[T]he new policy makes no provision for the many voters who cast protest votes. Prior to the election, people commented on radio stations and in the comment sections in blogs and newspaper stories that they would deliberately incorrectly write-in a variation of “Murkowski” as a protest. They did so knowing that Murkowski was spending hundreds of thousands of dollars on a “spelling bee” campaign, replete with wrist bands, pencils and tattoos, all to educate the voters on proper spelling. Why was this done? Because even Murkowski had read the law and knew that it required proper spelling — “No exceptions.” So protest voters were trying to send a message to the candidate. The state has failed to create any guideline or standard that would account for the intent of the voter who intentionally cast a protest vote.

Marshall finds this argument pretty laughable, and at least from a legal standpoint, it would seem unlikely to hold water. Elections law expert Rick Hasen, however, thinks that Miller’s camp does have a few good arguments it could make — the most promising being a “due process claim” that argues the candidate’s rights were violated by a change in elections rules in the middle of the election.

The suit, filed earlier this week in Washington federal district court against the Federal Election Commission, challenges the constitutionality of the ban on foreign nationals making political contributions and independent expenditures in the U.S, and the two Canadian plaintiffs, Benjamin Bluman and Dr. Asenath Steiman, make a compelling couple:

Bluman, a citizen of Canada who recently graduated from Harvard Law School, is authorized to live and work in the United States until November 2012. Bluman, who anticipates his admission into the New York City bar next month, is “passionate … about protecting the environment, recognizing same-sex marriage and ensuring that ‘net neutrality’ is enshrined into law,” according to the suit.

The suit said Bluman wants to contribute $100 to Diane Savino, a Democratic state senator in New York who is a proponent of same-sex marriage. Bluman also wants to print and distribute flyers in the support of the re-election of President Barack Obama.

Steiman, a member of the American Medical Association, is a dual citizen of Canada and Israel. She is fulfilling her medical residency at Beth Israel Medical Center, in New York. Steiman was a member of the Conservative Party in Canada. The suit filed against the FEC said Steiman wants to prevent a “government-takeover of the health-care system in the United States.”

According to the suit, Steiman wants to contribute $100 to Republican Sen. Tom Coburn of Oklahoma, a critic of the Obama administration’s push for healthcare reform. And Steiman also wants to contribute to the campaign of the Republican nominee to challenge Obama, in the event he runs for a second term.

As an added bonus, Hasen notes that the plaintiffs have asked for a three-judge court, which would allow them to appeal directly to the Supreme Court.

The stay decision, Hasen argues, might have been issued for a number of reasons, most obviously to preserve the status quo. That way, if the opinion of Judge Vaughn Walker ends up getting reversed, the state won’t be involved in a whole new round of litigation surrounding the gay marriages that occurred in the intervening period of time.

Had the Ninth Circuit upheld Judge Walker’s denial of a stay, the issue would have fallen into the lap of Justice Kennedy (the Supreme Court Justice who handles emergency appeals from the Ninth Circuit) on an expedited schedule. Observers believe he’s likely the swing vote on Proposition 8′s constitutionality, and an emergency stay request could have brought the issue to him without giving him time for adequate reflection and rumination on the constitutional issues.

Instead of ruling on Citizens United v. FEC, a case that questions the legitimacy of corporate funding that supported an anti-Hillary Rodham Clinton documentary released just before the 2008 primaries, the court on Monday ordered reargument of the case in September.  The court will then have to decide whether to overrule two previous decisions that upheld limits on corporate spending in federal elections.

Predicts Hasen:

Given the dynamics of the court, there is a great chance the justices will use the opportunity to overrule limits on how much money corporations can spend supporting candidates—whether or not Judge Sonia Sotomayor is confirmed in time to hear the case in September.

As Rick Hasen of Election Law Blog writes: “Though the letter is directed to Judge Sotomayor, it takes a not-so-subtle shot at Chief Justice Roberts’ views of congressional power, first as expressed at his Supreme Court confirmation hearings, and then as expressed at the oral argument in NAMUDNO” — or Northwest Austin Municipal Utility District v. Holder, a challenge to the Voting Rights Act that the Supreme Court is getting ready to rule on soon.

The letter, also discussed in Constitutional Law Prof Blog, essentially accuses Roberts of lying by saying he believes one thing at his confirmation hearing, and then doing another on the bench.

Specifically, Specter accuses Roberts of saying in his confirmation hearing that he will defer to the findings of Congress when legislation is challenged in court, and then during oral argument in the recent Voting Rights Act, suggesting that he doesn’t accept Congress’s findings when it comes to the need for reauthorization of the Voting Rights Act.

Specter wrote in his letter to Sotomayor:

While too much cannot be read into comments by justices at oral argument, Chief Justice Roberts’s statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing.

How straight an answer Specter will get on his questions about deference to Congressional fact-finding may depend on whether (and how) the Supreme Court has ruled in the voting rights case by the time of Sotomayor’s confirmation hearing, notes Steven Schwinn, contributor to Constitutional Law Prof Blog and a professor at John Marshall Law School.

Sotomayor’s confirmation hearings are scheduled to begin July 13.

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