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Wednesday, October 22, 2014

Hasen overrules Ginsberg.
http://electionlawblog.org/?p=67275

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.)
http://www.brennancenter.org/blog/why-chevron-spending-millions-municipal-election

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

http://www.salon.com/2014/10/21/12_reasons_texas_new_voter_id_law_is_racist_partner/

http://www2.thebay.com/giftregistry/
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

http://thevotingnews.com/news

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.

http://www.supremecourt.gov/opinions/14pdf/14a393_08m1.pdf

"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:

NOTICE OF TORT CLAIM

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) _________



http://electionlawblog.org/?p=66976

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.

http://lawprofessors.typepad.com/conlaw/2010/04/the-latest-challenge-to-indianas-voter-id-law.html

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.

http://www.jmls.edu/directory/profile.php?lastfirstname=Schwinn_Steven

david post post at volokh on anonymous speech case in PA.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/16/constitutional-protection-for-anonymous-speech-takes-a-hit-in-pa-though-preliminary-damage-estimates-are-low/

https://casetext.com/communities/election-law

Wednesday, October 15, 2014

freeman v burson effectively overturned, no let's say modified, in kentucky. fed court strikes down 300 foot limit.
http://electionlawblog.org/?p=66850

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

Obama to campaign for Brown, Quinn


http://www.realclearpolitics.com/epolls/2014/senate/nh/new_hampshire_senate_brown_vs_shaheen-3894.html

http://hotair.com/archives/2014/10/14/real-clear-politics-the-gop-in-position-to-take-a-big-majority-in-senate/



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.

http://www.realclearpolitics.com/epolls/2014/senate/2014_elections_senate_map.html

update:
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.
https://www.texastribune.org/2014/10/02/criminal-appeals-court-judge-files-voter-id-lawsui/
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.
http://www.rollingstone.com/politics/news/koch-industries-responds-to-rolling-stone-and-we-answer-back-20140929

Oddi discusses the reasons behind the 5-5 tie at the 7th.
http://indianalawblog.com/archives/2014/09/ind_courts_more_878.html

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.

http://www.nytimes.com/2014/10/02/world/asia/hong-kong-china-democracy-protests-students.html?_r=0

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.

http://www.aclu-in.org/issues/justice/voting-rights/107-political-parties-cant-stop-nonslated-candidate-ads

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,
http://www.indy.gov/eGov/County/Clerk/Election/about/Documents/2014%20EB%20PDF%20Minutes/EB%20Meeting%20Minutes%20March%2027,%202014%20-%20Emergency%20Mtg.pdf
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.
http://electionlawblog.org/wp-content/uploads/en-banc-order_2yRG.pdf

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.


http://www.oregonlive.com/politics/index.ssf/2014/09/democratic_party_of_oregon_fil.html

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,
http://www.wweek.com/portland/blog-31873-gop_candidate_for_governor_dennis_richardson_picks.html

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.
http://www.buzzfeed.com/mckaycoppins/inside-the-meltdown-at-americas-most-conservative-most-chris#4ht0w6q

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

http://bluenationreview.com/jesses2014senforecast/
senate a toss-up.

http://www.usnews.com/opinion/articles/2014/09/30/3-races-that-could-send-election-day-2014-into-overtime

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.
http://www.rollingstone.com/politics/news/inside-the-koch-brothers-toxic-empire-20140924
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.

not the onion:
http://thinkprogress.org/election/2014/09/28/3573103/ben-carson-anarchy-election/

the onion
http://www.theonion.com/articles/obama-informs-nation-anarchy-will-reign-during-sea,37024/

 In 1929, Rin Tin Tin may have received the most votes for the first Academy Award for Best Actor, but the Academy determined that a human should win.[1]




Saturday, September 27, 2014

http://www.ogdenonpolitics.com/2014/09/an-update-on-us-senate-races.html

This is a guy I know in person as well as online. I mostly agree with his analysis,
although Kansas is a toss-up.
Ogden is a local lawyer who was suspended for 30 days this summer for speech he
believes was protected by the First Amendment.
The Zach Mullholland case, which goes to a settlement conference this week, is based on Ogden v Marendt, which found Indiana's slating disclaimer statute unconstitutional per McIntyre, a Bopp case.

Posner, maybe, has changed his position on voter ID.
I did not think he would or should recuse on the Wisconsin voter ID case,
merely because he has  made some public comments about voter ID,
which might or might not have reflected a change of heart on the issue.

The 7th circuit just split 5-5 on whether to rehear Wisconsin's voter ID stay.
The opinions, forthcoming eventually, maybe, will be an interesting read,
and I expect a lot of discussion of whatever Posner has to say.

It's entirely possible his vote to rehear is not based on the merits, but on the problems
of the short time frame for changing the rules.

This is the second time the 7th circuit has split on voter ID rehearing. Was it 4-4 last time,
in Crawford, or 4-5?
I happened to meet former Representative Crawford last week. He was doing security for Rev. William Barber who is bringing Moral Mondays to Indiana.
Indiana's Moral Monday group is watching developments at the 7th circuit closely, pondering whether to file another voter ID lawsuit there. They have a lawyer, but he prefers to remain anonymous at the moment, so I don't know who it is.
Both the 7th Circuit case and the 4th Circuit North Carolina one are likely headed to the Supreme Court, which might or might not act before the election.

In many ways I think that the best thing that can happen in Wisconsin is for the stay to stay lifted, and for the election to be a chaotic mess, exposing voter ID as an unworkable sham.
But interim relief from the Supreme Court, a la Purcell, would also be a welcome development.

When Crawford was before the 7th circuit for en banc rehearing, I submitted an amicus brief, but the state objected and Posner denied the motion to admit it.
I recently found an earlier draft of that brief in an old email,and I may update this post later with a link to it if I figure out how to get blogger to link to a file. The brief, at least that draft, has some problems, and I made a substantial error in the motion to file it, by failing to point out that the case court resolve my pending litigation below (Palmer v Marion County.) Still, the brief made some good points, that partly went un-addressed.
That brief argued that Posner had used the wrong standard of review, which the Supreme Court later agreed with, and also argued that Posner erred in failing to address the state constitutional claims.
A state appellate court later found the statute unconstitutional on state grounds, although that was later reversed by the state supreme court. I think that's solid enough evidence that the state issues were non-trivial. I argued that the court should certify the state issues to the Indiana Supreme Court.
Since the circuit split, I think 4-4, I have often wondered if my brief would have changed one vote.
If the state questions had been certified to the state supreme court, Crawford would have taken a different path to the US supreme court. At the US Supreme Court, I also had an amicus, although I didn't write it. I joined the Privacy Project brief.

Here is the NYT on the 7th Circuit's ruling
http://www.nytimes.com/2014/09/27/us/federal-court-declines-to-take-up-wisconsins-voter-id-law.html?_r=0 and Volokh.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/26/seventh-circuit-splits-down-the-middle-over-wisconsin-voter-id-law/


Thursday, September 25, 2014

Nudging One Direction; A Response to Gerken.

http://electionlawblog.org/?p=65878

I had missed Heather Gerken, et al.,'s April 3 editorial in the Washington Post, and some subsequent back and forth with Bob Bauer.

Like many in the "reform" faction, Gerken seeks to use an onerous disclosure regime to deter speech she would prefer to ban entirely. But here, her proposed remedy wouldn't work as planned.

This is because she has misread Citizens United. Her proposal would be unconstitutional, unless scaled back to a point where it would be ineffective.

She thinks, or claims, that Citizens United approved disclaimers in general. The language of the opinion is  vague, and a person could make that mistake, but CU is an opinion limited to speech by corporations, speech that had previously been entirely banned, and is now permitted subject to disclaimer and disclosure regulations.

CU did not overrule McIntyre, Talley, ACLF, Watchtower, Tornillo, Wooley, Federation of the Blind.
See also AID v Open Society, a post-CU case which holds the government may not tell private parties what to say.

In McIntyre, Justice Ginsberg concurred saying "ïn for a calf is not in for a cow"; that in other narrow circumstances a disclaimer requirement might be upheld. CU was such a circumstance.

How do we know CU is so limited, since they did not expressly say so?
First, the overall tone of the case is one that extols and expands freedom of speech and press. It is a mistake to try to read CU as an endorsement of censorship and a rolling back of 50 years of progress in civil rights.
Second, when CU overruled Austin, it carefully explained why and how it was doing so, especially in Chief Justice Roberts' concurring opinion. If CU had been intended to overturn Talley, it would have told us how and why it was doing so.

So the regulation Gerken urges would be unconstitutional and void, unless it were limited to corporations. But, since money flows like water, those who wish to speak without this particular form of censorship could route their money though non-corporate speakers, the old wack-a-mole game again.

Alternatively, she might just be looking for a temporary solution, since even an unconstitutional and void statute can have effect for a while, as with McCain-Feingold. But it was McCain-Feingold that set up CU and undid Austin; a dangerous game.

I would have more to say, but I've managed to break my power cord and will have to get a new one tomorrow, so I will end this entry here. Back online with a new laptop.


http://www.npr.org/blogs/thetwo-way/2014/09/25/351363171/eric-holder-to-step-down-as-attorney-general

Wednesday, September 24, 2014

“No one to vote ‘no’ on!” - election palindrome.

http://www.fox19.com/story/26612966/father-daughter-sue-ohio-school-over-election

I don't know exactly what the allegations were; there's no link to the lawsuit.

Unless there's more, it sounds, even to me, kind of frivolous. But there could be facts to support such a suit.

http://www.morningjournal.com/general-news/20140923/clearview-student-sues-district-officials-claims-she-was-bullied

 the principal (Tafe) announced over the school’s speakers that her opponent was the new school class president before the election was even held. It’s just wrong on so many levels.”

That's troubling if true. Still not a cause of action. claim is disputed in the comments, but who knows.

Brown said one of his daughter’s fellow pupils and election running mate informed her that because of the bullying he received from West, he dropped out of the election and even considered suicide.

The ABA moves into fiction publishing:
"Book Review: David Lat's Supreme Ambitions." Steve Klepper has this post today at the "Maryland Appellate Blog."
Posted at 08:40 PM by Howard Bashman 

Monday, September 22, 2014


“California’s FPPC Provides  Dysfunctional Example for Federal Agencies to Follow: Trevor Potter’s 40th Anniversary Keynote Address”

Here.

Saturday, September 20, 2014

WI supreme court asked to delay voter ID for fall election.
http://host.madison.com/wsj/news/local/govt-and-politics/wisconsin-supreme-court-asked-to-delay-voter-id/article_a9b150db-d246-55ca-9b03-1ef02bb7117a.html

http://host.madison.com/news/local/writers/steven_elbow/wisconsin-poll-watcher-militia-plans-to-confront-scott-walker-recall/article_062df082-5fea-5363-b498-c0c51aa5fa30.html
Wisconsin Poll Watcher Militia' plans to confront Scott Walker recall petition signers at polls


This seems ill-advised. Bad public relations and questionably legally. I don't know whether WI has a provision against arrest while going to or from the polls. In the 1990s I was arrested after voting in Missouri and lost a case on it, when the appeal court said a primary wasn't an election. The state supreme court denied transfer.

http://watchdog.org/171828/election-ads-north-carolina/
Disclaimer and disclosure complaint in NC over fracking ads.

Today I heard a speech by William Barber, the NC minister who started Moral Mondays - he's bringing it to Indiana and 13 other states.

This post was linked at http://electionlawblog.com.

Friday, September 19, 2014

hasen on kansas:
3. Further, this seems really self defeating.  Why can’t the party just nominate ,,, Kris Kobach?
That's hilarious. and would be effective.

Thursday, September 18, 2014

the gop's changes of winning back the senate were about 50-50 yesterday. today's correct decision taking the democrat off the ballot in kansas won't help.

Current Seats
Democrats
53
Republicans
45
Independents
2
Projected Seats
Democrats
46
Republicans
51
Independents
3
http://www.electionprojection.com/

at this point it's almost definitely "no". just rumors, but 54-46%

For the first time, the vote was extended to 16- and 17-year-olds living in Scotland. Nearly 110,000 people younger than 18 have registered to vote.


the exit polls dont look good right now, but it's too soon to call.



So hang on, you literally draw a Scottish flag to vote?

Wednesday, September 17, 2014



Tuesday, September 16, 2014

en banc is the next step for WI voter ID.

the other day i found a better copy of the amicus i submitted to the 7th circuit in crawford v marion county, that judge posner turned down. maybe i'll see if i can find a place to post that and link to it here.
i probably won't write one for WI.

hanging chad

The majority of the Moral Monday trespass cases in  N Carolina are likely to be dismissed after a judge has ruled that the 'disturbance' policies at the statehouse are not narrowly tailored.
Friday I expect to be at a training workshop with Reverend Barber, the NC NAACP head and leader of moral mondays, which are now branching out to other states. The above developments are not dispositive of his case, which is still on appeal, but it's a good sign.

Meanwhile, Hasen reports that the NC NAACP has filed a complaint against one of the legislators because their campaign ad suggests voter ID is already in place - it doesn't go into effect until 2016, if ever.
http://news.southernstudies.org/2014/09/nc-naacp-files-complaint-over-state-senate-leaders.html

I rarely agree with the editorials of the New York Times. (I was a teenage paperboy for the times in college. They bought my first drink of Tanqueray, and it's been my drink of choice since then, even if I still can't spell it.) But this one's petty good:
http://www.nytimes.com/2014/09/16/opinion/electoral-chaos-in-wisconsin.html?ref=opinion&_r=1 .

Monday, September 15, 2014

I forgot to put on my todo list that I need to write to the Marion County Election Board for a list of the voter in the primary this spring whose provisional votes were not counted for voter ID reasons.
I was in their office Friday and they said send us a letter.

I had missed that in March the 7th circuit reversed dismissal of Mulholland v Marion County Election Board.
http://www.gpo.gov/fdsys/granule/USCOURTS-ca7-13-03027/USCOURTS-ca7-13-03027-0

Filed opinion of the court by Judge Hamilton. Because the district court erred in dismissing the case under Younger, weREVERSE that decision and REMAND for further proceedings, with the additional instruction that the district court consider promptly whether to issue a preliminary injunction against the Board, keeping in mind the primary election scheduled for May 6, 2014. Nothing in this opinion should be understood to prevent the Election Board from making any arguments it wishes to make about changes in applicable law or other circumstances preventing application of issue preclusion based on the Ogden final judgment. Such arguments, though, will need to be raised in the federal court. The mandate shall issue immediately. Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. [6561061-1] [6561061] [13-3027]

Zach Mulholland ran for the same legislative district I did, in 2012, and had his brochures seized illegally by the board. I will now try to find out where the case currently stands.

http://www.indystar.com/story/news/politics/2014/03/20/us-appeals-court-reinstates-challenge-indiana-elections-law/6660835/

via marcia oddi here's the full 7th circuit opinion 17 pages
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D03-20/C:13-3027:J:Hamilton:aut:T:fnOp:N:1311081:S:0

my earlier coverage was here:
http://ballots.blogspot.com/2013/07/legal-fees-mount-in-candidates-lawsuit.html

http://www.ogdenonpolitics.com/2014/02/seventh-circuit-hears-mulholland.html
paul ogden links to the 7th circuit hearing audio.

more ogden:
We atorneys are officers of the court.  We are obligated to follow the orders of the court, regardless of whether we like them. The knowing failure to do so is contemptuous, a direct affront to the authority of the court.  These attorneys knowingly violated a federal court order to harm a person they knew perfectly well would have no satisfactory remedy after the election.  Judge Barker should issue a Rule to Show Cause and bring every one of those attorneys who acted to adopt and enforce the illegal Board decision to seize Mulholland's literature into her courtroom to explain why they should not be held in contempt of court for their conduct.

I didn't realize that Ogden and Mulholland are or were in some litigation together, seeking access to voting lists.
http://indianalawblog.com/documents/Bowes.Complaint.pdf

earlier coverage of mulholland case by advance indiana blog
http://advanceindiana.blogspot.com/search?q=mulholland

ok, found the case on pacer. there is a settlement conference 9./30

gavin rose/ken falk at the iclu are counsel.

MOTION Defendant's Motion to Certify Questions of State Law to the Indiana Supreme Court, filed by Defendant MARION COUNTY ELECTION BOARD. (Townsend, Alan) (Entered: 06/24/2014)
06/24/201460 REPLY in Support of Motion re 47 MOTION for Summary Judgment , filed by Plaintiff ZACHARY MULHOLLAND. (Attachments: # 1 Affidavit -Supplemental- Zachary Mulholland)(Falk, Kenneth) (Entered: 06/24/2014)
07/03/201461 RESPONSE in Opposition re 59 MOTION Defendant's Motion to Certify Questions of State Law to the Indiana Supreme Court , filed by Plaintiff ZACHARY MULHOLLAND. (Attachments: # 1 Exhibit Ogden- State's Memo. in Opp. to Pre. Inj., # 2 Exhibit Ogden- Pre. In. Resp. of Election Bd.)(Falk, Kenneth) (Entered: 07/03/2014)
07/11/201462 REPLY in Support of Motion re 59 MOTION Defendant's Motion to Certify Questions of State Law to the Indiana Supreme Court , filed by Defendant MARION COUNTY ELECTION BOARD. (Townsend, Alan) (Entered: 07/11/2014)
07/17/201463 SCHEDULING ORDER-TELEPHONIC Status Conference set for 8/8/2014 09:20 AM before Magistrate Judge Mark J. Dinsmore to discuss case status. Signed by Magistrate Judge Mark J. Dinsmore on 7/17/2014.(CBU) (Entered: 07/18/2014)
08/12/201465 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 8/8/2014. The parties discussed possibilities for settlement. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 08/12/2014)
08/26/201466 SCHEDULING ORDER- Settlement Conference set for 9/30/2014 01:00 PM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. Signed by Magistrate Judge Mark J. Dinsmore on 8/26/2014.(CBU) (Entered: 08/26/2014)
https://ecf.insd.uscourts.gov/cgi-bin/DktRpt.pl?475226788005618-L_1_0-1

wednesday updates:
Hi Robbin --

Thanks for the note.  You are correct that the Court set a settlement conference in this case.  I, of course, have no idea whether the case will be resolved then.  If it is not, the case is fully briefed on summary judgment and simply waiting for the Court's decision -- and we'll just have to see what the Judge does.

Best, Gavin


Indy Sentinel

1:17 PM (11 hours ago)
to me
Robbin, 

Thanks for your email.  I will take a look.

CW

Friday, September 12, 2014

well that was quick. 7th circuit, i mean 7th circuit panel, ok's voter ID in WI, lifts stay as of now.

Hasen makes the point that this could actually turn out well. Plaintiffs can move, a la Purcell, for relief from the Supreme Court, which could act. This in turn might increase the chances that the Supreme Court will at some point hear the merits. I think we might get a closer decision next time, what with changes on the court, and WI has a pretty good set of facts.

Hasen's main point is a remedies issue - it's too close to the election to change the rules now; it'll be disruptive.

Last I checked the audio wasn't up yet. here it is:
http://media.ca7.uscourts.gov/sound/external/rt.14-2058.14-2058_09_12_2014.mp3

7th Circuit Court of Appeals clerk's office says judges on today's case panel are Judges Easterbrook, Sykes and Tinder.

this is not the best panel. i havent checked to see how they came out on the crawford rehearing vote,
but these are republicans. 
update:

2 of 3 Judges on WI 7th Circuit Voter ID Panel Voted Against Plaintifs in IN Voter ID Case; 1 Was Not on Court, says hasen.


however, i think the case will get a fair hearing,and the judges are likely to agree it is too close to the election to try to fix it this fast,and may keep the stay in place.
look for a transcript or audio soonish, and media reports on how the hearing went.
http://media.ca7.uscourts.gov/oralArguments/oar.jsp?caseyear=&casenumber=&period=Today
this link is not active yet but should be soon.

Wednesday, September 10, 2014

http://www.southernstudies.org/2014/08/moral-monday-take-it-to-the-states.html

last night i went to at
a meeting that was part of the planning for a moral monday event in indiana.

some primary results. mostly as expected. zephyr lost but did well, around 40%. er, 35%.

Tierney is the fourth House incumbent to lose a primary this cycle. The others were Republicans Ralph Hall, Kerry Bentivolio and Eric Cantor. Moulton will face Republican Richard Tisei in the fall; Tisei, a moderate, narrowly lost to Tierney in 2012.

Read more: http://www.politico.com/story/2014/09/primary-election-results-2014-110782.html#ixzz3CtdOpdAd


http://www.kansascity.com/news/government-politics/article1993447.html

delaware results as reported by kansas city.

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