Wednesday, May 20, 2015


Tuesday, May 19, 2015


Just last year, US Representative Frank Guinta of New Hampshire found much-needed support from fellow Republicans to mount a political comeback and win his election.The state’s top elected Republican urged beleaguered GOP Congressman Frank Guinta to resign over the weekend, as pressure mounted on New Hampshire’s First District representative in the wake of campaign finance violations. “Congressman Guinta must make his own decision about whether to resign, but if I were in his position, that’s what I would do,” said U.S. The Union Leader has full coverage of the affair here, but the gist of the matter is that Guinta loaned himself $355,000 for his campaign that the Federal Election Commission believed was his parents’ money, not his own.

One of my first paid gigs with the Libertarians was petitioning in PA. I'm not good at it and can't generate more than around 50 signatures a day. But it was what got me interested in election law.
Now some of PA's petitioning requirements are found unconstitutional as applied to the greens and libertarians.

Friday, May 15, 2015



I once did an amicus for martin after he was unlawfully arrested for campaign literature with an incomplete disclaimer.

Saturday, May 09, 2015

http://i.imgur.com/hvJ6DuE.jpg where labor won in 2015.

Friday, May 08, 2015

The Scottish National Party (SNP) obliterated its opponents, taking 56 of Scotland's 59 seats in the Westminster parliament. The Conservatives, Labour and Liberal Democrats could muster only one seat each.
This marked a spectacular gain from the six seats the SNP won in the last UK election in 2010.
David Cameron had a lot to be happy about as he stood in front of 10 Downing Street on 8 May.
He had earlier become re-elected as prime minister and his party swept to power with a majority as the Tories ended up with 331 seats, five more than the majority threshold, while a number of his close rivals – Ed Miliband, Nick Clegg, Nigel Farage – stepped down from their roles as leaders.

Thursday, May 07, 2015

Proposed 29th Amendment:

1. Thou shalt not criticize Hillary Clinton, whether by book, cable TV, internet blog, or other media.
2. Congress may enact legislation to carry out this amendment.

a quote out of context:
"Secretary of State Alison Lundergan Grimes, died Thursday. She was 84."

 A tentative post on dysfunction at the FEC

Most of the voices in academia and the media are aligned with the "reform" pro-censorship faction, and that is distorting the debate on dysfunction at the FEC. Frequently over the past couple of years the FEC splits 3-3, so it isn't able to do something.

Also complicating things is that the anti-censorship faction is republican. For the academics and media, this equals "bad guys", and democrats are automatically "good guys". Now and then somebody come along who fufills that stereotype, like Hans Von Spakofsky, a bond villian archetype, or the Koch Brothers, who can be hated because they are rich.

But turn it around, and it is, as often as not, the GOP commissioners who are the actual heroes.
We've been living in an era post-BCRA where the Supreme Court turned down an initial challenge, so the FEC was put in a position of being expected to do a number of unconstitutional things as the follow-up cases slowly worked their way through the courts.

WRTL I and II, Davis, Free Enterprise, and Western Tradition Partnership, Inc.
 are examples of where BCRA is being chipped away bit by bit, as the dissenters in McConnell had announced would happen. In CU, the court went beyond BCRA, and finally overturned Austin, which had been an anomaly, like Pico, for those of us who like their First Amendment theory to be consistent, displaying rules or at least standards.  (In another part of CU, the court created new anomalies, but that's for a different post.)

When operating in a grey area, an agency has at least two options. It can steer clear,and exercise prosecutorial discretion to avoid such cases,and focus on its core mission. Or it charge forward, perhaps far beyond what it has any legal right to do. This puts staff and commissioners in the situation of illegally conspiring to violate civil rights. De Jure, they enjoy qualified immunity because these rights are not yet clearly established, and there may be some degree of absolute immunity as well. [Harlow v Nixon?] De Facto, nobody's going to prosecute the FEC when it overreaches, or even disbar lawyers who guess wrong in the grey areas. However, some of the FEC understand their ethical duties to refrain from that kind of misconduct. They did take an oath after all.
Calling such prudence 'dysfunction' is at least mistaken, and perhaps deliberately dishonest for propaganda reasons.

Many, if not all, of the reform faction will grudgingly accept that the FEC shouldn't itself violate the constitution, at least after the courts tell them to stop. There is a lack of consensus about which parts of BCRA are unconstitutional,and it seems unlikely that at some future date the court will tos out the whole mess as unseverable. So the FEC is in the position of enforcing a statutory regime of dubious constitutionality. An unconstitutional statute is void ab initio,and never confers power to the agency.
There are times when the commissioners can have reasonable doubts about how far their authority extends. There is a vast grey area where regulation is suspect,but the courts have not yet ruled with finality.    [this paragraph needs to be moved further up.]

One maxim of how criminal courts are supposed to work is that 10 guilty men should go free to prevent one person from being wrongly convicted. (In practice, being falsely accused at trial is like playing russian roulette - a jury that is 6/7ths sure will convict.)

A similar principle of restraint should guide an agency which is operating in an environment of legl indeterminacy, when it can't know exactly how far its powers extend.

This what reform calls dysfunction.

update http://electionlawblog.org/?p=72326 gop fec nyt letter.



I'm unclear what authority kentucky had to issue the regulation. a statute would be constitutional, at least federally, but here's there's no statute. from a policy point of view, i'm fine with the limit; burson v freeman was somewhat convincing.

Burson is used as the example of the exception that proves the rule, the rare case where a regulation survives strict scrutiny.  I think what was really going on in that case was not a state interest at all, but a conflict between the rights of those trying to speak to voters,and the right of voters to cast their ballots without intimidation.

In Burson, there was tension between a statute and the First Amendment; tension between a state legislature and a federal court. Principle of comity and federalism weighed in favor of the legislature.

But here and now in Kentucky, it is unclear to me that the legislature has empowered this regulation, and I'm not sure that strict scrutiny can be overcome. Of course, to some strict scrutiny is only a guideline,not to interfere with the personal preferences of the justices or judges.

It would make for an interesting case, if someone were to challenge the regulation. I am aware that I may not have all the facts. I'm just raising the issue.  

Indiana used to have a 50 foot electioneering rule, which was routinely ignored, so they solved that problem by repealing it. I would have encountered these issues if I'd remembered to go vote on Tuesday.

The Conservatives are set to be the largest party in the Commons but just short of a majority, according to the general election exit poll.
The survey taken at polling stations across the UK suggests the Tories will get 316 MPs to Labour's 239 when all the results have been counted.
It suggests the Lib Dems will get 10 MPs, the SNP 58, Plaid Cymru 4, UKIP 2 and the Greens two.

va voter id veto upheld with one gop vote


Wednesday, May 06, 2015

Yesterday was Tuesday, May 5th, and I forgot to go vote in the primary for city council. I don't know if there were any contested races, but I generally vote in the interest of observing the process.
It just slipped my mind. I remembered the cinco de mayo party but forgot the election. I'd been in Baltimore during the early voting so I missed that way of doing it as well.

Monday, May 04, 2015


Friday, May 01, 2015

Indeterminacy in Judicial Election Law

Two days later I still havent finished reading Williams-Yulee v Florida Bar.
A somewhat divided court upheld Florida' ban on in-person solicitation by judicial candidates.
It's a bookend case to MN GOP v White, which held that judicial candidates have a right to campaign and speak out on issues.

The point of this blog post is to point out how this is one more case emphasizing the unknowability of election law these days. The court was sharply divided, 5-4. The court did not speak with one voice.
The Chief Justice's opinion was joined in part by the 4 liberals, but Ginsberg wrote separately for Breyer.

So where does that leave the law of judicial elections, and election law generally? We don't know. For every case, one can point to an equal and opposite case. For every Williams v Rhodes that holds strict scrutiny, there's a Jenness v Fortson that holds lax scrutiny on similar facts.

For every McIntyre, there's a Citizens United muddying the waters and leaving the state of the law unknowable. For every Harmon v Forssennius, there's a Crawford v Marion County.

We end up left with two things.
 1. Judges base judgments on their personal preferences because there are no rules or standards without counter-rules and counter-standards.

In the 7th circuit, the law of voter ID hasn't changed, but the personal preferences of Judge Posner have changed, and we may someday see this play out.

2. Qualified immunity becomes de facto absolute immunity. When nothing is clearly established,
election officials have carte blanche to violate their oaths of office without consequence. At most they get overruled or enjoined, someday. Perhaps this is good news for lawyers, since there will plenty to sue about.

Tuesday, April 28, 2015

97% vote to re-elect in Kazahkstan, with 95% turnout. This sort of thing is an election in form, but not in substance. There are people who want to turn american elections into this sort of thing, by making campaign speech criminal. Citizens United is one example, the disclaimer statutes in Missouri and Indiana and elsewhere are another.

Tuesday, April 21, 2015



http://electionlawblog.org/?p=71911 national review article

Sunday, April 19, 2015


Saturday, April 18, 2015

"Candidates says $500,000 contribution will level the field in GOP primary for Supreme Court": The Associated Press has a report that begins, "A candidate who received the largest single campaign contribution reported so far in Pennsylvania's Supreme Court race said Thursday that the $500,000 will make him competitive in the May 19 Republican primary."

Write-in Candidate for Mayor of East St. Louis, Illinois, Polls 36.1%

Published on April 8, 2015, by  in Uncategorized.
On April 7, East St. Louis, Illinois, held an election for Mayor and other city office. The incumbent Mayor, Alvin Parks Jr., wanted to run for re-election, but the State Supreme Court had removed him from the ballot because he didn’t have enough valid signatures. He then campaigned as a write-in candidate, placing second and defeating one of the candidates whose name was on the ballot. See this story. Thanks to Ken Bush for the link.

Friday, April 17, 2015

The Editorial Board needs to read McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), in which seven United States Supreme Court justices agreed that anonymous political speech IS protected by the First Amendment. The McIntyre case was almost identical to the Ferguson case, except for the fact that the would-be pamphleteer in Ferguson has even more reason for wanting to maintain his or her anonymity. The ACLU's position is not novel or even controversial. To the contrary it is precisely correct, however uncomfortable the Editorial Board might be with its implications. - David Roland

This blog expressly advocates the re-election of
Springfield City Council, Seat C and
Springfield Mayor

The convention is tomorrow in Columbia, and I hope to update this post with more endorsements
based on how things go at the convention.

Wednesday, April 15, 2015

Clinton calls for constitutional amendment on campaign finance

only there's no actual text so far. so pretty much empty grandstanding.

Friday, April 10, 2015

A memo I wrote for the Missouri disclaimer case. I didnt file it with the court because the time was too short, but I've shared it with plaintiff's lawyers.


Thursday, April 09, 2015



I have learned that a Missouri judge has denied a preliminary injunction in the John Doe disclaimer case I blogged about last week. I'm waiting to find out if there's been a written ruling.


Wednesday, April 08, 2015

In official totals, Emanuel won nearly 56 percent of the vote to Garcia's 44 percent.


i should contact them.

Thursday, April 02, 2015


Wednesday, April 01, 2015


Vermont fines RGA $40K.

Monday, March 30, 2015

a republican case against voter ID.

Sunday, March 29, 2015



Friday, March 27, 2015

text of indiana's sb101 religious freedom restoration act.

Reid to retire a end of term. Shumer in line for minority leader (could even be majority leader depending on 2016.) Shumer is one of my least favorites.



Thursday, March 26, 2015


democrats on fec discuss mcintyre and disclaimers. it's not new, it just turned up today in a search forthe phrase "in for a calf is not in for a cow." for now i'm just leaving it here. maybe later i'll explain why what they write is wrong.

Tuesday, March 24, 2015

“Ritual and Rhythm in Electoral Systems: A Comparative Legal Account”

A key insight to understanding US elections can be found in Sir Hugh Frazier's 'The Golden Bough'.
It's the old story of how each year the old king or priest is killed by a new one in a ceremonial battle symbolizing the coming of spring. Various cultures celebrate this in different ways; we have elections and the superbowl.   

to do: i could write an amicus letter to the missouri court re the disclaimer case the ACLU has filed.

Even so, challengers decided on Monday to start a new court case, to try to head off enforcement of the law in future elections. -Lyle


So the long battle in wisconsin will continue. I guess the new case isn't filed yet.
The supreme court turned down Frank's appeal of the WI voter ID statute, with no dissent to denial of cert. we may never know how that conference went. there seem to be 4 votes against voter ID, three in support, and two on the fence. maybe those two aren't on the fence. it's hard to know. Hasen thinks the Texas case  is better suited as a vehicle. I liked the facts in Frank, and the findings by the courts below. One wrinkle was that the WI supreme court made important changes to the statute, which changed the game. The court could have GVR'd and sent it back to the trial court for re-consideration in light of the state ruling, but didn't. 
I will have an upcoming post on how I might have singlehandedly lost Crawford v Rokita, because of a sentence I left out of a motion to file an amicus brief, when that case was at the en banc rehearing stage around 2007.


grist for the constitution-in-exile crowd.
this is the second excerpt from this book i have read. i am mostly on the other side of the argument he makes here, but i think it is a useful discussion. i largely agree with his other article about voting rights. cross-posted from one of my other blogs.

Monday, March 23, 2015

International Programmes in Moscow
       Admission 2015/2016
Representation of Russian 
Universities:Aerospace Technology for Latin
America, USA and African countries
Announces  the international Admission for a
Professional  Degree Studies in Moscow :  
                                            etc, goes on like this for awhile.

easily the most interesting spam i've had today. gmail usually filters all my spam.

Sunday, March 22, 2015

In lawsuit, ACLU says the First Amendment protects anonymous political speech


The Missouri office of the American Civil Liberties Union filed a federal lawsuit Wednesday seeking to protect anonymous political speech in the state.
The group is representing “John Doe” — a businessman in Ferguson, Mo., who wants to publish material about the city’s upcoming municipal elections.

Read more here: http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article15247046.html#storylink=cpy
http://www.aclu-mo.org/download_file/view_inline/1511/572/ brief

https://www.youtube.com/watch?v=CZQSht9oTWY profile of aclu lawyer tony.
http://www.reddit.com/r/firstamendment/comments/2zxxvn/in_lawsuit_aclu_says_the_first_amendment_protects/ 'popepeterjames" at reddit first told me about this case.


Never Count on the Supreme Court to Protect Voting Rights


trevor potter ama. old but i just ran into it.

Saturday, March 21, 2015

on friday the supreme court considered whether to grant cert of frank v walker, the wi voter id case,
but we probably won't hear anything for a while. hasen thinks it will get re-listed a time or two.
if they do hear it, an i'm expecting they will, oral argument would be next year i think. i'm not sure when the briefs would be due.

Friday, March 20, 2015


Thursday, March 19, 2015


Obama Floats

1 cup Obama, 2 scoops non-dairy ice cream.

 This reporter ordered the 95-page booklet promoted by Mr. Huckabee, for an advertised $19.97 for a downloadable copy and $19.95, plus shipping, for a printed copy, and found a $120.08 charge to his Visa card, which included a $67 coaching video that was not ordered. Mr. Barton said fewer than 1 percent of customers complained about overcharges, which he said were the result of user error.

Wednesday, March 18, 2015



darin-the-hood department:


Texas ordered to pay $3 million in legal fees for voter ID lawsuit.


A U.S. appeals court said on Tuesday the state of Texas must pay about $3 million in legal fees to plaintiffs after being on the wrong side of a civil rights lawsuit over voting.

havent seen the ruling yet

update: stop the presses! media gets facts wrong!

Rick Hasen

7:15 PM (14 hours ago)
to me
that was based on a reuters report which was in error.

update: they didn't just get it wrong. they got it really wrong.
They (Reuters) were wrong about Who, What, How Much, and Why. Not sure about when and where.

“U.S. appeals court says Texas should not pay legal fees in voting case”

Anyone have details on this?  I cannot find an order at the 5th Circuit website.
UPDATE: Here is the decision. It is section 5 Texas redistricting litigation, not the voter id litigation, as was initially erroneously reported (and it was not a $3 million award affirmed, it was a $300,000 award reversed).

Monday, March 09, 2015


Friday, March 06, 2015

The Department of Justice is planning to bring criminal corruption charges against Sen. Robert Menendez (D-N.J.), 

Thursday, March 05, 2015



In 1939, Congress began to try to get rid of the poll tax, but history was not behind them. After all, in colonial times and when the Constitution first came into effect, land ownership was often a requirement for suffrage. Though only five states still had a poll tax by the time the amendment passed Congress, Supreme Court rulings made it doubtful that mere legislation would eliminate the tax altogether. Proposed by Congress on August 27, 1962, the 24th Amendment was ratified within a year and a half, on January 23, 1964 (514 days).

- Thought it was later under LBJ. To do: evoke legacy of JFK.

there's an app for that: free annotated constitution app

There is a 26th amendment claim in the N carolina suit.

Wednesday, March 04, 2015


“Student Voting Rights Case Filed in TN”

A federal lawsuit was filed today in the U.S. District Court in Nashville challenging Tennessee’s voter ID law as violating the voting rights of Tennessee college and university students. The lawsuit was filed on behalf of a student organization and nine college students by the Fair Elections Legal Network, a national voting rights organization, and Nashville law firm, Barrett Johnston Martin & Garrison, LLC. The lawsuit asks the court to rule that the current voter ID law violates the 14th Amendment and 26th Amendment to the U.S. Constitution because it discriminates against college students by excluding student ID cards from the list of accepted voter IDs.
Finally, a 26th Amendment case on voter ID!

Meanwhile, electionlawblog has picked up  a couple stories I submitted

Tuesday, March 03, 2015



Monday, March 02, 2015

mikulski retires as 2016. i wonder who else is on that list?
boxer and manchin are names mentioned but unconfirmed. boxer confirmed.
Republicans could lose Sen. David Vitter (R-La.), who announced in January that he would run for governor in 2015, if his bid is successful.His retirement could create an opening for Sen. Mary Landrieu (D-La.) to make a bid for her old job 

Currently, Democrats are expected to have 10 seats up for election, and Republicans are expected to have 24 seats up for election
PA WI IL are seen as tossups where the GOP could lose seats. 
Despite the election of Republican Larry Hogan as governor last fall, Maryland is a very Democratic state. Democrats are strongly favored to retain Mikulski’s seat, so her retirement is unlikely to have much effect on the battle for control of the Senate after 2016.

Saturday, February 28, 2015


Ex-NY Assembly Speaker seeks to quash corruption charges

NC ID, Curry case to go to trial on 4 of 6 counts.
The ruling is not online yet at moritz.
Found it

Plaintiffs had argued in count II that section 10 of the North Carolina Constitution's Bill of Rights
states "All elections shall be free." They construed this to mean free as in beer, not free as in speech.
Their argument was that voter ID imposes a cost, and is therefore not free to the voter, and so violates section 10. The state argued, no, it's free as in speech, that free means unconstrained, not under duress or the control of another.

Similarly, in count III the plaintiffs argued that voter ID imposed a property requirement for voting in violation of section 11 of the Bill of Rights.

The Court granted summary judgment on both these counts, holding that the state had the better of the argument: It's free as in speech, not beer, and an ID is not the kind of property the founders were referring to. This is not a direct quote. The court denied summary judgment on 4 other counts, so it will go to trial this summer. Plaintiffs will, most likely, and I'm just guessing, not appeal this ruling, either now or later, since they expect to prevail on one or more of the remaining counts.

I think the Court was right on section 11, the property clause, but wrong as to section 10, free elections.

What the state and the court were right about is that it's free as in speech, not beer. What they are wrong about is that voter ID does interfere in free elections, as the Missouri Supreme Court correctly ruled in Weinschenk.

Some of you still haven't read my 1994 thesis, "State Constitutional Protection of Democratic Pluralism", http://umkcthesis.blogspot.com/, but the free elections clause has a long history as a bulwark against the kind of shenanigans involved in voter ID. Some constitutions, like Missouri's, have it as "free and equal elections" while others like Indiana call it "free and open elections."

Unfortunately in League of Women Voters v Rokita, the League didn't cite to this clause, found in article II section 1 of the Indiana Constitution, but instead cited to Article I section 23, which the Indiana Courts have construed as requiring deference to the legislature.

There is no consensus on the exact standard of review required under a free elections clause.
I haven't looked closely at North Carolina. But often states, from about 1800 to 1950, looked primarily to these clauses to rule on topics such as voter registration, redistricting, allegation of election fraud, and so forth. These clauses were held to protect a fundamental right against partisan manipulation by legislatures.

The issue for me now is whether plaintiffs have waived the issue, by ineptly arguing it here, or can reclaim it further along the appeal process. That's not my area of expertise.  


Friday, February 27, 2015


And this was not just noticed by all of us at team reddit, but also by the President himself, who sent us this message he asked us to share with all of you.
Earlier today, the FCC voted to protect a free and open internet — the kind of internet that allows entrepreneurs to thrive and debates over duck-sized horses and horse-sized ducks to persist.

This would not have happened without the activism and engagement of millions of Americans like you. And that was a direct result of communities like reddit.

So to all the redditors who participated in this movement, I have a simple message: Thank you.

—President Barack Obama

this link is not an endorsement of the views expressed there.
new york corruption is tricky and i dont  follow it closely enough to know who the bad guys are.

Thursday, February 26, 2015



Williams-Yulee v. Florida Bar
Docket Number: 13-1499
Date Argued: 01/20/15

Emanuel heads to Easter run-off against Jesus.
Rahm Emanuel forced into run-off for mayor of Chicago. Maps.
It was a 4-way election. I don't even know yet who came in second,
probably the guy who was backed by the Harold Washington party
(or maybe faction, I'm not sure if they are still a party.) Update to follow.
I think it's safe to predict the Mayor will win the spring run-off.

Oh, well maybe this explain it, he was running against Jesus, who got 33%.

Rahm Emanuel211,597
Jesus "Chuy" Garcia157,526
Willie Wilson49,612
Robert W. "Bob" Fioretti34,488
William "Dock" Walls, III12,954
 Jesus is a Washington ally and the election is nominally non-partisan.

Wednesday, February 25, 2015

bbc's new blog on 2016 presidential elections.




I didn't understand what the theory of the case was at first. It's a case that mostly complains about Massachusetts treating unions and corporations differently.But then this,
"  That Massachusetts prohibits even corporate PAC contributions distinguishes its law from corporate speech restrictions that have been upheld by other courts. Those older decisions go against the grain of recent U.S. Supreme Court decisions; but even under their reasoning, total contribution bans simply go too far. " So it looks like a win.



The theory:

Sick of Money Corrupting Politics? Take the Fight Local.

the practice:
 happened again in chicago on tuesday.

Chicago voters overwhelmingly endorse campaign finance reform”

some of today's voter ID stories.

mo house passes two voter ID bills.

the WI ID petitioners make a strong case in their reply brief.

I think thee's a good shot at cert, and if that happens, maybe I should do an amicus,
like the one I never finished for N Carolina.

My main beef with the WI petitioners is that they failed to preserve their 24th A claim, which was the best way to distinguish Crawford.

Sunday, February 22, 2015

Text of proposed right to vote amendment:

``Section 1. Every citizen of the United States, who is of legal 
voting age, shall have the fundamental right to vote in any public 
election held in the jurisdiction in which the citizen resides.
    ``Section 2. Congress shall have the power to enforce and implement 
this article by appropriate legislation.''

What I haven't heard yet is the plan to get the GOP to buy into it. The GOP holds a lion's share of 
state houses, and it can't pass without them. So what's their motivation?
Next question, is the amendment self-enforcing? If not, what does it actually do? Congress already 
has the power to enact voting legislation, so what does this change? Maybe more control over non-
federal elections, but I doubt that's the point.  

update: see this post by heather gerken http://electionlawblog.org/?p=70486, a followup to 

uk multi-party democracy makes coalitions likely.

Saturday, February 21, 2015

“The Clinton Foundation Super PAC; It’s past time to drop the fiction that the Clinton Foundation is a charity.”


Never been a fund like the Foundation Eva Peron

“Hillary Clinton’s Complex Corporate Ties; Family charities collected donations from companies she promoted as secretary of state”

Posted on February 20, 2015 7:28 am by 

WSJ reports.
Accountants only slow things down, figures get in the way
Never been a lady loved as much as Eva Peron

Meanwhile in Argentina

“Foreign governments gave millions to foundation while Clinton was at State Dept.”

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