the lie factory
http://www.newyorker.com/reporting/2012/09/24/120924fa_fact_lepore?currentPage=all
new yorker article on political consulting and upton sinclair's race for governor of california.
jeff garlin suggested the article to me in his podcast. i saw jeff at morty's, a local comedy club, recently.
upton sinclair used to live in arden delaware, a single-tax artists colony two miles north of where i grew up.

Senate retirements are at the highest levels on record. Since the 2010 elections, a total of 30 senators have bowed out. And more could come yet. nyt

leaving:
 8 of the 33 whose terms expire in 2014 have decided not to run again.
 Democrats:
Harkin, Iowa 
Carl Levin of Michigan and
Max Baucus of Montana,
 John D. Rockefeller IV West Virginia

 Twenty Democratic-held seats are up in 2014, compared with 13 held by Republicans. And many of those Democratic seats are in states where President Obama lost in 2012 — including North Carolina, Montana, Arkansas and Alaska.

others retiring include
Lautenberg- NJ
Chambliss, GA (GOP)

I would say that the GOP has potential to retake the senate. However, the polling I've seen so far shows the Democrats doing better than the GOP, but the election is a long way away.

 "The Justices of the Supreme Judicial Court of Maine recently considered a question comparable to that presented here. Opinion of the Justices, 306 A.2d 18 (1973). Citing Talley, the Justices there concluded that a proposed Maine statute, requiring that newspaper editorials "shall indicate by a byline the person or persons who have written such editorials", was unconstitutional as an abridgment of freedom of the press (or freedom of speech) in violation of the First Amendment."

I found a joint statement of facts
 http://www.scribd.com/doc/80967017/Cutler-Files-Doc-2

Seems like state-sponsored harrasment of core political speech. I suspect the state's involvement here was unethical, for the lawyers involved, and maybe illegal as a civil rights violation for all the staff and commission who worked on this.

Found the decision (pdf)
 http://www.gpo.gov/fdsys/pkg/USCOURTS-med-1_11-cv-00179/pdf/USCOURTS-med-1_11-cv-00179-3.pdf

First notes:
1. Cutler intervened in the suit. He narrowly lost the governor's race, remains a major player, his law firm merged with Akin Gump, was a Carter administration official. So if I'm right that it was an ethical violation for the lawyers involved in this case, that could affect Cutler, depending on what positions he took.
2. Statute has later been amended to exempt internet. Does not moot case.
3. Opinion makes the disclosure/disclaimer mistake.
4. statute only applies to express advocacy, was there any here?
[update: part of the statute requires express advocacy, part doesn't. I need to review the statute subsection numbers to sort this out.]
5. footnote 9 is colorful:
“Eliot Cutler Called Me a Whore,”
6. Bailey is a journalist: degree, experience, online presence.
7  46,989 hits to site.
 8 Bailey reports that his secretary quit after he went public as the Cutler Files creator because “[t]he situation became so uncomfortable and intolerable.”so there's an NAACP v Alabama type issue.
9 the Cutler campaign filed a complaint - smoking gun.
10 Article I, Section 4 ofthe Maine Constitution - preserved state con issue.
 “Every citizen may freely speak, write and publish sentiments on any subject, being
responsible for the abuseof this liberty; no laws shall be passed
 regulating or restraining the freedom of the press . .
 11 error in standard of review - used buckley lax scrutiny standard
(but see citizens united, did same thing)
12 good discussion of mcintyre and cu
13 bound by NOM v McKee first circuit. good discussion of other cases.
14. the usual errors about mcintyre being a lone gunman and only about referenda; neither of these are true.
15 the opinion completely fails to address the state constitutional claim, reversable error in light of controlling authority from the maine supreme court.
16 i am willing to go along with the court's equal protection and de minimus arguments.

So, has this case been appealed? Is it final? Did he pay the $200 fine? 
OK, plaintiff didn't appeal to the 1st circuit because the aclu lawyers said it might set a bad precedent. I'm having some trouble with fonts and formatting; this entry may display oddly. 
What I should do, but probably wont, is file a complaint against Cutler and or the board's attorneys.
http://www.mebaroverseers.org/attorney_complaints/index.shtml

The board is comprised of : Walter F. McKee, Esq., Chair; André G. Duchette, Esq.; Hon. Edward M. Youngblood; Margaret E. Matheson, Esq., Michael T. Healy, Esq.
 http://www.maine.gov/ethics/meetings/2011/20110127_actions.htm

Here is the commission's 2010 ruling on Bailey.
 http://www.maine.gov/ethics/pdf/item02_001.pdf

1. "The Cutler Campaign, represented by Richard Spencer, Esq., urged the

update thursday: i was offline while riding the train to nebraska, so i wrote a second set of notes:

Bailey v Maine Ethics Comm'n. v Cutler is a 2012 case from the District of Maine, now final.
Bailey is a journalist and campaign consultant who put up an anonymous internet site critical of Cutler, an
independent who
lost the Maine governor's race by 1.7%. Bailey had been press secretary to Independent Maine governor Angus King.
Cutler is a high-powered lawyer and a former white house official.
Cutler complained to the Commission, a board of speech police. After testimoney from Cutler, the ACLU, and EFF,
the board fined Bailey the statutory maximum of $200. Bailey appealed, Cutler intervened and removed the case
to federal court, which upheld the fine.

The court's analysis is strongly influenced by Citizens United and NOM v McKee. McKee chairs the commission.

There are numerous areas where it is a close case, and the court makes several errors. I have a strong bias
in favor of defendant, and my analysis may be colored by that bias.

Problems with the case include:
A. Jurisdiction, venue, comity, and preemption - can Maine rule the internet, or is that a task for congress?
B. There is no mention at all of Talley v California, the landmark case establishing 1st A protection
for anonymous speech..
C. The court's attempts to legally distinguish McIntyre are weak.
D. There appears to be no express advocacy, as required by statute,and there is no analysis in the opinion.
E. the court fails to address defendant's state constitutional free speech claim.
The court does not mention Maine precedent protecting anonymous speech.
F. The decision is on cross-motions for summary judgment, but a reasonable jury could find threats and retaliation
sufficent to invoke a SWP type as-applied exemption. There's an interesting claim that
the burden of proof for exemption for disclaimers is not as high as for disclosure.
G. The opinion mixes up the concepts of disclaimers and disclosure, resulting in overreliance on Valeo.
H. D's argument that he is entitled to the press exemption on equal protection grounds is stronger than the court gives credit for.
Perhaps the court deferred too much to the agency, instead of using the constitutional avoidance principle.

The central organizing principles of American government are that it is a federal system with a
constitutional democratic republic.
Instead of relying on a heredity monarchy, we have leaders chosen at regular elections after free and open debate.
Both federal and state constitutions protect the process, including free speech provisions in the first amendment
and the state bills of rights,and the right to trial by jury. In 17(xx) Peter Zenger was tried for printing
anonymous books critical of the royal governor of pennysvlvania. A jury refused to convict him. Popular support
for the verdict later resulted in the adoption of the First and Seventh Amendments, as well as jury nullification
clauses for speech crimes in some 27 state constitutions. Free speech is a characteristic of a civilized society,
but it is also needed to have elections that are meaningful instead of form without substance.

This heritage is now under attack by the Maine Ethics Commission, the First Circuit,and the Supreme Court.
Bailey wrote on his site that Cutler is unfit to be governor. Based on this lawsuit, I am inclined to agree.
Cutler's attack on his critic Bailey demonstrates why anonymity is so needed. Without it, speech is chilled.
Wikileaks and 4chan.com's legion of anonymous are examples of how citizens are using the Internet as an
Army of Davids, speaking truth to power. Bullies like Cutler are uncomfortable in this environment,
so they look to the star chamber and the inquisition to silence thier critis.
I heard about this case a few days ago, via Rick Hasen and Richard Winger, and I've been looking into it in my spare time.
Some notes follow.

==

notes on cutler files

1 does maine have jurisdiction over the nternet?
problem of multiple and contradictory regulations.
see aclu v reno

2. cutler intervened and removed. when can an intervenor remove? never seen that before.

3. case is a ruling on summary j for p. were there any facts in dispute?

4 no ruling on state con claim.

5 no delegation to agency to expand beyond express advocacy. the agency's operating definition is ultra vires.

678 main claim: speech protected
other claims: de minimus, problem with selectivity of which media are exampt. content-based regulation of core political
speech

9 The disclosure requirements also apply to
an expenditure made for a communication that clearly identifies a candidate and
that is disseminated closer to an election to influence that election. 21-A M.R.S.A. §
1014(2-A).6  - maybe no express advocacy requirement?

10 Bailey was press secretary for governor Angus King at one time.

11. Bailey has established facts entitling him to a Socialist Workers type as-applied exemption from disclosure.
He reasonably suspected he would encounter harassment from Cutler, which turned out to be true. He reasonably
suspected that he would encounter offical harassment, which turned out to be true.
His employee, perhaps all of his work force, quit as a result of the harassment.
He received threatening phone calls. the facts are insufficent on this point to warrant summary judgment for plaintiff.

12.  fails to mention Talley, and starts with Valeo, which is not on point. Mixed up disclosure and disclaimers.

13 because the court acts as if it unaware of Talley, it misunderstands McIntyre. The issue in McIntyre is whether there is an elections exception to the rule of Talley that the governemnt cannot require disclaimers.

In Mcintyre, the Ohio Supreme Court had held that under Valeo the lax scutiny standard applied. The US Supreme Court reversed,
 and found that sctrict scutiny applies. McIntyre has not been overruled, by CU or any other case. It has been narrowed
by CU, which created an elections exception for corporations.

13a the statute was not found unconstitutional because it was overbroad. it was unconstitutional because it violated the
freedom of speech,
which under Talley includes the freedom to speak anonymously, as Peter Zenger had done in the 1700s. Zenger's case is the forerunner of the First Amendment.
The First Amendment has always been about the right to anonymously criticize candidates for governor, such as Cutler.

13b Margaret McIntyre was not a lone gunman. She was part of a group of some 30 people who had twice resisted
a tax increase. Some were arrested for speaking out, others were threatened, and McIntyre was fined. She was assisted,
among others, by her son, the son's girlfriend, her husband, and her lawyers.
The decision in McIntyre was not to create a de minimus exception or a little old lady exception. It was to find
that anonymous electoral speech is as protected under the first amendment as other kinds of political speech are - strictly.

14 Bailey was fined $200 for speaking truth to power.

15 Striesand effect - I didn't know who Cutler was before he brought this complaint. now i think he's a bully and a jerk.
The Cutler files may or may not have cost him the election. He lost by about 2% of the vote, 1.7. that tends to show how critical this info was. critical as in important.

"It is a narrowly drawn expenditure-based law dealing with express advocacy of candidates rather than communications related to ballot initiatives.  False -the ohio statute was about candidates, as were the cases McIntrye cited with approval - White, Dennis, Duryea.

"Second, Bailey was expressly advocating the defeat of a candidate for Governor shortly before an election". This has not been established; the opinion cites no example of express advocacy. Statements such as "Cutler is unfit for office" are not express advocacy; there are no "magic words" or exhortation to vote.

"Third, the Plaintiff is no Mrs. McIntyre" McIntyre invalidated the Ohio statute for all speakers, not just little oldd ladies. The rich, as well as  the poor, are protected by the constitution.

Neither Talley nor McIntyre acted wholly independently, not did Daisy Bates. It is not legally significant to the holding in McIntyre that there is no elections exception to Talley.

"The balance does not tip in favor of a high-profile political actor who
wishes, on the eve of an election, to criticize a gubernatorial candidate
anonymously."

Here, the court substitutes its own judgment for the binding holdings of cases such as
McIntyre, Watchtower, Wooley, Talley, Riley, Tornillo.

The court finds, erroneously, that Bailey has not been subjected to threats of reprisals sufficent to meet the standards of NAACP,  Socialist Workers, Buckley v Valeo, and CU. But Bailey makes an interesting argument, one of first impression as far as I know. He argues that the threshold for exemption for disclaimers is or should be less than for disclosure. This seems reasonable. The equities are that he's engaged in anonymous speech,
which has been protected for 50 years, whether or not it still is, his expenditures are somewhat de minimus, not reaching the threshold for disclosure, and he has some evidence of threats, harassment and retaliation, both by Cutler and the State of Maine, and by anonymous callers, resulting in his staff quitting.
Taken together, the balance tips in his favor. But I do not know what is the proper standard, and whose thumb is on the scale. Norman v Reed may be applicable here, as Justice Thomas argued concurring in Buckley v ACLF (1999.) It is a severe burden when those engaging in core political speech are subjected to investigation at the behest of their enemies and then fined.

20. equal protection claim:
there is a state constitutional equal protection claim here. the court treats it as lockstep, but it would
interesting to see if there are any onpoint state cases.

  “No person shall be . . . denied the equal protection of the laws, nor be denied the enjoyment of that
person’s civil rights or be discriminated against in the exercise thereof.”

fbi investigates va gov.

hasen:

Guilty Verdict in Indiana Petition Case involving 2008 Pres. Election

South Bend Tribune: “Former St. Joseph County Democratic Party Chairman Owen “Butch” Morgan and party member Dustin Blythe were found guilty on all charges Thursday night, news reports indicated.….Dressed in an ill-fitting black suit and with his hair parted neatly down the middle, the accused former party leader said he never instructed anyone to forge signatures on petitions to place Democratic candidates on the state primary ballot in 2008.”

What these stories don't make clear is that Butch Morgan was one of the 4 members of the Indiana Election Commission. I've been up in front of him several times, and sued him a few times.
What we've had in Indiana was the fox guarding the henhouse. This kind of corruption is not rare. What's rare is the people involved get caught and charged and sentenced.
Hmm, the link is bad, i'll try to find it.
 http://www.southbendtribune.com/news/sbt-morgan-denies-role-in-scheme-case-goes-to-jury-20130425,0,5836760.story

 http://www.southbendtribune.com/news/sbt-testimony-morgan-wanted-more-signatures-20130424,0,5202501.story

There is no evidence that Hillary Clinton was personally involved in the illegal scheme to forge signatures to get her name on the ballot, led by a person in charge of the state's regulation of ballot access and voting integrity.

note to self: write a post about the montana free speech decision, any  why it's wrong about disclaimers.

vulnerable senators roll call
retiring: saxby chambliss (GA, GOP), jay rockefeller, WV, tim johnson (SD).
likely to lose: prior, AR. races to watch: landrieu (LA), begich (AK).

How voter ID laws violate the NC Constitution

http://www.newsobserver.com/2013/04/13/2821143/how-voter-id-laws-violate-the.html

placeholder for discussion of paul ryan's recent comments on express advocacy.
first, here's the text i'm responding to, then some comments to follow.

“The Failure to Enforce Commission Reaches a New Low”

Paul Ryan:

Imagine receiving the following message on your telephone answering machine:
Hello, this is Betty, one of your neighbors.  I’m calling to share some thoughts about voting on May 8^th of this year.  Let me tell you, I’m a Republican and my husband John is an Independent, and we agree on one thing–what are we doing sending Congressman McHenry back to Washington?  McHenry is not one of us.  McHenry’s politics and personal life style is going to blow up in our face sooner or later.  Remember DeLay from Texas, Foley from Florida, and Senator Craig from Idaho.  We are also voting for a marriage amendment in May and McHenry is not that kind of Conservative.  McHenry is not one of us. Bye now
Does this robocall expressly advocate the defeat of Congressman McHenry?  More specifically, under the Federal Election Commission’s (FEC) regulatory definition of “expressly advocating,” does the robocall use words, which in context can have no other reasonable meaning than to urge the defeat of Congressman McHenry?  Is it the case that this robocall, when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the defeat of Congressman McHenry because the electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and because reasonable minds could not differ as to whether it encourages actions to defeat Congressman McHenry or encourages some other kind of action?

 http://www.clcblog.org/index.php?option=com_content&view=article&id=515:the-failure-to-enforce-commission-reaches-a-new-low
 Does this robocall expressly advocate the defeat of Congressman McHenry?  More specifically, under the Federal Election Commission’s (FEC) regulatory definition of “expressly advocating,” does the robocall use words, which in context can have no other reasonable meaning than to urge the defeat of Congressman McHenry?  Is it the case that this robocall, when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the defeat of Congressman McHenry because the electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and because reasonable minds could not differ as to whether it encourages actions to defeat Congressman McHenry or encourages some other kind of action?
Under federal law, a public communication that expressly advocates the election or defeat of a candidate must state in the communication who paid for it, and whoever paid for it is required to file some simple paperwork with the FEC acknowledging that they made the political expenditure.
To be clear, express advocacy robocalls and other public communications (e.g., TV ads, newspaper ads, etc.) are perfectly legal and can even be unlimited under federal campaign finance law—so long as the spender complies with the law’s disclosure and disclaimer requirements.  As the U.S. Supreme Court explained in Citizens United: “The First Amendment protects political speech; and disclosure permits citizens . . . to react to the speech . . . in a proper way.  This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
I think this robocall message clearly meets the FEC’s definition of “expressly advocating.”  The FEC’s staff thought so too, and recommended that the Commission find “reason to believe” that whoever paid for the robocall violated federal law disclosure and “paid for by” disclaimer requirements.  Such a finding would have triggered an investigation by the FEC’s staff in an effort to determine who was behind the robcall.
Three members of the FEC also thought the robocall expressly advocated the defeat of Congressman McHenry.  Commission Chair Weintraub, Commissioner Walther and former Commissioner Bauerly voted in January to find “reason to believe” federal law had been broken, which would have triggered a full-scale investigation.  Earlier this week, Chair Weintraub published a Statement of Reasons explaining the obvious—“The facts in this case present a clear example of express advocacy.”
However, the FEC’s three Republican Commissioners—Vice Chairman McGahn, and Commissioners Hunter and Petersen—once again blocked an enforcement action by the Commission.  Lacking the requisite four affirmative votes to proceed with an investigation, this matter’s been dismissed.  Voters have been left in the dark, denied the opportunity “to make informed decisions and give proper weight to different speakers and messages” in federal elections, as promised by the Supreme Court.
These three Republican Commissioners have not published a Statement of Reasons explaining how they could possibly conclude that the robocall had a reasonable meaning other than urging the defeat of Congressman McHenry.  I’m sure that if and when they explain themselves, it’ll make for an entertaining read—a world class exhibition of intellectual contortionism.  Or, rather, it’d be entertaining if the price paid for the show was not the integrity and transparency of our electoral process.  But that is the price we’re paying.  American taxpayers are being swindled and it’s time for President Obama to restock the FEC with Commissioners willing to do their job.
===
First, the "failure to enforce" commission - FEC- is pretty clever. The so-called reform faction gets upset with the GOP members when they uphold their oath to support the constitution, and refrain from enforcing some of the FEC rules which are unconstitutional, or refrain from interpreting them in ways which would make them unconstitutional.

The express advocacy standard is a case in point. It is significant for several reasons. One, it was created judicially by Buckley v Valeo. See my post below setting out a few of the problems with Valeo. Next, it has been the focus of the rise of Jim Bopp and the James Madison center. Few points of law have been so thoroughly litigated. Bopp has made a small fortune in legal fees over the years winning case after case on express advocacy, which has helped to fund some of his other cases, such as McConnell, Beaumont, Citizens United, and now McCutcheon.

Next, it drives the "reform" crew crazy, because the non-express advocacy "loophole" is larger than the set of statements which are express advocacy, so their desire to censor political speech gets thwarted. One of the ways they have responded is to falsely charge that things are express advocacy when they aren't. Betty's call, above, serves as a useful example.

I will show that the text of Betty's call does not contain express advocacy, or the now-current "express advocacy- lite" test of Furgatch.
I'll use this example to suggest that express advocacy in practice has proven to be an unworkable standard, and what the court should do is rule that express advocacy is core political speech protected by the first amendment. But first I have to go attend to some of things I do to make a living,  and then the other half of my vegetable garden planted, so I hope to come back to this by tomorrow night.

placeholder for comments on

“The Original Sin of Campaign Finance Law: Why Buckley v. Valeo is Wrong”

A few  of the reasons Buckley is wrong:

1. the "exacting" standard of scrutiny is too low  for the core political speech at issue.

2. the express advocacy standard has proven unworkable. i plan a post on this shortly.

3. in hindsight, severability was inappropriate; the court should have just struck down the regs and said try again.

apparently there's been a new pope elected, an american. Cardinal Jorge Mario Bergoglio, pope Frankie.

a bush rises in texas.
george p bush, son of jeb, will run for land commissioner.

voting in indian country, 9th circuit to hear suit.

ohio case about whether plaintiff can proceed as john doe.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf

shelby county v holder transcripts. very interesting. i might have more to say later, but right now i'm on a bus and it's hard to type.
audio:
 http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-96

test: why do i keep getting this error message: bX-jw9l3x

Voter ID bills are in various stages in various states.

Arkansas: house has questions about cost
Iowa:  Iowa lawmakers to take up Voter ID proposal

NC  /nc-house-gop-begins-to-move-voter.html


ND:  Voter ID bill passes North Dakota House
NE
NM: House rejects voter ID proposal,
gop-attempt-to-institute-voter-id-fails-in-chaparral-vote-chaos-fix
Pennsylvania:  Attorney general weighs defending voter ID
Virginia: Virginia Voter ID Bill Heads to Governor's Office

Today's section 5 VRA oral argument (transcripts soon) suggest the VRA id doomed.

http://news.yahoo.com/blogs/ticket/voter-id-laws-hang-balance-supreme-court-considers-133056795--election.html

This will change strategies for voter ID litigation, especially for the justice department.
If the justice department bails, and chooses not to bring actions under, e.g., the 24th A,
this will move things back to private parties. I continue to think that Crawford v Marion County is a case largely limited to its facts, and that an as-applied case supported by a Brandeis-brief approach of empirical data showing actual disenfranchisement would get a fair hearing from the court, with Roberts and Kennedy as swing votes.  Meanwhile state constitutions may be the best route to provide new theories and precedents for striking down voter ID.

Jesse Jackson jr to plead guilty to using campaign funds for personal use.
Jackson, former co-chair of the Obama campaign, is the author of  It's About the Money: How You Can Get Out of Debt, Build Wealth, and Achieve Your Financial Dreams.

retiring in 2014:
Harkin, D, Iowa
Chambliss, R, GA.
This is a list that will get longer.

update: Lautenberg,, 89,  D-NJ, to retire.
This sets up a likely primary between Newark mayor Cory Booker and congressman Frank Pallone. Jr.
My brother and my sister-in-law have each run against Pallone in the past. No GOP candidates have announced so far.
New Jersey's other senator, Memendez, was reelected this fall, but faces ethics inquiries about cronyism and possibly teenage prostitutes provided by the crony.

No proposal to reform election laws or procedures, however well reasoned, is authored behind a veil of ignorance as to its likely partisan effects. So it’s no surprise that partisan positions on the merits of individual reforms are inevitably influenced by partisan interests. This makes it difficult enough to push sensible election law reforms in today’s hyper-partisan environment. Naked power plays like that proposed in Virginia only make this problem worse. Republicans need to (re)learn how to win elections by appealing to voters, not rigging the rules in their favor.
jonathan adler at volohk

hear a rumor tonight that in texas if you register to vote (male at 18), selective service will then automatically register you for the draft. don't know if this is true or not.
related but not directly on point: http://www.brennancenter.org/content/resource/automatic_registration_in_the_united_states_the_selective_service_example/

http://www.motherjones.com/politics/2012/12/montana-dark-money-jon-tester-senate-dan-cox?page=2
"In Montana, liberals bought ads for a libertarian candidate who likely siphoned crucial votes away from the Republican challenger."

 Although uncomfortable with outside money, Tester also said it's just the way things are now, even on the liberal side.
"I mean, look, they did it," he said. "And with as many ads that were against me, I was glad they did. But it needs to be transparent. I mean, everybody's needs to be transparent... It's important to know who's spending money on who so you know why they're doing it. And the way the system is set up right now, there is no transparency. Very little."
Campaign finance reformers agree that knowing who is behind a message helps people assess it.
One example: Two postcards sent to thousands of Montanans just before the election didn't include the required notice saying who paid for them. One said Rehberg had wasted "hundreds of millions of our tax dollars on pork barrel projects," and urged people to vote for Cox, "a champion for fiscal responsibility." The other called Rehberg "the king of pork" and told people to vote for Cox.
Cox said he didn't send them. The bulk-mail permit on the postcards came back to a Las Vegas company called PDQ Printing, according to the U.S. Postal Service. In an online manual, PDQ describes itself as "Nevada's preeminent Union printer." No one there returned phone calls.
Greenwood, the head of the Montana Republican Party, filed a complaint with the FEC over the mailers. The complaint blames liberal groups and says they "engaged in a duplicitous strategy of supporting the libertarian candidate, Dan Cox, in a desperate attempt" to siphon votes from Rehberg.
More than likely, that complaint won't be resolved for years.

http://www.gutenberg.org/cache/epub/2045/pg2045.txt

Currently reading autobiography of Chauncy M Depew, 19th century GOP senator and railroad boss.
A friend's father used to own a paddlewheel steamship called the Chauncy M Depew, that he wanted to restore into a restaurant. He was a noted public speaker, knew everyone from Lincoln to Roosevelt to Queen Victoria. Some of his jokes seem a little dry 100 years later, but it's a good read.

---

POLL: Congress less popular than root canals, cockroaches...

“Crist to testify against voter ID laws”

Politico: “Testifying with Crist will be Nina Perales of the Mexican American Legal Defense and Education Fund as well as Gilda Cobb Hunter, a Democratic member of the South Carolina legislature who has opposed voter ID laws.”

http://www.cato.org/publications/commentary/senator-constitution?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+CatoRecentOpeds+(Cato+Recent+Op-eds)
Senator Wyden, by Nat Hentoff.

Meanwhile, Tim Scott, first black GOP senator in a while. WSJ.

I'm in my favorite coffee shop in Kalamazoo, killing time waiting for lab results, and I happened to pick up the New Yorker issue with the Jeffrey Toobin article about the dread Justice Roberts and Citizens United. (May 21 2012.) I don't think the article's free online anywhere. "Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision."

 The article made a splash because he hints at inside knowledge of a draft opinion circulated by Justice Souter, shortly before he left the court. If true, and it could be, it's a major leak of the court's somewhat secret deliberations. So I've read a lot about this article without having read it until now.

i plan to edit this entry after a bit of further reading.

“Banning lies in political ads?”

WEST PALM BEACH, FL (WFLX)” – Boca State Sen. Maria Sachs is pushing an effort in Tallahassee that would require politicians – and their supporters – to tell the truth in TV ads. ‘Free speech is a wonderful right that we have. But nobody has the right to use the first amendment as a shield,’ said Sachs.”
Senator Sachs might want to read this,

 2 Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights,
 1 Political power.--All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.
 4  No law shall be passed to restrain or abridge the liberty of speech or of the press.
SECTION 5.  Right to assemble.--The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.
 http://www.helplinelaw.com/law/usa-florida/constitution/constitution01.php

instapundit asks for 2014 senate predictions, moe lane provides.

On the GOP side? Saxy Chambliss of Georgia and Susan Collins of Maine are the most likely to have problems. It looks like the senate will be in play for 2014.





D incumbents:

Alaska	Mark Begich	Serious Risk
Arkansas	Mark Pryor	Some Risk
Colorado	Mark Udall	Some Risk
Louisiana	Mary Landrieu	Serious Risk
Massachusetts	John Kerry	Only if vacant
Michigan	Carl Levin	Low Risk
Minnesota	Al Franken	Serious Risk
Montana	Max Baucus	Some Risk
New Hampshire	Jeanne Shaheen	Some Risk
New Jersey	Frank Lautenberg	Only if vacant
New Mexico	Tom Udall	Low Risk
North Carolina	Kay Hagan	Serious Risk
Oregon	Jeff Merkley	Some Risk
South Dakota	Tim Johnson	Serious Risk
Virginia	Mark Warner	Low Risk
West Virginia	Jay Rockefeller	Low Risk

http://www.lp.org/blogs/staff/libertarian-horning-swings-us-senate-race-in-indiana-responds-to-hate-mail

Bopp profiled in Mother Jones.

Dan McGrath v Dan McGrath on voter ID.
http://minnesota.publicradio.org/collections/special/columns/polinaut/archive/2012/11/victor_reflects.shtml

80% of minnesotans polled in favor of voter ID, when they didn't know anything about it.
After an education campaign, support dropped to 46%, so it lost.

How does this affect what the Supreme Court said in Crawford, that people's perceptions about voter ID count in favor of it's constitutionality, even if it doesn't actually work?

votes are still being counted, but the D's have picked up as many as 8 seats in the US house.

here in indiana, the GOP now has 69 seats of 100 in the state house. that's up from 48 just 4 years ago i think.

The new senators:
Flake, Hirona, King, Heitkamp, Baldwin, Warren, Kaine, Cruz, Murphy, Heinrick, Fischer. 11% turnover in the senate, is that more than usual? 5 new women, is that a new record number of women in the senate?
update: yes, 20 senators, 81 reps, a new record. nyt.    huffpo
THE Congress that convenes in January will include a record number of women: 20 senators and at least 81 representatives.

shelbyville:
for years the article IV phrase "republican form of government" has been treated as a nonjustiable political question.

Does the shelby county grant change that?

 The petition for a writ of certiorari is granted limited to
the following question:
Whether Congress’ decision in 2006 to
reauthorize Section 5 of the Voting Rights Act under the
pre-existing coverage formula of Section 4(b) of the Voting
Rights Act exceeded its authority under the Fourteenth and
Fifteenth Amendments and thus violated the Tenth Amendment and
Article IV of the United States Constitution.

http://www.reddit.com/r/Anarcho_Capitalism/comments/12tr1k/needless_to_say_costumed_men_with_guns_arrived_at/

Cats suspected in hacking of Romney's tax records.

Wonder if it's on the front page of reddit yet.

Susan Lerner of Common Cause writes at the election law list:

Having  worked monitored elections and worked for reform in both Los Angeles (civil service election administration) and New York City (patronage driven system), all I can say in response to this position is you must be kidding. Clearly you have not had to deal with any New York board of elections, which are arranged as you suggest, parallel appointments down to the clerical level. Result: gridlock, patronage no-show jobs, well -meaning relatives of politicians hired for who they know not what they know how to do, hostility to innovation, great concern for how any situation will affect the party and candidates, the few employees with the correct skill set impeded by their supervisors and having to do the work of 6, no one who advocates for the voter, and a general defensive and  “can’t do” attitude. Did I mention board of elections employees who visit the campaigns of favored party-supported candidates in hotly contested primaries right before the primary to inquire if everything is being handled to the liking of the favored candidate (see, Rangel-Espaillat primary)?  Another unfortunate effect which I experience firsthand every election is that the press disregards any accusations of election irregularities as mere party politics and an easy to disregard continuation of campaign animus, even when there is a real problem (see, Rangel-Espaillat primary for a recent example). As a result, the public believes that they shouldn't pay any attention to theses issues either.  Additionally, when the candidates are the guardians of the reliability of an election, they often choose not to pursue or to drop accusations of illegality, particularly in party primaries, because the long-term political consequences to the complainant are more important than the honest functioning of the election system.


I, for one, don’t believe that elections run for the convenience of the parties is the best we can do. Neither do NY voters, who, recognizing that they are considered irrelevant by election authorities, stay home in droves (ok, there are other factors as well, but poorly run elections indifferent to the voters’ experience don’t help).  When they do venture out, like this past Tuesday, the experience is so negative, many don’t bother to vote again for years.


Shall I continue on about the experience of being thwarted in trying to get public information released from various boards because the 2 parties couldn’t agree on the appropriate format in which to release public information so the information is not provided? Or should we be talking about the fact that New York City’s board of elections has been without an executive director for TWO YEARS because the party bosses can’t agree on a candidate and won’t conduct a national search for someone with election administration experience ?


As to using retired judges, that presumes that the judges are not captured creatures of the parties.  But here in NY, the parties hand pick the trial judges (remember Lopez-Torres?), so you could end up with a panel as beholden to the party bosses as the directly appointed boards of elections.


Maybe it works differently in some other jurisdictions, but I am writing you from the jurisdiction where the ghost of Boss Tweed rules elections.  Give me an arrogant civil servant any day.  They at least can be shamed because their professional reputation will suffer if an election is run badly.  


That’s enough ranting for now,
Susan Lerner

my experience voting today:
took two roommates with me to the local fire station. said i wouldn't show ID. she said we couldn't vote, had us wait, made a phone call. again said we couldn't vote. blabbermouth roommate brought up the idea of provisional voting, so she let us do that. which means we won't see any money from a voter ID lawsuit, which might have been possible if she had just turned us away.

still, we now have standing to bring the lawsuit. those two are indigent, so we save the filing fee.
i have issue preclusion which prevents me from suing about this again.
i don't know yet if my audio recording will be audible.

a neighbor was feeling sick and didnt want to get up to go vote with us. 4th roommate isn't registered. picked up third roommate at work, drove 12 miles to the county he's registered in, but the lines had maybe 200 people so he wasn't willing to wait. his coworkers at the auto repair place were giving him a hard time about leaving to go vote.

results are not in yet, but it looks like romney wins the popular vote, loses the electoral college, ohio within margin of litigation. senate and house almost unchanged. no word yet on rupert. IN, ND senate racers still too close to call. ed foley looks at whether ohio is within the margin of provisional votes.
Donnelly, Heitkamp win, Baldwin, King win.
rupert 4%, horning 6%.

Voter ID losing in MN. ND repealed a poll tax.  Colorado legalized pot, Washington results not in yet but likely to follow. WA legalized pot, Oregon didn't.
When the west coast returns came in, Romney lost the popular vote too. D's picked up just about every close senate race, net gain of 2. I'll have to see how the house did.About the same, D's picked up 3 or 4, with a number of races still being counted.

“ACLU of Indiana Challenges Marion County Judicial Election System”

Press release: “Indianapolis – Marion County voters have less influence than they may think about which judges are chosen for the Marion Superior Court. Today the ACLU of Indiana, on behalf of Common Cause Indiana, filed a lawsuit challenging state law governing that process to ensure voters of every political stripe can cast meaningful votes for all judgeships to be filled in Marion County. ‘The system for electing judges in Marion County is unique in Indiana, and possibly the nation,’ said ACLU of Indiana Legal Director Ken Falk. ‘It is imperative that we ensure that when the State opts to fill positions through the ballot box, it does so in a manner that allows Hoosiers’ votes to matter.’”

I am one of the few living people to run for Marion County judge and lost. In 2000, I put together a slate of 5 judge candidates to run as Libertarians. We got 100,000 votes, not bad for a party that usually gets 1 million votes total around the country. The parties have a deal where they split the judgeships between them. The county chairs pick precinct captains, except in the rare case where someone runs for that office. The precinct captains, as directed by the chair, slate the anointed candidates, who are almost always unopposed in the primary. We ran just to be gadflies, which was fun. I had 1000 signs made up that we put around. It was a fairly low-key race, before the days when MN GOP v White, a Bopp case, opened up judicial speech a bit.   

Success in N Dakota. Judge enjoins ban on election day electioneering.

I'll update with details later. Just spend 26 hours on buses coming back from N D. I had nothing to do with the suit, just happened to be there at the time.

This slate article talks about a possible N D recount. I've probably seen a 100 Heidi Heitkamp commercials in the past week. She seems nicer than the other guy, but for me what is determinative is that she stuck up for the unconstitutional election day speech ban. She wants it to be a crime for a wife to urge her husband to remember to go vote for Heidi on the way to work.

AP article.

“Court Rules North Dakota Campaign Ban Unconstitutional”

CCP:

Calling the law “clearly invalid,” a federal judge in North Dakota today ruled that the state’s 100-year-old ban on election-day campaigning is unconstitutional.
The ruling came in response to a lawsuit filed by the Center for Competitive Politics, a pro-free speech group. The Center represents Gary Emineth, who wishes to post yard signs on his property, distribute fliers, and discuss the upcoming election with his neighbors.  The North Dakota statute bans any person, on election day, from “in any manner trying to induce or persuade” others to support or oppose any candidate or ballot measure.

This ruling has got to be right under existing law.

Dunn County residents submit petition for grand jury to investigate governor

WILLISTON, N.D. – Residents of Dunn County want a grand jury to decide if campaign contributions Gov. Jack Dalrymple accepted from the oil industry may be considered bribery.
 http://www.inforum.com/event/article/id/379066/

Heitkamp supports Election Day campaign ban

BISMARCK — Democratic U.S. Senate candidate Heidi Heitkamp says North Dakota's traditional ban on Election Day campaigning should stay in place.

As lawmaker, ND attorney general opposed Election Day campaign ban

BISMARCK — When North Dakota Attorney General Wayne Stenehjem was in the Legislature, he argued that the state's ban on Election Day campaigning was unconstitutional.
Emineth to chair Santorum campaign
FARGO – Republican Presidential candidate Rick Santorum announced Monday that Gary Emineth will chair his North Dakota campaign.
Wednesday, February, 22, 2012 - INFORUM - News

3 North Dakota Tea Party Caucus founders resign

BISMARCK – Three founding members of the North Dakota Tea Party Caucus have resigned. Gary Emineth, Duane Sand and Paul Sorum, all of whom are involved in political races, have stepped down from the tea party’s organizational committee.

The latest xkcd is a chart of congress by party over time. also a pic of me with xkcd's randall munroe.

bonus: presidential precedents  http://xkcd.com/1122/

http://asenseoftheoregonconstitution.com/index/Table%20State%20Constitutional%20Free%20Speech%20Clauses.pdf
TABLE A: STATE CONSTITUTIONAL FREE SPEECH PROVISIONS
1. Alabama, art. I, §4 (“That no law shall ever be passed to curtail or restrain the liberty of speech
or of the press; and any person may speak, write, and publish his sentiments on all subjects, being
responsible for the abuse of that liberty.”)
2. Alaska, art. 1, §5 (“Every person may freely speak, write, and publish on all subjects, being
responsible for the abuse of that right.”)
3. Arizona, art. 2, §6 (“Every person may freely speak, write, and publish on all subjects, being
responsible for the abuse of that right.”)
4. Arkansas, art. 2, §6 (“all persons may freely write and publish their sentiments on all subjects,
begin responsible for the abuse of such right.”)
5. California, art. 1, §2(a) (“Every person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of this right.”)
6. Colorado, art. II, §10 (“every person shall be free to speak, write or publish whatever he will
on any subject, being responsible for all abuse of that liberty”).
7. Connecticut, art. I, §4 (“Every citizen may freely speak, write and publish his sentiments on all
subjects, being responsible for the abuse of that liberty.”)
8. Delaware, art. 1, §5 (“any citizen may print on any subject, being responsible for the abuse of
that liberty.”)
9. Florida, art. I, §4 (“Every person may speak, write and publish sentiments on all subjects but
shall be responsible for the abuse of that right.”)
10. Georgia, art. I, §1, ¶5 (“Every person may speak, write, and publish sentiments on all subjects
but shall be responsible for the abuse of that liberty.”)
11. Hawaii, art. I, §4 (“freedom of speech”)
12. Idaho, art. I, §9 (“Every person may freely speak, write and publish on all subjects, being
responsible for the abuse of that liberty.”)
13. Illinois, art. I, §4 (“All persons may speak, write and publish freely, being responsible for the
abuse of that liberty.”)
14. Indiana, art. I, §9 (“No law shall be passed, restraining the free interchange of thought and
opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for
the abuse of that right, every person shall be responsible.”)
15. Iowa, art. I, §7 (“Every person may speak, write, and publish his sentiments on all subjects,
being responsible for the abuse of that right.”)
16. Kansas, §11 (“all persons may freely speak, write or publish their sentiments on all subjects,
being responsible for the abuse of such rights”)
17. Kentucky, §8 (“Every person may freely and fully speak, write and print on any subject, being
responsible for the abuse of that liberty.”)
18. Louisiana, art. I, §7 (“Every person may speak, write, and publish his sentiments on any
subject, but is responsible for abuse of that freedom.”)
19. Maine, art. I, §4 (“Every citizen may freely speak, write and publish sentiments on any
subject, being responsible for the abuse of this liberty”)
20. Maryland, art. 40 (“every citizen of the State ought to be allowed to speak, write and publish
his sentiments on all subjects, being responsible for the abuse of that privilege”)
437
21. Massachusetts, art. XVI (“freedom of speech”)
22. Michigan, art. I, §5 (“Every person may freely write, express and publish his views on all
subjects, being responsible for the abuse of such right”)
23. Minnesota, art. I, §3 (“all persons may freely speak, write and publish their sentiments on all
subjects, being responsible for the abuse of such right”)
24. Mississippi, art. III, §13 (“freedom of speech”)
25. Missouri, art. I, §8 (“every person shall be free to say, write or publish, or otherwise
communicate whatever he will on any subject, being responsible for all abuses of that liberty”)
26. Montana, art. II, §7 (“Every person shall be free to speak or publish whatever he will on any
subject, being responsible for all abuse of that liberty.”)
27. Nebraska, art. I, §5 (“Every person may freely speak, write and publish on all subjects, being
responsible for the abuse of that liberty”)
28. Nevada, art. I, §9 (“Every citizen may freely speak, write and publish his sentiments on all
subjects being responsible for the abuse of that right”)
29. New Hampshire, art. 22 (“free speech”)
30. New Jersey, art. I, §6 (“Every person may freely speak, write and publish his sentiments on all
subjects, being responsible for the abuse of that right.”)
31. New Mexico, art. II, §17 (“Every person may freely speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that right.”)
32. New York, art. I, §8 (“Every citizen may freely speak, write and publish his or her sentiments
on all subjects, being responsible for the abuse of that right”)
33. North Carolina, art. I, §14 (“Freedom of speech and of the press are two of the great
bulwarks of liberty and therefore shall never be restrained, but every person shall be held
responsible for their abuse.”)
34. North Dakota, art. I, §4 (“Every man may freely speak, write and publish his opinions on all
subjects, being responsible for the abuse of that privilege”)
35. Ohio, art. I, §11 (“Every citizen may freely speak, write, and publish his sentiments on all
subjects, being responsible for the abuse of the right”)
36. Oklahoma, art. II, §22 (“Every person may freely speak, write, or publish his sentiments on all
subjects, being responsible for the abuse of that right”)
37. Oregon, art. I, §8 (“No law shall be passed restraining the free expression of opinion, or
restricting the right to speak , write, or print freely on any subject whatever; but every person
shall be responsible for the abuse of this right”)
38. Pennsylvania, art. I, §7 (“every citizen may freely speak, write and print on any subject, being
responsible for the abuse of that liberty”)
39. Rhode Island, art. I, §20 (“any person may publish sentiments on any subject, being
responsible for the abuse of that liberty”)
40. South Carolina, art. I, §2 (“freedom of speech”)
41. South Dakota, art. 6, §5 (“Every person may freely speak, write and publish on all subjects,
being responsible for the abuse of that right.”)
42. Tennessee, art. I, §19 (“every citizen may freely speak, write and print on any subject, being
responsible for the abuse of that liberty”)
43. Texas, art. I, §8 (“Every person shall be at liberty to speak, write or publish his opinions on
438
any subject, being responsible for the abuse of that privilege”)
44. Utah, art. I, §15 (“freedom of speech”)
45. Vermont, art. 13 (“freedom of speech”)
46. Virginia, art. I, §12 (“any citizen may freely speak, write, and publish his sentiments on all
subjects, being responsible for the abuse of that right”)
47. Washington, art. I, §5 (“Every person may freely speak, write and publish on all subjects,
being responsible for the abuse of that right.”)
48. West Virginia, art. III, §7 (“freedom of speech”)
49. Wisconsin, art. I, §3 (“Every person may freely speak, write and publish his sentiments on all
subjects, being responsible for the abuse of that right”)
50. Wyoming, art. I, §20 (“Every person may freely speak, write and publish on all subjects, being
responsible for the abuse of that right”)

 http://asenseoftheoregonconstitution.com/index/Chapter%204.pdf
 http://asenseoftheoregonconstitution.com/index/Chapter%205.pdf
Chapters on free speech in a book about the Oregon constitution.

other places that might have unconstitutional election day sign ordinances or statutes:

horry county south carolina:
http://www.horrycounty.org/depts/gengov/registration/ElectionDayGuidelines.pdf

Excerpt from Horry County Zoning Ordinance:
1005. Signs for which a permit is not required.
(h) Political or campaign signs subject to the
following:1.Such signs shall not be placed within a
public right-of-way.2. Such signs shall not be attached
to trees, fences or utility poles.3. Such signs shall not
be larger than thirty-two (32) square feet in
area.4.Such signs are allowed no sooner than forty-five
(45) days prior to an election and all such signs shall
be removed within three (3) days after the election.

problems: trees, fences, time periods.

A candidate may greet voters within the two
hundred feet as long as the voters are not
intimidated. Poll Managers have the authority
to ask the candidate to leave if the voters
complain. If the intimidation continues to
disrupt the orderly conduct of the election, the
Board of Elections and Voter Registration will

problem: too much discretion, arbitrary standard.

massachusetts:



During campaign season, the landscape blooms with a special kind of flower - the political sign. Unlike wildflowers that are welcome anywhere, putting campaign signs on public lands is illegal. So before you plant that sign, learn the law and keep Texas beautiful.
You need to know

• 
  Signs must be made of lightweight material and be no larger than 50 square feet.
• Campaign signs may be posted as early as 90 days before an election (no earlier) and must be removed within 10 days after the election. 

Hawaii

Maui County Code, Chapter 16.12A, Outdoor Signs:
Section 16.12A.090 — Signs authorized for all districts without a permit.
(D) Signs or posters not exceeding eighteen square feet in display surface,
announcing candidates seeking political office; provided that such signs or
posters shall be permitted only for a period of seventy-five days preceding a
general or special election and for a period of ten days following such election.

 Vermont:
 3. The Agency of Transportation (Travel Information Council) enforces Vermont's sign law. (10 VSA §§481-506)

According to these statutes:

Signs may not be located within state highway rights-of-way or attached to a state or town sign, post or guardrail. Most highway rights-of-way in Vermont are at least three rods, or 49.5 feet. This means that signs must be placed at least 24.75 feet away from the centerline of most highways. Signs should be removed immediately after the election.

Tuscon AZ:
Do not place political election signs in support or opposition to a candidate on property owned or under control of corporations, labor organizations or limited liability companies. Arizona Revised Statutes § 16-919 prohibits corporations, labor organizations or limited liability companies from making political contributions to candidates unless the political action committee of a corporation, labor organization or limited liability company has authorized a particular property’s use. In addition, if the “forum for speech” exception applies to the particular property, no actual contribution will be deemed to occur.

 Removal
All signs located within 75 feet of any polling place must be removed prior to Election Day. All signs must be removed no later than 15 days after the primary election
(or by Sept 26, 2007)
except that winners of a primary election need not remove their signs until 15 days after the general election
(or by Nov 21, 2007)
. All signs for special elections must be removed no later than 15 days after the special election.
 Provide the City of Tucson’s Department of Neighborhood Resources with the name, address and telephone number of the individual responsible for the placement and removal of the signs.