Tuesday, March 28, 2017

http://takecareblog.com/ hopelessly lefty, but good coverage of legal issues in the trump administration. i'm in news junky mode right now. not the highest and best use of my time.

Monday, March 27, 2017


CREW is at it again. Interesting questions of law about whether the FEC can allow some nonprofits to avoid disclosure. One to watch.


Federal Court Strikes Down Illinois Law Barring Campaign Contributions from Medical Pot Businesses

https://pillaroflaw.org/images/PDFs/BallvMadiganOpinion.pdf (pdf)

I got around to reading this today. Plaintiffs were Libertarians. Counsel was Pillar of Law, one of those public interest law firms. Discussion of standing cited my Majors v Abell case.
Good discussion of standard of review. The court found that the Illinois statute failed Buckley intermediate review, so it didn't have to decide if this required strict scrutiny under Town of Gilbert. 
The court distinguished cases which had uphelp a ban on contributions by casinos, because there wee specific findings of public corruption cases involving casinos in 9 states. Illinois had no such evidentiary record here.
I want to get around to posting this to a facebook group for Libertaatian lawyers; this i sa reminder to myself to do that.

I'm not sure how far down the election geek spectrum to agree with this you have to be (that was bad sentence structure), but this Yale paper on the standard of review in Williams-Yulee is fascinating.

I'm not sure how far down the election geek spectrum  you have to be to agree with this, but this Yale paper on the standard of review in Williams-Yulee is fascinating.

Yulee was a recent (2015?) case that applied strict scrutiny but still held for the state, in a judicial speech case. So it undermines the landmark Mn GOP v White case. Burson v Freeman is another case that said it was applying strict scrutiny but still held for the state. I can exxplain that one away; there were dueling personal rigghts involved. That was the 100-foot electioneering line case. The article says there is a third such case but I can't think of it.

Minor criticism: I don't like when the Anderson standard is called the Burdick standard. Burdick is biased toward finding for the state; Anderson can legitimately go either way.
Burdick handles 1 of three sets of cases; Anderson handles all three.
The general framework of severe burden to minimal burden runs Norman v Reed (strict scrutiny)
Anderson v Celebrezze (balancing test) Burdick v Takushi (permissive standard.)

In Crawford v Marion County (from which I write), the court said the courts below had erred in using Burdick and should have used Anderson. That was the first time the court adopted the test outside of ballot access cases. I had written about the Norman-Anderson-Burdick spectrum back in 1994 in my LLM thesis. That seeems a while ago. This stuff may be fairly obscure for those of you who don't subscribe to Richard Winger's Ballot Access News. It is the only publication I subscribe to.

The Anderson test is:
In resolving constitutional challenges to a State's election laws, a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the court in a position to decide whether the challenged provision is unconstitutional. Pp. 460 U. S. 786-790.

The article's authors suggest this test would have been a better way to explain the decision in Williams-Yulee; I agree.

Sunday, March 26, 2017


article on wisconsin turnout.

Friday, March 24, 2017


Thursday, March 23, 2017


Fillibuster expected, which could provide nuclear trigger.


Anti-mask bill in Montana. It might be drafted narrowly enough to survive. See Goshen v AKKKK.
Lower courts have split on whether anti-mark laws are constitutional.


Lacking Evidence of Voter Fraud, Legislatures Target Its Specter

edit: hasen had already blogged this this morning. his page sometimes doesn't scroll well for me and i didnt see it there till later.

i was just interviewed via email for an bloomberg news article on judge gorsuch.

update: http://electionlawblog.org/?p=91774. The story itself is behind a paywall. I don't think they used anything by me.

“Could Gorsuch Undo Campaign Finance Disclosure Rules?”

Bloomberg BNA:

U..S. Supreme Court nominee Neil Gorsuch has observers wondering if he could be a vote to strike down campaign finance disclosure requirements if he winds up with a seat on the high court.

latest in the clarksville wv situation where they city manager is trying to condemn the historical building of his political opponent, who i met whent he city manager had him falsely arrested a few years ago.

Clarksburg businessman tells bankruptcy trustee: Bed-and-breakfast plan for historic home

City has filed motion asking bankruptcy court to allow demolition

hasen: Brad Smith and Robbin Stewart on Hasen on Gorsuch on Campaign Finance

Brad Smith (responding to this post)
Robbin Stewart (responding to this post)

I happen to agree with Smith and Muller (sp?) that Hasen was wrong about Gorsuch being wrong on Citizens United. I think Gorsuch was expressing an opinion, and opinions are not "wrong" in the same way facts are. I didn't think it rose to a level where I needed to blog about it. I thank Hasen for linking my post,and it's nice to be mentioned in the same post as Brad Smith. Smithwatch: I think he's no longer guest teaching in Morgantown, but is back in Columbus. I bumped into him at a CLE in northern Indiana awhile back. Hmm CLE's.. there may be one tomorrow.. off to check my emails.

Wednesday, March 22, 2017


BLM approved construction for the first 500 windmills of the Anscultz project in Wyoming, which I think is great. 500 more will come later. The plan is to generate 3 gigawatts of power and sell it to Los Angelos to power 1 million homes. (Home use is only about 10% of the total; most electricity is used by industry.) The windmills will be [artly on BLM land, partly on Anschutz's ranch. $6 billion project was held up for years by red tape. This is posted to my election law blog because I see this as a consequence of Trump's election.
http://www.bizjournals.com/denver/news/2016/12/13/colorado-billionaire-named-countrys-largest.html semi-paywalled article says anscutz is 22nd biggest landowner in country.
Various coloradans are in the top 10 spots.

Hasen on Gorsuch on dislosure.

Important post by Hasen on Gorsuch and disclosure.

Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?

Earlier today I wrote:
I will need to write a future blog post contrasting the unknown Gorsuch views on anonymous campaign speech with Scalia's overt hostility to such speech.

This post is that post, or something similar. Right now this is still an early draft, without hyperlinks to cases.

As I see Justice Thomas' concerns, expressed in cases such as Citizens United, McConell v FEC, McIntyre v Ohio, Buckley v ACLF, the issue is more about disclaimers than disclosure.

In other words, it's about speech more than money.

I'm ok with disclosure, with some reasonable limits. I'm strongly opposed to censorship of political speech via disclaimer regulations. The court sometimes agrees with me.

Under the Buckley v Valeo framework, disclosure usually withstands facial challenges, although it is still subject to as applied challenges in the NAACP v Alalabama ex rel. Patterson  mode; see Socialist Workers 74 Campaign Coommittee.

Sometimes the "reform" faction has used especially onerous disclosure regimes to chill speech the courts would not allow them to ban outright, especially by the Fanny Lou Hamer types, single individuals with limited resourcees who want to be able to participate in the political process.

IJ.org has brought a series of such cases, winning some, losing others. Sometimes, as with the Kelo v New London takings case, they win more by losing than if they'd won, by galvanizing public opinion against stupid government actions.  

I have lost a series of these cases on procedural grounds in Indiana, e.g. Rebecca Majors et al. v Indiana Eleection Comission, Michael Z Williamson v IEC. The issue there was that the Indiana Election Commission was fining people on disclosure grounds who never raised or spent any money; the statute has a $100 threshhold. It'll come up again someday.

So there are outlier cases, but in general disclosure regimes get upheld. There's a legitimate interest by the reform camp to want to know which multibillionaires have bought which candidates. Valeo allows a balancing test instead of strict scrutiny for these cases which are primarily about money. That Valeo test may or may not hold under Gorsuch if directly challenged, which it usually hasn't been. But that's not my main concern.

Justice Thomas' isssue is when the cases deal not just with money, but with speech.

He laid out his theory concurrring in McIntyre v Ohio
McIntyre was a reiteration of Talley v California, a civil rights era case closely linked with NAACP v Ala. and Bates v Litttle Rock. The "reform" faction tends not to acknowledge the attack they are making on the civil rights era cases, just as they don't discuss the way these cases underpin the right to privacy found in Roe v Wade.

He concurred in ACLF, linking strict scrutiny to the severe burden test of Norman v Reed.   Censorship of political speech is a severe burden on political association. In ACLF, all nine justices, even Scalia, agreed that McIntyre was the controlling precedent, and that Colorado's marijuana legalization petitioners could not be compelled to wear nametags.

ACLF is a sequel case to Grant v Meyer; Paul Grant was the real party in interest in both cases, along with David Aitkin and some of my old Colorado Libertarian circle.

In McConnell v FEC and Citizens United, Jim Bopp had teed up cases based on an express advocacy argument, instead of directly arguing under Talley and McIntyre. The court found that the speech in question was express advocacy, or its equivalent, and therefore his claims failed.  I'm critical of the court's view here, because "express advocacy" has to be both express, and advocacy, so there's no equivalent in speech that is merely suggestive. But I don't really care about expresss advocacy; it's a red herring. 

These cases, while they might have reached the right conclusions, overstated the case for allowing disclaimer rules that censor political speech. 

They created a great deal of indeterminacy in areas that should be bright lines.

See the dueling opinions betweeen Posner and Easterbrook in my Majors v Abell case.

Some future case will bring up this issue. If the issue is squarely presented without some express advocacy distraction, I am hopeful that the court will clarify its position.

 I presume that Gorsuch will be confirmed and hope or trust that Justice Gorsuch will follow stare decisis - Talley, McIntyre, ACLF, and Watchtower - instead of being another anti-speech Scalia. I am not saying Scalia was always anti-speech. But it's fair to say he wasn't a fan of anonymous speech, such as the secret ballot.

A possible case that could bring up this issue would be a challenge to "stand by your ad".

That part of BCRA is solidly unconstitutional under precedents about compelled speech.
AID v Open Society, Riley v Federation of the Blind, Tornillo v Miami Herald, Wooley v Maynard. 

I have not seen a clear statement by disclaimer fans that they think these cases should be overruled, or that they were overruled by Citizens United

Who is likely to bring such a case? Don't expect it to be Jim Bopp; like Posner and Scalia he seems to like disclaimer statutes, so long as they are limited to express advovacy.

The ACLU, IJ.org, somebody ad hoc like ACLF, or any congressional candidate with deep pockets, could bring such a case. Or the issue could come to the court via a challenge to any of the state statutes helpfully set out in note 2 of Scalia's dissent in McIntyre.

Anyway, I look forward to Justice Gosuch's opinion in such a case. I don't think he'd be one of two or three votes; I think he'd be in the majority. I have no idea where J. Sotomayor stands on this issue, even J. Kagen's position is unknown at this time.

First edit: Curiously, in Watchtower, Jusice Thomas joined Scalia's rather caustic concurrence, rather than writing separately. I may, later, edit this post to include some links to cited opinions.

Part II
[This section of what is turning out to be a longer than average post is sponsored by Maggie O'Briens in St. Louis.]
In this part I discuss Hasen's post in a bit more detail.


the Supreme Court has long upheld the constitutionality of requiring disclosure of the money behind elections, lobbying, and many political activities.

Indeed, disclosure has a long history as part of anglo-american law. Trial by ordeal, the star chamber, and on the continent the inquisition, are the ancestors of more recent institutions such as the third degree, the rubber hose and the plea bargain, in which confessions are extorted or beaten out of suspects. I myself have been tortured in jail. A majority of criminal convictions rely on confessions. The "voluntary" income tax ritual of April 15th involves a similar confession and penance.

In the 1976 Buckley v. Valeo case, the Court held that such disclosure, while implicating First Amendment rights, served three important government interests: deterring corruption, providing voters with valuable information, and helping to enforce other laws (such as the ban on foreign money in US elections).

Discussion of these 3 interests:
3. Thus disclosure serves as a kind of pre-arranged partial confession. A person who is subject to disclosure either is or is not, or might be, guilty of some further crime, such as receiving a contribution from a non-citizen permanent resident such as a “dreamer”. If they are not guilty, this state interrest is tenuous and overbroad. If they are guilty, or might be, 5th amendment values against self-incrimination come into play.

McIntyre found that aiding in law enforcement was a too tenuous an interest to justify the ohio statute. Financial disclosure involves weighing this differently, and reaching a different conclusion, but it is a close case.

2. Voters are provided with valuable information by chilling speech, so that the poor are less able to participate in the democratic process. This burns the global village to roast the pig. Reno v ACLU. McIntyre rejected this interest as well.

1. Disclosure does deter some corruption, by deterring campaign speech generally.

Similarly, voter fraud can be combated by doing away with elections altogether, or discouraging voting via voter ID and other such poll taxes. Doing so disproportionately impacts the poor, but oh well.

There is lack of fitness between the goal of deterring corruption and the means of penalizing political speech by making it subject to civil or criminal penalties, and requiring submission of forms that make income taxes look EZ. Those least deterred are the corrupt, who are already willing to violate law with illegal spending. Those next least deterred are the rich and powerful, who can afford lawyers and accountants and lobbyists to prepare disclosure forms and argue and negotiate them in front of commissions, and pay fines if needed. Those most deterred are small speakers, the average citizen who puts a sign in her window or cosigns with her husband a Christmas letter to her neighbors, and thereby becomes a regulated political committee.

So each of the three proffered justifications for disclosure is problematic in some way.

Although the Court has repeatedly upheld disclosure laws against First Amendment challenge, Justice Thomas has taken the position that there is a constitutional right to anonymity, and Justice Alito has been moving in that direction (as in his Doe v. Reed concurrence), suggesting that disclosure laws can chill activity.

Justice Thomas is of course quite correct. The right to anonymity is well-established, by cases including Talley, NAACP v Alabama, Bates v. Little Rock, Socialist Workers 74, McIntyre v Ohio, Buckley v ACLF, and Watchtower. Some 22 lower court cases echo this point. E.g. Stewart v Taylor, my 1997 introduction to this topic. The right to anonymity is not absolute, but it certainly exists, a point Hasen denies or obscures. The issue is how far does the right to anonymity extend, when weighed against legitimate state interests in chilling campaign speech via mandated reporting.

Part of that dispute is what is the proper standard of review. The court at times has used the phrase “exacting scrutiny” to mean both lax and strict scrutiny. Judge, soon Justice, Gorsuch has suggested that he supports strict scrutiny at least some of the time. That’s no surprise, they all do, although Justice Thomas doesn’t like the phrase, preferring to look at history and original intent. In McIntyre he stressed how anonymous political speech was the norm for the founders, and protection of anonymous political speech drove the adoption of the bill of rights.

Under McIntyre’s formulation of exacting scrutiny, legitimate state interests are not enough; they must be overriding and narrowly tailored. The worry of Hasen and his faction is that a Justice Gorsuch would apply such a standard not just to disclaimer cases, but to disclosure as well, and create or extend a right for billionaires, such as the Clintons, to anonymously meddle in elections.

Clinton and Trump and folks like Perot are not the only billionaires in the mix. The nearly invisible hands of Fred Koch and David Rockefeller continue to pull strings beyond the grave. Adelson, Mercer, Anschutz all have more than average influence.

Partly this is a problem the reform faction has brought upon itself. For years, Valeo and Talley set out two different rules. Under Talley, disclaimer regulation of the content of campaign speech is not allowed (except in limited circumstances such as corporations, maybe unions, or fake fundraising sites. Survival Ed, Citizens United. In for a calf is not in for a cow. McIntyre, Ginsberg concurring.)

Under Valeo, disclosure regulation, via reporting of finances, is ok, if not too onerous and reasonably fitted between ends and means.

The reform faction has done much to muddle the waters, obscuring these two different rules, with the result that courts have gotten them confused, and sometimes call disclaimers disclosures, and sometimes apply the wrong kind of exacting scrutiny. This tactic is somewhat similar to the tactic of deliberately falsely claiming that implied advocacy is express, when it isn’t, in order to trigger a regulatory investigation to chill speech.

With Gorsuch on the bench, there is now a possibility that that muddling will lead a majority, given the right case, to rely on disclaimer cases like Talley and McIntyre in striking down disclosure rules.

What can the reform faction do about this threat to their agenda? They can write edit and publish law review articles, blog posts and briefs that clarify the legal distinctions between disclosure (usually ok under Valeo) and disclaimers (usually not ok under McIntyre.) The best time to begin this would be now, instead of waiting when a case like Independence Institute reaches the docket. I am available as a coauthor of such articles, or co-counsel on some such briefs.

Robbin Stewart, gtbear at gmail.

I don't know yet if there will be a part III later.


I'm writing this from Columbia Missouri. Once upon a time Missouri had a right to free and open elections, so when voter ID came before the Republican Missouri Supreme Court in 2005, it was struck down for interfering with free and open elections. Then, last fall, voters passed a change to the state constitution to allow  for voter ID. Secretary of state Jay Ashroft, son of a guy I used to work for, was the head cheerleader.

The new statute is nowhere near as bad as Indiana's. It alllows an affidavit option for those with secondary nonphoto ID, and allows provisional ballots to be counted if the signature matches.
For these reasons, I would expect it to hold up in court, although that's less than certain.

Perhaps I could find an Indiana legislator willing to amend Indiana's unconstitutional voter ID based on this Missouri plan. Unlikely, but not out of the question. I don't know whether Justice-to-be Gorsuch will be quite as hostil to voter ID as Justice Scalia was; there's little reason to be hopefult there. But he couldn't be worse.

I will need to write a furture blog post contrasting the unknown Gorsuch views on anonymous campaign speech with Scalia's overt hostility to such speech.


Arkansas lawmakers approve plan to reinstate voter ID law


This is a story about changing my mind. When I first heard about voter ID laws, I thought: Yes, they will give me confidence in our election system. Then I studied them. Here’s what I found out that led me to change my mind.



I do not necessarily agree with the opinions expressed at the link.

I think we could use more info on the case against Colorado GOP chair charged with voter fraud.
Did he steal his wife's ballot and fill it out against her wishes, or did he just help her fill it out?
I don't know the rules of when one spouse may act for another without a formal power of attorney or suchlike. I'm not saying that generally husbands have a right to vote their wives' ballots, but I'm not yet convinced thius is voter fraud as such, at least of the criminal variety. It might be a case for jury nullification.

http://www.thedenverchannel.com/news/politics/former-colorado-gop-chairman-steven-curtis-charged-with-voter-fraud via hasen.

Tuesday, March 21, 2017

Will Democrats Filibuster Gorsuch, Forcing McConnell to Go Nuclear?

I don't care if McConnell uses the nuclear option. I just don't want Trump to use the nuclear option.


http://www.nydailynews.com/news/politics/new-yorkers-don-vote-pay-10-proposed-bill-article-1.3001499?cid=bitly  http://electionlawblog.org/?p=91710

proposed $10 fine for not voting. won't pass. unco for the usual reasons. but what i'm wondering is, is it a 24th amendment violation? it's sort of a reverse poll tax.

Monday, March 20, 2017

rise to vote sir
is a palindrome.
things i learned on the simpsons reruns today.


“The Reclusive Hedge-Fund Tycoon Behind the Trump Presidency”


This is the best piece of reporting I have seen on the Trump administration.
It explains a lot about how Steve Bannon and  Richard Bossie came to be running the Trump show.

Friday, March 17, 2017


Texas plaintiffs file response to DOJ change in position.

Thursday, March 16, 2017

No charges to be filed against NYC mayor, prosecutors say - AP.

The investigation concerned an appearance of impropriety for the mayor furndraising for state senate candidates from those looking for favors from the city.

"I seen my opportunities and I took em" -George Washington Plunkett of Tammany Hall.
The senate candidates get to keep the loot.

Could the 10th justice become the 9th justice?
Acting Solicitor General Noel Francisco has been nominated as soliticor general.
When/if confirmed, he will/would be the first asian-american in that job; he is at least part Phillipino.
If he keeps the Trump administration happy, I could see him making it to the long list of
folks to be considered, at least by the blogosphere, if there is another opening later on on the Supreme Court. Longshot, but worth watching.


Former Clarksville city councilman Martin Schaefer faces bankrupty because the city is trying to demolish a historic property he owns. There's a long feud between the city manager and Schaefer.
I once did an amicus brief in suppport of Schafer after he was arrested for helping publish a newspaper critical of the city manager.

I should probably bring this to the attention of IJ.org.

The teenager who changed the constitution.
via instapundit

Wednesday, March 15, 2017

dutch election results: business as usual mostly.
next trick will be to try to form a governing coalition.
attendance: 81%!
VVD: 31 zetels (-10)
PvdA: 9 zetels
PVV: 19 zetels
SP: 14 zetels (-1)
CDA: 19 zetels
D66: 19 zetels
CU: 6 zetels
GL: 16 zetels
SGP: 3 zetels
PvdD: 5 zetels
50Plus: 4 zetels
DENK: 3 zetels
FvD: 2 zetels

cheat sheet:
VVD: centre-right, current coalition partner, the current PM is from this party
PvdA: centre-left, current coalition partner
PVV: far-right, Trump-esque, the only real anti-EU party on this list
SP: left-wing, vaguely eurosceptic
CDA: centre-right, Christian democrats
D66: centrists, liberals, Eurofederalists
CU: centre-right, more socially conservative than CDA, also Christian democrats
GL: left-wing, heavy focus on environmentalism
SGP: right-wing, more socially conservative than CU, also Christian democrats
PvdD: left-wing, heavy focus on animal rights
50Plus: heavy focus on pensioner interests
DENK: left-wing, Turkish minority party

Monday, March 13, 2017


background on upcoming dutch election. france and germany are also dealing with how to respond to the muslim issue.


Sunday, March 12, 2017


Saturday, March 11, 2017


Thursday, March 09, 2017

President impeached.

Wednesday, March 08, 2017

Tuesday’s daily OpinionWay poll showed Fillon five percentage points short of making the May 7 runoff at 20 percent, with the Socialist Hamon even further back at 16 percent. Le Pen and Macron were at 26 percent and 25 percent, respectively, with Macron projected to beat Le Pen in the second round by 20 points.

French politics is outside the purview of this blog. My mother was born in france, but I've never done anything to try to get my french citizenship, if even possible, and I don't keep up on the politics. But this upcoming election looks interesting, with an independent likely to beat an alt-right type in round 2, shutting out both the big parties. Is this, in practice, anything like Californoa's top 2? This election will be discusssed in terms of Brexit and Trumpism, reaction to islamicism.

Tuesday, March 07, 2017



Friday, March 03, 2017

Alyson Hayward, a Brad Smith protege, has been appointed to California's FPPC.
I expect we'll soon be hearing stories of gridlock and dysfunction there, which would be an improvement. I think her blog has been defuct for a few years, but it used to be linked here.

Wednesday, March 01, 2017


I tend to take columns by J. Christian Adams with a grain of salt. But what he discusses here is that the N C A G acted both as counsel, in a recent filing to the supreme court, as well as having been a witness at trial. That does appear to raise an ethical issue. Anything to it?

I have not read the N C Legislature's filing, which goes into more detail.


It is captioned as an "Objection". I have never seen that kind of filing before, to the Supreme Court. It claims to be a filing by the state of North Carolina, rather than by the legislature. I find that troubling.
So the Supreme Court is faced with two opposing filings, each claiming to represent the party in litigation. How often does that happen? The Supreme Court has posponed consideration of the cert petition for now at least.

Monday, February 27, 2017

In a post just now, I mentioned not having the resources to just dash off an amicus brief to the Supreme Court anytime I happen to be movitated to write one. Part of the reason for thaat is that briefs to the Supreme  Court are very specific about their format. Page sizes and fonts and text size and such. It occcurred to me just now that if somebody were to draw up a template, it would be an easy matter to just plug in the needed text. Maybe the way to do it is download an example, and then just change out the text. I'll keep that in mind next time I'm faced with that issue.
There are a few firms that will do it for you for around $3K, but thaa's a bit out of my budget, especially for amicus work.

The Supreme Court has summarily affirmed the Independence Institute case, without dissent.
I'm not clear if that means it was unanimous, or just that they had at least 4 votes.
I have at times questioned I I's strategy in spending money and effort on this case, that lost at trial and has now lost at the high court. There were other winnable issues they could have focused on instead.
However, the quantity and quality of the amicus briefs in support convinced me they were onto something. They took a shot and missed. If the court had given the case a full hearing, and the 9th justice was by then on board, it could have goen differently.

I don't know know whether I I understood the odds against it, or thought all along that it would win in the end. The court only hears the cases that come before it, so it is important that group like I I are out there bringing case that raise these kind of issues a little guy speaking truth to power. This time power won. I am personally frustrated that at times I can spot a potentially winning issue, but can't seem to find an outfit like I I to partner up with, that has the resources to bring cases to the Supreme Court.

Similarly, at times I've been able to see that cases were going to lose, and do damage to the overall movement, without being able to stop it. I was aware Citizens United had a problem with their disclosure argument, and the result was an 8-1 adverse decision on the disclosure issues of CU.

Sunday, February 26, 2017


raul castro to retire next year.


Friday, February 24, 2017


oral argument at 7th circuit in one wisconsin case.

also today was libertarian party of illinois v (illinois)


WI voter ID case returns to evenly split 7th circuit.

Thursday, February 23, 2017

Indiana house unanimously passes meaningless ovter registration bill.
As far as I can tell, the bill only tells the BMV to do what it's already doing under Motor-Voter.
It was watered down. As introduced, by a Democrat, it would have made voter registration automatic, with opt-out.


Vouchers simply dont add up...! Vouchers are a scam for the wealthy to use taxpyer money to pay for their private school education.

I wonder whether Texas allows school districts to engage in politics like this. This would have been illegal in Missouri; I'm notsure how Indiana handles it, and I don't know about Texas. Off to google. I am a taxpayer in that district and am mildly offended that they are using my tax dollars for speech I disagree with.
Would I have standing?

School districts argue that Sec. 255.003 of the election code gives them free reign (sic). It states communication that “factually describes the purpose of the measure” is not considered political advertising
But the definition is conditional, as it also prohibits officers and employees from using “communication describing the measure” if it’s “sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against a measure.”

Sec. 255.003. UNLAWFUL USE OF PUBLIC FUNDS FOR POLITICAL ADVERTISING. (a) An officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising.
There's more to the statute, and it may not apply here, but I remain concerned.

Wednesday, February 22, 2017


as i now understand it the bill stilll has to go to a conference committee and is not yet ready for the governor's signature, but it has passed both house and senate. it's a very restrictive bill that only allows a weed-derived oil for epilepsy, and does not allow marijuana per se.
but this is a step up from when rep woody burton was opposed to help oil in salad dressing. this is the first fallout ive seen from the 2016 passage of legalization in 4 states and a few other medmar states.

“Fighting voter ID laws in the courts isn’t enough. We need boots on the ground”

I tend not to wear boots. placeholder for soon to come post.

She approached the table marked “Voter ID Assistance” and explained that with the 2016 presidential primary only a few months away, and despite several trips to the DMV, she still didn’t have a valid ID as mandated by Wisconsin’s strict new laws. It turned out she needed a Social Security card but wasn’t sure how to obtain one.

So here's a problem already. Voting should in no way be contingent on whether one chooses to participate in social security. Sure, most of us do, and are suckered into it by our parents before we are able to give informed consent. Then, it's needed to get a bank account or hold a job, with a few scattered exceptions perhaps for the amish or certain minsters. But for those with the priviledge not to work, and are able to shelter their funds or don't have funds to shelter, opting ou of social security was probably difficult enough that a reasonable person wouldn't opt back in just to vote. So this harms the principle of universal suffrage, and is a content based discrimination on who gets to speak via voting. That should trigger strict scrutiny.

I actually agreed with the rest of the column, which detailed the uneven and often severe burden on the poor and those traditionally disenfranchised. 

However, those litigating voter ID may be missing the boat in focusing on the poor, blacks, the undocumented, the elderly, etc. I'm a white male middle aged republican conservative. I'm unwilling to participate in voter ID because it violates my rights. I miss voting. I even took the unusual step of voting absentee in the 2016 general election at a time when I wasn't sure if I'd be back from Texas by election day. Ordinarily when I go to vote, and decline to present ID, I am met with varying degrees of hostility. Sometimes I'm given a provisional ballot that is later thrown away; often I'm not.

As a single individual doing this, it's easy to dismiss me as crazy. The more of us who were willing to put our boots on the ground and stand up for our right to vote, without any poll tax reciept or voting license, the harder it would be for them to keep getting away with it.

I challenge anyone reading this to do the same.

Tuesday, February 21, 2017

A modest proposal: Appoint Ralph Nader to replace Ann Ravel on the FEC.

 Ann Ravel has resigned from the FEC. As is often the case, Hasen covered it before I did.  Traditionally, each of the two big parties gets seats on the commision,  while independents and minor parties get none. This seems to arise out of the byplay of senate confirmation, rather than being requird by the enabling legislation. Such legislation might be challenged as an equal protection violation, but senate practice is probably a nonjusticiable olitical question.

  At one time, President Clinton tried to withhold the nomination of Brad Smith. The result was that none of Clinton's judicial nominations went forward for over a year until Clinton backed down and appointed Smith. (This is just the way I remember it; I could be wrong on facts here or there.)
See also Zagoria.

  So, even though his party controls both the senate and house, Trump is constrained from nominating a 4th republican, or, say, a Libertarian like Bill Redpath, the current LP chair Nick (last name escapes me, will edit) or Richard Winger. Those would make fine choices if a GOP seat comes up.

  But I think Trump could get away with nominating Ralph Nader, if he wants the job. (I don't know anything about his current health or level of interest, but I'm assuming he'd be a yes.)
Nader is a public servant, a skilled lawyer and manager of lawyers, a solid liberal, and knows the minutiae of FEC practices.

  He's run for president as an Independent and as the Green Party nominee.
In 2000, his presence in the race in Florida set up Bush v Gore and tipped the result to Bush.

So nominating Nader would have something for liberals, minor party supporters, and Bush fans.
Maybe some Democrats hold a grudge for Florida. Maybe Ralph wouldn't want the job. I am not a Washington insider, and there could be many reasons why this wouldn't work. If, somehow, Trump were to want to do this, the first step should be to suggest it to the Senate Democratic leadership,
rather than try to go it alone.

Another approach Trump could try is to appoint somebody famous for being a liberal Democrat who cares about free speech. I think of Nadine Strossen as being in this camp; could be wrong.

Monday, February 20, 2017

Ravel resigns.


Wednesday, February 15, 2017


ted talk on how to get british young people to vote.


chart of partisanship in house and senate over time, by randall munroe.

“N.J. Dems want to push future presidents to do what Trump wouldn’t: Release tax returns”

 This proposal is probably unconstitutional. In Chandler Walker v Miller, the Supreme Court held that requiring a candidate to submit to a drug test violates the 4th Amendment. I think it would be the same here.

It might have a better chance if it were adopted as a party rule.

Monday, February 13, 2017


luther strange

Sunday, February 12, 2017


randy barnett on constitutional construction.

posted here because it's germane to the running dispute at the fec on what the appropriate role of the commissioners is. ann ravel v don mcghan, that i've blogged about before here.

to oversimplify, ravel's position is that the commission should ignore the constitution right up until a court orders them to stop. mcghan's posiution is that commission shoul refrain from violating the first amendment, as each commissioner understands it. barnett's post supports the gop side of that debate.

Saturday, February 11, 2017


16,000 Texans used the affidavit to vote, of 9 million voters. That's a significant data point if the case gos to the supreme court.

Friday, February 10, 2017


Voter ID law may be more expensive than budget allows

I was in st louis on the 8th but didn't get the newspaper so I'm just seeing this now.


27 people counts as massive. at least they are the right 27 people.

Tuesday, February 07, 2017


Bopp in Texas. King Street Patriots case.  I have been surprised not to hear Bopp's name at least discussed for the Trump Administration. King Street is connected to True the Vote
I have not read the file on these cases so I express no opinion on the merits or likelihood of success.


the gipper turns 106 today

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