Friday, April 29, 2016

I actually liked Obama's rant today.
http://www.solitudelakemanagement.com/blog/stocking-minnows-a-natural-method-for-mosquito-control. Oops wrong link. http://electionlawblog.org/?p=82427

If I'd gotten up earlier Bernie Sanders was in town giving a talk at the statehouse.
The primary is Tuesday and I don't know whether they will let me vote. Last time they did, usually they don't.


Thursday, April 28, 2016

william barber in nyt
he's a guy i know who is at the center of the struggle against n carolina's voter discouragement practices.

Wednesday, April 27, 2016

"Today the Court will hear oral arguments in the challenge by former Virginia governor Bob McDonnell to his fraud convictions." It already happened, but oral argument audio or transcripts aren't up yet. I've been reading some of the briefs. It looks good for McDonald. I don't know if it will be any help to Blagovitch or Charlie White or other politicians who have been convicted of being politicians. McDonnell is guilty, but not for what he was convicted of.

Tuesday, April 26, 2016

"We believe the judge's decision is wrong," said the Rev. William Barber, state NAACP president. He called the ruling "almost 500 pages of rationalization for the intentional race-based voter suppression law that everybody knows was written to suppress African American votes."

A possible path for the North Carolina case:

It goes next to a panel of the 4th circuit, probably the same panel as before. While stuck with the trial court's findings of fact, they are likely to see the law differently. Wild-ass guess rather than close study suggests they may reverse part of the this case. My focus is mostly on the voter ID issues, but there are a bunch of live issues in the case. If it ends up being Hillary v. Trump, North Carolina shouldn't matter much, but that's too soon to say.
 Then, it goes either en banc (in which case who knows) or to the Supreme Court,
where I would count Breyer Ginsberg Kagan Sotomayer as 4 likely votes to uphold,
with the Chief and Kennedy being flexible, perhaps seeking a narrow ruling, and Thomas and Alito opposed. Of course if President Trump appoints Cruz, that could be a different ball game.

"[A] lawyer who represents himself has a fool for a client." Marion County Election Board and Marion County Board of Voter Registration, Appellants-Defendants, v. Gregory Bowes, Mark King, Paul Ogden, Zach Mullholland, and Brian Cooper, Appellees-Plaintiffs.(In.Ct. App. 5/26/2016)

This was a public records act case to get the voter lists for Marion County/Indianapolis.
Pro se lawyer denied legal fees. It looks wrong to me if he represented not only himself,
but Ogden and Mullholland, which seems to be the facts. Those are familiar names; they have both won against the board before. So Bowes is out about $40K because he didnt leave his own name off the filing.

Sunday, April 24, 2016


The latest data breach involves the voting records of 93.4 million Mexican citizens

Dances-with-Obama department.


Saturday, April 23, 2016

Hall noted that the preliminary data that show 29,000 voters used the two provisions also reveal that 1,320 ballots were rejected because voters did not provide proper ID to poll officials.

Finally some North Carolina data. Is there any way to know how many of each party?

update: the decision in the N Carolina voting rights case is for the state, as expected. less expected, it's over 400 pages. 
It's not that 29,000 people will be disenfranchised; the state will argue they can just adjust to the new methods, that inconvenience is not severe burden. But actual numbers help plaintiff make their case.
1320 is non-trivial.

Duran Duran department:


Friday, April 22, 2016

At Volokh, Brian Kalt is/will be guestblogging about the 20th Amendment.
That's the one about if the electoral college deadlocks and it goes to the house.
Pretty obscure stuff.
Yesterday I ran into another bit of obscure election trivia. Nebraska has a nonpartisan unicameral legislature. So how do its primaries work? Seems to be a top-two situation similar to California and I think Washington State. I'm not sure how Richard Winger feels about it.
The primary is May 10th and I'm not sure I'll get this lawsuit filed by then, but that's the goal.

http://nereform.org/voting-rights-litigation/  NEBRASKANS FOR CIVIC REFORM

I happened to sit next to a guy at the coffee shop this morning who founded and runs a voting rights shop. In his spare time he's a state senator. We said hi and will touch base more later. I don't see yet where they've actually done cases, maybe they just are being modest about it, but they have offices, staff, and train a hundred election observers. That's really valuable in-the-trenches work that a lot of organizations skip.

Thursday, April 21, 2016




Ther contend that they are allowed to openly coordinate with the Clinton campaign. I'm not sure.
is this an impeachable offense? does Hillary have any personal involvement? is jail an option?
has/will the fec split 3-3 on this?

I saw this on reddit and sent it to Hasen who posted it.

I understand nothing about Brexxit. http://www.antipope.org/charlie/blog-static/2016/04/the-unavoidable-discussion.html#more I've known Charlie Stross as a writer for years so I link to his blog even if I don't share his politics. Found out recently my brother Bill knows him in person, from years of going to world science fiction conventions. I have neither the time or money to travel in those circles. Brexxit sounds to me like a breakfast cereal.

Wednesday, April 20, 2016

Can Trump win on the first ballot?

He needs 1237 votes.
He was 840.
735 are left to go.
Let's say he gets half of those. 367.
I haven't looked at which states are still out.
Generally Cruz leads the West and South,
Trump has the East and North
840+367 = 1207.
Then he only needs to pick up 30 of the 200 unpledged.
He can buy the last ten if he needs to;
Ambassador to Iceland anybody?
So I'm thinking Trump wins first ballot, unless Cruz just kills from here on.
I'm not sure if Kasich hurts or helps either side.



Tuesday, April 19, 2016

levy watch department. in this case paul alan levy.


update: got this posted to electionlawblog.com.

Monday, April 18, 2016

also got this posted to electionlawblog.com.



Trump: Nice convention you've got there. Be a shame if something were to happen to it.

Friday, April 15, 2016

book chapter about doug guetzloe, a friend of mine who served 42 days for a disclaimer violation.
later he served about a year and  half for tax avoidance.

update: Monfortton promptly sent me the complaint. Expect to see it electionlawblog.com tomorrowish.
matthewmonforton at yahoo.com
Defendant: Jonathan MotlDefendant: Timothy Fox
6:16-cv-00033-DLC-JTJ Kantorowicz v. Motl et al
Dana L. Christensen, presiding
John Johnston, referral
Date filed: 04/14/2016
Date of last filing: 04/15/201
Office: Helena     Filed: 04/14/2016
Jury Demand: None     Demand:
Nature of Suit: 950     Cause: 42:1983 Civil Rights Act
Jurisdiction: Federal Question     Disposition:
County: LEWIS & CLARKTerminated:
Origin: 1    Reopened:
Lead Case:None
Related Case:NoneOther Court Case: None
Defendant Custody Status:

Plaintiff: J.C. Kantorowicz represented by Matthew G. Monforton(
related case:

The entry below was getting complicated so i'll keep this one simpler.
In 2012 I wrote to Montana telling it to stop enforcing its disclaimer provisions.
I have misplaced that letter, it might have been sent via one of those online form things.
I got a handwaving reply,and only just now replied to that, so here are those two letters.

Robbin Stewart gtbear@gmail.com

6:45 PM (0 minutes ago)
to Julie
Hi Julie. I realize 4 years have gone by. I don't know if this is still a working address. I am checking in to see if there were changes made in reaction to the Lair decision Commission Murry's email references.

Also, I seem to have misplaced my own letter that you were responding to.
I don't suppose you kept a copy?

I have read with interest the Campbell decision. 
http://politicalpractices.mt.gov/content/2recentdecisions/WittichvCampbellDecision, which gets the law wrong about McConnell and Majors v Abell. I was counsel in Majors.

Anyway, I would like to find out if the commission has a more current policy about how it handles disclaimer complaints. I am likely to follow up with a demand that you stop all enforcement of disclaimer requirements, as they are unconstitutional per McIntyre, Talley v California, Buckley ACLF, etc.,
but first I try to find out how things are currently handled.

I have seen some of the decisions that apply a de minimus standard,and the Landgaard frivolous complaint policy, and those are improvements, but do not go far enough. 

I will try to reply more promptly next time.

On Mon, Mar 26, 2012 at 4:04 PM, Steab, Julie <jsteab@mt.gov> wrote:
Mr. Stewart –

Commissioner Murry sent you a response on March 12th but it appears you did not receive his response.  Commissioner Murry has already deleted his sent messages from the 12th – please accept our apologies for the error in transmission.  Below is the information Commissioner Murry sent -

Thank you for your email inquiring about the summary of facts and statement of findings in the Matter of the Complaint Against Barbara Campbell, Utility Solutions, LLC, and Double-Tree, Inc. (Nov. 17, 2009).  The case was subsequently settled without litigation for $160.  The summary of facts and statement of findings in that case cited and analyzed the Supreme Court’s decision in McIntyre v. Ohio Elections Commission, which you mention in your email.  The disclaimer notice posted on my office’s website provides basic information regarding Montana’s statutory requirements for attribution language on campaign materials.  The notice will likely be revised based on a recent ruling by U.S. District Judge Charles C. Lovell, available at this link: 

Please let me know if you have additional questions. 

Julie Steab, Investigator
Montana Commissioner of Political Practices

The thing that had me checking on this stuff again was the filing of:

Kantorowicz v. Motl et al 6:2016cv00033

Filed:April 14, 2016

in progress, i may delete this or revise it substantially.

montana is home to some of the most speech-hostile campaign regulations in the country.
a new lawsuit has been filed very recently, reports hasen. i'm having trouble finding that lawsuit,
but turning up interesting things, so collecting them in this post.
this pdf file isn't letting me cut and paste the relevant sections, but finding of fact  7 involves "attribution" which is what montana calls disclaimers. they are complaining that the disclaimer on a website wasn't adequate. so montana is attempting to regulate the internet, a worldwide communcations medium that cannot be subjected to local ordinances.
my guess is if i look at the montana constitution it will say something about free speech.
 Section 6. Freedom of assembly. The people shall have the right peaceably to assemble, petition for redress or peaceably protest governmental action.
Section 7. Freedom of speech, expression, and press. No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. 
   Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.
Section 13. Right of suffrage. All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.
Section 18. State subject to suit. The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature. all adopted 1972.

"It's not a good day for Montanans when somebody challenges reporting and disclosure," Motl said. "It's the foundation of democratic involvement in the electoral process."
Wittich hunt:

typical disclaimer harrassment.
Jonathan Motl was the author of two initiatives proposed for the November 2008 ballot in Montana, the Montana Home and Community Care Act (2008) and Montana Healthy Kids Plan Act, I-155 (2008).
Motl was partner in the law firm of Reynolds, Motl & Sherwood in Helena, Montana from 1982 through 2013. In 2013, he was appointed to the role of Montana Commissioner of Political Practices. He is a member of the State Bar of Montana, Montana Trial Lawyers Association, and the Association of Trial Lawyers of America. He serves on the boards of the Montana Justice Foundation and the Montana Public Interest Research Foundation. In 1979-1981, he was a staff aide to Ralph Nader.

t. ADVOCATE (a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein: (1) without having fi rst determined through diligent investigation that there is a bona fi de basis in law and fact for the position to be advocated; (2) for the purpose of harassment, delay, advancement of a nonmeritorious claim or solely to gain leverage; or (3) to extend, modify or reverse existing law unless a bona fi de basis in law and fact exists for advocating doing so. (b) A lawyer for the defendant in a criminal proceeding, or the
 (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifi cations or integrity of a judge, adjudicatory offi cer or public legal offi cer, or of a candidate for election or appointment to judicial or legal offi ce. (b) A lawyer who is a candidate for jud
(b) commit a criminal act that refl ects adversely on the lawyer’s honesty, trustworthiness or fi tness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an


The determination of attribution as to these particular Posters is nuanced. The Posters are anonymous and, under some circumstances, 1"t amendment principles limit enforcement of the attribution requirement of S 13- 35-225 MCA in regard to ErnonJ[nous campaign documents. This measure is best defined in the case of Mclntgre u. Ohio Elections Commission,514 U.S. 334, 347 (19951:'[u]nder our Constitution, anonyrnous pamphleteering is not a pernicious fraudulent practice, but an honorable tradition of advocacy and dissent."

Past Montana Commissioners, citing Mclntgre, have determined that the lst Amendment protects written displays (leaflets, pamphlets, signs, posters) of unattributed (anonymous) speech from application of parts of Montana's Campaign Practice Acti Vanmeter u. asksheriffluckglarson, November 10, 2011 (Commissioner Gallik), Wittich u. Campbell, November 17 , 2OO9 (Commissioner Unsworth), McAllister v Gardiner School District, April 2003 (Commissioner Vaughey) and Harmon u. Sweet, December 31, 1997 (Commissioner Argenbright). In this particular matter, however, the Commissioner determines that anonymity was waived

 First, Candidate Neil paid for the Posters and placed her name in the Posters.a Second, Candidate Neil informs that she hung the a This use ofher name in the document alone argues against an intention of anonymity. See Bixler u. Suprock, COPP-2O13-CFP-013 (Commissioner Motl) and Olsen u. Valance, November 17 , 2OO9 (Commissioner Unsworth). Decision re: Duffu u. NeiI Page 4 Poster in her own place of business and posted it herself in 4 other public places around town. (FOF No. 7). Both of these actions demonstrate that Candidate Neil did not intend anonymity as to her actions in paying for the

 Cangon Ferry Rd. Baptist Church of E. Helena, Inc. u. Unsworth" 556 F. 3d IO2L, LO2a-29 (9th Cir. 2O09) - de minimum requirement

complainmt dismissed as de minimus, but for the wrong reasons. that is, mcintyre bars montana's attribution requirement.
no enforcement, but threat of enforcement. 2008.

http://politicalpractices.mt.gov/content/5campaignfinance/AugieAgaWebsiteBannerAdAttributionOpinion 2014 advisory opinion about web page disclaimers - required but waived in this because too small.

zero dollar disclosure upheld

landsgaard opinion - adopts policy against frivolous complaints. shows complaints went from 1 every ten years to 30 a year.

strizich decision
requires elephant on gop literature. more unconstitutional compelled speech.


Wednesday, April 13, 2016

Junior and the gastonette:


Gastonette is a word so obscure I had to look it up from Judge Easterbrook's recent opinion in Frank v Walker, the ongoing Wisconsin voter ID lawsuit.
It was coined by another federal judge, to describe the old vaudeville bit, "after you my dear Alphonse",  "no, after you, Gaston" of two men so polite they can't get through a doorway, and the not-that-uncommon situation where two legal requirements get in the way of each other.
 “Birth of a Word,” 13 Green Bag 2d 169 (Winter 2010).

It describes the situation where you can't get an ID without a birth certificate, and you can't get a birth certificate without an ID. Catch-22. Catch-22, noun,a dilemma or difficult circumstance from which there is no escape because of mutually conflicting or dependent conditions. See vicious cycle.

Eddie Lee Holloway has been through it.
Sometimes finding the right plaintiff is the key to making your case.
His story is extreme. However, you could sit around the BMV in my town and find dozens of people with similar stories. It recently took me 4 trips to the Indiana BMV to try to get plates for my current car. What I got after 4 trips is a temporary tag that will be expired before I get home,
but I've been through worse there before.

I'm not sure if it was stupidity or genius that led the GOP put the BMV in charge of who gets to vote. I played chess with a guy in jail who had a story about how his dealing with the BMV eventually resulted in jail time. He was black; they usually are. When you are too poor, or out of the loop, to know which lawyer to hire to fix your BMV problem, you often end up driving with no license or on a suspended license, and get a ticket you can't pay, and then a warrant goes out, and you are hunted.

The name on my birth certificate is not my current name, and occasionally this makes the BMV freak out and not want to let me renew my license. I spent 2003 in that situation, which was one of the factors that led me to get involved in trying to litigate voter ID. 

So far each of my three lawsuits has failed, but Eddy Lee Holloway Junior's second trip to the Seventh Circuit is paving the way for a new round of as applied challenges to unworkable voter ID situations that are common to Wisconsin and Indiana. I have potential plaintiffs in Indiana who were denied the vote over ID disputes, but so far I can't find them a lawyer. Their stories are not as dramatic as Eddie's, but I remain convinced that they have standing and injury. 

It takes a combination of a good legal team and the right plaintiffs to take on these kind of cases.
It's hard to say where our society would be without the ACLU and the important work it does.

That was fast. It took about 4 days, not the usual 4 months. The 7th circuit has ruled that the Frank v Walker plaintiffs can pursue their as-applied challenges. It's midnight here in Nebraska, where I'm working on a disclaimer case, where I was able to find local counsel. But I'm going to read Judge Easterbrook's decision next. My sense is that it's good, but a little less than I'd hoped for. I have two clients in Indiana who want to bring as-applied challenges, but need a better lawyer than I am for the case. Each was denied the vote in the 2015 general election when they tested the voter ID policy by not showing ID.
More after I've read it.
(i didnt like this blog entry, so the next day i wrote a different version of it.)

I had to look up the word "gastonette". It's obscure, but if Safire vouches for it it's ok by me. It's from the "after you, my dear alphonse" vaudeville routine. I'm old enough to know that one. I've been there too. I spent 2004 being told I couldn't renew my driver's license because I didn't have a birth certificate, and I couldn't get a birth certificate because my driver's license wasn't valid. It's what got me motivated to fight voter ID. I don't trust the BVM to do anything well, so I don't want them in charge of who gets to vote.

"Indeed, one may understand plaintiffs as seeking for Wisconsin the sort of safety net that Indiana has had from the outset. A person seeking to vote in Indiana who contends that despite effort he has been unable to obtain a complying photo ID for financial or religious reasons may file an affidavit to that effect and have his vote provisionally counted."

This is slightly wrong about how it works in Indiana. A person must claim indigency, under penalty of perjury, to use that affidavit. A personal who is merely poor might not qualify, and the gasconette can affect the non-indigent. I was able to afford a lawyer to sort out my ID troubles the first time,and the second time all I had to do  was drive 1000 miles and take my (elderly, blind) mother with me to the vital statistic office of my home state where she vouched for me, showed her ID, I paid $10, and they gave me a copy of my birth certificate, which by now I have lost again. I was not indigent until I paid the lawyer, and I am no longer indigent.

Similarly, the religious objection must be to the taking of the photo, and not just the ID itself. Some people think an ID is the mark of the beast, or the handiwork of the devil, but they don't get the religious exemption. It's pretty much only the Amish, who generally don't believe in voting anyway, who would qualify.

"Wisconsin’s rules for casting provisional ballots, unlike those of Indiana, require a voter who does not present an acceptable photo ID at the polling place to present such an ID by the end of the week"

In Indiana it's ten days rather than the end of the week, but not much difference there. I don't think we have any stats on how many people go the affidavit route, but I believe it's very rare.

One way in which Indiana's process differs from Wisconsin's is that Indiana charges for documents, such as a birth certificate. Wisconsin said that would be an unconstitutional poll tax; Indiana doesn't care. Of course most Indiana voters also drive, so they pay $20 for their ID every few years, which works both as a voting license and driving license. The court doesn't seem to have a problem with that; I think it's a clear 24th Amendment problem.

Meanwhile, the vote in the Missouri senate to put voter ID on the ballot to amend the state constitution got stalled by a Dem. fillibuster.

Monday, April 11, 2016





For Kieler's Gus Runde, voter-ID law not necessary

Friday, April 08, 2016


7th circuit oral argument in frank v walker yesterday.
likely to result in an opinion friendly to as-applied voter challenge.
my question is, will this result in it being any more likely
for an as-applied challenge to indiana's voter ID?
I have such a case, but lack counsel.
Today I located cocounsel for a case in Nebraska that is a little more up my alley.
If I end up filing the complaint I'm working on, this could be my return to the practice of law.

Thursday, April 07, 2016



the Purcell principle in 1948:
12 days before the general election, the supreme court declines to put the illinois progressive party on the ballot. the merits questions was about unequally sized counties and ballot access, see moore v ogilvie. justice rutlage discussed the problems of trying to fix a problem that close to an election.

I'm trying to find a certain 1912 nebraska case,and other interesting stuff turns up in the searches.

Miller v Junior Achievement. (Ind. Ct.App. 2012) Miller v. Junior Achievement of Central Indiana, Inc. (In re Indiana Newspapers, Inc.), 963 N.E.2d 534 (Ind. Ct. App. 2012) (“Miller I”)

I just found an indiana case from 2012 about anonymous speech, with paul alan levy as an amicus.
will update with notes once i've read it.

 In order to analyze this issue of first impression in our state, we consider Indiana’s Shield Law,... the First  Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution. 
The Electronic Frontier Foundation was also an amicus. I'm an EFF supporter from way back, first went to one of their conferences in 1992.
To go a bit further back, the Junior Achievement company I was in made candles.
A. Federal Constitution Anonymous speech has played an important role in the history of this country. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy or of dissent.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995). This First Amendment protection has been extended to material on the internet as well. Reno v. Am. Civil Liberties Union, 521 U.S. 25 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”)
I plan to cite this in a brief I'm writing for a case in Nebraska.

We recognize that the Indiana Constitution “‘more jealously protects freedom of speech guarantees than does the United States Constitution.’” Mishler v. MAC Sys., Inc., 771 N.E.2d 92, 97 (Ind. Ct. App. 2002) (quoting Lach v. Lake Cnty., 621 N.E.2d 357, 362 n.1 (Ind. Ct. App. 1993), trans. denied). The newsroom is a place where free speech has been particularly protected. In In re WTHR-TV, our Supreme Court stated “[w]here a media organization is subpoenaed, the Trial Rules require sensitivity to any possible impediments to press freedom.
court adopts modified dendrite-cahill test for discovery of anonymous internet commenters.

a couple of personal notes: miller, the former junior achievement exec who was the plaintiff, i think is the guy who dropped out of the district 100 race in 2010, so i was unopposed in the gop primary.
s k reid, the trial judge who was overruled, is the guy who denied a preliminary injunction in taylor v taylor, my long-running case about anonymous speech in indiana.

Wednesday, April 06, 2016


This blog endorses Dick Clark for the Nebraska legislature. Vote Clark.

Tuesday, April 05, 2016

the nebraska statute was changed slightly after mcintyre. it used to read:
Neb. Rev. Stat. S 49-1474.01 provides: 

(1) The person who pays for the production, distribution, or posting of a billboard, placard, poster, pamphlet, or other printed matter relating to a candidate or ballot question shall cause a disclaimer containing the name and street address of the person to appear on such matter. The person who pays for a radio or television advertisement relating to a candidate or ballot question shall cause a disclaimer containing the name of such person to be included in the advertisement, and the radio or television station shall, for a period of at least six months, keep the street address of such person on file and divulge it to any person upon request. 

It now reads:
(1) The person, except an individual or individuals acting independently utilizing their own personal resources, who pays for the production, distribution, or posting of a billboard, placard, poster, pamphlet, or other printed matter relating to a candidate or ballot question shall cause a disclaimer containing the name and street address of the person to appear on such matter. The person who pays for a radio or television advertisement relating to a candidate or ballot question shall cause a disclaimer containing the name of such person to be included in the advertisement, and the radio or television station shall, for a period of at least six months, keep the street address of such person on file and divulge it to any person upon request.
(2) The size and placement of the disclaimer shall be determined by rules and regulations adopted and promulgated by the commission. The rules and regulations shall exempt from the disclaimer required by this section windshield stickers, yard signs, bumper stickers, campaign buttons, and balloons and may also exempt other items relating to a candidate or committee which are printed or reproduced at the request of such candidate or committee.
(3) Any person who knowingly violates the provisions of this section shall be guilty of a Class IV misdemeanor.
So they added:
"except an individual or individuals acting independently utilizing their own personal resources,"
but that's not close to an adequate response to Talley and McIntyre.

To: Neil Danberg
General Counsel
Nebrasksa Accountability and Disclosure Commission

From: Robbin Stewart
Confirming our conversation, thank you for meeting with me this morning.
I discussed with you that it is my belief that the Commission's practice of enforcing disclaimer requirements is unlawful and should cease. I referenced McIntyre v Ohio Elections Commission (1995) and the subsequent NE AGO opinion which stated that 49-1474 is unconstitutional per McIntyre.

You asked for a couple of days to get up to speed on the issue, which is fine.

The Commission's policies are set forth on pp 12-13 of the “Candidate Brochure – Election Year 2016”.
A closer look at that document answered a few of my specific questions.

The Commission does apply its disclaimer policy to statements on the internet, but exempts yard signs and billboards (and certain other items as listed in regulation 8.) The attempted regulation of the internet runs into the problems discussed in ACLU v Reno.

I am not opposed to the disclaimer requirement for automatically dialed phone calls, which involve a different calculation of privacy interests. Additionally I will note that Citizens United carved out an exception for speech funded by corporations – I would have no objection to a rule narrowly tailored to speech by corporations and speech made by automatically dialed telephone calls.

The statutes (49-14,123) authorize the Commission to enact regulations implementing the statute.
It would be possible for us to resolve this dispute if the commission would promptly replace current Chapter 8 with a regulation narrowly tailored to the above two situations.

I would be happy to work you and the Commission on such a drafting process as an alternative to litigation.

In the event that we can not work out some such amicable solution, I am prepared if needed to take other measures. I first litigated this issue in 1997, in Stewart v Taylor.

I did not get into it in our discussion, but McIntyre is neither the first nor the last Supreme Court case to find that disclaimer rules are unconstitutional. Talley v California (1960) is the landmark case. The question presented in McIntyre was whether there was any “elections exception” tot he rule in Talley that anonymous speech is protcxted by the First Amendment and therefore disclaimer requirements are unconstitutional. The holding was that there is no such exception. So it is not an adequate response to McIntyre to exempt fliers or little old ladies or referenda – McIntyre was a broad holding that disclaimer cannot be required in elections. See also Buckley v ACLF, Watchtower v Stratton, Tornillo v Miami Herald, Riley v Federation of the Blind, Wooley v Maynard, AID v Open Society Institute.

I can also point to 40 lower court cases upholding the right of anonymous political speech. There are at least a dozen cases on the other side as well; courts have never been unanimous in following Talley and McIntyre, but that is the trend. I am not aware of any Nebraska case directly on point.
The Nebraska Constitution also protects free speech and press, and each of the commission members has, I think, sworn to uphold both constitutions. I am unclear about whether the commission members have absolute immunity for violations of either constitution. What they don't have is qualified immunity, because McIntyre is well-established authority. While the Commission's actions are technically illegal under federal civil rights statutes, I am sure that criminal prosecution is off the table. But some of the Commission are attorneys or otherwise have codes off professional responsibility to follow, and any deliberate willful continuing violation of federal civil rights, here the right to freedom of the press, free speech, and free elections, would raise ethical concerns I might be professionally obligated to report.

I hope we can talk before the Commission's next meeting on April 8th. While I hope to attend, I expect that you will discuss this matter with the Commission in the Closed Session portion of the meeting.

Again, I thank you for the time you took to meet with me,and hope we can work this out constructively.

Monday, April 04, 2016

today the supremem court denied cert in justice v hosemann. justice delayed is justice denied or somethinbg like that. it's a victory for my opposing counsel in anonymous doe v bryant.


sign company has a useful list of disclaimer requirements. not a legal document, just a useful one.
i've seen it before but thought i'd list it here.

Sunday, April 03, 2016


Thursday, March 31, 2016


The Mississippi case I've been working on has been stayed. I'm not sure what this means. Perhaps the parties have reached a settlement. Maybe some kind of state proceeding has been filed triggering abstention. I'll post more when I know more.
Notice of Electronic Filing 
The following transaction was entered on 3/31/2016 at 5:07 PM CDT and filed on3/31/2016 
Case Name:Anonymous Doe et al v. Bryant et al
Case Number:3:15-cv-00609-CWR-LRA
Document Number:No document attached
Docket Text:
TEXT-ONLY ORDER STAYING CASE. Signed by District Judge Carlton W. Reeves on 3/31/2016.(AC)

One is gentle instructions, and another one is choice. For example, "Sally, put on your,”— have a nice, gentle tone of voice. Tone of voice dictates whether you're going to get compliance or not. "Sarah, put on the green coat or the red sweater. We're going to go out, okay?" Choice among humans increases the likelihood of compliance. And choice isn't important, it's the appearance of choice that's important. Having real choice is not the issue, humans don't feel too strongly about that, but having the feeling that you have a choice makes a difference.
This is from an article in the Atlantic about parenting, but it also speaks to the election - Trump or Clinton? Cruz or Bernie? Is it all just about the illusion of choice, to enhance compliance?

a bil in the mississippi legislature would amend and reenact certain unconstitutional moribund statutes such as disclaimers (talley v mcintyre) election eve statements (mills v alabama) right of reply (tornillo v miami herald.) So I should track this legislation.

Wednesday, March 30, 2016

What these appellants communicated were their beliefs and opinions [Footnote 8] concerning domestic measures and trends in national and world affairs.
Under our decisions, criminal sanctions cannot be imposed for such communication.

Taylor v. Mississippi, 319 U.S. 583 (1943)

Case involved Jehovas witnesses not respecting the flag. I'm researching cases about unconstitutional mississippi statutes, so this one fits pretty nicely with Barnette, one of the cases i am relying on.
Bailey v. Patterson369 U.S. 31 (1962). Mississippi statutes which required racial segregation at interstate and intrastate transportation facilities denied equal protection of the law. 
915. M.L.B. v. S.L.J.519 U.S. 102 (1996).
Mississippi statutes that condition appeals from trial court decrees terminating parental rights on the affected parent's ability to pay for preparation of a trial transcript violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
supreme court, 1898, upholds all white juries.

§ 23-15-875 - Prohibitions against charges with respect to integrity of candidate; proceedings against violators - moribund mississippi statute, see mills v alabama

23-15-877. Prohibitions against newspaper editorials and stories with respect to integrity of candidate; newspaper's obligation to print reply; liability for damages.
moribund mississippi statute, see tornillo v miami herald
23-15-897. Requirement of candidate's subscription of printed campaign material; observance of federal provisions with respect to radio and television time; payment for printed matter and for broadcast time at usual rates.
- appears to ban independent expenditures? not sure which case to cite here.

23-15-899. Requirement that printed matter bear name of author, printer, and publisher; prohibition against mutilation or removal of placards, posters, or pictures. -
talley v california

23-15-976. Judicial office deemed nonpartisan office; candidate for judicial office prohibited from campaigning or qualifying for office based on party affiliation; prohibition on political party fund-raising, campaigning, or contributions on behalf of candidate for judicial office. - mn gop v white? not sure on this one
Universal Citation: MS Code § 23-15-1025 (2013)
If any material is distributed by a judicial candidate or his campaign committee or any other person or entity, or at the request of the candidate, his campaign committee or any other person or entity distributing the material shall state that it is distributed by the candidate or that it is being distributed with the candidate's approval. All such material shall conspicuously identify who has prepared the material and who is distributing the material. The identifying language shall state whether or not the material has been submitted to and approved by the candidate. If the candidate has not approved the material, the material shall so state. The identity of organizations or committees shall state the names of all officers of the organizations or committees. Any person, who violates the provisions of this section, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of One Thousand Dollars ($ 1,000.00) or by imprisonment for six (6) months or both fine and imprisonment. - void under talley v california

If the First Amendment has any force,” Justice Anthony M. Kennedy wrote, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Something Mississippi could take note of. and Indiana. Both prescribe jail sentences for people who say things like "Vote for Smith." 

Tuesday, March 29, 2016


note to self watch this video. smith and hasen and a buckley v valeo lawyer.
http://electionlawblog.org/?p=81308 more videos.





Monday, March 28, 2016


Sunday, March 27, 2016


found a case that talks in detail about monell and the state policy exception created by the 7th circuit.

this 7th circuit doctrine insulates municipalities from liability when they base their policy on a state statute. this eviscerates monell, so it's an issue to preserve and take to the supreme court or en banc.

a couple of disclaimer cases i need to add to my files

candidate”); Minnesota Citizens Concerned for Life, Inc. v. Kelley, 291 F. Supp. 2d 1052, 1067-69 (D. Minn. 2003) (striking disclaimer requirement that applied to “any . . . material tending to influence voting . . . except for news items or editorial comments by the news media” on the grounds that the definition was unconstitutionally vague and that the exception granted to individuals who independently distribute small amounts of campaign materials was insufficient to satisfy McIntyre), rev’d on other grounds 427 F.3d 1106 (8th Cir. 2005); Doe v. Mortham, 708 So. 2d 929, 934-35 (Fla. 1998) (striking requirement that advertisement state name and address of sponsor, while upholding requirement that ad state “Paid political advertisement”); Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006)


minnesota has re-enacted, for a third time, its unconstitutional disclaimer statute.
i should do something about that.

Guetzloe v. Fla. Elections Comm’n, 927 So.2d 942, 945 (Fla. App. 2006)
- friend of mine, Doug Guetzloe, who went to jail for a disclaimer violation.

h Arkansas Right to Life, 29 F. Supp. 2d 540, 550 (W.D. Ark. 1998)
if this is the butler case, i understand better now that at first i thought it followed mcintyre and then later that it didnt. one of the issues may have won below and not been appealed.


examples of indiana disclaimer complaints.

Wednesday, March 23, 2016


Phoenix Mayor calls for independent federal probe over Arizona primary voting mess


not much there yet, but they just got $1million in funding from McArthur foundation so expect more soon.
oh, there is more there, i missed it the first time.
note to self: ask them for help with voter ID.
interface is annoying; in order to access anything you need to join, which involves answering 50 questions like your mother's social security number, then waiting till they get back to you.

there's an event in cleveland april 6th
if i feel really motivated and i'm not at work that day.

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