Friday, March 27, 2015

text of indiana's sb101 religious freedom restoration act.

Reid to retire a end of term. Shumer in line for minority leader (could even be majority leader depending on 2016.) Shumer is one of my least favorites.



Thursday, March 26, 2015


democrats on fec discuss mcintyre and disclaimers. it's not new, it just turned up today in a search forthe phrase "in for a calf is not in for a cow." for now i'm just leaving it here. maybe later i'll explain why what they write is wrong.

Tuesday, March 24, 2015

“Ritual and Rhythm in Electoral Systems: A Comparative Legal Account”

A key insight to understanding US elections can be found in Sir Hugh Frazier's 'The Golden Bough'.
It's the old story of how each year the old king or priest is killed by a new one in a ceremonial battle symbolizing the coming of spring. Various cultures celebrate this in different ways; we have elections and the superbowl.   

to do: i could write an amicus letter to the missouri court re the disclaimer case the ACLU has filed.

Even so, challengers decided on Monday to start a new court case, to try to head off enforcement of the law in future elections. -Lyle


So the long battle in wisconsin will continue. I guess the new case isn't filed yet.
The supreme court turned down Frank's appeal of the WI voter ID statute, with no dissent to denial of cert. we may never know how that conference went. there seem to be 4 votes against voter ID, three in support, and two on the fence. maybe those two aren't on the fence. it's hard to know. Hasen thinks the Texas case  is better suited as a vehicle. I liked the facts in Frank, and the findings by the courts below. One wrinkle was that the WI supreme court made important changes to the statute, which changed the game. The court could have GVR'd and sent it back to the trial court for re-consideration in light of the state ruling, but didn't. 
I will have an upcoming post on how I might have singlehandedly lost Crawford v Rokita, because of a sentence I left out of a motion to file an amicus brief, when that case was at the en banc rehearing stage around 2007.


grist for the constitution-in-exile crowd.
this is the second excerpt from this book i have read. i am mostly on the other side of the argument he makes here, but i think it is a useful discussion. i largely agree with his other article about voting rights. cross-posted from one of my other blogs.

Monday, March 23, 2015

International Programmes in Moscow
       Admission 2015/2016
Representation of Russian 
Universities:Aerospace Technology for Latin
America, USA and African countries
Announces  the international Admission for a
Professional  Degree Studies in Moscow :  
                                            etc, goes on like this for awhile.

easily the most interesting spam i've had today. gmail usually filters all my spam.

Sunday, March 22, 2015

In lawsuit, ACLU says the First Amendment protects anonymous political speech


The Missouri office of the American Civil Liberties Union filed a federal lawsuit Wednesday seeking to protect anonymous political speech in the state.
The group is representing “John Doe” — a businessman in Ferguson, Mo., who wants to publish material about the city’s upcoming municipal elections.

Read more here: http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article15247046.html#storylink=cpy
http://www.aclu-mo.org/download_file/view_inline/1511/572/ brief

https://www.youtube.com/watch?v=CZQSht9oTWY profile of aclu lawyer tony.
http://www.reddit.com/r/firstamendment/comments/2zxxvn/in_lawsuit_aclu_says_the_first_amendment_protects/ 'popepeterjames" at reddit first told me about this case.


Never Count on the Supreme Court to Protect Voting Rights


trevor potter ama. old but i just ran into it.

Saturday, March 21, 2015

on friday the supreme court considered whether to grant cert of frank v walker, the wi voter id case,
but we probably won't hear anything for a while. hasen thinks it will get re-listed a time or two.
if they do hear it, an i'm expecting they will, oral argument would be next year i think. i'm not sure when the briefs would be due.

Friday, March 20, 2015


Thursday, March 19, 2015


Obama Floats

1 cup Obama, 2 scoops non-dairy ice cream.

 This reporter ordered the 95-page booklet promoted by Mr. Huckabee, for an advertised $19.97 for a downloadable copy and $19.95, plus shipping, for a printed copy, and found a $120.08 charge to his Visa card, which included a $67 coaching video that was not ordered. Mr. Barton said fewer than 1 percent of customers complained about overcharges, which he said were the result of user error.

Wednesday, March 18, 2015



darin-the-hood department:


Texas ordered to pay $3 million in legal fees for voter ID lawsuit.


A U.S. appeals court said on Tuesday the state of Texas must pay about $3 million in legal fees to plaintiffs after being on the wrong side of a civil rights lawsuit over voting.

havent seen the ruling yet

update: stop the presses! media gets facts wrong!

Rick Hasen

7:15 PM (14 hours ago)
to me
that was based on a reuters report which was in error.

update: they didn't just get it wrong. they got it really wrong.
They (Reuters) were wrong about Who, What, How Much, and Why. Not sure about when and where.

“U.S. appeals court says Texas should not pay legal fees in voting case”

Anyone have details on this?  I cannot find an order at the 5th Circuit website.
UPDATE: Here is the decision. It is section 5 Texas redistricting litigation, not the voter id litigation, as was initially erroneously reported (and it was not a $3 million award affirmed, it was a $300,000 award reversed).

Monday, March 09, 2015


Friday, March 06, 2015

The Department of Justice is planning to bring criminal corruption charges against Sen. Robert Menendez (D-N.J.), 

Thursday, March 05, 2015



In 1939, Congress began to try to get rid of the poll tax, but history was not behind them. After all, in colonial times and when the Constitution first came into effect, land ownership was often a requirement for suffrage. Though only five states still had a poll tax by the time the amendment passed Congress, Supreme Court rulings made it doubtful that mere legislation would eliminate the tax altogether. Proposed by Congress on August 27, 1962, the 24th Amendment was ratified within a year and a half, on January 23, 1964 (514 days).

- Thought it was later under LBJ. To do: evoke legacy of JFK.

there's an app for that: free annotated constitution app

There is a 26th amendment claim in the N carolina suit.

Wednesday, March 04, 2015


“Student Voting Rights Case Filed in TN”

A federal lawsuit was filed today in the U.S. District Court in Nashville challenging Tennessee’s voter ID law as violating the voting rights of Tennessee college and university students. The lawsuit was filed on behalf of a student organization and nine college students by the Fair Elections Legal Network, a national voting rights organization, and Nashville law firm, Barrett Johnston Martin & Garrison, LLC. The lawsuit asks the court to rule that the current voter ID law violates the 14th Amendment and 26th Amendment to the U.S. Constitution because it discriminates against college students by excluding student ID cards from the list of accepted voter IDs.
Finally, a 26th Amendment case on voter ID!

Meanwhile, electionlawblog has picked up  a couple stories I submitted

Tuesday, March 03, 2015



Monday, March 02, 2015

mikulski retires as 2016. i wonder who else is on that list?
boxer and manchin are names mentioned but unconfirmed. boxer confirmed.
Republicans could lose Sen. David Vitter (R-La.), who announced in January that he would run for governor in 2015, if his bid is successful.His retirement could create an opening for Sen. Mary Landrieu (D-La.) to make a bid for her old job 

Currently, Democrats are expected to have 10 seats up for election, and Republicans are expected to have 24 seats up for election
PA WI IL are seen as tossups where the GOP could lose seats. 
Despite the election of Republican Larry Hogan as governor last fall, Maryland is a very Democratic state. Democrats are strongly favored to retain Mikulski’s seat, so her retirement is unlikely to have much effect on the battle for control of the Senate after 2016.

Saturday, February 28, 2015


Ex-NY Assembly Speaker seeks to quash corruption charges

NC ID, Curry case to go to trial on 4 of 6 counts.
The ruling is not online yet at moritz.
Found it

Plaintiffs had argued in count II that section 10 of the North Carolina Constitution's Bill of Rights
states "All elections shall be free." They construed this to mean free as in beer, not free as in speech.
Their argument was that voter ID imposes a cost, and is therefore not free to the voter, and so violates section 10. The state argued, no, it's free as in speech, that free means unconstrained, not under duress or the control of another.

Similarly, in count III the plaintiffs argued that voter ID imposed a property requirement for voting in violation of section 11 of the Bill of Rights.

The Court granted summary judgment on both these counts, holding that the state had the better of the argument: It's free as in speech, not beer, and an ID is not the kind of property the founders were referring to. This is not a direct quote. The court denied summary judgment on 4 other counts, so it will go to trial this summer. Plaintiffs will, most likely, and I'm just guessing, not appeal this ruling, either now or later, since they expect to prevail on one or more of the remaining counts.

I think the Court was right on section 11, the property clause, but wrong as to section 10, free elections.

What the state and the court were right about is that it's free as in speech, not beer. What they are wrong about is that voter ID does interfere in free elections, as the Missouri Supreme Court correctly ruled in Weinschenk.

Some of you still haven't read my 1994 thesis, "State Constitutional Protection of Democratic Pluralism", http://umkcthesis.blogspot.com/, but the free elections clause has a long history as a bulwark against the kind of shenanigans involved in voter ID. Some constitutions, like Missouri's, have it as "free and equal elections" while others like Indiana call it "free and open elections."

Unfortunately in League of Women Voters v Rokita, the League didn't cite to this clause, found in article II section 1 of the Indiana Constitution, but instead cited to Article I section 23, which the Indiana Courts have construed as requiring deference to the legislature.

There is no consensus on the exact standard of review required under a free elections clause.
I haven't looked closely at North Carolina. But often states, from about 1800 to 1950, looked primarily to these clauses to rule on topics such as voter registration, redistricting, allegation of election fraud, and so forth. These clauses were held to protect a fundamental right against partisan manipulation by legislatures.

The issue for me now is whether plaintiffs have waived the issue, by ineptly arguing it here, or can reclaim it further along the appeal process. That's not my area of expertise.  


Friday, February 27, 2015


And this was not just noticed by all of us at team reddit, but also by the President himself, who sent us this message he asked us to share with all of you.
Earlier today, the FCC voted to protect a free and open internet — the kind of internet that allows entrepreneurs to thrive and debates over duck-sized horses and horse-sized ducks to persist.

This would not have happened without the activism and engagement of millions of Americans like you. And that was a direct result of communities like reddit.

So to all the redditors who participated in this movement, I have a simple message: Thank you.

—President Barack Obama

this link is not an endorsement of the views expressed there.
new york corruption is tricky and i dont  follow it closely enough to know who the bad guys are.

Thursday, February 26, 2015



Williams-Yulee v. Florida Bar
Docket Number: 13-1499
Date Argued: 01/20/15

Emanuel heads to Easter run-off against Jesus.
Rahm Emanuel forced into run-off for mayor of Chicago. Maps.
It was a 4-way election. I don't even know yet who came in second,
probably the guy who was backed by the Harold Washington party
(or maybe faction, I'm not sure if they are still a party.) Update to follow.
I think it's safe to predict the Mayor will win the spring run-off.

Oh, well maybe this explain it, he was running against Jesus, who got 33%.

Rahm Emanuel211,597
Jesus "Chuy" Garcia157,526
Willie Wilson49,612
Robert W. "Bob" Fioretti34,488
William "Dock" Walls, III12,954
 Jesus is a Washington ally and the election is nominally non-partisan.

Wednesday, February 25, 2015

bbc's new blog on 2016 presidential elections.




I didn't understand what the theory of the case was at first. It's a case that mostly complains about Massachusetts treating unions and corporations differently.But then this,
"  That Massachusetts prohibits even corporate PAC contributions distinguishes its law from corporate speech restrictions that have been upheld by other courts. Those older decisions go against the grain of recent U.S. Supreme Court decisions; but even under their reasoning, total contribution bans simply go too far. " So it looks like a win.



The theory:

Sick of Money Corrupting Politics? Take the Fight Local.

the practice:
 happened again in chicago on tuesday.

Chicago voters overwhelmingly endorse campaign finance reform”

some of today's voter ID stories.

mo house passes two voter ID bills.

the WI ID petitioners make a strong case in their reply brief.

I think thee's a good shot at cert, and if that happens, maybe I should do an amicus,
like the one I never finished for N Carolina.

My main beef with the WI petitioners is that they failed to preserve their 24th A claim, which was the best way to distinguish Crawford.

Sunday, February 22, 2015

Text of proposed right to vote amendment:

``Section 1. Every citizen of the United States, who is of legal 
voting age, shall have the fundamental right to vote in any public 
election held in the jurisdiction in which the citizen resides.
    ``Section 2. Congress shall have the power to enforce and implement 
this article by appropriate legislation.''

What I haven't heard yet is the plan to get the GOP to buy into it. The GOP holds a lion's share of 
state houses, and it can't pass without them. So what's their motivation?
Next question, is the amendment self-enforcing? If not, what does it actually do? Congress already 
has the power to enact voting legislation, so what does this change? Maybe more control over non-
federal elections, but I doubt that's the point.  

update: see this post by heather gerken http://electionlawblog.org/?p=70486, a followup to 

uk multi-party democracy makes coalitions likely.

Saturday, February 21, 2015

“The Clinton Foundation Super PAC; It’s past time to drop the fiction that the Clinton Foundation is a charity.”


Never been a fund like the Foundation Eva Peron

“Hillary Clinton’s Complex Corporate Ties; Family charities collected donations from companies she promoted as secretary of state”

Posted on February 20, 2015 7:28 am by 

WSJ reports.
Accountants only slow things down, figures get in the way
Never been a lady loved as much as Eva Peron

Meanwhile in Argentina

“Foreign governments gave millions to foundation while Clinton was at State Dept.”

Thursday, February 19, 2015

Clinton wins.

the fec this week dismissed a disclaimer complaint against former texas dem. rep. Nick Lamson when the fec deadlocked, the republicans voting to dismiss, the dems voting to go forward.
this memo has some background.
As is often the case, the memo is a smoking gun of FEC staff acting unethically in attempting to enforce unconstitutional disclaimer statutes.

California Attorney General Kamala Harris (D) can’t take action against a conservative nonprofit backed by Charles and David Koch for failing to disclose identifying information of the group’s major donors, the U.S. District Court for the Central District of California ruled (Ams. for Prosperity Found. v. Harris, C.D. Cal., No. 2:14-cv-09448,preliminary injunction granted 2/17/15).

a good development, but i haven't seen the opinion. even the rich and powerful are protected from disclosure under the NAACP v Alabama standards. 

update found the hearing transcript

Wednesday, February 18, 2015


Tuesday, February 17, 2015

Bovard and Harcourts with Biden. A girl I used to date in high school ran for the Senate, as did Uncle Joe.

Sunday, February 15, 2015


I'm not sure what an aadhaar cad is, but it comes before Aadvark in the dictionary.
I link the story here as an example of how voter ID cards become part of larger databases governments use to surveil and control people.


mixed outcome after allegations of petition fraud.

Saturday, February 14, 2015


Thursday, February 12, 2015

“UPDATED: Portman joins Husted’s questions about Obama encouraging voter fraud”

Tuesday, February 10, 2015

The Privacy Project, and some other amici, filed a brief to the Supreme Court asking the Cout to grant cert in Frank v Walker, the WI voter ID case.


I was one of their amici in Crawford, but they didn't contact me this time.

Their brief documents the high costs of a "free" ID, so it's a nice Brandeis brief approach of presenting facts which, while not in the record, are mostly verifiable from public souces,
and go to show that WI and the 7th cicuit are wrong.

Meanwhile, I had a nice interview yesterday at the Independence Institute, a think tank that's being doing some election law stuff among other projects, and may end up working with them in some sort of volunteer capacity.

Wednesday, February 04, 2015

I have an interview Monday with the Independence Institute in Denver, a libertarian-type think tank.
It happens to be across the street from the hotel I'm staying at, so I dropped them a line.


I had a thought about voter ID. In 2008, as voter ID was kicking in in Indiana, there were 1000 people robbed of their vote when their provisional ballots weren't counted. In subsequent years,
there have been fewer.
Maybe those would-be voters went out and bought passports and are voting now.
Maybe they became discouraged and stopped tying to vote.
Some have moved or died or gone to prison.

This is a set of data that could be tested.
Who voted provisionally in 2008 is a public record.
Their subsequent voting histories are also public records.
Sounds like a job for a political scientist.

Tuesday, February 03, 2015

placeholder for a later post on what's wrong with Texas's brief on the poll tax.


A long time ago I got to know a guy via  a mailing list. That guy grew up to be UChicago professor Jacob Levy. Levy had a student, Will Baude, who was a topnotch blogger and seemed like he might be headed for some kind of career of distinction. Then came Yale, clerking for Roberts, professor at UChicago, joining the Volokh Conspiracy, and now a New York Times op/ed.


 He writes about the strange case of the man who was executed even though the court had decided to hear his appeal. It reminds him, of course, of the Texas election where the Supreme Court allowed officials to steal the votes of those without ID, even though voter ID had been found unconstitutional.

A longer version is here:

Friday, January 30, 2015



I think that picture suggests the state will have a had time getting the case dismissed before trial.

Wednesday, January 28, 2015


The city of Fergus Falls requested Monday morning that the election law violations complaint lodged against Friends for a Progressive Fergus Falls and This Week’s Shopping News be dismissed after both parties provided evidence that they had been following the Minnesota election laws in question.
Assistant City Attorney Joe Ellig wrote — in an email explaining the situation to the City Council — that after discussions with City Attorney Rolf Nycklemoe, election official Lynne Olson and City Administrator Mark Sievert they decided to withdraw the complaint.

Fergus Falls is in Minnesota.


(a) A person who participates in the preparation or dissemination of campaign material other than as provided in section 211B.05, subdivision 1, that does not prominently include the name and address of the person or committee causing the material to be prepared or disseminated in a disclaimer substantially in the form provided in paragraph (b) or (c) is guilty of a misdemeanor.
(b) Except in cases covered by paragraph (c), the required form of disclaimer is: "Prepared and paid for by the .......... committee, .........(address)" for material prepared and paid for by a principal campaign committee, or "Prepared and paid for by the .......... committee, .........(address), in support of .........(insert name of candidate or ballot question)" for material prepared and paid for by a person or committee other than a principal campaign committee.
(c) In the case of broadcast media, the required form of disclaimer is: "Paid for by the ............ committee."
(d) Campaign material that is not circulated on behalf of a particular candidate or ballot question must also include in the disclaimer either that it is "in opposition to.....(insert name of candidate or ballot question.....)"; or that "this publication is not circulated on behalf of any candidate or ballot question."
(e) This section does not apply to objects stating only the candidate's name and the office sought, fund-raising tickets, or personal letters that are clearly being sent by the candidate.

(f) This section does not apply to an individual or association who acts independently of any candidate, candidate's committee, political committee, or political fund and spends only from the individual's or association's own resources a sum that is less than $2,000 in the aggregate to produce or distribute campaign material that is distributed at least seven days before the election to which the campaign material relates.

NOTE: See Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006) for decision on the constitutionality of Minnesota Statutes 2004, section 211B.04. See also Laws 2010, chapter 397, section 15, amending Minnesota Statutes 2008, section 211B.04. See Minnesota Citizens Concerned for Life, Inc. v. Kelley, 219 F.Supp.2d 1052 (D.Minn. 2003) for decision on the constitutionality of Minnesota Statutes 2000, section 211B.04. See Also Laws 2004, chapter 293, article 3, section 2, amending Minnesota Statutes 2002, section 211B.04.

riley v. jankowski 713 N.W.2d 379 (Minn. Ct. App. 2006) is a new one for me. it found the disclaimer statute unconstitutional. apparently the statute has been re-enacted.


The statute has been amended after Riley v Jankowski, as shown by the above link. The only change was to change $500 to $2000, an irrelevant change.

In the comments to the article I wrote,

  • The disclaimer statute is unconstitutional, per Talley v California, 1960, and McIntyre v Ohio, 1995. Although the complaint has now been withdrawn, the filing of it was a civil rights violation, illegal under federal law. The reporting statute, on the other hand, is probably constitutional, per Buckley v Valeo. It is also unconstitutional, under the First Amendment, to tell a newspaper what they can charge for ads. Ellig's action in this matter were unethical, and he should report himself to the attorney disciplinary committee
      • Avatar
        Minnesota's disclaimer statute was found unconstitutional in Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006).
        It has been slightly amended since then, but not in a way that would affect it's continued unconstitutionality.

        Lawyers Professional Responsibility Board
        Office of Lawyers Professional Responsibility

        1500 Landmark Towers
        345 St. Peter Street
        St. Paul, MN 55102-1218

        [5] A lawyer’s conduct should conform to the requirements of the law, both in
        professional service to clients and in the lawyer’s business and personal affairs. A
        lawyer should use the law’s procedures only for legitimate purposes and not to harass
        or intimidate others. A lawyer should demonstrate respect for the legal system and for
        those who serve it, including judges, other lawyers, and public officials. While it is a
        lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a

        lawyer’s duty to uphold legal process.
         The city attorney's conduct here was illegal, violating the First Amendment and the federal civil rights statutes which protect it.
        He used the unconstitutional and void statute to harass and intimidate the defendant.
        This showed disrespect for the two court decisions, one state, one federal, which have found the statute unconstitutional. A reasonably diligent city attorney would check the case law before attempting to enforce a statute, particularly when as here is it obviously unconstitutional, in that it attempts to censor core political speech.    

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