Friday, July 22, 2016

In a story about the latest appeal in Frank v Walker, Hasen notes:
 [Update: Bill Groth reminds me: Since the 7th Circuit deadlocked 5-5 in Frank v. Walker, Judge Tinder, who voted with the Easterbrook faction to uphold the law, retired. There are now just 9 active judges with no confirmations imminent. Thus, there can’t be another 5-5 split if the case were to go en banc.” That could potentially be good news for supporters of the affidavit requirement.]
And the Supreme Court? I don’t expect there would be 5 votes to do anything, unless it is about an issue of making a change too close to the election.
So that's very interesting. If we are counting right, there are now  5 votes to 4 at the 7th circuit against voter ID. Is this the right time to bring a case in Indiana? It may be too close to the election for a decision before November, but this may at least be a good time to get a case started.

http://freebeacon.com/politics/philadelphia-isnt-removing-felons-voting-rolls/ dated today.

J Christian Adams running some indiana-based voter suppression outfit? I wonder if they are hiring.

http://freebeacon.com/issues/philadelphia-hit-lawsuit-concealing-election-records/ april article

has a link to the lawsuit. https://publicinterestlegal.org/files/1-Complaint-ACRU-v.-Philadelphia.pdf.

They list an address in Plainfield IN. That's one county over from me.

https://publicinterestlegal.org/cases/. I am now signed up for their newsletter.

Hillary has chosen Virginian Tim Kaine as veep.
Unless I'm mixing him up with someone from new jersey, I dimly remember some scandal where he was trying to censor somebody over a disclaimer issue at the FEC once. This will take a bit more research.

Not sure Kaine/"Cain" is the image Clinton should be looking for.

while looking for it i ran across this amusing story about lawrence lessig's pac being not quite in compliance with disclaimer rules in 2014. http://freebeacon.com/issues/transparency-champion-allegedly-violates-transparency-laws/

I'm hearing a rumour that Jeb Bush will endorse Gary Johnson next week. Unconfirmed.
update: unfounded.


dems ask for convention donor list to be kept secret.
it turns out that disclosure chills political speech. who knew?

PHILADELPHIA (AP) -- The host committee for the Democratic National Convention wants to keep its donor list under wraps until after the convention even though a state open records agency has ordered its release.

Thursday, July 21, 2016

Some thoughts inspired by
Ciara Torres-Spelliscy: The strange legal marriage of the anti-choice movement and campaign finance

  What I got from this thoughtful article was two main points:
1, There is a connection, personified by James Bopp, between the pro-life cases which seek to roll back Roe v Wade, and the campaign freedom cases, which have rolled back Austin and are continuing to chip away at McConnell v FEC.
2. Citizens United, the most important challenge yet to McConnell,  offers a solution to the facial/as applied paradox, which in turn helps those litigating for abortion rights.

In this short longish blog post I want to make two points:
1. The campaign freedom cases in a way provide a foundation supporting Roe v Wade. I haven't seen anyone talking about this, but I've been aware of it for years.
2. She's right that CU offers a way out of the facial/as applied paradox,and this can be applied to issues including voter ID.

First let me explain a bit about what I mean by the facial/as-applied paradox. Courts are great at writing opinions full of flowery language about the rights and interests of plaintiffs, or in criminal cases defendants, yet in the end the plaintiff is denied effective relief, or the defendant is hanged, or otherwise sentenced, because courts have dozens of docket control doctrines for denying relief that justice seems to require. Some of these doctrines have to do with standing and justiciability, while others are about whether the court has the power (and inclination) to grant a useful remedy.

Salerno says that a court can never grant facial relief if  somewhere, somehow, there is one set of circumstances such that the rule being challenged could be constitutionally applied. It's a bit like Karl Popper's idea of falsification. On the other hand, an as-applied challenge sometimes at best fixes a problem for that one particular plaintiff who sued, only they can't get damages, and their exact circumstances rarely recur, so even winning can be pointless. So that's the paradox, that most real world election disputes don't cover 100% of cases, but can't be effectively addressed by having each aggrieved voter sue for themselves alone. One solution, as we saw this week in Frank v Walker, is for courts to grant class action status to groups of voters. But that has its own pitfalls.
So I'm going to get to a discussion of how CU solves this problem, but let me get back to the first point.

 Jim Bopp was a small town former prosecutor in Indiana, active in conservative politics, when a right to life group needed a lawyer. They found Jim. One of the things about being a lawyer is that it's a lot easier to litigate a case you already know than to reinvent the wheel taking on something new.
I saw a video today about a law firm that sent its lawyers to truck driving school, because they do a lot of trucking cases. (I'm a bad lawyer, but I'm a worse truck driver.) Bopp had found a niche and has struck with it over the years and is now the world expert on express advocacy, major purpose,and other arcane aspects of campaign freedom cases. He also continues to support restrictions on abortion, although I haven't followed that aspect of his career as closely - it's not my issue.
He and I don't see eye to eye on everything but I regard him as a hero. His work on campaign freedom has been really important.

One of the foundations of the campaign speech cases is NAACP v Alabama ex rel. Patterson (1958).
That case, along with Bates v Little Rock and Talley v California, held that there is a first Amendment right of privacy, which can be violated by disclosure or disclaimer regimes that have the real purpose of punishing and deterring campaign speech and political association, as well as contribution limits, expenditure limits, or other action by government to prevent citizens from altering or abolishing government via free and open elections.

Bopp and others have built on this line of thought in cases like MCLF, WRTL I and II, McCutcheon, Free Enterprise, Western Tradition,  and so forth. In Citizens United, the plaintiffs switch horses in midstream, dumping Bopp, and the express advocacy and anti-disclosure parts of the case did not get pursued aggressively, and lost, but the bigger target was overruling Austin, so that corporations could now spend directly on candidate elections.

Roe v Wade is an odd case in some respects. It holds the right to privacy, grounded in the 1st 4th and 9th amendments at least, is so important it authorizes the killing of millions of babies ever year,
But the same right is so unimportant it doesn't authorize a woman's right to smoke dope, or have to husbands, or trade sex for money, or dozens of other things we might expect a really strong right of privacy to support. It's sort of an orphan. So it helps that  there have been people like Jim Bopp out there building a strong line of cases showing a first amendment right to privacy, for campaign speech, for freedom from disclaimers, limits to disclosure, limits to spending limits,and so forth.
A skilled brief writer could go through these cases and find a quote in each that would support a person's right to control her body, or to protect doctor-patient communications.
It an irony that I don't know if the Pro-Life camps have given much thought to. I could see Justices Ginsberg or Kagan or Sotomayor reading an amicus making these points and borrowing these citations for an opinion. Torres-Spelliscy is the sort of advocate who could write that brief.

Anyway, on to my second point. In Citizens United, the court took an as-applied challenge, and used it to grant facial relief, overturning Austin and allowing corporations to spend directly on candidate elections. It discussed and explained that courts have that power,and are not straightjacketed by rigid distinctions between facial and as applied challenges. The recent texas abortion case built on that approach.

My litigation efforts have been mostly in the campaign freedom area. But a closely related area is voter ID. Generally I support the right of the little guy to register to vote, vote, put a sign in his yard, sign a petition, run for office,and so forth, without being treated like a criminal. Voter ID programs treat the typical voter as suspect, guilty of voter fraud until proven innocent beyond a reasonable doubt. In Crawford v Marion County, the Supreme Court denied a facial challenge, because as a pre-enforcement challenge the plaintiffs did not yet have evidence. Yet when I others have tried to bring as-applied challenges, it is seen as useless since it's only one vote at a time. So I haven't been able to get counsel, and as I mentioned I'm a bad lawyer, so these cases failed on technicalities and missed deadlines.

The lesson of CU, and the Texas abortion case, is that a plaintiff with an as-applied challenge is not barred from asking for sweeping relief. The lesson of this week's voter ID cases in Wisconsin and Texas is that courts are more likely to grant more limited relief, softening rather than ending the unconstitutional programs. But that's progress. CU didn't wholly overturn McConnell or strike down BCRA. It chipped away at it, taking a huge bite along with cases like Davis that just took a nibble.
Voter ID can be defeated with a death of 1000 cuts, but only if there is a sustained litigation campaign, along the lines of what Bopp has done with express advocacy.

I am currently being represented by the Indiana ACLU in my most recent voter ID dispute, where I was again refused a provisional ballot and this time got it on video. But it's a very limited representation; apparently they are just going to send a letter nicely asking the county not to do it again, at the risk of getting another letter. I am thrilled to be getting this much help, but I'm still seeking counsel to represent me in a lawsuit for damages. I need the money, I have the evidence,and it could be the first of many cuts to begin to soften what Stephens and Posner have admitted is an unconstitutional regime. I can be reached at gtbear@gmail.com. I don't expect that this plug will bear any fruit. I need to learn to make an elevator pitch to more concisely pitch my case.
But when I read the Torres-Spelliscy  article, it got me to want to write down these thoughts I've had that, 

1. the campaign freedom cases brought by the pro-life groups are providing precedential support for Roe v Wade's idea of a right to privacy, and

2. that Citizens United's take on the facial versus applied approach to litigation has applications for voter ID. That's all for tonight. 


Wednesday, July 20, 2016

from the texas opinion via wsj:
[T]he record shows that Texas has a history of justifying voter suppression efforts such as the poll tax and literacy tests with the race-neutral reason of promoting ballot integrity. See id. at 636 & n.24. Dr. Vernon Burton, an expert in race relations, testified about the “history of official discrimination in Texas voting.” He identified some devices Texas has used to deny minorities the vote, including “the all[-]White primary, the secret ballot and the use of illiteracy[,] . . . poll tax, re-registration and purging.”…

this just in, Texas is going to do what Wisconsin just did, have an affidavit option for those who can't get ID. Today was the deadline the Supreme Court had set. I think it's interesting both of these courts came up with the idea independently.
The 5th circuit ruled that there was a voting right act violation, but limited the relief to the affidavit option instead of striking down the statute. Hasen has a good analysis. http://electionlawblog.org/?p=84442. So the battles now are not about getting voter ID struck down, it's about a death by 1000 cuts of going after pieces of it. I'm not sure if this helps my case any. I have a potential challenge to Indiana's voter ID based on that they don't provide provisional ballots when they are supposed to; they just tell people they can't vote.

I'm not addressing the small minority of people who can't get ID without undue burden, I'm addressing the larger population who have ID but refuse to show it,  so they've been mostly staying home, with effects that distort the integrity of the election process.  I think the recent cases show a willingness to tolerate this, but there's still more that could be done to bring those kind of cases.




Tuesday, July 19, 2016

significant development in frank v walker II, wisconsin voter ID case. on remand, district judge allows affidavit as alternative to ID. developing.


Ok, i've now given this a first read.  It seems a reasonable and nuanced opinion. As an anti-voter ID absolutist, it's not all the relief I would like. This is a judge who has already been reversed in this case twice. I think she (or he?) does a good job of operating within the parameters of the remand.

The opinion declines to dismiss any plaintiffs, grants class certification, orders a reasonable impediment affidavit modeled after South Carolina's, walks through some anecdotes about dealing with the bmv, discusses the Anderson test, discusses the relative burdens of injunctive relief, and grants the injunction. The case says that a voter who has ID but doesn't ant to show it does have standing, which is my position but is not widely accepted.

Hasen has written that these "softening" measures don't fully undo the harm that voter ID does, and he's right. But this kind of relief is what's available from the courts right now, and is in line with the kind of cases that plaintiffs' counsel, such as the ACLU, has been bringing. If the statute is an undue burden on little old ladies, the amish, the homeless, that burden can be lightened by providing an affidavit ("declaration"). The lightened burden can then pass Anderson balancing, at least against the kind of claims that are being brought. I continue to think that the 24th Amendment is an absolute bar to much of what Wisconsin is trying to do, but the state supreme court already granted some relief there, and plaintiffs aren't pushing the 24th A. issue hard at this stage.

 I see no reason either the 7th circuit or Supreme Court should have any problem with upholding this on appeal.  Hasen disagrees,and will no doubt explain why in due time. update: he's updated.

Plaintiffs should then, having prevailed, be able to collect a substantial amount of legal fees, if not 100%, since they did not get all the relief they sought.

I do not see that this will likely affect either Indiana's practices, which already have some special case affidavits, although not the same as here, or my current dispute about Indiana's voter ID.

This week I signed a limited representation agreement with Indiana's ACLU. As far as I know all they are going to do is send a letter to the county. My situation is that I refuse to show ID, and what they are supposed to do is offer me a provisional ballot, but instead at the primary they threw me out of the building, and I've filed complaints at the county state and federal level, but don't expect much to come of it, unless I can find counsel to bring a lawsuit, which the ACLU is not offering to do.

FEC defends disclosure requirements for 'electioneering communications' .
This is about the Independence Institute v FEC case. I am sympathetic to the goals of II.
When I go to Denver, as I probably will next month, I stay across the street from it, and I've met with some of its people.
But I don't get the line of cases they have been doing, and losing, involving campaign speech disclosure. There are many far more winnable cases.
It is too hot for me tonight to read one more filing, so I just glanced at it briefly. This is the FEC's motion for summary judgment and memo. Mostly they point to cases like CU and Valeo and say "of course we win". And they probably will.  That's all for now. Maybe later I'll come back to it. 
II may yet win the war, but I think they are likely to lose this battle.

significant development in frank v walker II, wisconsin voter ID case. on remand, district judge allows affidavit as alternative to ID. developing.


Ok, i've now given this a first read.  It seems a reasonable and nuanced opinion. As an anti-voter ID absolutist, it's not all the relief I would like. This is a judge who has already been reversed in this case twice. I think she (or he?) does a good job of operating within the parameters of the remand.

The opinion declines to dismiss any plaintiffs, grants class certification, orders a reasonable impediment affidavit modeled after South Carolina's, walks through some anecdotes about dealing with the bmv, discusses the Anderson test, discusses the relative burdens of injunctive relief, and grants the injunction. The case says that a voter who has ID but doesn't ant to show it does have standing, which is my position but is not widely accepted.

Hasen has written that these "softening" measures don't fully undo the harm that voter ID does, and he's right. But this kind of relief is what's available from the courts right now, and is in line with the kind of cases that plaintiffs' counsel, such as the ACLU, has been bringing. If the statute is an undue burden on little old ladies, the amish, the homeless, that burden can be lightened by providing an affidavit ("declaration"). The lightened burden can then pass Anderson balancing, at least against the kind of claims that are being brought. I continue to think that the 24th Amendment is an absolute bar to much of what Wisconsin is trying to do, but the state supreme court already granted some relief there, and plaintiffs aren't pushing the 24th A. issue hard at this stage.

 I see no reason either the 7th circuit or Supreme Court should have any problem with upholding this on appeal.  Hasen disagrees,and will no doubt explain why in due time. update: he's updated.

Plaintiffs should then, having prevailed, be able to collect a substantial amount of legal fees, if not 100%, since they did not get all the relief they sought.

I do not see that this will likely affect either Indiana's practices, which already have some special case affidavits, although not the same as here, or my current dispute about Indiana's voter ID.

This week I signed a limited representation agreement with Indiana's ACLU. As far as I know all they are going to do is send a letter to the county. My situation is that I refuse to show ID, and what they are supposed to do is offer me a provisional ballot, but instead at the primary they threw me out of the building, and I've filed complaints at the county state and federal level, but don't expect much to come of it, unless I can find counsel to bring a lawsuit, which the ACLU is not offering to do.


http://www.upvibes.com/hillary-clinton-scandals-is-she-fit-for-president/21/ a quick tour of so me of hillary's scandals.

Sunday, July 17, 2016


But one candidate has made gains since last month: Libertarian Gary Johnson. In a four-way matchup between Clinton, Trump, Johnson and Green Party candidate Jill Stein, Clinton carries 42%, Trump 37%, Johnson 13% and Stein 5%. That represents almost no change for either Clinton or Trump, but a 4-point bump for Johnson. CNN.

Saturday, July 16, 2016

So the coup in Turkey failed and the rebelling soldiers who surrendered are being tortured before being killed. Sigh.


I'm not endorsing this article, but it is well written. It argues the supreme court had the legal issue in McDonnell all wrong, used the wrong definition of bribery.


WaPo article on mike pence campaign finance history.

update: http://electionlawblog.org/?p=84319

Friday, July 15, 2016

Trump has chosen Mike Pence as his running mate, thrilling Indiana residents, many of them who already had "Pence Must Go" signs in their yard. I would expect now that John Gregg, D, will win the governor's race, Evan Bayh the senate, but the GOP will keep their 7 of 9 house seats and lock on the state senate and house. I don't actually have objective reasons for not liking Pence. A former coworker had met him back when he had a radio show and was kind of creeped out by him. I've never talked with him personally, seen him around a few times.

The fall election leans Hillary 49% Trump 45% Johnson 5% Green Jill Stein 1%, but that's all within the margin of error and could change. The senate is too close to call.

Update: Todd Rokita has dropped out of his house re-election race to seek Pence's spot.
I knew and liked Rokita back when he was a lawyer for the secretary of state, back before he became the poster boy for voter ID. If Rokita doesn't get the GOP smoke-filled room nod for governor, another committee will probably let him get back on the ballot for congress.

Today I dropped off my signed representation letter with the ACLU, regarding how I was denied the vote at the primary. It seems that they are going to send a letter, rather than do a lawsuit. But it's something, maybe. I have open investigations filed at the county state and department of justice level, but havent heard anything substantive back from any of them.  

Monday, July 11, 2016

This just in: Evan Bayh expected to suddenly run for senate in indiana and win. This will give IN, traditionally a GOP state, 2 Dem senators. Baron Hill is dropping out to make way for Bayh, who has been in the private sector since 2010, but still has 9 million in a campaign account. He has been senator and governor, is cute, bland, moderate, untainted by scandal, and  has high positive name recognition. His father, Birch Bayh, was running for president when his mother Marvella got breast cancer and died. Birch dropped out of the race to be with her. This is part of why Evan (actual name Birch Evan Bayh) himself wants to run for president if the time is ever right. Another Bayh factoid: the Bayhs were on the plane with Teddy Kennedy when it crashed, killing the pilot and putting teddy in traction for 6 months with a broken neck. The Kennedys have a pattern of crashing planes, boats, and cars, part of a larger pattern or recklessness that includes broken bones in touch football games, skiing accidents, and allegations of corruption. The Bayhs are not involved with all that; they were just along for the ride.

Sunday, July 10, 2016


Saturday, July 09, 2016

Pence get an endorsement.

Wednesday, July 06, 2016


Sunday, July 03, 2016

voter ID and Batman

Thursday, June 30, 2016

Obama early political activism, homework strike.

Wednesday, June 29, 2016

FEC 3-3 split on Fox sponsorship of GOP debate.
update: or not.
Dan at electionlawblog writes "Update:  Commissioner Ellen Weintraub emailed the following: 'The story is inaccurate. As the record will show when the file goes public tomorrow, I did not vote to punish Fox News in any way. To the contrary, I voted to dismiss the complaint.'”

California marijuana legalization makes it on the ballot. I expect it will pass.

Monday, June 27, 2016

Sunday, June 26, 2016

A Modern-Day Poll Tax?

Posted on June 26, 2016 7:13 am by 

I got this posted over at the electionlawblog. I'd forgotten to post it here first.

Saturday, June 25, 2016

Texit next?

Brexit to be followed by Grexit. Departugal. Italeave. Fruckoff. Czechout. Oustria. Finish. Slovlong. Latervia. Byegium.. until EU reach the state of Germlonely.

thursday's supreme court decision could affect an appeal, maybe.
i mean monday's, tomorrow.

Friday, June 24, 2016

Former Governor of CT, John Rowland convicted of a second felony, this one for campaign finance disclosure, lack thereof. http://ij.org/wp-content/uploads/2016/06/united-states-v-rowland-15-985-cr-2016-06-17.pdf
I'm generally strongly critical of disclosure regimes - disclosure kills and chills - but here I think it's a reasonable conviction.

Thursday, June 23, 2016

Cameron resigns at prime minister. Pound at 1.37 in sharpest 1 day fall ever.

uk polls just closed, and it looks like "remain" is in the lead, but we'll know more tomorrow.
at 11:30 central, with at least 80% in, it's leave by a million votes. yup, brexit won, leave 52%.

I know very little about what this will actually mean for stuff like travel, trade, courts, another scottish independence vote, and so forth.


Tuesday, June 21, 2016


I listened to the 4th circuit arguments about n c voter ID and other anti-voter measures. Sounds promising, but who knows.

"A CNN/ORC poll released June 21 shows: Hillary Clinton 42%, Donald Trump 38%, Gary Johnson 9%, Jill Stein 7%, none 3%, other 1%, undecided 1%. See question P5a." - Ballot Access News.


Biometrics for voting in nigeria, finger-print scanners.


In Nebraska, the counties don't know if felons are allowed to vote.

update: this story was picked up by the electionlawblog.

I'm not sure what's going on with brexit, but I'm guessing this Emma Watson photo is related.
update: the election is thursday, uk time.

Sunday, June 19, 2016

Text of my HAVA complaint: Election fraud and accessibility grievance form.

At the May 2016 primary, I went to vote at the firehouse at N. Sherman and New York Streets.
I was denied the vote. After speaking to an election board staff person at the center at Sherman and Washington, I returned and had the election board attorney on the phone, but the official in charge refused to speak to her and ordered me to leave the building. This is online at http://www.youtube.com/user/arbivark. My right to vote, under the voter ID statute, and the Indiana and federal constitutions, was violated.

(notary information follows.)
This was mailed to the Indiana Election Division I think Friday 6/17/16.

Saturday, June 18, 2016

montana legislator gets large fine but not removed from office, for coordination with right to work committee.

Friday, June 17, 2016

Texas has spent $3.5 million on lawsuits defending it fraudulent voter ID program so far. That cost will go up if it goes to the Supreme Court again. I wonder if anyone is keeping a count nationally.

update: hasen had me scooped by an hour.

Wednesday, June 15, 2016


Today I learned, via this podcast, http://www.radiolab.org/story/the_political_thicket/,
that there was a Supreme Court Justice who went to UMKC, from which I have an LLM,
at the same time he was going to high school. 1920-1924, so I think that's before my grandfather started teaching there.
A farm kid, he put himself through law school by hunting and trapping. Worked in the mailroom at a law firm, graduated, and got a job there. Served 5 years on the Supreme Court before retiring due to a nervous breakdown over dealing with Justice Frankfurter in Baker v Carr, the case that pretty much created modern election law.

Monday, June 13, 2016


"delaware strong" voter guide case could get supreme court review

Friday, June 10, 2016

wil wheaton on hillary clinton, from archives

Thursday, June 09, 2016

"who is gary johnson?"
https://www.youtube.com/watch?v=hdkznU2IvfU Samantha Bee interview.
At the end she asks what kind of people go to the Libertarian convention, he says "and some are just batshit crazy", cutting to pictures of two of my friends, Starchild and Willy Marshall, as well as Vermin Supreme, who I camped next to at a rainbow event last year.
I did not make the convention this year because work held a meeting in Nebraska they could have done with a phone call, which was annoying, but paid well,
Johnson seemed very strange. I don't know if it was just a bit for a comedy show, or if he's like that.

Wednesday, June 08, 2016

Primary turnout tells us little about the general election, but,

Hillary received 15,899,116 votes this year.
Bernie Sanders received 12,193,152 votes.
Trump has "over 13 million primary election votes."
So he's a smidge ahead of Bernie but trailing Clinton.

Sanders, losing in CA and NJ, won MT and ND, but narrowly lost SD, 49-51%. I'm leaving out, was it Arizona? assumed to go Clinton.
As a news junkie, it frustrates me that it it's taken me about 24 hours to find this out. I'm writing this wednesday evening. I like instant gratification. It took me over 30 minutes to get tech support on the line this morning when my internet went down. Once I finally got through to Tony he fixed it, upped my service, lowered my price,and pointed out the great weather we had today. But I had to wait so long to reach him. Later in the day in left the muffler shop instead of getting an estimate on my muffler, because I don't like to wait. I checked drudge, I checked Google news, i mean news.google, I even checked AP, but nobody had full results last night. I expect more. I'm not saying my desires are reasonable or rational, it's just what I want. Anyway, it's a Clinton v Trump v Johnson race now.
I assume Bernie will keep a poker face until the convention.
11 pm update: it was New Mexico. http://whatever.scalzi.com/2016/06/08/clinton-and-sanders-and-the-end-of-the-road/

Tuesday, June 07, 2016


Assuming the governor signs the bill as expected, Illinois becomes 5th state with automatic voter registration, joining California, Vermont, West Virginia and Oregon.

Final democratic primaries are today. It looks like Hilary takes California based on her lead in early voting by mail. Also expected to take New Jersey, could split the others or they might go Bernie,
but at the end of the day she'll have the nomination wrapped up.

Monday, June 06, 2016

Jurisdiction noted in 15-680, Bethune-Hill v. Va. Board of Elections. Issue is racial gerrymandering in state legislative elections. - See more at: http://live.scotusblog.com/Event/Live_blog_of_orders_and_opinions__June_6_2016#sthash.KV2pUR27.dpuf

It is "jurisdiction noted" because it went to a three-judge panel, which found racial gerrymandering; the three-judge panel decision can go directly to the Supreme Court in what is called a mandatory appeal. 


Decision below https://scholar.google.com/scholar_case?case=12720423399528970207&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Friday, June 03, 2016


'Tramps Against Trump’ Will Trade You Nudes for Voting This Election.

Tramps against Trump is the American subsidiary of Sluts against Harper.
Question: Is nudes for votes legal, either federally or in CA? Discuss. Show your work.

snafu: nhttp://www.baltimoresun.com/news/maryland/howard/ellicott-city/ph-ho-cf-elections-strategy-rethinking-20160603-story.html
"This was a perceived election snafu. The website went down. All the results were in. It is what it is. The first time around, there will be some glitches."
The 28 million dollar "election system uses COBOL, a computer programming language designed in 1959 that stands for Common Business Oriented Language."


New lawsuit filed over long lines on election day


Arizona AG hires independent investigator to probe election problems

Trump rally menaced by protesters. I picked this photo because it's cute, but I'm not endorsing the violence that followed. 
Meanwhile, Amy Schumer, niece of NY Senator Shumer, supports the right to bare arms.

Tuesday, May 31, 2016

Today I watched "All the Way" with Brian Cranston as LBJ. It was pretty good, which is good enough. I say that as someone who has read and forgotten 50 books about LBJ, and thinks that Breaking Bad is the best TV show ever. I watched an online bootleg I won't link to. It's on HBO.
It was a little heavy handed in showing race as the only issue in the LJB administration, but I suppose that's to be expected from Hollywood. I don't think Bobby Baker was in it at all, and Bobby Kennedy was mentioned but offscreen.
The best of those books was Robert Caro's, the Path to Power, Master of the Senate, etc. Still waiting on volume 5.

Monday, May 30, 2016

illinois considers automatic voter registration. http://www.theeagle.com/news/nation/the-latest-automatic-voter-registration-endorsed-by-panel/article_75b527bc-3b12-5d08-a063-e070c0f6541a.html. I drove through illinois this morning.

Memorial day post featuring Tiffany Trump. 

barron von trump, 9.

Gary Johnson, William Weld, each nominated on second ballot.
I was at work in Nebraska yesterday so I didn't get to the convention. The Nebraska gig paid well,
and I got to work on a potential disclaimer lawsuit while there, but yesterday's meeting could have been handled with a phone call, so I'm annoyed about missing the convention - it was a good one.


Photo voter ID Jim Crow

Friday, May 27, 2016

senator travels to future to meet garland.

Thursday, May 26, 2016


Wednesday, May 25, 2016

updating this post, http://ballots.blogspot.com/2016/04/counsel-matthewmonfortonyahoo.html
plaintiffs won at least part of their lawsuit, but i don't find the ruling online free so i haven't read it.
HELENA — A federal judge has once again struck down a law that requires candidates who criticize the voting records of another candidate to offer details on the vote.


the 5th circuit en banc oral argument in the texas voter ID case.

The state was asked if there's a case that gave injunctiuve relief in an as-applied challenge.
not sure if that's how it was worded. state says no. but later one of the judges mentions citizens united, which is a such a case. this post needs work, but i wanted to jot it down before i forgot.

Third, the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. - CU.

Tuesday, May 24, 2016


Meet the expert witnesses testifying in Wisconsin's federal voter ID trial

this entry was picked up by electionlawblog, http://electionlawblog.org/?p=83096

Monday, May 23, 2016

Obama, Bourdain, in Vietnam.

“Will Democrats Try To Beat Trump By Discouraging Conservative Voters?”


   Democrats, i.e. Hillary, can increase their chances in the general election by helping to make sure that third parties are fully included, both on the ballot and in the campaigns.
Hillary no doubt remembers 1992, when Ross Perot split off enough votes from Bush to put Hillary in the White House with 38% of the vote, and 2000, when Ralph Nader split off enough votes from Gore to put a Bush back in the White House, with was it 48%, with a little help from the court.

  Her main tool in that process is the debates. Hillary should approach the LWV to sponsor debates, and decline to participate in the HighlyPartisan Debate Commission events. 
Debates that include Libertarian Gary Johnson, and his running mate Bill Weld - assuming as I do that they will be the nominees at the convention in Orlando this month, which work keeps me from attending this year, will lift Johnson out of the 1% range into maybe 3-8%, which could be the boost Hillary needs, if any. 

   In order to make this strategy seem less like the ploy that it is, Jill Stein of the Greens should also be included. That would give an option for those who want to vote for a woman who isn't Hillary, and be an outlet for disaffected Berniephiles. I don't think Stein's numbers would offset Johnson's by enough to matter. Johnson and Weld have both served as GOP governors, making them credible alternatives to the anti-Trump faction. Both are known as moderates, while the Libertarian platform appeals to some farther-right Republicans. Johnson also has an edge with the pro-pot vote, which is non-trivial as we've seen in places like Colorado and the West Coast states,
although this makes it easier to treat him as a fringe candidate.  

 I do not see Johnson getting Perot-like numbers, but getting into Nader territory is doable.
Although Johnson would siphon off some Hillary votes, he mainly represents an alternative to Trump. Not a strong alternative, since I don't think anyone thinks he can win, but is a "send a message" type candidate, as Nader was.

   Another thing Hillary could do would be to include Johnson (and Stein or at least "other") in her polling. This will make her numbers and his look better, and more accurately reflect the real race.
Polls which list only Hillary and Trump introduce a margin of error that can be avoided, because they do not reflect the actual choices voters have.

  I would be likely to vote for Johnson over Trump if they let me vote, but they generally don't. Absentee voting might be an option this year depending on my work schedule. Anyway, if the Hillary campaign treats Johnson as a serious candidate, so will enough of the media, and then so will enough of the people. Hillary is not known for taking my campaign advice, but I won't be the only one saying these things. The debates are key, and polling is a way to justify debate inclusion.

update: this story says many of the same things i said here, and says that fox has Johnson at 10%, which seems high. Ok, the cite it gives is rewritten LP press release.
This article http://www.vox.com/2016/5/24/11740210/libertarian-party-2016 has a lot of insider baseball on the Johnson-Weld race. I didn't know, for example, that Weld had the LP nomination for governor of New York in 2006, but then dropped out, costing the LP ballot status in that important fusion state.


Austria elects a Green as president, a largely ceremonial office, in a squeaker against the nationalist Freedom Party. Sometimes a handful of votes matter, which the poll taxers behind voter ID are counting on.

Friday, May 20, 2016


85% of those denied ID in WISC are black or hispanic, according to testimorny in this week's trial.
The Wisc plaintiffs are doing a great job of presenting evidence at trial.
I wonder if anyone nationally is collecting all this evidence, so it could be shown voter ID is a national conspiracy to harm the integrity of the election process.
It had to be fought state by state, but not in a vacuum.
Voter ID just lost a round in VA, which will now get appealed.
Next week Texas voter ID get reheard en banc.

Tuesday, May 17, 2016

A court has preliminarily enjoined Kansas from its voter disenfranchisement program, as it should have. This isn't the same as voter ID, but it's related.

There's a moderately big controversy right now over disclaimers, involving some of the usual suspects, the FEC, CREW, Vice Chair Ann Ravel, de facto leader of the pro-censorship wing of the evenly split FEC.


Instead, in a sign of how toxic American politics have become, it spawned unbridled ugliness, including death threats that have drawn the attention of law enforcement.

"“Die, fascist, die!” one anonymous person wrote to Ravel in an email reviewed by the Center for Public Integrity.“Hope you have a heart attack,” read another email.
“Go fall down about ten flights of stairs,” yet another person wrote.
Other threats, while less overt, are equally disquieting."

But these are not threats. True threats are not protected by the constitution. Public criticism of corrupt public officials is. If the cops are involved, I want to know who called them, and exactly what the text in question was. OK, partial answer, in 2014 Edward Holder (that's not Eric Holder) contacted the feds, and now she has access to security goons as needed. They won't say if there's a renewed investigation about more recent comments. 

"I'm going to push you down the stairs" is a threat. "I hope you fall down the stairs" is not.
I'll need to look into this a bit further. Maybe true threats were made, but not quoted.
It is reasonable of the internet tell Ravel to keep her hands off. I've testified to the effect three times, first in the 1998 Leo Smith AO,and then in two subsequent requests for comment on internet policy.
What sparked this particular round involves yet another false complaint by CREW, alleging express advocacy where the wasn't any.
Ravel's statement of reasons.
I'm somewhat confused about what the facts are; is it about some broadcast commericals, or is it about the internet? Apparently both. She's also separately written about wanting to convene another study of the internet. http://eqs.fec.gov/eqsdocsMUR/14044363872.pdf
Lee Goodman responds http://eqs.fec.gov/eqsdocsMUR/14044363864.pdf (to the 2014 case.)

The express advocacy "loophole" was created by Buckley v Valeo. Valeo recognizes that regulation of political speech is problematic for First Amendment reasons. In an attempt to save the statute, the court construed the regulations narrowly, to reach only express advocacy. In later cases, such as McConnell and WRTL II, the Court has redefined express advocacy so it no longer need be express, or advocacy. Whereever the court, or the Commission, draws the line, groups like CREW stand on the other side of the line, making accusations that are false but have some plausible truthiness. They do that in order to chill the speech of their enemies. Generally, CREW considers anyone with enough money to speak effectively as an enemy. So the Valeo experiment was a good attempt at a saving construction, but it hasn't worked. The Court should go back and find that such regulations of political speech are unconstitutional, whether express or implied, whether about issues or candidates,
whether advocacy or neutral newsreporting, all of it is and should be protected by the First Amendment and perhaps substantive due process, equal protection, and the P+I clause.

Ravel is wrong, again. She's like a 1950s school librarian wanting to tell everyone to shush, of fill out more forms and permits in order to be allowed to speak, but that's not what democracy looks like.

Ravel is not the only person facing death threats these days. Bernie Sanders supporters are upset that the Nevada state caucus to select delegates was apparently rigged by a pro-Clinton faction. The chair is some kind of kinfolk of Clinton, I forget the exact connection but there is one.
I'm not advocating death threats or thrown chairs but it seems the Sanders people have a real beef.
I am not a fan of abolishing the caususes. I think they are as close as we get to a national town meeting. It is in the interest of the parties to conduct their caucuses and conventions fairly.
Ron Paul's supporters I think at times felt they were not treated properly at caucuses, and the enthusiasm of the Paul supporters did not carry over to the general election, and the GOP lost.
There were concerns about how the GOP convention would treat Trump and Cruz this year, but Trunp has solidified his victory, at least to the point where he'll get the nomination.
The Clinton faction needs to avoid alienating the Sanders supporters, so stunts like rigged caucuses don't help. I wasn't there, haven't studied the videos, and my sources are mostly reddit scuttlebut. But I suspect there is something to the anger.

Monday, May 16, 2016


This article points out real problems with Maryland's voter intergrity. Voter ID is the wrong solution, but the problems are real.


Roll Call should know better than this. There is no residency requirement for congress, other than living in the state.

A newspaper article from South Bend Indiana cites one of my cases, the 7th circuit part of Stewart v. Taylor, where the court said only one of my nominations counted.
In Taylor, I was trying to get the court to issue an injunction based on the idea that Timmons v New Party was currently before the Supreme Court. I didn't succeed in getting my lawyer to understand and argue that point. Even today I don't know if my legal theory was good or not.
The 7th circuit treated the case as a ruling on the merits rather than just a request for preliminary injunction, and ruled against me, and then the Supreme Court squashed New Party like a bug in a really hostile opinion. Stewart v Taylor did end up winning on a separate issue about political signs.
The plaintiff here is pro se and I have little hope of him prevailing. His best argument is the state constitution's free and equal elections clause, but he probably won't even cite to it.

Sunday, May 15, 2016


Saturday, May 14, 2016


witches for bernie

cal secretary of state opposes voter ID. my guess is he's a democrat.


The facts that aren’t being talked about are the ones that matter most. 1) Voter ID’s are usually processed through the Department of Motor Vehicles, making the voter’s current address public information; available to law enforcement and creditors.
This is an argument we haven't heard much in the voter ID discussion. I had a friend who went from running for statewide office, to not being registered to vote, because he felt, correctly, that there were people looking for him, and he didn't want to be easily found.

Thursday, May 12, 2016

voter ID's trend is to go digital.

I think I recognize two of these 4 horsemen, Pence and McConnell. Not sure about the other two.

Bernie wants to make college free.
Hillary merely wants to make community college free.
But you can join the electoral college alumni association free today.
Mo Rocca models the tshirt.

Tuesday, May 10, 2016

Some see the contest at this point as a choice between the lesser of two evils.

On one side, there's a new york billionaire friend of wall street who has served on the boards of major corporations, and gotten famous in the tabloids and "reality" television for shady real estate deals,
risque publicity stunts and hairstyle.

On the other, there's Donald Trump.

Monday, May 09, 2016


"You have to be a citizen to vote," but with same-day voter registration, "you have places where people just walk in and vote."

Donald Trump on Sunday, May 8th, 2016 in an interview on 'Meet the Press'
Donald Trump wrongly says noncitizens can vote when there is same-day voter registration.

Trump is right and Politifact is wrong.
Trump is known for being a blowhard and a liar, but he's not wrong here.
His claim is that 1) there are places 2) where non citizens walk in and 3) vote.
So for this to be verified there would need to be at least two places and least two non-citizens who vote. That's a verifiable claim.
Politifact tries to change his claim around to add a bunch of terms and conditions, but that's not what he said. My guess is that he has in mind Wisconsin, where "vouching" was used to let people vote without ID. I think, but I'm not sure, that Wisconsin got rid of vouching because it enables fraud.
It is not impossible for noncitizens to get ID, either legally or otherwise. There are factors that discourage them from doing so, and a rational non-citizen would be deterred, but not everybody is rational.  In a county of some 330 million citizens, and maybe 15-30 million non-citizens, it would shock me if at least two of them didn't vote. There are safeguards that make this rare, but not impossible. Allowing election day registration removes some of those safeguards, while promoting
wider participation. Tomorrow is election day here in Nebraska. There's no election-day registration, the cut off was last month. I'm not a citizen of Nebraska, I'm just passing through, but if there were same day registration I would have been able to vote here.
Many of us have seen the videos of how same day registration in New Hampshire enabled carpetbaggers to vote in the important New Hampshire primary. Generally that was Americans from out of state rather than non-citizens, but I'm not sure how they check.

Politifact is owned by a newspaper, the Tampa Something or Other, Tampa Bay Times, which in turn is owned by a school. It is not unusual for newspapers and colleges to skew strongly Democrat,and have few or no Republicans. My guess is there is no partisan parity at Politifact, that it is staffed disproportionally by liberals and Democrats,and that had harmed their ability to objectively check facts.

I have not specifically checked the partisan affiliation of the staff there; this is a hypothesis on my part. But I'd bet even money it checks out.

Trump seems to think so too.
"And PolitiFact which is by the way is a totally left-wing group. They are bad news as far as checking. You can tell something 100 percent and they can make it out to a lie if you're a certain person. So PolitiFact didn't like the idea that I said dancing on rooftops, dancing in the streets." I'm not citing him to try to prove my point, only saying that my insights are not original; I assume it's obvious to many people that they are biased and not reporting facts.

Friday, May 06, 2016

In the usa, there are limits on contributions to candidates.
In the UK, you can give all you want, but the candidate doesn't get to spend it.

note to self, read amicus briefs in frank v walker

Thursday, May 05, 2016

Justice Brennan's papers become public next year. I'm not sure when next year.
We don't know yet what will happen with Justice Scalia's papers.

Hava grievance form. So i'll need to download that and get it notarized.

Tuesday, May 03, 2016

live from union station ballroom indianapolis, Ted Cruz just told me he's dropping out of the race for president. i'll put up the audio tomorrow.

the audio isn't very good, so i'm not going to post this after all. but i was there.

Practical advice from Josh Douglas about using checklists to reduce poll worker error.
I'll need to find that TED talk on using checklists to reduce deaths in hospitals.

Videos showing how voter ID doesn't work in Indiana.
update: ok here are the 6 videos as one playlist. i think this should work.
there's some dead air in a few of them, maybe i'll get a tighter edit later.

Today I went to vote at the firehouse down the street. As I have been doing since 2006, I declined to show ID.
I was not offered a provisional ballot, just told I couldn't vote. This is how it usually goes, although results vary.
I went to the voting warehouse office and discussed things with Jenny at the front desk.
She told me that I should go back and try again, and give them a call so they could explain things.
So I go back and call, but the precinct boss refused to talk to the election board lawyer who was on my phone, and instead ordered me to leave the building, so I left.  I did get a call about 4:45 that they had got it straightened out and I should go back a third time, but by then I was miles away and it was not practical to get there by 6 pm.

I would be interested in people's opinions. Do I have standing? Do I have a case on the merits?
It may be complicated by some preclusion issues, because this is not my first time at the rodeo, but the facts seem like they may be different enough. This is the first time I got it all on video.
In a previous case, the election official gave perjured testimony that I had stopped in but left so quickly she couldn't offer me a provisional ballot, which is not at all what happened.

I am very self-conscious about my appearance, but I am willing to put up these videos because they tell a story that I think is important, how voter ID actually works, which is different from how it is supposed to work.
It might, or might not, provide the kind of as-applied challenge I've been looking for.

update: linked at hasen. http://electionlawblog.org/?p=82566

Monday, May 02, 2016

legislative history of voter ID:
Discrimination! Why that is exactly what we propose. To remove every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.”

Friday, April 29, 2016

I actually liked Obama's rant today.
http://www.solitudelakemanagement.com/blog/stocking-minnows-a-natural-method-for-mosquito-control. Oops wrong link. http://electionlawblog.org/?p=82427

If I'd gotten up earlier Bernie Sanders was in town giving a talk at the statehouse.
The primary is Tuesday and I don't know whether they will let me vote. Last time they did, usually they don't.


Thursday, April 28, 2016

william barber in nyt
he's a guy i know who is at the center of the struggle against n carolina's voter discouragement practices.

Wednesday, April 27, 2016

"Today the Court will hear oral arguments in the challenge by former Virginia governor Bob McDonnell to his fraud convictions." It already happened, but oral argument audio or transcripts aren't up yet. I've been reading some of the briefs. It looks good for McDonald. I don't know if it will be any help to Blagovitch or Charlie White or other politicians who have been convicted of being politicians. McDonnell is guilty, but not for what he was convicted of.

Tuesday, April 26, 2016

"We believe the judge's decision is wrong," said the Rev. William Barber, state NAACP president. He called the ruling "almost 500 pages of rationalization for the intentional race-based voter suppression law that everybody knows was written to suppress African American votes."

A possible path for the North Carolina case:

It goes next to a panel of the 4th circuit, probably the same panel as before. While stuck with the trial court's findings of fact, they are likely to see the law differently. Wild-ass guess rather than close study suggests they may reverse part of the this case. My focus is mostly on the voter ID issues, but there are a bunch of live issues in the case. If it ends up being Hillary v. Trump, North Carolina shouldn't matter much, but that's too soon to say.
 Then, it goes either en banc (in which case who knows) or to the Supreme Court,
where I would count Breyer Ginsberg Kagan Sotomayer as 4 likely votes to uphold,
with the Chief and Kennedy being flexible, perhaps seeking a narrow ruling, and Thomas and Alito opposed. Of course if President Trump appoints Cruz, that could be a different ball game.

"[A] lawyer who represents himself has a fool for a client." Marion County Election Board and Marion County Board of Voter Registration, Appellants-Defendants, v. Gregory Bowes, Mark King, Paul Ogden, Zach Mullholland, and Brian Cooper, Appellees-Plaintiffs.(In.Ct. App. 5/26/2016)

This was a public records act case to get the voter lists for Marion County/Indianapolis.
Pro se lawyer denied legal fees. It looks wrong to me if he represented not only himself,
but Ogden and Mullholland, which seems to be the facts. Those are familiar names; they have both won against the board before. So Bowes is out about $40K because he didnt leave his own name off the filing.

Sunday, April 24, 2016


The latest data breach involves the voting records of 93.4 million Mexican citizens

Dances-with-Obama department.


Saturday, April 23, 2016

Hall noted that the preliminary data that show 29,000 voters used the two provisions also reveal that 1,320 ballots were rejected because voters did not provide proper ID to poll officials.

Finally some North Carolina data. Is there any way to know how many of each party?

update: the decision in the N Carolina voting rights case is for the state, as expected. less expected, it's over 400 pages. 
It's not that 29,000 people will be disenfranchised; the state will argue they can just adjust to the new methods, that inconvenience is not severe burden. But actual numbers help plaintiff make their case.
1320 is non-trivial.

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