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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


Thursday, May 28, 2015

http://www.rgj.com/story/opinion/voices/2015/05/27/voter-fraud-myth/28026595/

Dickranian v. City of Los Angeles, No. 2:12-cv-05145-ODW-SS (C.D. Cal.), on appeal No. 12-56844 (9th Cir.) Case Description: On June 13, 2013, plaintiff Laurel Dickranian filed suit in U.S. District Court for the Central District of California challenging Los Angeles disclaimer and disclosure requirements as unconstitutional. Dickranian spent nearly $8,000 sending letters to more than 17,000 Los Angeles voters urging them to elect a particular candidate for the office of City Attorney. The City’s law requires those making independent expenditures in city candidate or ballot measure elections to file a campaign finance report and a copy of the communication. The district court summarily dismissed Dickranian’s complaint and upheld the City’s disclosure law. Case Status: Dickranian appealed the district court’s dismissal to the Ninth Circuit Court of Appeals. On November 7, 2014, the parties notified the Ninth Circuit that they had settled the case. CLC Position/Involvement: The CLC filed an amicus brief in support of the City’s law with the Ninth Circuit on June 24, 2013.
http://www.campaignlegalcenter.org/news/press-releases/new-litigation-summary-clc-reveals-ongoing-flood-challenges-campaign-finance

The lower court opinion is clearly erroneous for the usual reasons.
https://docs.justia.com/cases/federal/district-courts/california/cacdce/2:2012cv05145/534612/15

I wonder if anyone knows the terms of the Dickranian settlment.

senate candidate jailed, i mean convicted,  over petitions
http://www.sfgate.com/news/crime/article/Annette-Bosworth-s-election-law-violation-trial-6288209.php
petitioning is a hassle, technical violations are routine, prosecutions are rare and generally political.
i knew of one candidate who withdrew his lawsuit over threats of prosecutions. the public official who had improperly denied his petitions went to jail or something else.

http://rhrealitycheck.org/ablc/2015/05/27/ohio-introduce-poll-tax-force-voters-become-cannibals/

Wednesday, May 27, 2015

Today in Lair v. Bullock, the U.S. Court of Appeals for the Ninth Circuit reversed a district court ruling that struck down Montana’s political campaign contribution limits.  The Ninth Circuit panel remanded the case to the district court on the ground that the district court applied the incorrect standard in analyzing the Montana’s limits.
The district court had permanently enjoined Montana’s limits on contributions from individuals, PACs and political party committees to state candidates on the basis that the limits are unconstitutionally low.
if this gets a cert petition it'll be worth watching.

Tuesday, May 26, 2015

http://lyldenlawnews.com/

this site is new to me.


Wednesday, May 20, 2015

http://www.washingtonpost.com/local/md-politics/a-stealth-campaign-and-168-votes-in-this-little-town-it-was-an-insurgency/2015/05/12/75e94d8a-f817-11e4-9ef4-1bb7ce3b3fb7_story.html

Tuesday, May 19, 2015

https://mattdehart.com/

Just last year, US Representative Frank Guinta of New Hampshire found much-needed support from fellow Republicans to mount a political comeback and win his election.The state’s top elected Republican urged beleaguered GOP Congressman Frank Guinta to resign over the weekend, as pressure mounted on New Hampshire’s First District representative in the wake of campaign finance violations. “Congressman Guinta must make his own decision about whether to resign, but if I were in his position, that’s what I would do,” said U.S. The Union Leader has full coverage of the affair here, but the gist of the matter is that Guinta loaned himself $355,000 for his campaign that the Federal Election Commission believed was his parents’ money, not his own.

One of my first paid gigs with the Libertarians was petitioning in PA. I'm not good at it and can't generate more than around 50 signatures a day. But it was what got me interested in election law.
http://ballot-access.org/wp-content/uploads/2015/05/Dalzell-order.pdf
Now some of PA's petitioning requirements are found unconstitutional as applied to the greens and libertarians.

Friday, May 15, 2015

http://warontherocks.com/2015/05/how-to-take-over-a-small-country-in-10-easy-steps/

http://www.theet.com/news/local/martin-shaffer-running-for-clarksburg-city-council/article_111e1090-3a61-5d59-b303-6d08cc6a0c18.html

I once did an amicus for martin after he was unlawfully arrested for campaign literature with an incomplete disclaimer.

Saturday, May 09, 2015

http://i.imgur.com/hvJ6DuE.jpg where labor won in 2015.




Friday, May 08, 2015

The Scottish National Party (SNP) obliterated its opponents, taking 56 of Scotland's 59 seats in the Westminster parliament. The Conservatives, Labour and Liberal Democrats could muster only one seat each.
This marked a spectacular gain from the six seats the SNP won in the last UK election in 2010.
David Cameron had a lot to be happy about as he stood in front of 10 Downing Street on 8 May.
He had earlier become re-elected as prime minister and his party swept to power with a majority as the Tories ended up with 331 seats, five more than the majority threshold, while a number of his close rivals – Ed Miliband, Nick Clegg, Nigel Farage – stepped down from their roles as leaders.
http://www.ibtimes.co.uk/will-david-cameron-keep-his-promises-10-pledges-prime-minister-made-during-election-campaign-1500413

Thursday, May 07, 2015

Proposed 29th Amendment:

1. Thou shalt not criticize Hillary Clinton, whether by book, cable TV, internet blog, or other media.
2. Congress may enact legislation to carry out this amendment.

a quote out of context:
"Secretary of State Alison Lundergan Grimes, died Thursday. She was 84."
http://bluegrasspolitics.bloginky.com/2015/04/24/grimes-grandmother-who-appeared-in-tv-campaign-ads-dies/

 A tentative post on dysfunction at the FEC

Most of the voices in academia and the media are aligned with the "reform" pro-censorship faction, and that is distorting the debate on dysfunction at the FEC. Frequently over the past couple of years the FEC splits 3-3, so it isn't able to do something.

Also complicating things is that the anti-censorship faction is republican. For the academics and media, this equals "bad guys", and democrats are automatically "good guys". Now and then somebody come along who fufills that stereotype, like Hans Von Spakofsky, a bond villian archetype, or the Koch Brothers, who can be hated because they are rich.

But turn it around, and it is, as often as not, the GOP commissioners who are the actual heroes.
We've been living in an era post-BCRA where the Supreme Court turned down an initial challenge, so the FEC was put in a position of being expected to do a number of unconstitutional things as the follow-up cases slowly worked their way through the courts.

WRTL I and II, Davis, Free Enterprise, and Western Tradition Partnership, Inc.
 are examples of where BCRA is being chipped away bit by bit, as the dissenters in McConnell had announced would happen. In CU, the court went beyond BCRA, and finally overturned Austin, which had been an anomaly, like Pico, for those of us who like their First Amendment theory to be consistent, displaying rules or at least standards.  (In another part of CU, the court created new anomalies, but that's for a different post.)

When operating in a grey area, an agency has at least two options. It can steer clear,and exercise prosecutorial discretion to avoid such cases,and focus on its core mission. Or it charge forward, perhaps far beyond what it has any legal right to do. This puts staff and commissioners in the situation of illegally conspiring to violate civil rights. De Jure, they enjoy qualified immunity because these rights are not yet clearly established, and there may be some degree of absolute immunity as well. [Harlow v Nixon?] De Facto, nobody's going to prosecute the FEC when it overreaches, or even disbar lawyers who guess wrong in the grey areas. However, some of the FEC understand their ethical duties to refrain from that kind of misconduct. They did take an oath after all.
Calling such prudence 'dysfunction' is at least mistaken, and perhaps deliberately dishonest for propaganda reasons.


Many, if not all, of the reform faction will grudgingly accept that the FEC shouldn't itself violate the constitution, at least after the courts tell them to stop. There is a lack of consensus about which parts of BCRA are unconstitutional,and it seems unlikely that at some future date the court will tos out the whole mess as unseverable. So the FEC is in the position of enforcing a statutory regime of dubious constitutionality. An unconstitutional statute is void ab initio,and never confers power to the agency.
There are times when the commissioners can have reasonable doubts about how far their authority extends. There is a vast grey area where regulation is suspect,but the courts have not yet ruled with finality.    [this paragraph needs to be moved further up.]

One maxim of how criminal courts are supposed to work is that 10 guilty men should go free to prevent one person from being wrongly convicted. (In practice, being falsely accused at trial is like playing russian roulette - a jury that is 6/7ths sure will convict.)

A similar principle of restraint should guide an agency which is operating in an environment of legl indeterminacy, when it can't know exactly how far its powers extend.

This what reform calls dysfunction.

update http://electionlawblog.org/?p=72326 gop fec nyt letter.

http://www.kentucky.com/2015/05/05/3837019_kentucky-prohibits-electioneering.html?rh=1

http://bluegrasspolitics.bloginky.com/

I'm unclear what authority kentucky had to issue the regulation. a statute would be constitutional, at least federally, but here's there's no statute. from a policy point of view, i'm fine with the limit; burson v freeman was somewhat convincing.

Burson is used as the example of the exception that proves the rule, the rare case where a regulation survives strict scrutiny.  I think what was really going on in that case was not a state interest at all, but a conflict between the rights of those trying to speak to voters,and the right of voters to cast their ballots without intimidation.

In Burson, there was tension between a statute and the First Amendment; tension between a state legislature and a federal court. Principle of comity and federalism weighed in favor of the legislature.

But here and now in Kentucky, it is unclear to me that the legislature has empowered this regulation, and I'm not sure that strict scrutiny can be overcome. Of course, to some strict scrutiny is only a guideline,not to interfere with the personal preferences of the justices or judges.

It would make for an interesting case, if someone were to challenge the regulation. I am aware that I may not have all the facts. I'm just raising the issue.  

Indiana used to have a 50 foot electioneering rule, which was routinely ignored, so they solved that problem by repealing it. I would have encountered these issues if I'd remembered to go vote on Tuesday.

The Conservatives are set to be the largest party in the Commons but just short of a majority, according to the general election exit poll.
The survey taken at polling stations across the UK suggests the Tories will get 316 MPs to Labour's 239 when all the results have been counted.
It suggests the Lib Dems will get 10 MPs, the SNP 58, Plaid Cymru 4, UKIP 2 and the Greens two.

va voter id veto upheld with one gop vote
http://watchdog.org/216309/gop-mcauliffe-voter-id/


http://indianatalks.com/site/2015/05/the-charlie-white-show-5-4-15-podcast/

Wednesday, May 06, 2015

Yesterday was Tuesday, May 5th, and I forgot to go vote in the primary for city council. I don't know if there were any contested races, but I generally vote in the interest of observing the process.
It just slipped my mind. I remembered the cinco de mayo party but forgot the election. I'd been in Baltimore during the early voting so I missed that way of doing it as well.

Monday, May 04, 2015

http://www.nytimes.com/2015/05/05/nyregion/dean-skelos-new-york-senate-leader-and-son-are-arrested-on-corruption-charges.html

Friday, May 01, 2015

Indeterminacy in Judicial Election Law
 
http://electionlawblog.org/wp-content/uploads/williams-yulee.pdf

Two days later I still havent finished reading Williams-Yulee v Florida Bar.
A somewhat divided court upheld Florida' ban on in-person solicitation by judicial candidates.
It's a bookend case to MN GOP v White, which held that judicial candidates have a right to campaign and speak out on issues.

The point of this blog post is to point out how this is one more case emphasizing the unknowability of election law these days. The court was sharply divided, 5-4. The court did not speak with one voice.
The Chief Justice's opinion was joined in part by the 4 liberals, but Ginsberg wrote separately for Breyer.

So where does that leave the law of judicial elections, and election law generally? We don't know. For every case, one can point to an equal and opposite case. For every Williams v Rhodes that holds strict scrutiny, there's a Jenness v Fortson that holds lax scrutiny on similar facts.

For every McIntyre, there's a Citizens United muddying the waters and leaving the state of the law unknowable. For every Harmon v Forssennius, there's a Crawford v Marion County.

We end up left with two things.
 1. Judges base judgments on their personal preferences because there are no rules or standards without counter-rules and counter-standards.

In the 7th circuit, the law of voter ID hasn't changed, but the personal preferences of Judge Posner have changed, and we may someday see this play out.

2. Qualified immunity becomes de facto absolute immunity. When nothing is clearly established,
election officials have carte blanche to violate their oaths of office without consequence. At most they get overruled or enjoined, someday. Perhaps this is good news for lawyers, since there will plenty to sue about.

Tuesday, April 28, 2015

http://news.yahoo.com/kazakh-veteran-leader-elected-landslide-election-commission-041623620.html
97% vote to re-elect in Kazahkstan, with 95% turnout. This sort of thing is an election in form, but not in substance. There are people who want to turn american elections into this sort of thing, by making campaign speech criminal. Citizens United is one example, the disclaimer statutes in Missouri and Indiana and elsewhere are another.

Tuesday, April 21, 2015

http://www.newsandtribune.com/opinion/bennett-eligible-hoosiers-did-not-vote-why-does-it-matter/article_7ece342e-e7b4-11e4-8bee-e3271ce43309.html

http://www.usatoday.com/story/opinion/2015/04/20/wisconsin-home-invasions-walkers-supporters-targeted-by-democratic-prosecutors-column/26081903/

http://electionlawblog.org/?p=71911 national review article

Sunday, April 19, 2015

http://www.kfvs12.com/story/28801129/officers-city-officials-resign-after-new-mayor-elected

Saturday, April 18, 2015

http://howappealing.abovethelaw.com/041615.html#061568
"Candidates says $500,000 contribution will level the field in GOP primary for Supreme Court": The Associated Press has a report that begins, "A candidate who received the largest single campaign contribution reported so far in Pennsylvania's Supreme Court race said Thursday that the $500,000 will make him competitive in the May 19 Republican primary."

Write-in Candidate for Mayor of East St. Louis, Illinois, Polls 36.1%

Published on April 8, 2015, by  in Uncategorized.
On April 7, East St. Louis, Illinois, held an election for Mayor and other city office. The incumbent Mayor, Alvin Parks Jr., wanted to run for re-election, but the State Supreme Court had removed him from the ballot because he didn’t have enough valid signatures. He then campaigned as a write-in candidate, placing second and defeating one of the candidates whose name was on the ballot. See this story. Thanks to Ken Bush for the link.

Friday, April 17, 2015

The Editorial Board needs to read McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), in which seven United States Supreme Court justices agreed that anonymous political speech IS protected by the First Amendment. The McIntyre case was almost identical to the Ferguson case, except for the fact that the would-be pamphleteer in Ferguson has even more reason for wanting to maintain his or her anonymity. The ACLU's position is not novel or even controversial. To the contrary it is precisely correct, however uncomfortable the Editorial Board might be with its implications. - David Roland
http://www.newstribune.com/news/2015/mar/25/our-opinion-political-ads-does-free-speech-permit-/

This blog expressly advocates the re-election of
Springfield City Council, Seat C and
Springfield Mayor

The convention is tomorrow in Columbia, and I hope to update this post with more endorsements
based on how things go at the convention.



Wednesday, April 15, 2015

Clinton calls for constitutional amendment on campaign finance


only there's no actual text so far. so pretty much empty grandstanding.

Friday, April 10, 2015

A memo I wrote for the Missouri disclaimer case. I didnt file it with the court because the time was too short, but I've shared it with plaintiff's lawyers.

http://majors.blogspot.com/2015_04_01_archive.html#2181157037519519034

Thursday, April 09, 2015

http://columbialawreview.org/ham-sandwich-nation_reynolds/

http://thinkprogress.org/justice/2015/04/09/3644396/nevada-voting-rights/



I have learned that a Missouri judge has denied a preliminary injunction in the John Doe disclaimer case I blogged about last week. I'm waiting to find out if there's been a written ruling.

http://www.aclu-mo.org/legal-docket/john-doe-v-missouri-ethics-commission-anonymous-speech/

Wednesday, April 08, 2015

In official totals, Emanuel won nearly 56 percent of the vote to Garcia's 44 percent.

http://billingsgazette.com/news/state-and-regional/wyoming/wyoming-liberty-group-starts-national-organization/article_295c0f2e-f5de-5041-92ac-7870e8bb9b62.html

i should contact them.

Thursday, April 02, 2015

http://www.stripcreator.com/comics/Kevin_Keegans_Perm/576317/

Wednesday, April 01, 2015

https://vtdigger.org/2015/03/31/court-hands-rga-40000-in-fines-for-2010-campaign-finance-violations/

Vermont fines RGA $40K.

Monday, March 30, 2015

http://dailyorange.com/2015/03/razzi-wisconsin-voter-id-laws-do-not-accurately-represent-gop-concerns
a republican case against voter ID.

Sunday, March 29, 2015

http://www.kansascity.com/news/government-politics/article458202/Kansas-Democrats-file-election-ethics-complaints-in-U.S.-Rep.-Lynn-Jenkins.html

http://abcnews.go.com/International/wireStory/high-turnout-uzbekistan-votes-president-29985971

Friday, March 27, 2015

text of indiana's sb101 religious freedom restoration act.
https://iga.in.gov/legislative/2015/bills/senate/101#

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.

http://grist.org/politics/voter-id-laws-are-screwing-the-planet-too/

http://www.clarionledger.com/story/opinion/2015/03/25/courts-voter-ruling-bolsters-mississippi-law-salter/7



Thursday, March 26, 2015

http://blog.constitutioncenter.org/2015/03/a-tale-of-a-giant-cheese-and-the-first-amendment-2/

http://eqs.fec.gov/eqsdocsMUR/12044320523.pdf
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

http://blog.constitutioncenter.org/2015/03/constitution-check-have-voter-id-laws-survived-a-new-round-of-challenges/

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.

http://thinkprogress.org/justice/2015/03/23/3634309/darkest-timeline-new-deal-great-society-obamacare-vanish-nearly-overnight/

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
         BREAKING NEWS
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


http://www.kansascity.com/news/local/news-columnsblogs/thebuzz/article15247046.html

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.
03/18/2015 

Read more here: http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article15247046.html#storylink=cpy
http://www.aclu-mo.org/legal-docket/john-doe-v-missouri-ethics-commission-anonymous-speech/
http://www.aclu-mo.org/files/7914/2669/3905/Anonymous_Speech_3-18-15_Complaint.pdf
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.theepochtimes.com/n3/1289838-ferguson-resident-john-doe-fears-retaliation-over-political-flyers/
http://www.courthousenews.com/2015/03/18/ferguson-resident-wants-anonymous-political-speech.htm
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.

http://electionlawblog.org/?p=71193





http://www.newrepublic.com/article/121323/supreme-courts-history-voting-rights-injustices-excerpt
Never Count on the Supreme Court to Protect Voting Rights

http://www.reddit.com/r/tabled/comments/13x8kc/table_iama_i_am_trevor_potter_stephen_colberts/

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

http://hosted.ap.org/dynamic/stories/U/US_CLINTON_EMAILS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

Thursday, March 19, 2015

http://www.nhregister.com/opinion/20150318/editorial-hassle-free-voter-registration

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

http://www.theroot.com/articles/politics/2015/03/_9_hbcu_students_just_made_the_voter_id_war_hot_again.html



http://www.theroot.com/content/dam/theroot/articles/politics/2015/03/_9_hbcu_students_just_made_the_voter_id_war_hot_again/photo.jpg.CROP.rtstory-large.jpg

darin-the-hood department:
http://thehill.com/blogs/ballot-box/house-races/236055-lahood-to-announce-bid-to-replace-schock

http://www.washingtonpost.com/blogs/post-politics/wp/2015/03/17/rep-aaron-schock-plans-to-resign-in-wake-of-spending-probe/

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

http://www.newsmax.com/US/voter-ID-Texas-court/2015/03/17/id/630775/

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).

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