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Wednesday, September 02, 2015

http://www.loweringthebar.net/2015/08/gerrymanderers-miss-one-person.html

when one vote matters.

i used to live near there and worked at a couple of the affected businesses.

Sunday, August 30, 2015


30
5754

Saturday, August 29, 2015

http://www.huffingtonpost.com/entry/alabama-voter-id_55ddcda1e4b04ae497052873

Alabama Risks Making It Much Harder To Get Required Voter ID

Proposed budget cuts could force 45 of 49 driver's license offices to close.

update this post picked up by hasen http://electionlawblog.org/?p=75698

Docket page for Anonymous Doe v Bryant, plus whatever else I turn up about this case.

https://dockets.justia.com/docket/mississippi/mssdce/3:2015cv00609/89992

http://www.clarionledger.com/story/news/2015/08/21/anonymous-jim-hood-delbert-hosemann/32112405/

A federal judge in Jackson did not rule Friday on a request to keep hidden the origin of a political mailer that depicted the Madison mayor manipulating Madison County supervisor candidates with puppet strings.
Judge Carlton Reeves took the matter under advisement after a 90-minute hearing. He indicated it could be a couple weeks before he rules after attorneys further brief the matter.

http://yallpolitics.com/index.php/yp/post/anonymous_files_lawsuit_against_bryant_hosemann_and_hood_over_campaign/

http://yallpolitics.com/index.php/yp/post/41791/

http://www.wtok.com/home/headlines/Hosemann-Calls-for-Investigation-of-Campaign-Mailers-319500411.html

Attorney General Jim Hood's office says it will investigate. Hosemann says violations are misdemeanors, punishable by fines of up to $3,000 and up to 6 months in jail.
Most literature presented by Hosemann criticizes incumbent Republican lawmakers, claiming they oppose gun rights and the current state flag, while supporting Common Core education standards and federal health care reform.
So there are some clues here about who the Does might be.

http://yallpolitics.com/index.php/yp/post/41781/






http://yallpolitics.com/index.php/yp/post/41735/ Speculation about who might be behind those confederate flag postcards.

Publius and the Petition: Doe v. Reed and the History of Anonymous Speech

Meredith Hattendorf, Comment, Theoretical Splits and Consistent Results on Anonymous Political Speech: Majors v. Abell and ACLU of Nevada v. Heller, 50 ST. LOUIS U. L.J. 925, 930 (2006)

I'm going to have to find this!

https://casetext.com/case/doe-v-curtis-no-cv09-5028697-feb ruling on a fictitious name petition.


  







“Since President Obama took office, 85 of 98 state legislative bodies got more Republican”

Thanks, Obama.

https://thusbloggedanderson.wordpress.com/2015/08/21/miss-statute-requiring-id-of-political-flyers-distributor-is-challenged-as-unconstitutional/

I had missed this earlier article by Thusbloggedanderson, who is both a southern lawyer and  neithe scholar. He is really on top of the case with a good understanding of both Talley (which the plaintiff seem to have missed) and McIntyre.
He (she?) brings to my attention Justice for All v Faulkner. Must figure out a way to get an As I Lay Dying reference into a brief.

http://caselaw.findlaw.com/us-5th-circuit/1343786.html
Reading this now, will update. I am behind on my updates to the Missisippi case. I've been in PA WV OH IN IL MO IA NB and KS this week, earning a living, since blogging doesn't pay the rent.
I'd been hoping to stop into the law libraries at UMKC and or Mizzou, my alma maters, but events did not permit. The WVa law library didn't have an annotated Missouri Statutes; like a lot of libraries they are going paperless. So I will plan to get to the Indiana Supreme Court library this week. The Missouri case, Doe v Weedman, is dismissed without explanation by the parties, but I remain interested in the legal issues it presented but did not resolve.

The Faulkner case, from 2005 and the 5th Circuit, is fun, gives a win to the plaintiffs, and contains great quotes. It strongly supports the Mississippi plaintiffs position. I should doublecheck that Mississippi is in the 5th circuit. Yes. So the 11th circuit Worely case has no bearing on the MS case.
But what of KVUE v Moore? I think that was pre-McIntyre, and certainly was pre ACLF. But I should brush up on it. Right, it' 5th circuit 1983, so I'm going to say it's overruled by McIntyre.
http://openjurist.org/709/f2d/922

Tuesday, August 25, 2015

I have a potential tentative client to intervene in the Misissippi disclaimer case, but I think I would need Mississippi local counsel. (I should check the rules of that court.) That was one obstacle that kept my client from being able to intervene in the Missouri John Doe v Weedman case, which has now been dismissed without explanation.
Does anybody know anybody in MS? More generally, is there a general solution to the problem of needing local counsel? How do you find local counsel when you need one, in a pro bono case funded solely by the hope for legal fees down the road?

update
Requirement of Local Counsel. When a party appears by attorney, every complaint, answer, motion, application, notice of deposition, or other paper on behalf of the represented party must be signed, and every deposition, mediation, conference or hearing must be attended by at least one attorney of record admitted to the general practice of law in the district court in which the action is pending. 
http://www.mssd.uscourts.gov/sites/mssd/files/2014MASTERCOPYCivil.pdf

Here is a very rough first draft of a lie list for the state's response to a motion for TRO in the Mississippi disclaimer case discussed here yesterday.

Yesterday I was at the law library at West Virginia University. I didn't run into Brad Smith there. They didn't have the books I was looking for. The zenclay coffee shop I like to go to now closes at 2 pm so I missed it. But it was a good day overall.

[a "lie list" is just shop talk for a list of legal or factual errors in a doument; not all suh errors are intentional. some people call this process 'fisking' or maybe it's Fisking.] this part is just the list; eplaining why each point is wrong is a longer part II to follow.

first draft. Needs to be more consistent how it lists the lies.

first,the AG is to be commended for putting together the 20 page memorandum in one day.
It is understandable under the circumstances that there are errors of fact and law.

There are at least 19 false statement of law or fact in this filing. Part I lists them. Part II explains each.
Part 3 lists true statements of law or fact that are then used to try to mislead the court into error.
Part 4 explains each.
Part 5 presents and overview of the case, in order to attempt to correct the misleading picture painted by the state.


1 Lie # 1, p.1. : Plaintiffs claims lack a likelihood of success on the merits
2 Referring to the statute as a “law”. p.1. The fundamental principle of american law, from Marbury v Madison, is that an unconstitutional statute is not law, but is void ab initio. “There is no public interest in the enforcement of an unconstitutional statute.” ( for now, just list, explain later.)
3 “The 1st A protects a voter's right to know” p.2
4 Bait and switch of mixing up disclosure and disclaimer. p.3.
5 “In fact, Madison County voters have a well-established right to know that information.” p.3.
6 Disclaimer rules are an integral part of disclosure regimes. pp. 3, 6.
7 The constitutionality of disclaimer rules is well established. p.4.
8 Citizens United has not “officially reaffirmed the constitutionality of the” federal disclaimer rule. Pp 4-5. @ Like a previous challenge in McConnell v FEC, plaintiffs lost on their particular theory, an express advocacy argument, but this does not mean other different challenges will not prevail. The instant case is not premised on any express advocacy argument, although the statute would be vulnerable to one since it is vague and overbroad in the way addresesd in Buckley v Valeo, a case defendants rely on heavily. Further, CU only discussed corporate speech previously banned under Austin, not, as here, nearly all election speech.
9. Plaintiff's reliance on McIntyre is not misplaced. pp.5,13.
10. McIntyre's target audience was not just the members of the school board, but the voters who defeated the bond levy twice before it passed on a third try. p.5.
11. CU removed any doubt about the constitutionality of disclaimer rules. p.9.
12 Buckley v Valeo did not address disclaimers in the cited passages.
13 Similarly, Buckley v ACLF reached opposite conlusions about the onstitututionality of disclaimers and disclosure, so the cited section is out of context and misrepresents the holding of the case. p.12.
14 “such disclaimers do not limit speech.” p.13.
15 “ their constitutionality is not in doubt” p.13.
16 McIntyre is simply inapplicable to requiring disclaimers on traditional election advertisements about candidates. Pp13-14.
17 “state law” p. 14.
18 unquestionably constitutional. p.16.
19 conflict with CU p. 16
20 oh wow, only 19 lies, unless I missed one.

need a section on fats and law that is true, but used to try to mislead the court.first draft. Needs to be more consistent how it lists the lies.



http://indianalawblog.com/archives/2015/08/ind_law_is_indi_1.html
I found something last night while doing some recycling and at first I didn't know what it was, but then I figured out that it was a selfie stick.
The Indiana Law Blog, which is threatening to shut down for lack of funding, has an article
on Indiana's statute banning photos of one's ballot. I dont see this as an open and shut case, it could go either way and I don't have strong feeling about it. The statute would need to survive strict scrutiny under both the First Amendment and Article I section 9.

update: The ILB article gets a mention 8/27 at Hasen.

http://talkingpointsmemo.com/livewire/southfield-michigan-anti-black-flyer

Political Flyer Circulated In Detroit Suburb: 'Let's Get The Blacks Out'

Here's an example of how anonymous speech enables debate. It's unlikely anyone would circulate this hateful flier if they had to put their name on it. While I don't agree with the opinion on the flier, I celebrate that we live in a county where that person has the right to distribute such a flier.

That right was hard-won by Manuel Talley and others in civil rights struggle. I have a few pictures of Talley.  Talley v California was the landmark case that establishes the right to anonymous political fliers. https://supreme.justia.com/cases/federal/us/362/60/case.html. Unfortunately, there are many today who continue to resist civil rights, such as in Mississippi, where the Secretary of State is trying to enforce an unconstitutional statute that makes it a crime to pass out fliers.  see here:
http://ballots.blogspot.com/2015/08/a-new-disclaimer-case-this-one-from.html.






A new disclaimer case, this one from Mississippi.
http://kingfish1935.blogspot.com/2015/08/nobody-sues-over-mailer-investigtation.html
I read the complaint with interest. I'm not sure how to link more directly to the complaint, but you can download it from the link above.

One of the nice ironies of this page is the many ads without disclaimers, including one for the defendant secretary of state. As a lawyer, the secretary of state's conduct in this matter is unethical and should be reported to the MS attorney disciplinary commission.

https://thusbloggedanderson.wordpress.com/2015/08/21/miss-responds-to-motion-for-tro-in-anonymous-campaign-speech-case/#comment-15783

https://thusbloggedanderson.files.wordpress.com/2015/08/10514542601.pdf < the state's response, reading this now.




I included the LBJ ad, which is not from the linked page, as an example of a disclaimer and union bug.
My beef with the complaint is that it doesn't ask for damages and doesn't mention the state constitution. But is it overall well-drafted. Counsel is Graham Carner, someone I don't know.
https://www.facebook.com/pages/Graham-P-Carner-PLLC/194513303910276
Seems like a young crusading liberal type, and I mean that as a compliment.

Saturday, August 22, 2015

http://indianalawblog.com/archives/2015/08/ind_courts_aclu_17.html

ND. COURTS - ACLU OF INDIANA CHALLENGES LAW PROHIBITNG SEX OFFENDERS FROM VOTING ON SCHOOL PROPERTY


Friday, August 21, 2015

It turns out Deez Nuts is a more serious candidate than I had realized.
http://www.theguardian.com/us-news/2015/aug/20/deez-nuts-independent-2016-candidate
https://www.reddit.com/r/DeezNutsForPresident/

Thursday, August 20, 2015

I was re-reading Citizens United yesterday, because someone was wrong on the internet.*
I noticed an interesting discussion of as applied versus facial challenges,and it occurred to me that that discussion is relevant to voter ID. So this is a placeholder for a later post to flesh out that idea a little.

The general idea is that the court has the power, when it wants to, of framing relief very broadly when it grants an as-applied challenge. McIntyre is an example. The court didnt just void Mrs. McIntyre's $100 fine, it voided the statute, although technically hers was an as-applied challenge.

There has been discussion about how as-applied challenges (see Stewart v Marion County, Palmer v Marion County, etc.) are futile because at best they fix one vote. This is mistaken. If a would-be voter finds 5 members of the court who agree that they have been required to pay a poll tax or not vote, the court can grant relief by striking the statute down entirely. It doesn't do so lightly, see Ayote, but it can, In Citizens United it didn't strike down McCain-Feingold, but it did something better, it struck down Austin.



Pildes on Dione on poll taxes:
http://electionlawblog.org/?p=75481
Dionne's article is here
https://www.washingtonpost.com/opinions/no-retreat-on-voting-rights/2015/08/19/f0339280-46a0-11e5-846d-02792f854297_story.html
Pildes' point is Dionne said the appeals court upheld the poll tax argument when in fact it overturned it, and only upheld the court below on a different ground.

The district court in the Texas voter ID case had found the statute was a poll tax.
The circuit court reversed on this point.
However, that was because in the meantime the legislature had gone back and removed fees
so the facts had changed. The circuit court did not say the district court had been wrong as a matter of law. At least that's my impression of what happened.
Nope, I was wrong here. See below.
I among those who continues to think that the poll tax argument (or more accurately the 24th Amendment argument; the Amendment is not limited to poll taxes) is a strong one in voter ID cases.

None of the cases that hold that voter ID is not a poll tax are well argued, and three lower courts (in GA, WI, TX) have found voter ID to be a poll tax, leading to changes.

The 5th circuit opinion is here:
https://www.brennancenter.org/sites/default/files/legal-work/Fifth_Circuit_Opinion.pdf

The poll tax discussion begins on p. 40 and ends on p. 46.

The Brennan Center's page collecting case documents is here:
https://www.brennancenter.org/legal-work/naacp-v-steen

AP: http://www.dallasnews.com/news/state/headlines/20150805-texas-voter-id-law-discriminates-against-minorities-5th-circuit-panel-rules.ece

OK, I was mistaken. SB 983 removed birth certificate fees, but voters born out of state still incur fees, so the court addressed the arguments.
 The court interpreted Harmon v Forssenius, the Supreme Court's only 24th A case, extremely narrowly, pretty much holding Texas would have to exactly mirror the Harman fact pattern for it to apply. I think this is wrong. But I'm just some blogger, while the 5th circuit is a substantial authority.
I hope the plaintiffs will preserve their appeal on this point. I am not hopeful that they will.

There is not quite a split on this point of the sort that leads to Supreme Court review The Wisconsin Supreme Court found a poll tax, but resolved the issue by construing the statute, as is their prerogative. So that's different than, for example, if the 7th circuit had ruled Wisconsin's statute was a poll tax.  (After the Wisconsin court narrowed the statute, the 7th circuit upheld it, in a 5-5 split, and the US Supreme Court denied further review.)

The Texas case could still head to the Supreme Court, but the poll tax issue could easily get lost in the shuffle. I do not find the 5th circuit's logic on this point persuasive or compelling, but they at least took it seriously and addressed the issues. It is ripe for cert. This case is already on the court's radar, so it is a likely candidate for cert, and would make a good bookend to Crawford v Marion County. But I am not confident plaintiffs will preserve the 24th Amendment claim, or that the court will choose to address it. If the court does take up the issue, I cannot predict how it will turn out. Roberts and Kennedy are the swing votes. But it is an independent claim from the voting rights act claim and the 14th A. claim, and offers a third bite at the apple, and plaintiffs would be foolish to waive the issue, if it offers a way to pick up a 5th vote.

Justice Thomas was highly critical of the Crawford plaintiffs, but it would be interesting to offer him a chance to write the second opinion on the 24th Amendment. What was the original intent of the founders in 1965 when they passed the 24th A? It was probably to keep places like Texas from creating partisan barriers to voting by the masses, as they have done here.

Anyway Pildes is right and Dionne and the Washington Post are wrong. Let's see if a correction follows.

This would be a good place to wind up this blog entry, but one more point. It's interesting how the court finds that voter ID is allowable as a voter qualification as a matter of federal law, but the ame voter ID is not a qualification under state law in LWV v Rokita, because if it were a qualification under state law it would violate the state constitution. Nice paradox. It reminds me of how you need an ID to get a birth certificate, but you need a birth certificate to get an ID.


Tuesday, August 18, 2015

http://www.bozemandailychronicle.com/news/politics/proposed-electioneering-rule-addresses-political-attack-ads/article_b1990276-1a3e-5184-a9af-600f1bfbe927.html

(this post was picked up by the electionlawblog.org, http://electionlawblog.org/?p=75434)

https://www.youtube.com/watch?v=Uhnk-_vQO48
pro-voting psa from india

To comment on the proposed “primary purpose” rule, write the commissioner of political practices at cpprules@mt.gov or P.O. Box 202401, Helena, 59620.

http://www.bozemandailychronicle.com/news/mtleg/taking-control-montana-elections-getting-new-disclosure-rules/article_54292cc2-ce68-5b6a-8233-b5f466cd523b.html

The rules, written by Commissioner of Political Practices Jonathan Motl and currently open for public comment, are meant to strengthen campaign disclosure requirements after the high court threw out Montana’s Corrupt Practices Act,
Montanans for Community Development, a Helena corporation that spends money on elections, has filed a federal lawsuit. Its attorney, James Bopp ....

http://missoulanews.bigskypress.com/missoula/out-of-the-dark/Content?oid=2367895
James Bopp, the Indiana attorney who won the landmark Citizens United v. Federal Elections Commission case, interrogated Montana's top political cop for nearly seven hours last week, comparing Commissioner of Political Practices Jonathan Motl to a racist Southern sheriff and rebuking his crackdown on conservative groups that have been accused of sabotaging elections with mounds of secret cash.
"It used to be that sheriffs would beat up black people ... just because they arrested them, and then they would say, 'We, of course, follow the law,'" Bopp said at one point, unsatisfied with one of Motl's answers. "So, we're trying to find out the tests you apply."
developing; i expect to add more to this entry.



Friday, August 14, 2015

off topic department
http://www.washingtonpost.com/news/post-politics/wp/2015/08/14/obama-made-us-a-summer-mix-tape-heres-whats-on-it/

Thursday, August 13, 2015

http://news.yahoo.com/ohio-sets-november-vote-legalizing-marijuana-005837244.html

President has love child, DNA proves. New York Times uncovers the coverup.
http://www.nytimes.com/2015/08/13/us/dna-is-said-to-solve-a-mystery-of-warren-hardings-love-life.html?_r=2

Tuesday, August 11, 2015

http://electionlawblog.org/?p=75244

“Federal judge in New Hampshire: Ballot ‘selfies’ are free speech, don’t encourage voter fraud”


Hasen is wrong in his analysis of this case. Strict scrutiny is the standard, not the lax scrutiny of Burdick v Takashi, because selfies are speech, so the court got it right. See Mcintyre v Ohio. The statute goes beyond the mechanism to elections to censoring speech in blogs and online media. The relevant case is Burson v Freeman, which upheld a 100 foot no speech zone around a voting booth as satisfying strict scrutiny.  

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/06/ban-on-knowing-lies-in-political-campaigns-violates-the-massachusetts-constitution/

http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11830.pdf
I read the case yesterday and was pleased by its reasoning. It relied, among others, on McIntyre, State v Dennis, and People v White, cases that upheld the right to anonymous speech.
Volokh and I have a long running dispute about whether lies are protected by the First Amendment.
I think they are, he disagrees and argues more persuasively than I do. Alvarez split the baby, holding that lies get intermediate scrutiny. Driehaus remanded back to a lower court or further findings.
This Mass. case uses strict scrutiny.

The statute was poorly written, and maybe a more narrowly tailored statute could have been upheld.
But I think the tide has turned and case that try to outlaw lies in politics are going to be struck down more often than they are upheld.

The case was based on a state constitutional text that says the right of free speech shall not be infringed. I wonder if the cases under this text shed any light on "infringed" as used in the second amendment.

Sunday, August 09, 2015



state constitutional free speech decision i should read sometime, about false statements in campaign speech.

http://www.nytimes.com/2015/08/07/opinion/the-real-voter-fraud-is-texas-id-law.html?action=click&pgtype=Homepage&module=opinion-c-col-right-region&region=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region&_r=1

about time someone said this.

http://www.nytimes.com/2015/08/09/opinion/sunday/congress-and-obama-have-been-too-timid-on-marijuana-reform.html?&moduleDetail=section-news-1&action=click&contentCollection=Opinion&region=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article

Thursday, August 06, 2015

http://electionlawblog.org/?p=75081

“State Constitutions: The Next Frontier in Voting Rights Protection”

Professor Josh Douglass has been emerging as the strongest advocate for state constitutions as a source of voting rights. He's right, and if more people paid attention it could change the election law industry. Recently in John Doe v Weedman, a Missouri case about disclaimers, The plaintiff attempted to file an amended complaint to add a state constitutional claim, after I pointed out controlling state authority from 1908. Then they dismissed the case. I don't know if they plan to refile it or what exactly; none of the lawyers have returned my emails. 

http://americablog.com/2015/08/mathematician-actual-voter-fraud-kansas-republicans.html

Wednesday, August 05, 2015

https://www.reddit.com/r/dataisbeautiful/comments/3fwxdm/i_am_nate_silver_editorinchief_of/

https://i.imgur.com/IsOJgp0.jpg

former president bush picked for jury duty.


Texas voter ID still unconstitutional, rules court of appeals.

The court ruled on VRA section 2 grounds and avoided some of the constitutional issues.

The court reversed the lower court's poll tax ruling because in the meantime the teas legislature had repealed many of the fees it had been charging to get ID. Indiana continues to charge such fees.  

John Doe v Weedman, a case about disclaimers in Ferguson Missouri, has been dismissed by consent of the parties. I don't now the backstory on what's going on. I have a few emails out to counsel trying to find out more.

I may get around to posting a "lie list" for the county attorney's recent filing which I just read today.

http://www.indystar.com/story/opinion/2014/08/26/fannie-lou-hamer-still-endangered-right-vote/14625007/

This editorial in my local McPaper is a year old but I just found it while looking to see if they have any coverage of the Texas Voter ID decision. - They don't.

It talks about Fannie Lou Hamer's struggle to register and vote, her speech at the 1964 Democratic convention, and how voter ID is still used to keep people like Hamer, and myself, from voting.



Tuesday, August 04, 2015

A call for papers

The Syracuse Law and Civic Engagement forum ("SLACE") is looking for authors for its 2015-2016 journal edition, focusing on election law, campaign finance reform, voting rights, and political law.

SLACE is an interdisciplinary journal and blog operated between the Syracuse University College of Law, S.I. Newhouse School of Public Communications and Maxwell School of Citizenship and Public Affairs.  SLACE focuses on the intersection between law, policy and media. SLACE advances the civic dialogue and recognizes that the law is a truly interdisciplinary institution. Our 2015-2016 edition is broadly focused on political law, campaign finance, voting rights, and election law. SLACE is not a conventional law journal and is focused on pushing the conversation beyond the bounds of the law-centric model. This allows our authors great flexibility and creativity in their writing. 

SLACE is seeking authors for its upcoming edition to be submitted for publication by December 2015-January 2016. We are asking that authors submit articles in the range of 20-35 pages. The topics are purposely broad and allow authors to address issues they find relevant within the realm of political law,  campaign finance law, voting rights, and election reform. Due to the upcoming election and sharp criticisms of the campaign finance system by many, including notable presidential candidates, we find these topics have garnered considerable attention.  

If anyone would be interested in writing for us, please let us know at your earliest convenience. Alternatively, if you have suggestions for other authors, please feel free to forward them this email or provide their contact information via the email address listed below. If any potential author would like to learn more about SLACE or its upcoming edition, do not hesitate to contact me.

Thank you for your time!

Edwin Maldonado
Lead Articles Editor, SLACE
J.D. Candidate, Class of 2016
Syracuse University College of Law

i should, but probably wont, write something.

http://electionlawblog.org/?p=74896

Republicans File Major New Challenge to McCain-Feingold Soft Money Rules


note to self send this to the LP, they might want to participate in some fashion.

Thursday, July 30, 2015

http://yadkinripple.com/opinion/columns/712/voter-id-law-needs-some-changes

In North Carolina this columnist's son turns 18 less than 30 days before the election. but he can't pre-register, and he has to be registered 30 days to vote. Is this a 26th Amendment violation?



Tuesday, July 28, 2015

to do list

task list for wednesday

thursday edit - [stuff deleted] whoops, that post went to the wrong blog entirely. good thing no one really reads this one.


http://publiceditor.blogs.nytimes.com/2015/07/27/a-clinton-story-fraught-with-inaccuracies-how-it-happened-and-what-next/?action=click&contentCollection=World&module=MostEmailed&version=Full&region=Marginalia&src=me&pgtype=article

new york times discusses mistakes in its reporting of clinton email story.

Monday, July 27, 2015

“The television election: Despite all the hype about tools like Snapchat and Meerkat, the 2016 campaign will be dominated by a technology that’s been around for decades: TV. “


I have no idea what meercat is.

Friday, July 24, 2015

PA third party signature checking system found unconstitutional. Does this mean they will refund Ralph Nader his money? Probably not.

http://articles.philly.com/2005-05-20/news/25441204_1_pennsylvania-ballot-ralph-nader-legal-fees

It's only about $80K plus interest.

Thursday, July 23, 2015

http://chicago.suntimes.com/opinion/7/71/814883/opinion-4

5 more examples of voter fraud that wouldn't be fixed by voter ID.

Would you rather fight 1 Scalia-sized duck or 100 duck-sized Scalias?
[–]Jim_Obergefell [S] 1123 points  
[laughs]...oh god...I'd rather fight 1 Scalia-sized duck. Cause in essence I've already fought Scalia in court and I won. Also ducks make me laugh so while fighting him I'd laugh the whole time.

Tuesday, July 21, 2015

http://blog.constitutioncenter.org/2015/07/constitution-check-whats-the-next-big-controversy-on-campaign-finance/


Lyle is an excellent journalist whose beat is the supreme court, at the invaluable scotusblog.
Here he presents the received wisdom about express advocacy versus issue advocacy.
What makes it topical is that he noticed two cases decided the same day, the Delaware disclosure case and the Wisconsin John Doe case, come out differently. He sees this as a conflict setting up likely supreme court review.  While I do think both sides are likely to seek cert, I don't see that the cases are in conflict. They are distinguishable.

Reading Lyle, a reader who isn't an election law wonk might get the impression that a political communication is either express advocacy or issue advocacy. If A then not B, if B then not A.
This is a false dichotomy. A communication might be both or neither.
Instead, the key to understanding express advocacy is that it must be 1) express and 2) advocacy.

McConnell found that empirically most political communication is not express. "Vote for Smith!" is express. "Smith/Jones 2016!" is not. It implies advocacy, but is subject to other possible interpretations. The important distinction is not between candidates and issues, but is between express and implied.

But a communication may refer by name to a candidate and still not be advocacy. There is  a good argument that objective journalism is a myth, but let's set that aside for the moment. Lyle covers the court. He reports on decisions. These are political communications. But most of the time, Lyle is not advocating for the majority or the dissent. He's reporting about it. (Sometimes the Goldstein Law Firm has been involved in an advocacy role in a case, and this gets disclosed.)

His reporting is fully protected by the First Amendment. Even if refers to a candidate by name (McConnell, Clinton etc.) it's not advocacy, or at least not express advocacy. He cannot be required to register as a journalist, or obtain a poetic license. Getting a press pass to the court chambers is a different matter.

In Buckley v Valeo, the court found, properly, that discussion of political issues is core speech protected under the First Amendment. Such speech would be chilled if subjected to vague and overbroad regulation. The court was on the verge of tossing the regulation entirely. This is the point that critics of the express advocacy regime miss. The express advocacy rules allow for more government regulation of speech, not less. The court's alternative is to realize the express advocacy regime isn't working, as toss the whole thing, as they did in Citizens United, tossing out the Austin v Michigan Chamber of Commerce ban on speech by corporations.
Instead the court rolled a saving throw. In Buckley v Valeo, the court sliced and diced the act, killing parts, leaving some parts standing, and narrowly construing other parts.

The Delaware case is not vague and overbroad in the way that the Buckley and John Doe rules were.
Instead, it's relatively clear what is to be reported and what isn't, just as in McConnell the definition of "electioneering communication" was set out  in detail so people would know if they were covered or not. McConnell was a failed facial challenge to McCain-Feinberg aka BCRA, which has been followed by a deah of a dozen cuts each time an as-applied challenge works its way up to the high court. I read the Delaware case a few days ago, to make sure it didn't address disclaimers, which it doesn't, just some straightforward reporting requirements. Seemed uncontroversial but I haven't read plaintiffs briefs or if I have it was last year and I've forgotten their possibly compelling arguments.

The reason express advocacy hasn't worked to create a safe harbor, is that opponents of political speech keep challenging as express advocacy statements that aren't, with the result that we are back in the land of vagueness and overbreadth. The "functional equivalent" muddle just made that problem worse. The objective of the express advocacy test was to have a bright line rule, so people could know if their political speech was subject to regulation or not. "Functional equivalent" tests remove the bright line, so they are really not the functional equivalent at all.

The court should conclude that the express advocacy regime was a noble experiment that didn't work, and hold that express advocacy is core political speech  fully protected by the First Amendment.
Disclosure kills. The persecution, or at least alleged persecution, of the John Doe parties shows how over-regulation mixed with overzealous prosecutors chills speech in ways that are hostile to democratic process.

(this would be the right place to quote justice alito's remarks last week, if i can find them again, where he talks about political speech about candidates as being the core of the first amendment, as opposed to false claims about medals, or animal-trampling porn.)  

From the opinion in the Delaware case, it isn't clear that there is the same kind of chill. But that's the opinion written by the victors, and the plaintiff-appellants may have another story to tell. I'll look forward to the cert petition in about 90 days.

Monday, July 20, 2015

Today' press release from the Wi GAB uses the term "nonpartisan" 4 times.
It would be interesting to get the data on which primary, if any, the members of the staff of the GAB vote in. That would be a public record in my state. I don't know if it is in WI.
I don't mean the GAB board members, who are high enough profile I expect they are balanced;
I just mean the staff. Here's a list http://www.gab.wi.gov/about/staff.

If it's a 50-50 balance of R and D's I'd be very impressed. I expect it would lean D.
I do not have the resources to follow up on this project.

http://electionlawblog.org/?p=74435
http://electionlawblog.org/?p=74409

Friday, July 03, 2015

http://www.kshb.com/sports/baseball/royals/millions-of-all-star-royals-votes-vs-record-low-election-turnout-in-kansas-city

Friday, June 26, 2015

http://www.mediaite.com/online/behold-this-really-weird-hillary-clinton-parody-version-of-stacys-mom/

Thursday, June 25, 2015



The draft rules face a public comment period and final approval before an Oct. 1 deadline.
http://missoulian.com/news/local/montana-moves-to-reveal-corporate-campaign-spending/article_12714742-f2aa-5f16-80aa-f73a4be6a34c.html


Tuesday, June 23, 2015

http://www.rawstory.com/2015/06/north-carolina-gopers-strip-3-million-from-unc-law-school-after-professor-slams-voter-id/

http://www.abqjournal.com/602626/opinion/remove-ss-numbers-from-voter-rolls-to-stop-id-theft.html

Sunday, June 21, 2015

http://yro.slashdot.org/story/15/06/21/0515255/illinois-supreme-court-comcast-must-identify-anonymous-internet-commenter


http://www.dailypress.com/news/politics/dp-nws-voting-lawsuit-thor-20150619-story.html
The Return of Thor:
Herring hires outside counsel for Virginia voter ID case

http://www.mysanantonio.com/news/crime/article/FEC-sues-Utah-businessman-over-donations-to-2-US-6339761.php

http://www.wnd.com/2015/06/pat-boone-whats-wrong-with-voter-id-laws/

Friday, June 19, 2015

http://blog.constitutioncenter.org/2015/06/dalai-lama-to-receive-2015-liberty-medal-at-the-national-constitution-center/
I used to work for his nephew, Jigme Norbu, who was killed last year in the struggle for autonomy in Tibet.

http://www.bloombergview.com/articles/2015-06-19/bad-news-for-sign-laws

Good news for sign lawyers. (The church that sued is Good News Community Church.)

http://blog.constitutioncenter.org/2015/06/constitution-check-what-power-does-the-government-have-to-control-mobile-billboards/ Lyle.



Thursday, June 18, 2015

http://www.aclu-mo.org/files/8113/8083/1197/Lamprecht_-_JUDGMENT_FINAL.pdf

some notes on the missouri constitution's ftrr speech clauses

https://books.google.com/books?id=BFRFAQAAMAAJ&pg=RA1-PA709&lpg=RA1-PA709&dq=missouri+ex+parte+harrison+1908&source=bl&ots=11XyNUGMi-&sig=cUEKCc0nbqvUAhzlMw6ls_PfMr4&hl=en&sa=X&ei=SFCCVZ08g_X5AZ6Qj7gK&ved=0CDwQ6AEwBw#v=onepage&q=missouri%20ex%20parte%20harrison%201908&f=false

Wednesday, June 17, 2015

WASHINGTON — The Supreme Court on Monday refused to hear an appeal from North Carolina officials seeking to revive a state law that had required doctors to perform ultrasounds, display the resulting sonograms and describe the fetuses to women seeking abortions.
The Supreme Court’s one-sentence order, as is the custom, gave no reasons. Justice Antonin Scalia noted a dissent, also without saying why.
The order left in place an appeals court ruling that had held the law unconstitutional as a violation of the First Amendment.
“The state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient,” Judge J. Harvie Wilkinson III wrote in December for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. “This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind.”
Other federal appeals courts upheld similar laws from Texas and South Dakota. Such disagreements among appeals courts often lead to Supreme Court review.

What does abortion have to with election law? In both situations, the right to privacy is involved, and states are trying to compel speech in ways the court has said is unconstitutional. The right to privacy which underlies Roe v Wade has a history  in a trio of civil rights cases, NAACP v Alabama, Bates v Little Rock, and Talley v California.

Recently these cases have been undermined by Citizens United and Doe v Reed, and the "reform" faction has celebrated this undermining. What the reform faction hasn't done is admit that by attacking the right to privacy in election cases, they are attacking the foundation of the abortion cases, in ways that Justice Scalia, for example, is likely to take note of when abortion issues return to the court.

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. - Roe v Wade.



Tuesday, June 16, 2015

https://medium.com/@kellyfetty/when-the-free-id-isn-t-free-5d7d23b07747

from hasen. here i'm at this week for some reason hasen's blog won't come up, but i can get the posts by email. this story tells about the high cost of getting ID in philly.

About 12 years ago I was told that I couldn't get my license renewed without a birth certificate and I coudn/t get a birth certificate without a license. It's what got me involved in the voter ID fight.

Correction: June 15, 2015 
Because of an editing error, an earlier version of a picture caption with this article misspelled the surname of the Supreme Court justice who spoke at Harvard last month. She is Ruth Bader Ginsburg, not Ginsberg. - new york times. 
I have trouble with that one too.
The court has a session thursday, and one guy is going around saying the gay marriage case i for sure be announced then, but I think we have no way of knowing.
update: it's not just me and the times:

“The Chief Justice and Justice Thomas join in this plurality opinion,” Scalia says. “Justice [Anthony M.] Kennedy filed an opinion concurring in the judgment, which Justice Alito joined. Justice [Stephen G.] Breyer filed an opinion dissenting, which Justices Goldberg, [Sonia] Sotomayor and Kagan joined.”
He leans back, thoroughly unaware that he has replaced his good friend Justice Ginsburg with the 1960s-era Justice Arthur J. Goldberg. In fact, the Chief Justice has to turn to him and alert him of the error.
“What did I say?” Scalia asks loudly, emphasizing the “I.” The Chief tells him, and without skipping a beat, Scalia says, “Goldberg’s gone.”
“Sorry about that, Ruth,” he quickly adds. - scotusblog
Justice Ginsburg, who is usually stone-faced on the bench despite a wry sense of humor off of it, cannot contain her laughter this time.

Saturday, June 13, 2015

http://www.mysanantonio.com/opinion/commentary/article/Photo-ID-not-that-easy-to-obtain-6324060.php

101 year old Texas woman denied vote.

http://electionlawblog.org/?p=73472 this post was picked up by electionlawblog.org.

Thursday, June 11, 2015

http://www.theonion.com/article/struggling-justice-alito-sent-down-lower-federal-c-50637

Saturday, June 06, 2015

http://www.bringrudyhome.com/rudy/images/news/SignsNotAllowed.mp3
state goons take down signs for lost dog. dog becomes famous. still lost.
https://www.facebook.com/events/1142116539139252/
sounds like it might be a job for the institute for justice.

dog runs away.
she distributes lost dog fliers.
people put them up too close to roads.
they send her a bunch of $25 fines.

http://www.washingtonexaminer.com/soros-5-million-bankrolls-suits-to-stop-voter-id-laws/article/2565753

note to self: climb on this bandwagon

there might or might not be a controversy over delaware offials removing westboro baptist's signs at beau biden's funeral.

Signs in violation will be removed by DelDOT and a $25-per-violation fine imposed. If a candidate wants the sign back, it's another $15. The candidate himself or herself is responsible for any violation by an overzealous supporter.
http://archive.delawareonline.com/article/20100823/OPINION03/8230311/It-s-time-again-Illegal-campaign-signs-popping-up
seems questionable. a 10 foot right of way limit  is more than post places, too.
Those rules followed a 1990 court decision in favor of Daniel D. Rappa Sr., who had complained that his gubernatorial campaign signs had been removed
It's been a while since I've read that case.
http://openjurist.org/18/f3d/1043/rappa-v-new-castle-county

footnote for later research:
Cf. Abdul-Akbar, 4 F.3d at 202-03 (concluding that the standard announced in Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977), as to what would constitute the constitutionally required "adequate" law libraries and assistance from legally trained individuals was sufficiently indefinite that the defendant officials did not violate a clearly established constitutional right).

2nd footnote:
http://caselaw.findlaw.com/us-3rd-circuit/1311314.html
upholds censorship yard sign code

3d Dayy Rappa lost a 2nd case http://law.justia.com/cases/federal/district-courts/FSupp/991/367/1806045/.



Friday, June 05, 2015

Vermont Progressive Party Joins Lawsuit Filed by Its Candidate Dean Corren on Campaign Spending

Published on June 5, 2015, by  in Uncategorized.
The Vermont Progressive Party is joining its 2014 nominee for Lieutenant Governor, Dean Corren, concerning a campaign finance matter. The lawsuit, Corren v Sorrell was filed by Corren in U.S. District Court on March 20, 2015. Now the Progressive Party will be a co-plaintiff. Corren was told last year by the Attorney General that he broke campaign finance laws and is to be fined $72,000. The charge is that the Vermont Democratic Party sent an e-mail to its list of supporters, inviting them to a rally at which Bernie Sanders, Democratic Governor Peter Shumlin, and Corren, were speaking. The Vermont Attorney General says that was an illegal campaign contribution to Corren.
Corren accepted public funding last year. He is a member of the Progressive Party and he was the party’s nominee, but he was also the Democratic nominee. So far not much of substance has happened in Corren’s federal lawsuit, which seeks to block his fine - ballot access news.

http://electionlawblog.org/?p=73197

relevant to my tentative plans to intervene in doe v weedman.

Wednesday, June 03, 2015

http://www.dailykos.com/story/2015/06/02/1389865/-Teen-stripped-of-National-Honor-Society-position-because-she-dared-wear-a-sun-dress-in-Florida?detail=email

petty, but still an election dispute.

anonymous guns at wired:
http://www.wired.com/2015/06/i-made-an-untraceable-ar-15-ghost-gun/

https://firstlook.org/theintercept/2015/05/29/denny-hastert-highly-unsympathetic-face-americas-criminalization-pathology/

But Hastert was not indicted for any of that. Nor was he indicted for the alleged, unspecified “past misconduct” against an unnamed person to whom he agreed to pay $3.5 million to keep concealed.
Instead, Hastert was indicted for two alleged felonies: 1) withdrawing cash from his bank accounts in amounts and patterns designed to hide the payments; and 2) lying to the FBI about the purpose of those withdrawals once they detected them and then inquired with him. That’s it. For those venial acts, he faces five years in a federal prison on each count.

Tuesday, June 02, 2015

http://verdantlabs.com/politics_of_professions/

Monday, June 01, 2015

http://www.governing.com/topics/politics/gov-rex-sinquefield-missouri.html

i should send this guy a resume.

the above story seems related to this one about the kansas legislature attacking the judicial branch. http://www.motherjones.com/politics/2015/05/final-front-sam-brownbacks-battle-control-kansas


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