Friday, October 31, 2014



COLUMBUS, Ohio -- The Ohio State Bar Association on Thursday asked Cuyahoga County Common Pleas Judge John P. O'Donnell to stop running a negative TV ad against his Ohio Supreme Court race opponent, Justice Judith L. French.


what is the ohio clean campaign pledge? is it contractually enforceable?  is it coerced?
is it an attempted end run around dreiehaus?


Bar calls on O'Donnell to remove 'false' ad against French

Thursday, October 30, 2014

unmet legal needs


The Fight for the Senate: Who Will Win Control
Good analysis. He thinks it's 50-50, that Roberts will lose Kansas, and it will come down to which party Orman caucuses with. (Everybody's been assuming D, but Orman won't say.)

Other sources have downgrade the chance of senate takeover to about 65%. NC may be in play now, we'd been assuming the D's would keep their small lead. The Supreme Court's role will be controversial if it becomes an R pickup.

meanwhile in the house:

Twenty-three incumbent Democrats are seen as in jeopardy compared to just four Republicans. A greater House Republican majority would mean Speaker John Boehner of Ohio would be able to weather more defections on legislation and still get bills passed.

meanwhile at the statehouse:

 Why Beth White isn't guilty of anything this time, and what she is actually guilty of.

 America is founded on the idea that people have rights, and these rights can best be protected by a democratic republic, in which the people elect leaders in free and open elections. That includes the right to speak against or for candidates. For example I have the right to put a sign in my yard that says "Vote for Smith".

But in Indiana, where I live, such a sign could earn me 5 years in prison, under a statute requiring the sign to have certain fine print on it of the government's choosing. Trust me, Indiana is somewhere you don't want to be in prison.

The statute's obviously unconstitutional, under both the state and federal constitutions.

Section 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.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

Talley v California and McIntyre v Ohio are the leading cases that find disclaimer laws unconstitutional. Citizens United found a limited exception: the government can require speech by corporations to have disclaimers. Before CU, corporations were entirely banned from speaking in favor of candidates; now they can do so but with disclaimer rules.

The cases are a subset of the more general principle that the government can't tell you what to say.

Tornillo v Miami Herald, Wooley v Maynard. As they say on TV, you have the right to remain silent.

Recently Beth White got some campaign postcards back from the printer where the disclaimer had been accidentally left off. Beth is our county clerk and is running for secretary of state. She's a Democrat, I'm not. This isn't about partisan politics. I have sued Beth before, over a voter ID policy both she and I think is unconstitutional. She doesn't let me vote, because I won't show ID. So we aren't exactly friends.

But I support her right to hand out her postcards. The state GOP has filed a complaint against her with the state election division. If she wins the fall election (at which she didn't let me vote) she will be the boss of the election division, although they have some independence.

The election division thinks the statute is enforceable,and could fine her, although it can't directly send her to jail, do not pass go. That would be up to the prosecutor, who is also a Democrat.

So we won't likely see a criminal case in which the statute could be found unconstitutional. Instead, it's up to folks like me to file suit, and maybe I will and maybe I won't.

This is an embarrasing situation for White, because she is a defendant in Mulholland v Election Board, because in the 2012 election she sent her goon, a guy named Kip Tew, to seize Zach Mulholland's campaign literature, because it didn't have the fine print about slating disclaimer.

But a federal judge, in Ogden v Marendt, had already declared the slating disclaimer rules unconstitutional and void, so it was unlawful for White to try to enforce them.

That's what she did  wrong and doesn't deserve to be secretary of state, not passing out some postcards that she had every right to pass out. As an elections official and a lawyer, she has sworn to uphold the constitution. When she conspired with Tew to steal Mulholland's fliers, she broke that promise.

 If I could vote, I would vote for the Libertarian candidate. Instead, White is going to throw away my provisional ballot, as she has done 5 times before. I've lost that case enough times I can't sue again, but I've asked some friends to go vote provisional so they will have standing to challenge this other unconstitutional act by White. Ginsberg's recent dissent in the Texas ID case shows that at least 3 of the judges are concerned about how states like Texas and Indiana are charging poll taxes to let people vote. 

 When I challenge disclaimer rules, I'm typically fighting liberals and Democrats. When I fight poll taxes, I'm typically fighting conservatives and Republicans. All I'm trying to do is keep America safe for democracy, in which the people elect leaders in free and open elections. 


The first sentence is wrong.
The U.S. Supreme Court recently upheld the Texas voter identification law, which requires voters to show an approved form of picture ID in order to vote at a poll. 

The Supreme Court did not uphold the statute, which by the way is not a law, since it was found void and unconstitutional. What they did do was rule that it is too close to the election to stop the unconstitutional program now. Appeal of the decision will take place later after the election.

When someone says something wrong, they are either making a mistake or deliberately lying. I cannot tell which is the case here. Please fix the broken article.

Btw thats a terrible sign up and log on procedure.

Wednesday, October 29, 2014

Beth White hoist by own petard:


Secretary of State candidate Beth White and current Marion County clerk will be facing penalties after the midterm election on Nov. 4.
The Democratic challenger to incumbent Connie Lawson was outed by the Indiana Republican Party last week for not having a financial disclaimer on postcard-sized 
campaign literature.
Publishing candidate material without a disclaimer is a felony, punishable up to $5,000, one-year imprisonment or both.
my comment: 

White's flyers were not illegal. They were free speech protected by the US and Indiana constitutions.
In 1960 The Supreme Court held in Talley v California that disclaimer rules are unconstitutional. In 1997 in Stewart v Taylor I got Indiana's disclaimer rules declared unconstitutional. See also Ogden v Marendt, and the current case of Mulholland v Election Board. Citizens United found that the government can require disclaimers on speech by corporations, but that doesn't apply to White's postcards. An unconstitutional statute is void and is not law. IDS owes White an apology, but kudos for breaking the story.

ibj photo

Hoist on her own petard: Beth White accused of forgetting disclaimer. . White is a defendant in Mulholland v Board, after she ordered Mulholland's literature seized because the format of the disclaimer was wrong, although a federal court had already ruled that statute unconstitutional.

http://electionlawblog.org/?p=67628 story now posted at electionlawblog.org


http://www.ibj.com/articles/37483-2012-woman-of-influence-beth-white background on beth white.

I like her personally, but I've sued her, in other contexts, and have reasonable disagreements with her about how she does her job.

The indy star is ignoring the story:



Apparently IBJ first broke the story a week ago:
story is by lesley weidenbener, a franklin college student.

My letter to IN GOP chair
Hi Mr Berry. I've been following the Beth White disclaimer story since yesterday. I'd missed it in the IBJ last week.

You seem to be unaware that the disclaimer statute, IC 3-2-9-2.5, is unconstitutional and void.
Americans have free speech, and the Supreme Court ruled in 1960 that states cannot require disclaimers.
Talley v California, McIntyre v Ohio.
Indiana;s disclaimer statute was ruled unconstitutional in 1997 in Stewart v Taylor. I'm Stewart. The legislature then re-enacted the unconstitutional statute,and so far it hasn't successfully been challenged in court. See Majors v Abell.
Odgen v Marendt found a different Indiana statute unconstitutional under McIntyre,and White is in trouble, in the Mulholland case, for violating the court's order in Ogden.   

Citizens United authorized disclaimers for speech by corporations, but that's not at issue here.
Jim Bopp is, besides me, the expert on these statutes,and you might check in with him; I assume you know each other.

The responsible thing to do is to withdraw the complaint. Otherwise White would be in the position to sue you under 42 USC 1983. I'm happy to answer any questions you may have on this topic.

Sincerely, Robbin Stewart. 

a different kind of election. a story about my former boss's uncle, who has decided not be reincarnated as the political leader of the tibetan people. http://boingboing.net/2014/10/24/the-dalai-lama-will-not-return.html

Monday, October 27, 2014

now that early voting is in progress and the election is just days away, i'm going to do a post on how things look for the GOP taking the senate.


first up here's an astute and balanced argument that the Dems are likely to retake the senate in 2016.

Iowa, Arkansas, Colorado, and Alaska, are tilting toward Republican candidates. Control of the Senate itself hangs in the balance, and most major forecast models now predict the GOP has a greater than 60 percent chance of winning the chamber. - Christian Science Monitor. Prediction: run-off in Georgia, so we won't know the exact number of seats till later. I think the GOP will get 50 seats without Georgia, but will they get 51?

Colorado: Udall v Gardner, too close to call. we don't know how mail ballots will follow polling,and the polls are tied. tossups CO KS LA GA. I predict the GOP will get at least one of these, for a likely 50-50 split util the GA runoff. But if they get two, the run-off doesn't matter as much.

The GOP may not get to 51 seats until after Dec. 6 (Louisiana’s runoff) or even Jan. 6, 2015 (Georgia’s runoff), making it difficult to actually call the Senate for Republicans even this close to Nov. 4.

Lawrence Lessig is trying to beat Roberts in KS, which could just tip the balance in that close race.

overall, likeliest outcome is GOP 51-52 after the GA runoff, able to defeat anything Obama would like to do. if the LA race goes to a run-off, the GOP will get it. GA would still be a toss-up in the run-off.
don't get cocky: generally in the past when i'm not right on the money i tend to overestimate gop chances.

update: GOP is leading slightly in CO, LA, still tied in KS, GA. If the GOP already has 51 seats and Orman wins, he might caucus R.  Rasmussen hows Orman up 5 points.

Saturday, October 25, 2014

Baudewatch department:
Will responds to a judge responding to Dalia at Slate.

I responded, in the comments at the Washington Post. At least 3 typos; I should have proofread better before hitting send.

8:32 PM EDT
The constitution contained multiple explicit texts that are infringed on my voter ID as enacted and practiced. 
Some of these texts are far more specific than the freedom of speech or press. 
Voting ~is~ speech, core speech, and is as protected as other forms of speech, but see Takushi, Crawford etc. Voter ID is, perhaps, an unreasonable search of one's papers and effects. Voting in a federal election is one of the few privileges and immunities of federal citizenship. Harper applied equal protection to a paperwork obstacle to voting. The most specific applicable provision is the 24th Amendment, which Ginsberg's dawn dissent references. The constitution textually prohibits charging money to vote. Courts in Georgia, Wisconsin,and now Texas have found that because certain voter ID programs charge money to vote, they are unconstitutional. This is a distinct argument from Missouri, which found that voter ID interfered with the state right to free and equal elections. GA used a legislative fix. The WI court judicially amended the statute so that payment would not be required. Texas is about to go ahead with enforcing a voter ID scheme it knows to be unconstitutional, which would seem to put its employees in a difficult spot a far as ethics and things like malfeasance are concerned.  
Voter ID violates the 19th where women who have changed their names are charged extra, and voter ID in Indiana at least violates the textual right of 18-21 year olds to vote, since the statute allows senior citizens to use absentee ballots more easily, to avoid voter ID. 
I think Will is correct in saying the Roberts Court cares about the text. I just don't think voter ID is the right example to point to. Freedom of speech is nebulous,and always requires some balancing. Not charging money to vote is a far more specific thing, that need never be balanced away, and the court should upheld that text in Taxes and elsewhere.

Friday, October 24, 2014


YouTube, Beware: Election-spending regulator sets sights on political Internet videos

FEC chair Ann Ravel calls for more investigation of internet videos after FEC deadlocks.

As the instapundit might say, tar and feathers.
Circa 2005ish, we generated a then-record 1000+ comments saying hands off the internet,and we thought they got the message, but censorship never sleeps.

Ravel has called for public comment on disclosure and disclaimers, with a January deadline.

We should take her up on that offer,and send in copies of what we sent in 10 years ago.
I first submitted comments on this issue during the AO 1998-22 Leo Smith episode.
The more things change,the more they stay the same.

First update, probably of many: I emailed the election law list:

Robbin Stewart gtbear@gmail.com

11:40 PM (0 minutes ago)
to Election


The infallible Fox News reports that FEC Vice-Chair Ann Ravel is calling for investigation of youtube videos without disclaimers. Tactically I may be making a mistake posting this on a Friday night, but I just caught the article.

To me this ties in with her recent request for comments on the disclosure/disclaimer issues. I thought we settled this ten years ago with the "hands off the internet" campaign, but even I will admit that there are some adjustments to be made in light of CU, superpacs, etc. 

I encourage members of this list who do submit comments to copy them to the list for discussion purposes.
I think both the pro and con factions are well represented here. Perhaps someone could draft a proposed joint statement that some of us would want to sign on to
emailed instapundit and erick erickson. still to do: email EFF and boingboing.

Thursday, October 23, 2014

via hasen, sara silverman


"This attempt to prevent voter fraud is itself the only voter fraud taking place."
Kinda nails it.

Wednesday, October 22, 2014

Hasen overrules Ginsberg.

Chevron is trying to buy a local election in a town where it is being sued.
Good article by the Brennan center (which has plausible deniability as being the real author.)

But the disclaimer statute (not law, merely a statute)  the article praises is unconstitutional
under the US and California constitutions. Talley v California, People v Schuster.

A more narrowly tailored statute directed at corporations like Chevron would be constitutional, federally, under Citizens United, and would present an interesting policy choice for the California Supreme Court.

Didn't realize they had a blog. http://www.brennancenter.org/blog

Tuesday, October 21, 2014


talking with a woman who lived in quebec and her husband is a specialist in canadian legal history.

Strawman is real:

Backers of voter ID like to say that opponents of voter ID claim there is no fraud of the sort voter ID would fix. This is a strawman position since our actual argument is that the harm to voter integrity done by voter ID outweighs whatever small voter fraud it may prevent or deter.

But here's Obama interviewed by Toobin in the New Yorker:

In response, Obama offered a modulated criticism. As he put it, “The fact that the Supreme Court didn’t seem to internalize evidence where state election officials or politicians are pretty unabashed in saying we want to keep certain folks from voting, where you have voter-I.D. laws that clearly make it harder for certain folks to vote, despite the fact that there is no actual evidence of fraud—not just a little evidence of fraud but no evidence—as every mathematical assessment, statistical assessment that’s been done shows, it’s a pretext for wanting to shape the franchise for partisan advantage.

a homework assignment:

“Statement of Vice Chair Ann M. Ravel Encouraging Public Comments to Increase Disclosure and Address Corruption in the Political Process”

Via email:
Statement of Vice Chair Ann M. Ravel Encouraging Public Comments to Increase Disclosure and Address Corruption in the Political Process
For the first time in more than a decade, the Commission is now accepting wide-ranging public comment on issues fundamental to campaign finance — including disclosure and corruption in the political process.  Between now and January 15, 2015, citizens from across the political spectrum are invited to express their views, submit proposed policy solutions, and otherwise formally participate in the Commission’s policymaking process.  Then, on February 11, 2015, the Commission will convene a public hearing where commenters will have an opportunity to speak directly to the Commission.
The Commission is asking what rules it should implement to address corruption and increase disclosure in the political process.  For example, how should the Commission improve its rules on public disclosure, earmarking, joint fundraising committees, and committee affiliation?  Are there any other regulatory changes the Commission should make to prevent the circumvention of contribution limits or the concealment of the sources of those contributions?  There may be solutions to these problems that have not yet been considered, or the Commission might look to states like California and Maryland, which have been working on new approaches.  We need to hear from the public on these and other issues of consequence to campaign finance and our democracy.
As a public agency, the Commission has an obligation to directly engage the public in a constructive dialogue concerning the impact of its policymaking on our democracy.  But for far too long, the Commission has been closed off, mired in gridlock, and uninterested in meaningful public input.  So this new comment period and the public hearing to follow are major steps toward openness and direct public engagement.  And they are the direct result of the compromise rulemaking package the Commission approved on October 9.
To me, allowing an opportunity for the public to participate in the Commission’s policymaking was especially important — and long overdue — given the growing public concern about undisclosed spending flooding the American political process.  An estimated $4 billion will be spent during this year’s mid-term election, with $700 million or more in anonymous spending.  Outside spending by groups that hide their donors increased from just $5 million in 2006 to more than $300 million in 2012.  Despite this dramatic increase, declining levels of public trust, and growing cynicism about the political process, the Commission has ignored — until now — public views about, for example, how to strengthen its disclosure rules so that voters know who is behind the messages intended to influence their votes.
That is why every citizen who cares about the future of our democracy should make his or her voice heard during the current comment period.  Submit comments and join us for the public hearing in February.  We need to hear from you.
Here’s how to submit written comments and testify at the public hearing:
Online:          http://sers.fec.gov/forces/addcomments.htm?pid=93617
Paper:                Federal Election Commission
Attn.: Amy L. Rothstein, Assistant General Counsel
999 E Street, NW
Washington, DC 20463
Be Sure to
Include:                Each commenter’s full name and postal address
Deadline for
Comments:        January 15, 2015
To Testify at
the Hearing:        File a written comment by January 15, 2015, that includes a request to testify at the public hearing.

Monday, October 20, 2014


On Saturday morning the Supreme Court allowed Texas's voter ID to be used in this election.
although it has been found to be unconstitutional and also a violation of the Voting Rights Act.
The most interesting aspect was a 6 page dissent by J.Ginsberg, joined by the other two women justices.


"The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,
To prevent that disenfranchisement, I would vacate the Fifth Circuit’s stayof the permanent injunction ordered by the District Court."

As she points out, Crawford did not raise or decide a poll tax claim, so we're on new territory, The case has the potential to be the 2nd 24th Amendment case for the Supreme Court. The last one was in 1965.

 By pointing out that voter ID is a threat to public confidence in elections, she takes out one of the three prongs the Crawford court used to uphold voter ID. Another prong, that Indiana had not cleaned up its outdated voter lists, has been eroded by the passage of time.

Justice Breyer did not join the dissent, The court's short order was unsigned, so we don't know how many joined it. My analysis is that on the court now there are 4 opposed to voter ID, 3 solidly for it,and Kennedy and Roberts in the middle where it will depend on the facts of the case. This case has solid facts, as found by the district judge, including  finding that the legislature acted with deliberate prejudice. So there's hope, although I cannot predict the outcome.

Friday, October 17, 2014

[–]auchim 77 points  
In 1961 the voting age in the United States was still 21; it wouldn't be lowered to 18 until the passage of the 26th Amendment. My grandfather, a firefighter and footsoldier for Boss Daley's Machine (as were all city workers until very recently), took my 19-year-old mother to the polling place. With a nod and a wink to the election judges, he went into the voting booth with her and had her vote for Kennedy. Chicago and the Daley Machine helped deliver that election to Kennedy.
The Machine is a pale shadow of what it used to be, but my mother and all the old-schoolers in that neighborhood are still on a first name basis with their precinct captains and know who the ward boss is.
My parents actually believed in the Machine and didn't consider it "real" corruption. I remember my father explaining that as a politician, it is your job to take care of the people who got you elected. The unspoken part of this philosophy was that if you didn't help get the politician elected, it was the politician's job to shit on you and yours.
Chicago: The City that Works
I got stories, man.

Thursday, October 16, 2014

just a draft so far:  

This has been an interesting time for people interested in whether Voter ID, as practiced in Indiana, is constitutional. Back in 2008 the Supreme Court found that an ACLU lawsuit was defectively filed, and that deciding the merits of the case would have to wait for as-applied challenges to come later.
Those challenges are now working their way up the pipeline, and yours could be next.

After the 7th Circuit in Chicago split 5 to 5, the Supreme Court put Wisconsin's voter ID on hold for this election. The Supreme Court of Arkansas found voter ID unconstitutional. The Wisconsin Supreme Court has already ordered changes because charging for documents like a birth certificate would be a poll tax.

A judge in Texas found that voter ID is a poll tax, violates the voting rights act, equal protection,and the First Amendment, but the circuit court put that ruling on hold. The Supreme Court is likely to act on that case shortly. So far, no one in Indiana has filed a new suit recently, but I've heard that the Moral Mondays group is looking for plaintiffs. If you would like to be a plaintiff, one way to get things started is to give this notice when you to go to vote.

Clip and Save:


To [Marion County] election officials:

It is my expectation that when I go to vote I will be denied a regular ballot, and at most given a provisional ballot that won't be counted. Or, I will be forced to show an ID, in violation of my rights, in order to get to vote. Either way, this is an illegal interference with my right to vote.

This violates my right to vote, under the Indiana Constitution Article II section 1, the right to free and equal elections.

This violates my right to vote under the privileges and immunities clause of the 14th Amendment as well as the due process and equal protection clauses.

This violates my right to due course of law under the Indiana Constitution, Art. I section 12.

This violates my right to freedom of speech under Article I section 9.

This violates my right to be free of an unreasonable unwarranted search under the 4th Amendment and Article I section 11.

This violates the Voting Rights Act of 1965, section 2.

This violates my right to vote as protected by the First Amendment.

This violates my right to vote without paying a fee under the 24th Amendment.

_______________ (name, date) _________


New Hampshire Supreme Court Finds Push-Polling Law Preempted

I would have preferred for Justin to use the term 'disclaimer' rather than 'disclosure".
But I agree with the court's reasoning and outcome.
I am one of the country's harshest critics of disclaimer statutes generally.
The one place a disclaimer can be required is a phone call, because it is an intrusion into personal space in the way that a TV or print ad isn't, even a google-targeted print ad. But state regulations are preempted for federal candidates.


missed this at the time unknown sds criticized my suit saying i lacked standing. the judge thought so, but in one of my prior cases about standing, majors v abell, the 7th circuit reversed. this case was not appealed.

my argument that i had standing was that my vote was not counted; that is enough to confer injury.


david post post at volokh on anonymous speech case in PA.


Wednesday, October 15, 2014

freeman v burson effectively overturned, no let's say modified, in kentucky. fed court strikes down 300 foot limit.

new new york.
if you can make it there you'll make it anywhere.

Obama to campaign for Brown, Quinn



it's late, i'm drunk, but did i forget to mention a court has found marion county's system of electing judges unconstitutional? i ran for judge in 2000, getting a then-record 26000 votes, just to highlight how absurd the judicial election system was.

Tuesday, October 14, 2014

I had been saying that the senate looks to go GOP, then about a month ago it became too close to call. Now I think it's back to the GOP.

I expect the GOP to pick up seats in WV, AK, AR (leans GOP, still a maybe), SD. That's 4 of the 5 they need. 50% chance of losing KS to an independent who would probably caucus D, but hasn't said.
so say they are are at 3 1/2. I think McConnell keeps KY R.

There are 6 toss-up states, including CO, NH, LA, NC, IA, GA. The odds are decent the GOP will pick up at least 2 of those, so ending up with at least 50, maybe 51, 52, or even 53. I suppose Biden could become king if there's a 50-50 split.

The NC race could wind up in the courts; it's not clear that the election will be outside the margin of litigation. I would prefer not to see another Bush v Gore with the courts deciding control of the senate.


meanwhile in the house, says politico:
Three weeks out from an election that could give Republicans a historic majority, House Democrats are resorting to the painful strategy of retreat.
Faced with a perilous midterm environment and a sudden gush of Republican money, Democrats are shifting cash from blue-chip recruits to prop up teetering incumbents. The goal is to minimize losses and keep Republicans from their most dominant hold on the House since Harry Truman’s presidency — potentially expelling Democrats from the speaker’s chair for years to come.

Read more: http://www.politico.com/story/2014/10/house-democrats-retreat-111875.html#ixzz3GBmy3j4o

Monday, October 06, 2014

I havent yet read the 7th circuit decision in Wisconsin upholding voter ID. Or rather a 7th circuit panel, opinion by Easterbrook. Hasen says it's terrible. Sometimes a terrible decision is better than a merely bad one.

The 7th recently split 5-5 on whether to rehear the stay in the same case. Maybe some of those votes were about procedure; the stay is too close to the election. But if there are at least 5 votes, a really bad opinion by Easterbrook could help pick up one more vote, either on the full 7th circuit or the U S Supreme Court.

Posner's decision in Crawford was really bad, and there have been some ambivalent comments suggesting a possible change of heart. A 6-4 opinion by Posner, following a chaotic Wisconsin election, would be high drama.

Also at the Supreme Court we don't yet know how Roberts and Kennedy will vote in an actual case where multiple people are disenfranchised by voter ID and bring an as-applied challenge.

The worse the Easterbrook opinion, the more these sometimes moderate judges could feel  compelled to grant cert and give the case a fair hearing.

update!: another 5-5 split, Posner for the losing side, and meanwhile the Supreme Court has stayed voter ID for wisconsin this cycle, 3 dissenters, Scalia, Alito, Thomas.

Thursday, October 02, 2014

The Marion County election department tells me there were 7 provisional ballots not counted at the spring primary due to voter ID. They are pondering whether to release the names to me.
If they do, I will passing those names on to a group that claims to be looking for plaintiffs, although the group's attorney is anonymous for now. I have a couple of potential new plaintiffs lined up for the fall election, if they follow though.

Marion County is only one of Indiana's 92 counties, but it is the largest.
The numbers are small which I think that those who don't have or won't show an ID have given up on the useless provisional vote alternative. But it could also support a view that voter ID isn't burdening many people. Turnout at the primary was low. There are no hotly contested big ticket races. Secretary of State is the top of the ticket. Both major party candidates are fairly competent and uncontroversial. They differ slightly on voter ID and gay marriage and little else, so I expect turnout in the fall to be low.

new texas voter ID case.
ah, i see hasen already blogged this around noon while i was off getting a haircut.

Wednesday, October 01, 2014

Koch brothers respond to Rolling Stone, which piles on further.

Oddi discusses the reasons behind the 5-5 tie at the 7th.

WYNN, Circuit Judge:
The right to vote is fundamental. “No right is more 
precious in a free country than that of having a voice in the 
election of those who make the laws under which, as good 
citizens, we must live. Other rights, even the most basic, are 
illusory if the right to vote is undermined.” Wesberry v. 
Sanders, 376 U.S. 1, 17 (1964). And a tight timeframe before an 
election does not diminish that right. 
“In decision after decision, [the Supreme] Court has made 
clear that a citizen has a constitutionally protected right to 
participate in elections on an equal basis with other citizens 
in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 
(1972). ....

That's a good start to today's 4th circuit opinion. Plaintiffs didn't get everything they want,
and will have to fight at the Supreme Court to keep what they did get, but it's a start.

The Supreme Court will likely do nothing, but might take this case and the Wisconsin one
(has an appeal been filed yet?) to address the Purcell problem of changing horses in midstream.
I don't mind if the Supreme Court takes the case. The possible reward is worth the risk.


NYT on Hong Kong protests and their 17 year old leader.

partial, limited, success in n carolina challenge to voting rights rollbacks. see hasen for ongoing updates. now tbat i've read it, seems reasonable enough, but i haven't yet read the dissent.

edit: the suprmee court has stayed the stay, so the limits to early voting are back in place. the voter ID provisions dont come into play until 2016 anyway.


a settlement conference was held yesterday in Mulholland v Marion County. I'm hoping to get word of how that went, if they can say.

the board is on record as not enforcing the void statute until the case is over,
but they are still selectively investigating Mulholland, trying to find something that would stick.

By now I've read the opinion and dissent in Frank v Walker, in which a divided (5-5) 7th Circuit upheld letting Wisconsin go ahead with voter ID this fall.

Posner was on the losing side, and did not author the opinion, but I was interested to see what it might have to say about his possible change of heart on voter ID. The dissent properly focuses on the disruption caused by moving to voter ID this quickly. It has little to say about the merits, so it would be possible for Posner to join this dissent and still later vote to uphold the statute.
But the winning side thinks the merits are strong,and the state will prevail, and Posner doesn't agree.
So he has indeed come a long way since his erroneous dismissive opinion in Crawford.

As I've said before, the best thing to do now is for as many people as possible to refuse to show ID in the fall election, and add to the chaos, so that the case, as it continues, will be stronger.

The panel that was upheld, Easterbrook et al., might say that that is a self-inflicted harm rather than a constititutional violation.
But everyone has a right to a free election, and if some people choose not to participate in what they might see as an unwarranted search or a tax on voting or a severe burden, withe the result that the outcome of the election becomes unknowable, that harms everyone, not just those who have chosen to opt out.


The Democratic group's election complaint cites a state election law forbidding persons from accepting employment with a campaign with the understanding -- express or implied – that they'll in turn contribute to the campaign.

Is the statute constitutional? What is the state interest here? Is there some backstory to how this statute was passed?

This question is distinct from whether the statute was violated here, where the contribution came first.
It seems like such a statute could be avoided simply by making an in-kind contribution or giving a discount on the work.

This page, http://sos.oregon.gov/elections/Pages/violations.aspx, appears to be 7 years out of date.

The ohio firm seems an interesting bunch,

On more than once occasion, [sic] they were accused of leaving dead cats on the lawns and porches of political opponents.

The source for that is buzzfeed, which may not always be reliable.

Oh, now that i've read the statute, it would be unreasonable to apply it to employment with the campaign itself. http://www.oregonlaws.org/ors/260.422
The intent is pretty clearly the "we get you a job and you kick back 10% to our guy" kind of patronage system. So if Oregon attempts to proceed, D has an as-applied defense, not an unshakable one. The statute wouldn't be facially invalid, see Wash State Grange. However, there may have been a technical violation, enough to justify a probable cause finding, if that is how Oregon does it.
More likely, this is just a political complaint not expected to go anywhere, just to sway voters.

Tuesday, September 30, 2014

senate a toss-up.


possible december run-off in louisiana.

Monday, September 29, 2014

Sunday, September 28, 2014

rolling stone on the koch brothers. they have enough influence on elections and election law that i think the article could be relevant to this blog. i do not agree with the rolling stone's position, but there are some facts in the article that could be of interest.
now  that i've read it, i found it useful. i dont know if rolling stone is a reputable source, but if what they've written is true the kochs are crooks.

placeholder for a draft of an editorial on why republicans should oppose voter ID

still just a placeholder; this is a first draft not a finished product.

placeholder for a draft of an editorial on why republicans should oppose voter ID.

1     After WWII, the Republican party under Eisenhower proposed what is now the 24th Amendment, so that troops returning to the South could vote with less interference from racist Democrats. The amendment prohibits charging a fee for voting.

Wisconsin's supreme court recently upheld voter ID, but required that the state stop charging for documents like a birth certificate, in order to avoid being an unconstitutional tax on voting.

Other states that still charge for such documents, such as Indiana, are acting unconstitutionally, if the Wisconsin court was right.

2     Voter ID has costs millions, funds that could have gone into detecting and prosecuting voter fraud with traditional law enforcement techniques, such as rewards, informants, search warrants, and more staff. So far voter ID has not detected any cases of voter fraud resulting in prosecution.

3     The millions spent on voter ID sends a message to voters that the Republican party is a wasteful tax and spend party, just like the Democrats.

4     When the GOP supports useless red tape in elections, it loses its credibility to fight other red tape.
5     When voter ID first surfaced in 2004, the Missouri Supreme Court found, correctly, that it interfered with the right to free and open elections under the state constitution. When GOP politicians fail to do their duty to uphold the constitution, they lose credibility with voters.

6     When the GOP tries to game to system to deter Democrats from voting, this is widely understood as corruption. At one time, the Republican party stood for good government, in opposition to corrupt Democratic machines. Voter ID tarnishes this legacy.

7     Voter ID is one small step to requiring citizens to carry papers at all times, as if this were South Africa or East Germany. The GOP should oppose rather than support such creeping authoritarianism.

8.     In Kansas, ID's are being scanned by computer. The computer then decides who gets to vote and who doesn't. This has the potential to be abused. Voter ID isn't about the picture on the front, it''s about the magnetic strip on the back. This hasn't come to your state yet, but it will if we don't fight.

9    Voter ID has more impact on blacks, who are less likely to have driver's licenses or passports. This lets Democrats paint the GOP as racist. This perception loses votes among moderates.

10.     The excuse used for voter ID is to prevent fraud, but voter ID results in far more voter fraud than it prevents. When a person votes twice, that is voter fraud, but when a person's one vote isn't counted, that is also voter fraud. In the old days, corrupt politicians could arrange to steal ballot boxes from certain precincts. Using voter ID as an excuse, 1000s of legitimate votes have gone uncounted.
So voter ID cannot be justified as an anti-fraud measure - it just doesn't work for that purpose.

To summarize, voter ID is unconstitutional, takes money away from real anti-fraud measures, undercuts the party's former reputation as fiscally responsible, is unneeded red tape and beaurocracy,
interferes with free elections, is corruption, is creeping authoritarianism, lets computers interfere with voting, leaves a false impression that the GOP is racist, driving away moderate independents, and creates more fraud than it prevents.

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