UPDATE: Maine election challenge fails
on Oct 22, 2010 at 4:18 pm
UPDATE Friday 6:16 p.m. The Supreme Court, over two Justices’ dissents, refused on Friday evening to block three Maine election laws that control spending in statewide elections. The order is here. It noted the heavy burden the challengers would have had to meet to get the broad order they had sought, and cited “the difficulties in fashioning relief so close to the election.” Justices Antonin Scalia and Samuel A. Alito, Jr., would have granted the injunction to stop enforcement of one law: a “matching funds” provision similar to one in Arizona that the Court had blocked earlier. The laws were challenged by a candidate, a political committee, and a donor in the state.
The following was posted earlier:
The state of Maine on Thursday, noting that its elections are less than two weeks away, on Thursday urged the Supreme Court not to block state election laws that have been operating for months and only lately have been challenged. Asked by Justice Anthony M. Kennedy for the state’s views — in a case in which Justice Stephen G. Breyer had already rejected a challenge — Maine officials said that the challengers have not suffered in any way from the laws they are now protesting.
The laws at issue in Respect Maine PAC, et al., v. McKee (application for injunction 10A362) provide a subsidy of public “matching funds” to candidates joining in a “clean elections” program if a candidate outside that program outdoes them in fund raising, requires public disclosure of spending by independent political committees, and sets a $750 limit on individual donations to statewide candidates, including those running for governor.
The matching funds provision was challenged by an incumbent state legislator seeking reelection but without a subsidy, the disclosure requirement by the Respect Maine PAC, and the donation limit by an individual who is supporting a candidate for governor. In seeking a Supreme Court injunction against continued enforcement of those provisions, each of the challengers contended that the laws put a crimp in their ability to speak out during the critical closing weeks of the election campaign.
The state of Maine, in its response, examined the claims one by one and argued that, in each case, the laws have not actually inhibited the legislator, the PAC, or the contributor from pursuing their campaign efforts.
The challengers, after being turned down a week ago by Justice Breyer (who had not even asked the state for a response), re-filed their plea with Justice Kennedy. They drew some hope from the fact that Kennedy then sought a response from the state, due Thursday.  Now that the response is in, Kennedy could go ahead and act on his own, or refer it to the full Court.
In recent years, it has been common, if a case is pursued with more than one Justice in succession, for a succeeding Justice to take the matter to the full Court, to provide a definitive result without further individual consideration. Whether to do so is up to the individual Justice with whom an application has been filed.
