out in the federal courts for nearly eight years, after it was imposed by Arizona voters in “Proposition 200″ in 2004.   The controversy has been to the Supreme Court once before, in 2006, when the Justices in a unanimous, summary ruling overturned a prior Ninth Circuit order against enforcement of that provision during the 2006 elections (Purcell v. Gonzalez, et al.).  That decision, though, voiced no opinion on the validity of the citizenship mandate.  It has now been reviewed twice by Ninth Circuit panels (one including retired Justice Sandra Day O’Connor, sitting as a Circuit judge), and by the en banc Circuit Court.

As the new Arizona filing reached the Court, the case involves a fundamental constitutional dispute over the twin roles of Congress and the state legislatures in setting up the methods for conducting elections for federal offices.   The Constitution gives the first option to write election laws to the states, but gives Congress the authority to override state provisions.  That is what the en banc Ninth Circuit concluded that Congress had done, toward the citizenship proof requirement, when the national lawmakers passed the National Voter Registration Act of 1993.

* * *

The Ninth Circuit majority concluded that, when the federal law and the state citizenship requirement were placed side by side, they did not work together “harmoniously,” so the state requirement had to yield.

* * *

Justice Kennedy is likely to call for a response from the challengers to Proposition 200 before acting on the application, or sharing it with the other Justices.