Friday, December 14, 2018


The Ramsey County sheriff-elect has been ordered to pay a $500 fine for violating campaign rules.
State officials said Bob Fletcher was found guilty of failing to put proper disclaimers on his campaign signs, his website and a campaign video posted on YouTube.


Jena C. Reed
554 Arrowhead Dr.
Lino Lakes, MN 55014
lawyer for fletcher


Thursday, December 13, 2018

my friend rick hasen's slate piece,
https://slate.com/human-interest/2018/12/ted-cruz-beard-is-good.html, oops wrong link,
is troubling at some levels.

hasen is the dean of election law reporting. his blog is the best site i know for the latest happenings in the campaign finance wars, other than his twitter.
he advocates, among other things, that election administration should be carried out by neutral nonpartisan civil servants, a sort of deep state that is above the fray. [think brian kemp, kris kobach, or governor dan ryan, as to why that might be a good thing.]
as long as they are liberal democrats from harvard, yale, or berkeley. i'm reading between the lines there; he doesn't say that. nor is he literally a dean, he's a professor. 

if his slate piece, labeled as news, was to be taken as reporting, objective, neutral, nonpartisan, making claims of fact, he might be open to defamation claims, along the lines of peter thiel's takedown of gawker. after all, he tosses around terms like false, sham, illegal,
that could be labeled defamation per se or per quod.
such claims aren't easy to win, under the nyt v sullivan standards, involving as they do public figures and public concerns. a plaintiff would have to show deliberate falsity, or reckless disregard for the truth,
but they are easy to bring, given deep pockets. 

i think the better view is that this is an opinion piece, a zealous argument, not for a client, but for a worldview. it is one i don't happen to agree with; i'm on brad smith's side of the debate. hasen has a limited view of the first amendment. he prefers equality over freedom. sometimes that clouds his understanding of the distinction between what the law is, and what he wants it to be.
but it is a debate. the interplay between hasen's views and smith's makes for provocative, robust, discussion. 
by his own rules, hasen could do more to be transparent, and
make his advocacy more express. we are not yet ready for neutral nonpartisan election adminstrators. for every hasen, we need a balancing smith. that's how the fec is set up, with checks and balances some call deadlock.

now this looks really interesting.

i think of both of these guys as friends. it's a rainy gloomy day and i like to kill time with podcasts when i'm avoiding work. i posted the link to brad's piece yesterday, then got the chance to read it, and was convinced. i'm not sure i know rosen; i'll stereotype him as a liberal posing as a neutral moderater until i'm better informed. hmm, the constitution center might be for genuine dialog. yeah he was ok.

smith made two important points in his article:
i paraphrase.
1. the media is so anti trump he's damned if he does and damned if he doesn't. if trump had used campaign funds to pay off bimbo eruptions, that would be called self-enrichment and corrupt, a la the emolients issue. instead, they are calling it illegal coordination.
smith says, correctly, that the first amendment prohibits reading the statute that way. 
2. he then claims that the court has said only express advocacy counts as an expenditure, in line with buckley v valeo.
jim bopp is the expert there. 
complicating things, both smith and bopp can be testy at times, and there's been friction, on a listserve we are all on that hasen runs.
they are all major players in the grand game. i kibitz from the sidelines, with a foot in each camp. 
i think smith is right about point 1, and i'm currently unsure how well point 2 fits.
ok, that's my intro, more notes after listening. eh, i'll let it speak for itself. good job by all. great rainy day listen. i added a separate post for my reactions.

Brad Smith and Rick Hasen Join Podcast with Constitution Center’s Jeffrey Rosen to Debate: “Cohen, Trump, and Campaign Finance Law”

This is the podcast you’ve been waiting for:
President Trump’s former lawyer Michael Cohen was sentenced to three years in prison after pleading guilty to several crimes, including illegally making hush money payments to two women alleging affairs with then-candidate Trump. On this episode, campaign finance law experts Rick Hasen, a law professor at UC Irvine and co-editor of Election Law Journal, and Brad Smith, former chair of the FEC and Founder of the Institute for Free Speech, debate the campaign finance laws at issue, explore precedents like the John Edwards case, and consider possible legal liability for President Trump. They also dive into other current election and campaign finance law issues, including the case involving Donald Trump Jr. Jeffrey Rosen hosts.
You also might want to read my Slate piece, and Brad’s piece at NRO.


Wednesday, December 12, 2018



Robbin Stewart, arguing Indiana’s voter ID law constitutes unlawful search and seizure, is fighting against the state law that requires voters to show their picture at the polls. (IL Photo/Eric Learned)
Indianapolis attorney Robbin Stewart was raised to value the right to vote.
In his home state of Delaware, Stewart watched his mother work as a citizen lobbyist to protect the environment, and he got his first taste of political activism when as a 10-year-old he joined the campaign of a man running for state representative. He earned his J.D. degree in 1993 at the University of Missouri School of Law and then completed an LLM on state constitutions and voting rights at the University of Missouri-Kansas City.
However, since 2005, when Indiana started requiring voters to show their picture before casting a ballot, Stewart has had trouble. He wants to vote, but he does not want to show his photo ID.

Pointing to his own experience, Stewart asserted that in practice, the election officials are not abiding by the law and voters who do not have proper identification are being prohibited from casting any kind of ballot.

I urgently need counsel for this case. I have the smoking gun video and documents, and a properly filed case, but I am outlawyered.


dj trump and the first amendment.

trump has run into trouble with courts for banning twitter users.* he's likely to run into more trouble with peaceful protestors coralled into speech zones. i've heard him talk about the first amendment, with a bit of a mocking tone, if i hadn't imagined that.

but the first amendment may turn out to be trump's best friend, at least when it comes to cohen, bimbo eruptions, and tabloids. trump is accused, at least by certain of the media, of criminal campaign finance violations. his defense lawyers, if it gets to that point, can point to the press exception, the principle of leniency, the constitutional avoidance maxim,  and then the first amendment.

citizens united was about hillary. it could be a nice irony if trump ends up protected by the constitution he seems to mock. or maybe he's even sincere; he said he valued the second amendment, but the first amendment is important too. he wasn't wrong. i will try to track down his remarks.

instapundit: BRAD SMITH KNOWS A BOATLOAD ABOUT ELECTION LAW:  “Michael Cohen Pled Guilty to Something That is Not a Crime.” Posted at 10:59 pm by Gail Heriot 
that's how i see it too. the headline that is; i have not yet read the article.  

Wednesday, December 05, 2018


Monday, December 03, 2018

i had my picture taken today for a forthcoming article in Indiana Lawyer, in front of the federal courthouse in indianapolis, where my case is being heard by magistrate lynch.

while downtown i applied for a job as a bail disruptor with the bail project,
since i need a job, and the bail project is something i believe in. in this county, this state, and this country, bail is used to punish the innocent, and compel 90% to take plea bargains, usually for time served, instead of ever getting a trial.
for those who can afford bail, the conviction rate faalls to 50%, if the statistics i saw today are true. i got the info for the job from a local pastor who i have been trying to get signed up to join me in doing prison ministry.

Nevada Question 5
Allow Automatic Voter Registration
Establishes automatic voter registration to eligible people during issuance or renewal of driver’s licenses, identification cards, or an address change is requested on either. A “YES” vote enacts automatic voter registration. A “NO” vote does not enact automatic voter registration.

Sunday, December 02, 2018

georgia runoffs and a do-over. the run-off in the secretary of state's raceisbecause of a libertarian, who has now endorsed the democrat.
If the libertarian had gotten17,000 more votes in the governor's race, stacey adams would now be in a run-off. that's something the emocrats should keep in mind when planning debates and doing targeted direct mail.


Saturday, December 01, 2018


Friday, November 30, 2018

ho ho ho

Motl, Overreach, and the Supreme Court.
update: but wait, is it motl, or mangan? who's on first? ok it was Motl at the 9th circuit, now a new guy holds the office.

Lair v Motl may, for the first time in a generation, directly challenge the Buckley v Valeo paradigm that has ruled election law since the mid-70s, when Brennan and Marshall often found a 5-4 majority. Or not; the court may pass on the case or address a narrower set of questions.

But there seem to be 5 confirmed federalists ready to take on the agenda of restoring the lost constitution from exile. Major players in this game of scones include James Bopp, the Institute for Justice, Denver's independence institute, the Koch Brothers, and the Volokh Conspiracy.

To be clear, I am an ardent fanboy of these organizations, even if I was and am inspired by Marshall and Brennan.

These groups have an agenda, and now they have the judges. But they still need cases and controversies, to get their pet issues before article iii courts. So this post, or essay, or rant, is about overreach.

McCain - Feingold, bcra, bic-ra, is the canonical example. The reform faction cheered when Bush signed the bill even while expressing concern about its constitutionality. They cheered again when McConnell v FEC mostly upheld the bill. But the result, orchestrated by Bopp, was Citizens United, which overturned the anomolous Austin v Michigan Chamber of Commerce. The significance of McConnell was the strong dissent by Justice Scalia. The reform faction had overreached.

Maybe we are seeing something similar with voter ID in places like North Carolina, Missouri, and Arkansas. Maybe not. Each amended its state constitution to reimpose jim crow obstacles to voting, now that section 5 of the voting rights act is gone. Section 5 held that any state that voted for Goldwater in 1964 must obtain federal permission to  change its voting procedures.
The recent cases from  cole county missouri, home of jefferson city,
suggest that Jay Ashcroft has overreached. North Carolina seems on the brink of similar overreach. I digress.

This is a rant about Motl. I think it's Jonathan
Motl. As top censor of election speech in Montana, he is understandably motivated by that state's history of robber barrons, big spending, and corruption.
But didn't he already get benchslapped in Western Tradition?
Motl, time after time, is over-reaching, going far beyond what the first amendment allows.
In so doing, he is setting up the kind of cases Jim Bopp looks for.
Ellen Weintraub take note.

Undercutting my argument here is that motl is only the most recent officeholder in the case; it started years ago. but he has made himself a target by his shenanigans.

ballotpedia: Jonathan Motl was the author of two initiatives proposed for the November 2008 ballot in Montana, the Montana Home and Community Care Act (2008) and Montana Healthy Kids Plan Act, I-155 (2008).
Motl was partner in the law firm of Reynolds, Motl & Sherwood in Helena, Montana from 1982 through 2013. In 2013, he was appointed to the role of Montana Commissioner of Political Practices. He is a member of the State Bar of Montana, Montana Trial Lawyers Association, and the Association of Trial Lawyers of America. He serves on the boards of the Montana Justice Foundation and the Montana Public Interest Research Foundation. In 1979-1981, he was a staff aide to Ralph Nader.

Just as Nader was called a spoiler in Bush v Gore, Motl, and his successor, may be a spoiler in Montana's scheme to defy the first amendment and the supremacy clause.

Federal Civil Practice Update for the Southern District of Indiana

Friday,  December 14, 2018
1:00 pm - 1:30 pm
1:30 pm - 4:45 pm
Barnes & Thornburg
11 S. Meridian St., Indianapolis
December 7




John Maley, Barnes & Thornburg, Program Chair


Offer Korin, Katz Korin Cunningham


Program Topics:

2018 Developments in Federal Rules and Local Rules, and Key Case Law — John Maley, Barnes & Thornburg & Offer Korin, Katz Korin Cunningham


Report from the Chief Judge, Chief Judge Jane Magnus-Stinson, U.S. District Court, Southern District of Indiana & Judge Richard Young, U.S. District Court, Southern District of Indiana


New Judges Panel, Judge James Sweeney, II, U.S. District Court, Southern District of Indiana & Judge J.P. Hanlon, U.S. District Court, Southern District of Indiana


Magistrate Judges Panel, Magistrate Judge Debra Lynch, U.S. District Court, Southern District of Indiana & Magistrate Judge Doris Pryor, U.S. District Court, Southern District of Indiana


Clerk's Report, Laura Briggs, U.S. District Court, Southern District of Indiana

No refund will be given for cancellations received after the RSVP date.
Questions? Contact Karen Aruta • (317) 472-5201 • karuta@ibj.com

Boone Circuit Court: Republican Lori Schein defeated Libertarian challenger Pam Buchanan by a margin of 67 percent to 33 percent. Schein will succeed retiring Boone Circuit Judge J. Jeffrey Edens.

St. Joseph Probate Court: Incumbent Republican Judge James N. (Jim) Fox lost to Democratic challenger Jason Cichowicz in the state's closest judicial race. Cichowicz squeaked out a victory by a margin of 50.3 percent to 49.7 percent — fewer than 600 votes out of more than 90,000 cast. The result was revised after St. Joseph County reported updated numbers Wednesday that included some 22,000 early and absentee ballots that had not been initially counted. The probate judgeship race was one of three in the county in which the result was reversed after early and absentee ballots were counted. Initially reported results showed Fox retaining his judgeship by a margin of 53 percent to 47 percent.
- indiana lawyer weekly

33% is pretty good for a libertarian for judge. it's not unusual in boone county for a liberttarian to come in second. i don t know hpw many votes they got.



Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states.

this is a landmark case either way it goes. incorporation doctrine is a key issue of what the constitution means. and it's about indiana - white guys on drugs are so many of my neighbors here on e washington street, the national road as it passes thru indy. and it's by the institute for justice which has been waging a campaign to bring economic rights under the constitution. i am a rabid fan of ij so my coverage is biased. this is not an election law case, but it could affect, for example, california's excessive fines for disclaimers, disclosures, etc.

i may update later with links to local coverage.

Thursday, November 29, 2018

thomas farr's nomination as a federal judge went down in flames today possibly in retribution for his role in zealously advocating for a voter id program the courts found racist and unconstitutional. something something chickens coming home to roost. a deciding vote was that of a black senator from south carolina.
jeff flake, retiring but not shy, was another vote.

today i had a very good hour long meeting with a reporter from indiana lawyer
about my voter ID case. i'm hoping for an article in a december issue, likely the 14th. i was covered by vice on hbo recently, but on a different issue entirely, a segment about medical research and human subjects.

farr joins a stellar cast which includes at least kansan kris kobach, wisconsin's scott walker, indiana's todd rokita. it is too soon to assess the long term electoral implications of pushing unconstitutional voter obstacles seen as a racist or classist or just anti-democratic [small  d]. but it might serve as a warning sign.


Monday, November 26, 2018






Saturday, November 24, 2018


so the dems flipped about 40 seats in the midterm, with comparable results at the local levels. that's the preucte blue wave. a few, but few now, races are still being counted.


delbert lies again
The margin was more in her favor in Lincoln County as the former state agricultural commissioner took 62.32 percent of the vote to Espy’s 28.52 percent. McDaniel and Bartee took less than 10 percent of the vote in Lincoln County.
Secretary of State Delbert Hosemann urged voters to return to the polls for the runoff election.
“We had a great turnout on Election Day and we are hoping to see a repeat on Nov. 27,” he said.  “The only way for your vote not to count is if you do not cast it.”
Other important information for Runoff Election Day includes:
• Voter Photo ID: Voters are required to show photo identification at the polls. A voter without an acceptable form of photo identification is entitled to cast an affidavit ballot. An affidavit ballot may be counted if the voter provides an acceptable form of photo identification to the Circuit Clerk’s Office within five business days 


they sent a voter card with a bar code to each registered voter. that might be ok, so long as they keep a backup system in place. that's morgantown's county i think, the place with the monorail.

Wednesday, November 21, 2018

People think i'm crazy, not without some justfication, fo rfighting so hard to get my one vote counted. Other than abstract prnciple, why does one vote matter?

in alaska right now, there is a 2,000 something tie for a house seat, which coul leave the state house tie between gop and democrats. when there s such a tie, it's too late to go back and fix broken parts of the election system, you work with the data you have to count the votes you have, as well as you can. do-overs are very rare. 

In the nail-biter of a race for House District 1, Republican candidate Bart LeBon and Democratic candidate Kathryn Dodge are tied with 2,661 votes each following a review of all in-person ballots by the bi-partisan State Review Board and an initial count of absentee ballots.

the time to fix a flaw in the electon system is before you have a race wiithin the margin of litigation.

indiana's voting system is flawed.
voter ID was never really about the photo.
it's about the bar code on the back, so that the id can be scanned, and quickly and efficiently spit out the right ballot for that voter, sometimes at a centralized voting facility, instead of at the local precinct where people know each other.

but in johnson county indiana, the computer broke down for two hours, and the poll workers had forgotten how to issue paper ballots. some people waited in line. others gave up and went home. i've only been working with computers since 1974 but i have already have found reasons not to blindly trust them. johnson county is not named for lbj, who stole his way into the senate, and used haliburton money to take control of the senate and then the white house,
as documented by robert caro, who won his second pulitzer for his 5 volume bio, a study in power.

In November 2011, Caro estimated that the fifth and final volume would require another two to three years to write.[10] In March 2013, he affirmed a commitment to completing the series with a fifth volume.[11] As of April 2014, he was continuing to research the book.[12] In a televised interview with C-SPAN in May 2017, Caro confirmed over 400 typed pages as being complete, covering the period 1964–65; and that once he completes the section on Johnson's 1965 legislative achievements, he intends to move to Vietnam to continue the writing process.[13] In an interview with The New York Review of Books in January 2018, Caro said that he was writing about 1965 and 1966 and a non-chronological section about the relationship between Johnson and Bobby Kennedy. Asked if he still planned to visit Vietnam soon, Caro replied: "Not yet, no. This is a very long book. And there's a lot to do before that's necessary. I'm getting close to it now."[14]

Tuesday, November 20, 2018

i disagree wth this editorial by bob bauer.
bob does important work in electon protection,
and his blog is worth reading
but as obama's lawyer he was occasionally willing to
be a hired mouthpiece for partisan intersts.
here, the drumbeat for impeachment is being used to promote
a partisan agenda to weaken the institution of the presidency now
that the blue party has retaken the house.
with pence as vice-president, impeachment is the last thing
the democrats should want.

trump is from new york, which has maintained a culture of overt corruption for over 100 years, in the interests of a democratic machine called tammany hall.
obama has links to a smilar culture of coruption n chicago, which he may or may not be part of. trump is right to be suspicious of professional repeat voters. less than 100 years ago jfk's grandfather john fitgerald was expelled from congress for voing fraud. jfk's running mate, lbj, stole his way into the senate.
bill clinton embezzled his way into power, used that power the way bill cosby used roofies, got caught and impeached, and had the audacity not only to win a second term, but to seek a third term via his wife. imagine the uproar if reagan had appointed pat nixon as secretary of state.
at the moment we don't know whether trump is in bed with putin, who may also have colluded with the green party candidate. if putin is controlling trump, he may also have controlled hillary. the threat of possible foreign subversion of american elections is a genuine concern, that should not be played for partisan advantage.
at the fec, a democratic appointee is pushing a proprosal to unconstitutionally censor political speech on the internet.
voters in arkansas and north carolina, followng missouri's lead, voted to impose an unconstitutional poll tax. 
the top priority of the new democratic house is to pass a democratic stimulus package to repeal citizens united, but congress lacks authority to overturn the supreme court's rulings on the constitution, except by proposing constitutional amendents. this is the real impeachable offense, not president trump's confusion in thinking you need a voter id to buy a box of cereal.

protecting democracy should not be a partisan issue. bob bauer more than any other democrat i can think of has won important cases for free speech about elections, and he continues to have my respect. but here he is being partisan, at the risk of a constitutional crisis.


Monday, November 19, 2018

indiana election glitches story roundup





Deanna Kolberg
It’s also important to know that the St Joseph county election email address was changed last year without alerting anyone. The clerks office have no access to the publicly available email address for absentee ballot registration, or absentee ballot submission, and have not posted a new one. This means countless people could have submitted an absentee ballot that the clerks office never received. When asked to change the email address posted at a variety of voter registration sites, including the federal voter assistance program that military personnel use, workers in the office claimed that it was not their responsibility. This is a disaster for voters, and we have no way of knowing how many people have been disenfranchised.


Another person submitted a report Tuesday morning on behalf of their husband about the polling place located at IFD Station #3, 1136 Prosepct Street, Indianapolis. They claimed the voting location paused voting while their husband was in line at 7:30 a.m., in an effort to confirm early voting records for people with last names A-M, as no one in N-Z had been allowed to vote yet. The voter added that their husband had been there for about an hour without being checked in.

i was directly involved in this controversy, but at the time i was on the clock for the marion county election board, so i don't want to tell tales out of class.

Electionland said Charles Stewart from the MIT Election Lab points out that the poll worker training book for Indiana states simultaneously that absentee ballots should be counted after polls close, but if not, the precinct election board shouldn't disclose the results.
"There is no indication why a polling site *would have to close* in order to count absentee ballots."This story started as a tip from ProPublica's Electionland project, which monitors voting problems around the country. If you had trouble voting, or if you saw something you want to tell us about, here's how.
Also, make sure to report issues at the polls to 1-866-IN-1-VOTE (1-866-461-8683) or by emailing HAVAAdministrator@sos.in.gov. Or, call the Hoosier Voter Hotline at 1-866-IN-1-VOTE or the Indiana Election Division at 1-800-622-4941 to file a complaint about your polling place's accessibility or to report you were denied the right to vote or possible fraudulent election activities.

Saturday, November 17, 2018

via rutherford institute

Acosta has received support from press advocates, First Amendment scholars, and the major national news organizations, many of which compete with CNN. Among the media entities that have said they will file an amicus brief in support of Acosta and CNN are the Associated Press, Bloomberg, First Look Media, Gannett, NBC News, The New York TimesPoliticoUSA Today, the National Press Club Journalism Institute, the Press Freedom Defense Fund, the E. W. Scripps Company, The Washington Post, CBS News, and BuzzFeed News.

Friday, November 16, 2018

Noon today, 10 days after the election, Marion County IN held its hearing on provisional ID ballots. 
The meeting had been scheduled for wednesday, then, when I turned in my affidavits on monday, I was told that it was rescheduled for friday at 1 pm. 
When we arrived at 1:12 pm, the board was adjourning, and had already denied all id-related ballots, including mine.
 I had my hand up within moments of the announcement of ajournment, but was not recognized. I was told that there was no opportunity for public comment.
Although they had notice, via the affidavits and my communications with their counsel - I am suing them over two prior incidents where I was  denied even a provisonal ballot - they did not notify me, or,  I think, any of the other challenged voters. they did, no doubt, post a notice on the bulliten board at city hall 48 hours before the meeting, but there was nothing on the county online calendar or the clerk's homepage, when checked about 3 pm.
So I see possible issues under the open meeting statute, due process, and the state constitution's due course of law clause. I don't know if there are hava issues here. They had been warned that if they did not count my ballot, I will plan to bring another lawsuit based on hava and constitutional violations  documented this cycle at the early voting centers.

I plan to update this post with video we took today, and at the early voting centers.

I am unclear if and how the board's decision can be appealed, perhaps through the state administrative procedures act. Since I am currently without counsel,  I doubt I will be able to figure it out in time.


Thursday, November 15, 2018

By cosmic coincidence (or curse), it is Bush v. Gore that is most instructive in this Florida recount dispute. It is a foundational tenet of our democracy that “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104–05 (2000). The Supreme Court emphasized the necessity of a “minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right” to vote. Id. at 105. 


Wednesday, November 14, 2018

As the so-called “second highest court in the land,” the D.C. Circuit Court of Appeals, explained in a case about the First Amendment implications of White House security passes, arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment.”



The Bopp Law firm was founded by James Bopp, Jr. to provide legal assistance to individuals, elected officials, and Political Action Committees ("PAC") navigating the ever-changing fields of PAC LawCampaign FinanceElection LawFirst Amendment and Constitutional LawStrategic PlanningSupreme Court Practice.

Tuesday, November 13, 2018


cnn's acosta sues white house for return of press pass.
is this just grandstanding or does he have a case?
anyone have the lawsuit?

my interest level is high, because i was denied press credentials this cycle, after having them in the spring.
i expect to be filing a tort claim.

Monday, November 12, 2018


Sunday, November 11, 2018

Election Division Newsletter

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