Saturday, September 20, 2014

WI supreme court asked to delay voter ID for fall election.

Wisconsin Poll Watcher Militia' plans to confront Scott Walker recall petition signers at polls

This seems ill-advised. Bad public relations and questionably legally. I don't know whether WI has a provision against arrest while going to or from the polls. In the 1990s I was arrested after voting in Missouri and lost a case on it, when the appeal court said a primary wasn't an election. The state supreme court denied transfer.

Disclaimer and disclosure complaint in NC over fracking ads.

Today I heard a speech by William Barber, the NC minister who started Moral Mondays - he's bringing it to Indiana and 13 other states.

Friday, September 19, 2014

hasen on kansas:
3. Further, this seems really self defeating.  Why can’t the party just nominate ,,, Kris Kobach?
That's hilarious. and would be effective.

Thursday, September 18, 2014

the gop's changes of winning back the senate were about 50-50 yesterday. today's correct decision taking the democrat off the ballot in kansas won't help.

Current Seats
Projected Seats

at this point it's almost definitely "no". just rumors, but 54-46%

For the first time, the vote was extended to 16- and 17-year-olds living in Scotland. Nearly 110,000 people younger than 18 have registered to vote.

the exit polls dont look good right now, but it's too soon to call.

So hang on, you literally draw a Scottish flag to vote?

Wednesday, September 17, 2014

Tuesday, September 16, 2014

en banc is the next step for WI voter ID.

the other day i found a better copy of the amicus i submitted to the 7th circuit in crawford v marion county, that judge posner turned down. maybe i'll see if i can find a place to post that and link to it here.
i probably won't write one for WI.

hanging chad

The majority of the Moral Monday trespass cases in  N Carolina are likely to be dismissed after a judge has ruled that the 'disturbance' policies at the statehouse are not narrowly tailored.
Friday I expect to be at a training workshop with Reverend Barber, the NC NAACP head and leader of moral mondays, which are now branching out to other states. The above developments are not dispositive of his case, which is still on appeal, but it's a good sign.

Meanwhile, Hasen reports that the NC NAACP has filed a complaint against one of the legislators because their campaign ad suggests voter ID is already in place - it doesn't go into effect until 2016, if ever.

I rarely agree with the editorials of the New York Times. (I was a teenage paperboy for the times in college. They bought my first drink of Tanqueray, and it's been my drink of choice since then, even if I still can't spell it.) But this one's petty good:
http://www.nytimes.com/2014/09/16/opinion/electoral-chaos-in-wisconsin.html?ref=opinion&_r=1 .

Monday, September 15, 2014

I forgot to put on my todo list that I need to write to the Marion County Election Board for a list of the voter in the primary this spring whose provisional votes were not counted for voter ID reasons.
I was in their office Friday and they said send us a letter.

I had missed that in March the 7th circuit reversed dismissal of Mulholland v Marion County Election Board.

Filed opinion of the court by Judge Hamilton. Because the district court erred in dismissing the case under Younger, weREVERSE that decision and REMAND for further proceedings, with the additional instruction that the district court consider promptly whether to issue a preliminary injunction against the Board, keeping in mind the primary election scheduled for May 6, 2014. Nothing in this opinion should be understood to prevent the Election Board from making any arguments it wishes to make about changes in applicable law or other circumstances preventing application of issue preclusion based on the Ogden final judgment. Such arguments, though, will need to be raised in the federal court. The mandate shall issue immediately. Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. [6561061-1] [6561061] [13-3027]

Zach Mulholland ran for the same legislative district I did, in 2012, and had his brochures seized illegally by the board. I will now try to find out where the case currently stands.


via marcia oddi here's the full 7th circuit opinion 17 pages

my earlier coverage was here:

paul ogden links to the 7th circuit hearing audio.

more ogden:
We atorneys are officers of the court.  We are obligated to follow the orders of the court, regardless of whether we like them. The knowing failure to do so is contemptuous, a direct affront to the authority of the court.  These attorneys knowingly violated a federal court order to harm a person they knew perfectly well would have no satisfactory remedy after the election.  Judge Barker should issue a Rule to Show Cause and bring every one of those attorneys who acted to adopt and enforce the illegal Board decision to seize Mulholland's literature into her courtroom to explain why they should not be held in contempt of court for their conduct.

I didn't realize that Ogden and Mulholland are or were in some litigation together, seeking access to voting lists.

earlier coverage of mulholland case by advance indiana blog

ok, found the case on pacer. there is a settlement conference 9./30

gavin rose/ken falk at the iclu are counsel.

MOTION Defendant's Motion to Certify Questions of State Law to the Indiana Supreme Court, filed by Defendant MARION COUNTY ELECTION BOARD. (Townsend, Alan) (Entered: 06/24/2014)
06/24/201460 REPLY in Support of Motion re 47 MOTION for Summary Judgment , filed by Plaintiff ZACHARY MULHOLLAND. (Attachments: # 1 Affidavit -Supplemental- Zachary Mulholland)(Falk, Kenneth) (Entered: 06/24/2014)
07/03/201461 RESPONSE in Opposition re 59 MOTION Defendant's Motion to Certify Questions of State Law to the Indiana Supreme Court , filed by Plaintiff ZACHARY MULHOLLAND. (Attachments: # 1 Exhibit Ogden- State's Memo. in Opp. to Pre. Inj., # 2 Exhibit Ogden- Pre. In. Resp. of Election Bd.)(Falk, Kenneth) (Entered: 07/03/2014)
07/11/201462 REPLY in Support of Motion re 59 MOTION Defendant's Motion to Certify Questions of State Law to the Indiana Supreme Court , filed by Defendant MARION COUNTY ELECTION BOARD. (Townsend, Alan) (Entered: 07/11/2014)
07/17/201463 SCHEDULING ORDER-TELEPHONIC Status Conference set for 8/8/2014 09:20 AM before Magistrate Judge Mark J. Dinsmore to discuss case status. Signed by Magistrate Judge Mark J. Dinsmore on 7/17/2014.(CBU) (Entered: 07/18/2014)
08/12/201465 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Status Conference held on 8/8/2014. The parties discussed possibilities for settlement. Signed by Magistrate Judge Mark J. Dinsmore. (NLR) (Entered: 08/12/2014)
08/26/201466 SCHEDULING ORDER- Settlement Conference set for 9/30/2014 01:00 PM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. Signed by Magistrate Judge Mark J. Dinsmore on 8/26/2014.(CBU) (Entered: 08/26/2014)

wednesday updates:
Hi Robbin --

Thanks for the note.  You are correct that the Court set a settlement conference in this case.  I, of course, have no idea whether the case will be resolved then.  If it is not, the case is fully briefed on summary judgment and simply waiting for the Court's decision -- and we'll just have to see what the Judge does.

Best, Gavin

Indy Sentinel

1:17 PM (11 hours ago)
to me

Thanks for your email.  I will take a look.


Friday, September 12, 2014

well that was quick. 7th circuit, i mean 7th circuit panel, ok's voter ID in WI, lifts stay as of now.

Hasen makes the point that this could actually turn out well. Plaintiffs can move, a la Purcell, for relief from the Supreme Court, which could act. This in turn might increase the chances that the Supreme Court will at some point hear the merits. I think we might get a closer decision next time, what with changes on the court, and WI has a pretty good set of facts.

Hasen's main point is a remedies issue - it's too close to the election to change the rules now; it'll be disruptive.

Last I checked the audio wasn't up yet. here it is:

7th Circuit Court of Appeals clerk's office says judges on today's case panel are Judges Easterbrook, Sykes and Tinder.

this is not the best panel. i havent checked to see how they came out on the crawford rehearing vote,
but these are republicans. 

2 of 3 Judges on WI 7th Circuit Voter ID Panel Voted Against Plaintifs in IN Voter ID Case; 1 Was Not on Court, says hasen.

however, i think the case will get a fair hearing,and the judges are likely to agree it is too close to the election to try to fix it this fast,and may keep the stay in place.
look for a transcript or audio soonish, and media reports on how the hearing went.
this link is not active yet but should be soon.

Wednesday, September 10, 2014


last night i went to at
a meeting that was part of the planning for a moral monday event in indiana.

some primary results. mostly as expected. zephyr lost but did well, around 40%. er, 35%.

Tierney is the fourth House incumbent to lose a primary this cycle. The others were Republicans Ralph Hall, Kerry Bentivolio and Eric Cantor. Moulton will face Republican Richard Tisei in the fall; Tisei, a moderate, narrowly lost to Tierney in 2012.

Read more: http://www.politico.com/story/2014/09/primary-election-results-2014-110782.html#ixzz3CtdOpdAd


delaware results as reported by kansas city.

Tuesday, September 09, 2014


Monday, September 08, 2014

notes from iclu.org

Common Cause of Indiana v. Indiana Secretary of State (U.S. Dist. Ct. – So. Dist. of Ind.) [Filed 11/12]
Indiana law provides that each major political party nominates exactly ½ of the number of Superior Court judges to be elected at the general election. This means that when a person is confronted with the list of judicial candidates there are the exact same nominees as there are positions. This case alleges that this unique system violates the First Amendment right that voters have to exercise a meaningful vote. The district court has denied the defendants' motion to dismiss and the case is moving forward. Summary judgment motions are being filed.
ATTORNEY(S): Kenneth J. Falk, Gavin M. Rose

Freedom of Speech and Association

Citizens Action Coalition of Indiana v. Yorktown (U.S. Dist. Court – Southern Dist. of Indiana)
This case challenges an ordinance that prohibits canvassing without obtaining a license and paying significant fees. There are also significant limitations in the ordinance as to when the persons may canvass. We are claiming that significant portions of the ordinance violate the First Amendment. Cross-motions for summary judgment have been filed.
ATTORNEY(S): Gavin M. Rose, William R. Groth, Jennifer Washburn

Mulholland v. Marion County Election Board (U.S. Dist. Court – Southern Dist. of Indiana; Seventh Circuit) [Filed 10/12]
After we sought summary judgment in the state-court case described immediately above, the Marion County Election Board issued an order requiring that the plaintiff be subpoenaed to a hearing before the Board and setting a hearing to investigate his alleged violation of the statute. This action seeks an order enjoining the Board from subpoenaing him or from otherwise enforcing the statute. The district court granted the defendant's motion to dismiss, but this was reversed by the Seventh Circuit Court of Appeals. It appears that the defendant is intent on enforcing the challenged statue and we have filed for summary judgment and are awaiting a decision.
ATTORNEY(S): Kenneth J. Falk, Gavin Rose


Thursday, September 04, 2014



Tuesday, September 02, 2014


Story involving Ohio Libertarian candidate for governor heats up.
This is a case I worked on a bit. I did a rough draft of an amicus that ended up not getting filed but was useful to the LP's counsel.

Monday, September 01, 2014


Sunday, August 31, 2014

http://www.theguardian.com/world/2014/aug/30/brazil-marina-silva-first-green-president-election-dilma-rousseff not actually green party, but interesting.

Thursday, August 28, 2014

article on is senator al franken vulnerable

Wednesday, August 27, 2014

More on defending the indefensible:

Principles be damned” shouts Salon, in an editorial article urging passage of California bill 52, which would dictate the contents of ads for referenda.
Well, let's look at the principles. 
In America, we have a principle that the people choose the government, not the government choose the people. As part of free and open elections, we have a free press and free speech. 
Unlike some other countries, newspapers, even blogs, can print what they like, without having to seek government approval. Reno v ACLU.
This means that the government can't order writers to include text the government would prefer.
Wooley v Maynard, Tornillo v Miami Herald, AID v Open Society.
This includes that the government cannot require an identification disclaimer, except as to corporations.
Talley v California, McIntyre v Ohio, see also Citizens United.
This principle has been re-affirmed time and time again in California, in cases such as Drake, Canon City, Bonjiorni, and Schuster. Schuster found that both the state and federal constitutions protect anonymous speech and outlaw disclaimer statutes.
But the legislature keeps trying,and now with bill 52 they are trying again, to illegally censor political speech.
There is a principle that legislators and the governor take an oath to uphold the constitutions, but this fell by the wayside long ago. 

Salon benefits from a free press. When, as here, it acts to subvert the First Amendment, it could someday end up hoist on its own petard. In theory, we have a free press. In practice, the statute books are riddled with regulations like Bill 52, and sometimes journalists go to jail, or people who would like to speak out are silenced. It is this that is indefensible.

* http://ballots.blogspot.com/2005/04/on-election-law-listserv-eugene-volokh.html something i wrote on this topic in 2005.
Cases mentioned above:
Talley v. California, 362 U.S. 60 (1960), 
Canon v. Justice Court for Lake Valley, 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428 (1964),
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962)
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.
1995 McIntyre v. Ohio, 514 U.S. 334 (1995) http://www.law.cornell.edu/supct/html/93-986.ZO.html
ACLU v Heller 378 F3d 979 (9th cir. 2004) http://openjurist.org/378/f3d/979/american-civil-liberties-union-of-nevada-v-heller is the controlling 9th circuit decision.

Defending the indefensible:


SEIU, Other Unions Seeking to Block Campaign Disclosure Law in California


The California bill is overtly unconstitutional, and SIEU is right to oppose it, although probably for the wrong reasons.
It's not a disclosure bill, it's a disclaimer bill. The article's author might not know the difference, but I know Rick Hasen does.
The California bill is modeled after the DISCLOSE act, version I, which was withdrawn in part because it was unconstitutional. Some savvy congresspeople are probably now aware that McCain-Feingold was a setback for the reform faction, because it led directly to WRTL I and II and Citizens United and David and a few other such cases. What benefit would there be to passing DISCLOSE I and having it stuck down by the courts, in a way that could spell trouble for stand by your ad and other remaining unconstitutional parts of McCain-Feingold?

Citizens United upheld a disclaimer statute, but only as to corporations,and the California bill is not so limited. Talley v California settled this issue 54 years ago, but California keeps trying, and has lost - I can no longer cite all these cases off the top of my head, but there was Drake, Canon City, Bonjiorni, and Schuster, for example. Schuster is still controlling as to the California constitution, as far as I know.

The most recent case on California's unconstitutional disclaimer statutes was, it'll come to me, Griset. That case went back on forth a few times. Daniel Griset won on the merits, citing McIntyre v Ohio, but was then reversed on procedural grounds at the state Supreme Court, which I guess would have been in 2004.

In the unlikely event that I could find California co-counsel and a client, I'd be happy to file suit against this Act if it passes.

Tuesday, August 26, 2014



even daily kos thinks the senate is more likely to shift to GOP this year.

Monday, August 25, 2014


Really interesting post from will baude explaining that there were official translations of the constitution by the founder into German and Dutch. could give some insight into the intent of the founders, if the translation shows that certain words were used in certain ways. would Scalia accept this as evidence of intent, or say that's irrevelant? My home state, Delaware, was Dutch before it was English, although English had taken hold by the 1770s. It was Swedish before it was Dutch.

scotland vote soon


Tuesday, August 19, 2014

placeholder for a draft of an article on why republicans should oppose voter ID.

a few thoughts before bedtime on friday night 8/23:

The GOP used to be opposed to needless red tape and throwing money at a problem.
This is a boondoggle with very little bang for the buck.

This is creeping authoritarianism, which some factions of the GOP support and others oppose.

It creates or supports a perception that the GOP is against blacks, the poor, nuns, old ladies, women, students, etc.

It is a direct attack on people who are savvy enough not to be willing to waive their rights to be free from an unwarranted search. This is a constituency the GOP should be cultivating, not pushing away.

it doesn't work to stop voter fraud. at most, it creates an illusion of doing something about voter fraud.

it creates more voter fraud than it solves.

eventually i want to work up this post until i have something of good enough quality to submit as a guest editorial.

placeholder for a post reacting to the NC decision, when i get around to reading it.


placeholder for a post on what's wrong with the standard of review the wi s ct used in its voter ID case.

a few thoughts friday night 8/23 before bed:

the court uses a "constitutional until proven guilty beyond a reasonable doubt"standard.
i havent checked the cases they cite that quote from, but they shouldn't be election cases.

this standard is far too deferential. the US supreme court, while it upheld Posner's result in Crawford v Marion County Election Board, rejected the änything goes"standard of Burdick v Takushi which Posner and the district court had used. the WI standard is even worse.

One problem, of many, with the standard that the court uses is that it destroys separation of powers.

instead of having 3 equal branches serving as checks and balances to each other, the court is deliberately passive, asleep at the wheel.

Let's think about any of the landmark cases of the US Supreme Court over the past 100 years. How would those cases fare under a beyond a reasonable doubt standard?

Brown v Board.
Loving v Virginia.
Reynolds v Simms.
Nixon v USA.
Clinton v Jones.
Gideon v Wainright
In each case, there was some reasonable doubt in favor of the losing side.

There's more at stake here than just voter ID. Effectively, Wisconsin doesn't have a constitution anymore.
There's one on paper, but there's no effective enforcement mechanism to have it mean anything.


Voter ID fairy tales

For folks who enjoy fairy tales, the recent decision by the Wisconsin Supreme Court to uphold one of the most restrictive voter ID laws in the country is a dream come true.
Fairy tale No. 1 would have us believe that voter fraud is actually a problem needing to be fixed. The reality is that, of the millions of votes cast in Wisconsin elections since 2008, there have been 31 voter fraud prosecutions. Of that total, nearly half were felons who voted, something the voter ID law wouldn't have prevented since it's designed to prevent in-person voter impersonation, which by all measures is truly rare.
Then there's the myth that the required IDs will be free. Come on! Does anyone really believe you can get anything for free anymore? Those "free" IDs will have to be produced, processed and delivered to anyone who wants one. According to the Legislative Fiscal Bureau, the estimated cost just to implement the law could be as high as $5.7 million. Which means if the voter ID law had been in place these past few years, Wisconsin taxpayers would have spent roughly $300,000 to catch each of those "fraudulent" voters. For those who complain about government taxes and spending, how is this a good return on investment?
And finally, the Republican legislators who voted for this law want all of us to believe that voter ID is about protecting the integrity of the voting process. They're hoping most of us can't see the truth: This law is about nothing more than making it more difficult for students, poor people and the elderly to vote, segments of our society who tend to vote for Democrats. The reality is, this law will make it more difficult for many more people to vote and harder to cheat for a rare few.
In the real world, voter ID will cost us plenty. So those who worry about their taxes going up or who grouse about how unfortunate it is that more people don't vote, wake up. There are people in power who want us to keep believing in those fairy tales.
Jill J. Morin

Monday, August 18, 2014


house of cards, uk, fictional story of a prime minister. i didn't see the netflix american kevin spacey version.

Arizona Free Enterprise Club and the criminalization of politics.


" 'Arizona Free Enterprise Club violated election law' ” reports Hasen.

The quotes are important here. Hasen is not making the claim himself, but is quoting a media outlet. Similarly I am not making the claim myself, but quoting Hasen quoting somebody else.
The article is here: http://www.azfamily.com/news/Arizona-Free-Enterprise-Club-violated-election-law-271540271.html.

The source for the article is AP, but my guess is that the headline was added by azfamily.com, which seems to  be a tv station, channel 3. Headlines have the difficult job of distilling an article into a few words. The lede of the article is "PHOENIX (AP) -- State officials say the Arizona Free Enterprise Club has broken election laws by not declaring itself a political committee."

The key words there are "state officials say." My concern is that headline may be defamatory.

It accuses the Free Enterprise Club of having violated law, which, if it turns out not to be true, would be defamatory per se. When I read the article, I was surprised that it wasn't reporting a conviction, but merely an accusation and finding of probable cause. I express no opinion about whether the Free Enterprise Club is or isn't guilty of anything. There are First Amendment issues at stake, as well as state constitutional issues, and these cases can go either way. But here, as so often, the media outlet is giving only the state's side of the story.
That's bad journalism. But the headline convicts before trial, and that might give rise to liability.

A retraction would be in order.

I am no expert on defamation, but some courts are lenient about false headlines on a true story. http://www.editteach.org/journalism_research?research_id=30
And it is possible that Free Enterprise Club (FEC?) will eventually be duly convicted.
But if FEC wanted to fight back, a stern letter promising a libel action might get some attention.

Friday, August 15, 2014

Tx Gov Perry indicted by grand jury, which also indicted a ham sandwich as a possible co-conspirator.
I've never much liked Perry, but if the press reports are accurate (ha) the charges are bogus and won't stick.
My sense is Perry will fight instead of copping a deal. Will this knock him out of the presidential race, or somehow help him? I know something about what it's like to have false charges derail a political career.


update 8/23: everybody seems to agree with me that the charges against perry won't ultimately prevail.
However, in cases like this, the prosecution itself is the punishment.

Monday, August 11, 2014


rock the vote has a new task force working against voter ID.

Will the GOP take the senate? washpo speculates.


Arkansas?, Montana, South Dakota and West Virginia. AK is in play, as is LA.

The economy has been improving, but Obama doesn't seem any more popular.


jim marsh article on theories about election hacking via the MOVE act.
goes pretty deep into black helicopter conspiracy theory stuff, but worth a look for people interested int hat sort of thing. supports the view that voter ID is a sideshow; the real vulnerabilities could be elsewhere.

I ran into jim on reddit where he linked to this article about endgame and the julian assange/barret brown/stratfor stuff, in a thread about a guy who figured out how to use his phone as a serial port to access computers.



Saturday, August 09, 2014

As usual Hasen has a thoughtful and nuanced take on today's decision upholding voter ID in N Carolina.
This is a case where I wrote a draft of an amicus a year ago but never finished or submitted it.
My writers block kicks in strongly at times.
The opinion is long and I haven't read it yet; was on the road all day.

Meanwhile here's an article advertorial about voter ID in Indiana by a Republican. It ends with a backhanded endorsement of the Libertarian candidate for Secretary of State.

But at least vote for Karl Tatgenhorst, the Libertarian candidate, who also supports the voter ID law. Anything but Beth White. The integrity of our election system depends on it.

Friday, August 08, 2014


article explains this ruling:

Arizona Appellate Court Reverses Trial Court, Upholds Constitutionality of Express Advocacy, Political Committee Rules

I am troubled by legislative definitions of "express advocacy" that aren't express. They should call it something else.

This seems to be the brief that won the day.

Thursday, August 07, 2014


outrageous disclaimer case in missouri. i'm trying to get a copy of the TRO.


i had forgotten about this case and controversy from 2011.
i'll try to find out what happened.
i have both a professional and personal interest.
i litigate about internet anonymity.
and when miller was allegedly defamed, he suddenly withdrew as the gop
candidate for state rep 100 seat in 2010, so i was unopposed for the nomination.

Wednesday, August 06, 2014


I've been waiting for this. Voter ID isn't really about verifying identity. It's now about accessing a database that decides whether you get to vote or not.


I didn't realize FDR's first nomination was so close, or that Hoover had a role in it.

Monday, August 04, 2014


Last week's WI Supreme Court voter ID ruling was a victory for both sides.
For supporters, the court reversed the lower court and upheld the statute. (Statute not law; it's still considered unconstitutional and therefor void in a federal decision still under appeal.)
What's more, they did so under a standard so permissive the legislature now knows it can get away with just about anything with no barriers under the state constitution, although these cases depend highly on the whims of the court, and could go another way in another case.

For opponents, however, the court found that having to buy documents would constitute a poll tax and thus be unconstitutional, so they found that fees could not be required. This is easy administratively for those from wisconsin, who can be given a birth cert at no charge, but how to deal with those who (claim to be) born in other states? the above article discusses this issue, while pointing out that it is all theory as long as the statute remains on hold in federal court.

I have not followed he progress of the federal case. Has a panel been assigned at the 7th circuit,and does it include Posner? He has famously/infamously had mixed feelings about his decision in Crawford v Marion County Board of Elections. His result but not his methodology was upheld by the USSCt.  

Posner, and the district judge had applied permissive review under Burdick v Takushi. 5 of the Supreme Court found that this was the wrong standard, although they did not join a single opinion.

While the Wisconsin Constitution in one sense means whatever the WISCt says it does, I disagree with the approach they took. I am likely to write something longer about this at some point.

Thursday, July 31, 2014

I woke up this morning to learn that Wisconsin's Supreme Court had upheld voter ID in the two cases it had jurisdiction over. (The statute is separately blocked in federal court.)

It's now 1:33 pm and I've finished a first read of the opinions.
From my perspective, the majority  (5-2 in one case, 4-3 in the other) is wrong and weak in its analysis.
It is only right in the sense that Wisconsin law is whatever they say it is. There is no federal question here to appeal further; the federal cases will continue on their own track.
The dissents have the better of the arguments, although there are flaws in each of the opinions.

But the most interesting part of the case is that the majority, in the NAACP case (not the LWV one)
finds that a fee for a birth certificate would be a severe burden, and the statute would not withstand a severe burden analysis, and therefor the authorities in charge of issuing IDs are strongly urged to make birth certificates free for those who ask.

This suggests that voter ID in Indiana and elsewhere would be unconstitutional under those standards.

Sunday, July 20, 2014

post removed at request of person being quoted.

Saturday, July 19, 2014

global warming and climate chilling effects:

 The campaign legal center and its cronies such as common cause are engaged in illegal efforts to get the federal government to punish tv stations for running ads against politicians.

Tom S is a guy who has money and cared about the envirnment. He funds a superPAC which runs TV ads.
TV stations run these ads, with a disclaimer that they are paid for by the superPAC.
The First Amendment forbids censorship by disclaimer. Talley, Mcintyre, ACLF, Watchtowe, AID v Open Society, etc.
The civil rights acts make it a federal crime to interfere in people's free speech under the First Amendment.
The campaign legal center is inciting criminal activity, trying to goad the FCC into violating more of the constitution than it already does. This conduct is illegal, but as a practical matter would never be enforced.
But the campaign legal center is run at least in part by some lawyers, and those lawyers have disciplinary commissions to answer to when they engage in this sort of of unethical conduct.

Global warming potentially at least affects everyone. For the purposes of this discussion, I take no position on whether global warming is a real threat or whether the politician discussed in the ads actively opposes measures to combat global warming. My point is that issues like this need a free marketplace of ideas, so that people can bring up such topics without having to get permission from the campaign legal center, or other self-appointed apparatchiks.

Wednesday, July 16, 2014


Rhode Island's voter ID sounds off hand constitutional, because provisional ballots are counted if the signature matches, so there's less disenfranchisement. Such a system could be gamed, by corrupt and partisan signature checking, but there can be safeguards against that.
After my recent hard drive crash, I was  able to recover an early draft of the amicus I'd been working on for the RI ACLU's suit about disclaimers.  So if I can find the time and energy I might get that done.


The Wild and Crazy Adventures of Rep. Don Young

Buried deep in this story is a bit about hillary clinton raising $100,000.
Also good discussion of how KBR aka Halliurton buys congressmen.

Tuesday, July 15, 2014

Via Hasen, IJ writes complaining that they didn't win big enough. They wanted facial as well as as-applied relief. See Crawford, Washington State Grange, and perhaps Ayote. I forwarded the link to Nick Sarwark, the new Libertarian Party national chair, who like me is an IJ fan. I pointed out that the WA LP could easily try to recall somebody and set up a second bite at the apple, being ready to obtain another as-applied relief, and at some point the state, even with their deep pockets, will give up.
The case is about whether pro bono legal help counts as a prohibited in kind contribution.

Monday, July 07, 2014


A delaware disclosure case I'd missed back in April. An appeal to the 3rd Circuit has been briefed by the state. I could see this going either way.


Andy Horning is now running for congress, in the 8th congressional district of Indiana, the Evansville area.
So I'll update the masthead one of these days. I should also redo the blogroll.
This blog endorses Andy, not just because he's a good guy, but as an example of civil disobedience - this blog engages in express advocacy of a federal candidate without a disclaimer.
Feel free to report me to the FEC.

Saturday, July 05, 2014


My friend David Schultz has done something very interesting in this editorial.
On the surface, it is a naive argument that lying is bad and therefore the government should prohibit politicians from lying.
But let's give him the benefit of the doubt.
The editorial is a lie, a useful lie, because it makes us think through the argument step by step, reading critically, spotting the internal contradictions, a  form of argument logicians use to prove a theorem by assuming its opposite. As hints along the way there are many sub-lies. If I find time I may list ten examples.
I wonder if his editor was aware of the deep game Professor Shultz is playing here.

1. Lying is wrong; even children know it.
Children imitate adults,  and in cultures where adults lie, children lie.
2. deceivers lie to make themselves an exception to a rule that they expect everyone else to follow
That may have been true in Kant's day, but today everyone lies, and everyone is alert to the possibility that what is said may be a lie.
3. If trust did not exist, then business would never exist. Trust is earned, and is built up over time. Contracts would be meaningless, promises futile.  A well drawn contract has its own enforcement clauses, so that's it's cheaper to carry out the contract than to violate it. That's one of the key challenges in drafting contracts.
4. Courts rely on all parties playing fairly and not lying.  My courtroom experience is limited, but my experience has been that witnesses lie routinely. Lying is too deeply ingrained in our culture to set it aside for court.
5. Ethically there should be no debate that lying is wrong in politics. That's the goal of censorship, to prevent debate.
6. In its 1995 McIntyre v. Ohio Elections Commission decision, it ruled that Ohio had a legitimate interest in preventing fraud and libel in campaigns where false statements might have "serious adverse consequences."
 That was not the ruling of McIntyre, just dicta.
7. They rely upon political actors to tell them the truth so that they can make informed decisions. Lying prevents that. Lying does not prevent the truth from being spoken. Laws against lying do.
8. Without any limits, there are no real sanctions against lying. Reputation capital.
9. Finally, prohibiting lying actually enhances robust debate and democracy. Because election commissions are omniscient and onmibenevolent, no doubt. 
10. Making it clear that the First Amendment does not protect political lies is one way to strengthen democracy and encourage better political behavior.

Thursday, July 03, 2014

Vermont's unconstitutional disclaimer statute has been upheld again, this time by the 2nd circuit.

Green Mountain Future was an earlier similar case.

Once again, it's the wrong client, and the wrong arguments.

After Citizen's United, corporations aren't going to win these cases, at least without some clever arguments such as overbreadth. The suits need to be brought by individuals, even if some corporation is the real party in interest. It is hard sometimes to know whether James Bopp is losing these cases on purpose; he has a long history of sabotaging his own cases on exactly this issue, whether disclaimer statutes are constitutional. He has both won and lost more of these cases than anyone else.

Instead of directly saying these statutes are unconstitutional under the controlling precedents, he makes circular arguments about express advocacy, major purpose, vagueness, and so forth. Again, he has won many cases with these arguments over the years, but they lost in Terry v Ky RtL, they lost in McConnell v FEC, they lost in Citizens United, and they lost today in Vermont.

Having lost on disclaimers, he is now going to appeal a different part of the case, with a high chance for cert but an uncertain outcome.

Bopp is right to think there's something wrong with Vermont's scheme. In addition to disclaimers, there is an "obtain permission from your opponent" provision, a 24 hour reporting requirement, and a low reporting threshhold. Vermont is clearly trying to punish speech it can't directly prohibit, but doesn't like.
Since the client is a Right to Life group, I expect they will stick with Bopp as their lawyer, and we may get to see this play out.

I had a client once from Vermont, who was the Anonymous in Anonymous v Delaware (2000). I'm not sure what he (or she) is up to lately. I do not have co-counsel in Vermont. That's been one of my bottlenecks in trying to do these cases. I've been taking a bunch of CLE classes lately, so as soon as I send in my $200, motion, and 6 box-tops, I will be reinstated to practice in Indiana. I don't know yet how active I'll get in litigating these issues I still case a lot about.

Tuesday, July 01, 2014

N.Y. Pays $360,000 to Jones Day Lawyers
For Costs of Challenge to Super PAC Limit
New York State has agreed to pay $360,000 in legal costs to the challengers of the state’s campaign finance law limiting contributions to super political action committees (New York Progress and Protection PAC v. Walsh, S.D.N.Y., No….

Saturday, June 28, 2014

Open questions for Judge Posner:

1. You've said you didn't have enough information about how Indiana voters were disenfranchised, in the Crawford v Marion County Election Board case.
But you refused to grant leave to file an amicus brief by disenfranchised Indiana voters including myself.
Voter ID is headed back to the 7th Circuit in the Wisconsin case.
Will you continue to deny amicus briefs in voter ID cases?

In Crawford, the Supreme Court said you erred in using the permissive Burdick v Takushi standard of review. Might you have reached a different conclusion if you had used a better standard of review?

In Crawford, you failed to address any of plaintiff's state constitutional arguments. Later in LWV v Rokita an Indiana appeals court found the statute unconstitutional under the state constitution, although this result was later overturned. Several states, including Missouri Arkansas Pennsylvania Wisconsin and Georgia, have found voter ID to violate the state constitutions. Was it proper to fail to address these points in your opinion?


blog by a guy i just met, who wants to work together on ballot access lawsuits. today he either will or won't get elected libertarian party chair. https://m2.facebook.com/sarwark4chair


Friday, June 27, 2014

Just chatted with old* friend Richard Winger.
I had not realized his legal fees dispute re the top two litigation had been settled, by one of the others in that group.
Also he tells me that the case where the Ohio governor etc. is resisting depositions, is the Libertarian case I'd written a memo for, so I need to go back and check that story.
OK, I probably misunderstood his comments; that seems to be a different case.

* old in the sense that i have known him since the 70s; he never looks any older although in that time I've gone from being a teenager to having a grey beard.

Senate Leader Reid wants a vote on the DISCLOSE act. My question is, is this a re-vote on the second version of the Act, which took out most of the unconstitutional stuff from the first draft, or is this a third draft we haven't seen yet?


Something i want to look at later. I'm at the Libertarian Party's offyear convention in Columbus, where we are arguing about the process for changing commas in the by-laws, and such pointless minutiae. i'm a delegate from Nevada but really here as a volunteer, and probably catering a party tonight.
Will try to get a picture of me with Willy Marshall and Starchild.

This was the part from the link above that caught my interest:
update: but they don't seem to have real contact info, so there may not be much to it. met one kansas lawyer
i hope to talk to more; right now i'm on door duty.

    1. Institutional knowledge on ballot access issues must be preserved and accessible.
    2. Turnover and lack of knowledge in state affiliate leadership impacts a consistent approach to ballot access in the states.
    3. By taking a proactive approach fighting ballot access laws head on, the party will be more efficient with its resources in the long run.
    4. For many states with ballot access issues that lack dedicated professional staff, this service will improve our chances for full 50 state (plus Washington, D.C.)  access.

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