Monday, February 08, 2016

update: the article below was cited at an even better one,
still just in the blogs.
here's an austin radio station.


this paper is still tricking upward through the blogs and hasn't really hit the front pages yet,
bit i still think it's a bombshell. if the methodology and science holds up, finding 4% voter suppression of whites and 7% of blacks, it's the evidence any lawsuit needs to show a severe burden or equal protection issue or obstacle to voting (1st, 14th,  24th amendment respectively).

Today I emailed the Mississippi brief and motion to counsel in the case and sent copies to a few lawyers in Indiana who have worked on those kind of cases before, Charlie White, Paul Ogden, and Zach Mulholand. We've each won some kind of an election-related free speech case before,and I hope we might be able to work together some day. I've never met Mulholland in person. Seems like a nice guy from his facebook.

I almost never agree with Ned Foley about reform, as he calls it. But http://historynewsnetwork.org/article/161849 here he tells a great story about bloodshed and vote counting in Kentucky. It's some of the backdrop of Burson v Freeman, a rare case upholding a censorship statute under a strict scrutiny test. Foley and I are pretty much on common ground here;
there is a line somewhere between free speech and overt corruption,and Kentucky has crossed that line a time or two.

I don't know how to add a pdf file to a blogger.com blog, so below are two links to the text of amicus brief and motion for leave to file, only the formatting gets lost when you take it out of pdf so it's not very readable this way. I'll be happy to email it to anyone interested. gtbear at gmail dot com.


This is an amicus I filed friday in federal court in Mississippi about the constitutionality of Mississippi's identification disclaimer statute.


We are expecting a good chance of the Supreme Court putting the redistricting ruling on hold  during the primary, so Reverend Barber may be getting some national press in the next few days.

De facto class actions article http://electionlawblog.org/?p=79681

Good analysis although I disagree with the conclusions.
This topic relates to a concern of mine that I may have blogged about already or maybe it's still just in my head. How as-applied challenges can work to obtain relief similar to facial challenges.
McIntyre is an example: Mrs McIntyre's as applied challenge was to her $100 fine. Manual Talley's $10 fine was reversed in Talley v California. These cases declared the underlying statutes unconstitutional, although neither Ohio nor California stopped enforcing them.

Citizens United has a discussion of this point. CU raised an as-applied challenge, but the court granted broad relief, overruling Austin and parts of McConnell, finding that corporations have a right to speak about politics, not just through their PACs.

This point applies to voter ID litigation.
In Crawford v Marion County, the aclu tried to make a facial challenge to the statute. The court wasn't buying it, citing Salerno, Washington State Grange, and perhaps McConnell.
The court said that at most they had shown facts to support an as-applied challenge for perhaps 1% of the voters, but did not grant any relief, The facial challenge failed and there had been no as-applied challenge made.

Some observers have thought that this means voter ID cannot be successfully challenged. That if, for example, I had won my case after I was denied a provisional ballot in Indiana, it would have affected only my vote, and there's not much point in trying to litigate an election vote by vote.

I disagree. In Crawford, much was made of the fact that no single plaintiff had been denied a vote.
Judge Posner rejected my amicus brief on behalf of myself and two others who had been denied the vote. Posner, years later, has come to understand that voter ID is about disenfranchisement, but the 7th circuit remains split 5-5, and there are no cases in the pipeline. I have a two clients and case, but no lawyer for them; I know by this time I am not the right lawyer for the case, having failed at several of these for lack of resources.

But what Citizens United shows is that one client, and the right as-applied challenge, is enough, historically reversing Austin 5-4.
Conversely Citizens United also brought the wrong as-applied argument, and lost the disclosure and disclaimer part of the case 8-1.

Some commenters think that my proposed as-applied challenge to voter ID in Indiana is the wrong one, and lacks standing, and would lose on the merits. I think that with the 7th circuit split 5-5, much would depend on the panel draw,an d on the facts and legal theories put forth.

I'm not trying to obsess over my own cases. I'm trying to make a general point that as-applied challenges to voter ID, when made to a sympathetic court, offer a wide range of options for that court to fashion as relief. The court could issue a plaintiff-based remedy, requiring one voter's ballot to be counted, or a class of voter's ballots to be counted. Or, the court could issue a defendant-based injunction, such as enjoining voter ID altogether, or enjoining a county or state from rejecting provisional ballots without clear and compelling evidence of fraud.

Voter ID is not the only application for this idea that an as-applied challenge can be used to ask for broad relief. It is a general principle of election law. To go back to McIntyre, Ohio still requires disclaimers for candidate literature, even after McIntyre said the statute was void. All it should take is a follow-up case pointing to McIntyre.

Indiana had a nice example of this in two cases that involved a void anti-slating staute. In Ogden v Marendt, Ogden pointed to McIntyre and had the statute enjoined against further application to himself. The election board, however, then tried to enforce the statute against another candidate, Zach Mulholland. The ACLU came on board, it went up to the 7th circuit,and Mulholland collected a settlement for $80,000, which I assume mostly went to his ACLU lawyers.

I've been doing a bad job of following up with Mulholland to see if he'd like to take another run at the county board. They have given up trying to enforce that specific anti-slating statute, but still unconstitutionally censor political speech.

The general point is to include both as-applied and facial challenges in a complaint, and know how to argue the points in briefs and proposed injunctions. The article mentioned at the beginning of this post is a good exploration of the topic.


Sunday, February 07, 2016

¶34 Petitions for certiorari are subject to stringent printing, formatting, and binding requirements. See Sup. Ct. R. 33-34. Such petitions cannot easily be prepared using ordinary word processing software or other commonly-available tools. As a result, several companies, including one named by the district attorneys, specialize in preparing petitions for certiorari.

Shirley Abrahamson,  dissenting in the WI Supreme Court's denial of letting a pro bono law firm help out with a cert petition, and denying the printers access to sealed files for preparation of the record for cert.  

Typically these firms charge $2-3K to print a cert petition. It's been a while since I was in the market, the prices may have gone up. 1% of such cert petitions get granted. If you are a shoestring pro bono effort for an indigent client, at what point do you decide to spend the money on one of these firms, or try to do it yourself at the local print shop?  A few days ago I spent between $50 and $100 just to print and file an amicus brief, and I'm fine with that; I accept that I have an expensive hobby. But if you  have no budget, and want to file frequent supreme court briefs, amicus or otherwise, is there an online cheat sheet somewhere, for how to do it yourself, or are you stuck with paying the professional supreme court brief filers rates?

fraudulent fraud squad:
I've been trying to look into what happened to Betty Gaedtke, charged by Brian Newby and Kobach with what the media calls voter fraud. Her husband copped a plea and paid $500 to get it over with.
After being given prosecutorial powers, Kobach had charged a total of 6 people for innocent mistakes of double voting. Betty voted in Kansas on October 20th, retired to Arkansas, and voted there November 2d.  She wasn't getting paid, wasn't trying to throw an election, didn't vote for any candidate more than once. Google doesn't give me any clues how her case turned out, maybe it's still going. Betty's a Republican. At least she used to be, I can't say for sure now.
I see she has a linked-in and a facebook, but I haven't reached out to her. Contacting her counsel would be more ethical.

Based on the 6 prosecutions, none of them involved fraud. Doing the research did turn up a few fun letters. It isn't clear that Kobach himself is saying these are fraud cases. He has used the term a lot in speech and campaigning, but I haven't seen it come up in his discussion of these six cases.

Letter: No reason to dislike Kris Kobach

Posted: November 21, 2015 - 5:56pm
I’m not sure I understand why some people are so critical of Kansas Secretary of State Kris Kobach.
Many nights I have lain awake worrying that some diabolical immigrant might vote illegally in our state and, horror of horrors, cast the deciding vote that elects a non-Republican to public office.
Soon, everybody in Kansas would be smoking pot and meeting for heathen orgies.
God Bless Kris Kobach.

Letter: Kris Kobach has focused on the wrong targets

Posted: December 5, 2015 - 5:54pm
Kris Kobach has faced difficult challenges. He became secretary of state with 1.4 million eligible Kansans not voting, more than 600,000 eligible Kansans not registered to vote and three elderly Republicans illegally registered to vote. What problem did he focus on? The three illegally registered Republicans.
CHRIS ROESEL, Roeland Park


Kobach graduated from Washburn Rural High School in Topeka, Kansas in 1984. Four years later, he earned an A.B. (summa cum laude) in Government from Harvard University, graduating first in his class in the Government Department. He was awarded a Marshall Scholarship, which allowed him to earn M.A. and D.Phil. degrees in Politics from Oxford University (in 1990 and 1992, respectively). He then attended the Yale Law School, where he earned a J.D. in 1995[1][3] and was an editor of the Yale Law Journal. During this time, he published two books: The Referendum: Direct Democracy in Switzerland (Dartmouth, 1994), and Political Capital: The Motives, Tactics, and Goals of Politicized Businesses in South Africa (University Press of America, 1990).[1]
That second book looks interesting. I wonder if it's a handbook of how to raise dark money.
$379, paperback for $220.
One (biased) source describes it as a defense of apartheidt.

The donor organization in question is the U.S. Immigration Reform PAC (USIRPAC), which gave Kobach $10,000 in 2003 and 2004, according to the Federal Election Commission. USIRPAC President Mary Lou Tanton is the wife of John Tanton, the founder and board member of the Federation of American Immigrant Reform (FAIR), an organization that has been labeled a “nativist hate group” by the Southern Poverty Law Center for its hard stance against illegal immigration. Since 2004, Kobach has also worked on contract on a variety of cases for FAIR’s legal arm, the Immigration Law Reform Institute.

Read more: http://www.politico.com/blogs/media/2012/02/oppo-men-break-silence-on-kris-kobach-114120#ixzz3zUt8fx1l.

Usurpac sounds like a self-parody. Admittedly, SPLC thinks anybody they disagree with is a hate group, so that doesn't mean Kobach keeps white robes in his closet.
The book was Kobach's thesis, and is maybe not a pageturner. Kobach says the quote from the book was taken out of context and is no way a defense of apartheidt, and that's likely true. I haven't read it. Someone should.

Nearly two years following his failed congressional campaign, Kobach was chosen by his peers to a two year term as Chairman of the Kansas Republican Party. His tenure in this post was likewise not without controversy, especially after his creation of "the party's 'loyalty committee ... to sanction wayward Republicans," which, in turn, stripped more than a dozen members of "voting rights in party organization races .... - ballotpedia.

Here's a defense of Kobach on a racist site. Still, that they endorse him doesn't mean he endorses them. Kobach burrowed deeply within the system and rose to become Chairman of the Kansas Republican Party. In the midterm elections, he was elected Kansas Secretary of State, and will undoubtedly use that position to leapfrog to a higher position in Kansas state politics. ...

Heading into the midterm elections, Republicans controlled the Kansas House, 76 to 49. In the upcoming legislative session, they will control the lower chamber, 92 to 33.Republicans have a supermajority in the Kansas State Senate. They control the upper chamber, 31 to 8. In Kansas, state senators serve four year terms. The next elections in the Kansas State Senate will be held in 2012.The Democratic Party has more or less ceased to exist in Kansas.
I'm not sure which are the rabbits and which are the goats, but it looks like the races in kansas are between the hard right GOP faction and the mainstream suburbanite GOP. My uncle, now 91 and in a nursing home, has talked to me before about how this plays out in Johnson County, in school board races and other local elections. Kobach represents the hard right faction. I'm a hard right Republican myself, but from the libertarian side of things, which has never been comfortable with the nativism and anti-immigrant positions of Kobach and his friends.

Is Brian Newby a Kobach operative in DC? Newby photo. Kobach photo.

Chris Kobach is the controversial Kansas Secretary of State, noted for such hijinks as requiring Kansas voters to prove citizenship, and seeking prosecutorial powers to charge people with voting for Democrats, or whatever.
He may aspire to higher office; I remember when Senator Roy Blunt used to be Missouri's Secretary of State, and when Congressman Todd Rokita was as assistant Secretary of State in Indiana.
(an earlier draft of this entry called him Leroy Blunt, but that might be his father, a former state representative. Blunt's son Matt has been both Secretary of State and Governor. What a dynasty.)
Brian Newby worked for Kobach as the Johnson County election commissioner before becoming exec director of the EAC, electoral something commission, in DC. Newby is a UMKC grad like me, not sure what year. Johnson County is the Kansas half of the Kansas City metro area; about half the population of Kansas lives there.
Kansas City Missouri, back in the days of Harry Truman and the Pendergrast machine, had two political parties, the rabbits and the goats. These were nicknames for two factions within the Democratic party. The GOP was much smaller and had little influence, until the late 40s.
Johnson County is similar; there are two factions, both GOP. One very conservative, the other mainstream. Think of the Reagan and Ford factions of the GOP.
See http://www.newyorker.com/news/news-desk/the-political-war-against-the-kansas-supreme-court
Kobach I'm guessing is part of the conservative group. Newby I know less about.

Here in Indiana, county elections are handled by the elected County Clerk, not appointed by the Secretary of State. They are of opposite parties at the moment, a Democratic clerk and and a GOP SecState. In Denver the Election Commissioner is elected,and for awhile we had Doug Anderson, a Libertarian, in that office. I don't know how common it is for the state to appoint county eklection authorities. All of this goes to whether Kobach has some kind of undue influence on Newby.

There's a controversy going on right now about Newby making changes in a federal form, or its instructions, to make it harder for people to register to vote in Kansas, undercutting the goals of HAVA. http://www.msnbc.com/msnbc/federal-agency-helps-red-states-make-voter-registration-harder
Part of the controversy is a tension between the executive branch of the EAC, Newby and his staff if any, and the legislative branch, the EAC commissioners.
The EAC is nominally bipartisan. Newby worked for both parties in his 10 years as Johnson County's
election Commissioner. I am unclear about whether the EAC features the same kind of partisan impasse as the FEC. I do know the EAC was inactive for a few years during which the GOP refused to name anyone to it, then this got resolved.

That's the backstory. My real concern, in this post, is my distrust for "non-partisan" election authorities. I don't know enough about the insider baseball of the EAC to do more than speculate,
but it seems like maybe they hired a guy they thought was nonpartisan, who turns out to be a partisan operative. What makes this story unusual is that here he turns out to be, maybe, a conservative republican. Usually in these cases the "nonpartisan" official is a liberal Democrat. So I want to see how this gets covered and discussed when the shoe is on the other foot.
I may have the facts, and their nuances, wrong, as I say I'm speculating here.
I'm not against the idea of election authorities being genuinely nonpartisan and above the fray.
My concern is that this can lead to a wolf in sheep's clothing.
It's pretty common in certain circles, such as newspapers and law schools, to be nominally nonpartisan but in practice 90% liberal Democrats. I worry that nominally nonpartisan election authorities would end up being skewed in a similar way.

The EAC controversy may shed some light on how this kind of thing can play out.

Thursday, February 04, 2016

something i posted on facebook the other day:

Is there anyone licensed in Mississippi who might want to serve as local counsel in a campaign speech case? I have a client who is somewhat interested in intervening in Anonymous Doe et al. v Bryant.
More generally, what is your solution to the problem of needing local counsel in other states? This same kind of anonymous speech case could be brought in about 20 states, but I don't know how to go about finding local counsel, which is generally required for pro hoc vice admission to do a case in a state other than my home state. It would be useful if the Libertarian Party had a network of lawyers with at least one in each state, or most states, to solve this problem. It seems like it would be a mutually beneficial arrangement and help the party in adequately staffing its own cases such as ballot access or campaign finance cases. Or there may be some already existing solution that I don't know about. Robbin Stewart, gtbear at gmail.

I have now read the 10th Circuit opinion in Independence Institute v. WW Williams.

It upheld Colorado's disclosure regime for electioneering speech that's not express advocacy but is close to an election. It is a solid win for the "reform" faction Fred Werthheimer, Gerry Herbert, etc., who were on the briefs. It is a loss for CCP, Center for Competitive Politics, what I think of as Brad Smith's group. It relies mainly on Citizens United, and the cases like Brumsickle and NOM that have relied on an expansive reading of CU. It says that the Supreme Court's dicta in CU is binding authority, undercutting arguments I made in a brief recently. I I is a corporation, so it falls under CU.
I now think that Ind. Inst. would not be the right plaintiff for a challenge to Colorado's disclaimer provisions; that a lone pamphleteer like Mrs. Holland would be a better plaintiff.
I am ever so slightly miffed at I I for not letting me know they were doing this case; when I met with them last year I introduced myself as an election lawyer wanting to work on these kinds of cases. However, I'm not sure that was a case that could be saved. I see where they were coming from, but I can see how they lost it. I haven't read the briefs, maybe their case looked stronger on paper.
As someone interested in having somebody do a winning challenge to Colorado's disclaimer (but not disclosure) regime, this case doesn't help. There was some vague language in CU that referred to both disclaimers and disclosures without distinguishing between them, and this case takes advantage of that to muddy the waters further. I still think that Colorado's disclaimer statute, 107.5, is unconstitutional, I no longer think that the Institute is a good plaintiff for such a case. Ideally CCP, IJ, and I could work together, but CCP hasn't expressed much interest so far. I understand I'm not everybody's cup of tea. Which it is now time for; that's enough blogging for today.

Wednesday, February 03, 2016

hasen link.
and the money keeps rolling in from all directions.
antonia bandera can sing, who knew? madonna as hillary, i mean evita.
lyrics: http://www.allmusicals.com/lyrics/evita/andthemoneykeptrollingin.htm
this has been my favorite musical since i found it on the shelves in a jr. college radio station in 1977, before it even hit broadway.

“Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” compared to just 3.6 percentage points for Republicans.
Hasen link to Think Progress paper.

That's huge, if the study methodology checks out. It's in line with my intuitive sense of how these things work, I guess a bit higher than I expected. I think data like that would strongly support a 24th Amendment claim, because it seems like voter ID is a barrier to voting of the sort Harman v Forssenius said is unconstitutional under the 24th Amendment even when not a poll tax per se

Somebody should get this submitted to the North Carolina Court as "additional authority". I'm not clear if the court would be open to an unpublished paper, and I don't know if the study is rigorous enough for Daubert type standards. Hasen is an expert on evidence, I am far from it. 

Update: 10th circuit ruling today in Independence Institute case.
More after I've read it.

On January 23rd I noted that IJ is litigating an ambitious challenge to Colorado's system of semi-private prosecution of campaign finance cases. Complaint.
Today Hasen's Election Law Blog pointed me to a blog entry at More Soft Money Hard Law:
that showed me the case has nuances I'd missed before.
update: welcome electionlawblog readers.

It turns out that Mrs. Holland was subject to a disclaimer complaint, as well as a disclosure issue.
She hired a lawyer and ran up some $3500 in legal fees, which she then countersued to collect from the school board that was involved in the filing of the complaint. The complaint was withdrawn 2 days before a hearing, and she got only last minute notice of  the dismissal. So far I do not have a link to her countersuit.

Then, she got threats that if she didn't withdraw the request for attorney fees, she'd be hit with another complaint. She was, in a second complaint that re-claimed the first issues and, curiously, included a complaint under the federal disclaimer statute, although there was no federal candidate or issue involved in any way.

I wonder whether that gives her standing to challenge the federal statute, which is unconstitutional under McIntyre, but nobody's ever litigated it. [I do not count the failed express advocacy arguments raised in McConnell or Citizens United.] Partly because I'm not sure you can get legal fees against the Feds the way you can against a state under 42 USC 1985. Is there a legal fee provision for a winning challenge to a federal statute?

I suspect she doesn't have a justiciable controversy there, but I'd welcome the opinions of those who know more about it. Perhaps I'll post to the election law list.

But she clearly has a justiciable controversy about Colorado's unconstitutional disclaimer statute.
In 2000, the 10th circuit found that Colorado's disclaimer statute was unconstitutional under McIntyre, in Davidson. Davidson involved the Colorado Libertarian Party and some people I knew there, back in the 80s, as some of the parties. So I was surprised anyone was trying to bring a disclaimer complaint against her, since it had already been struck down.
http://www.plainsite.org/dockets/fil7kfkm/court-of-appeals-for-the-tenth-circuit/colorado-right-v-davidson/ p. 49.
It turns out Colorado has re-enacted its unconstitutional disclaimer statute, section 107.5.
This is similar to what Indiana did after Stewart v Taylor, replacing IS 3-9-3-2 with 3-9-3-2.5.
In addition, there are other disclaimer statutes at 108.3, and see also regulation 5.1.
I found an (incompletely) annotated Colorado campaign finance statute online.

That led me to Independence Institute v Coffman.
 I I is a think tank I visited when I was out in Denver last spring.
In Coffman, I I  had run some radio ads informing voters about a proposed amendment by initiative that would have amended The Colorado Taxpayer Bill of Rights (TABOR), a sort of Prop-13 kind of deal. One of the amendments, Prop C passed, while another, Prop D, lost, saving Colorado taxpayers 100 million. One of their enemies, a pro-tax group, filed a complaint saying I I needed to register as a political committee. I I brought a facial challenge to the statute, saying the "a major purpose" test was unconstitutionally vague and overbroad. This is Jim Bopp territory; he's won some cases on major purpose tests. I I lost its facial challenge, but won administratively when the ALJ decided it wasn't a political committee.

See also CEW v. Gessler http://www.commoncause.org/states/colorado/issues/money-in-politics/disclosure/court-opinion.pdf for some relevant discussion of the standard of review and related topics.

I I tried to argue that McIntyre was controlling, that Colorado's vague and overbroad regulation of political speech chilled their right to anonymous political speech.  I think the court got it mostly right that Buckley v Valeo covers, and upholds, disclosure while McIntyre is about,and strikes down, disclaimer requirements.
 "Anonymous speech has a long and vital tradition predating the Constitution (as in 

the Federalist Papers), and at least in some circumstances it is constitutionally 

protected. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-57, 115 S.Ct. 1511, 

131 L.Ed.2d 426 (1995)." Concurring opinion in Coffman.

So all this leaves me wondering if either IJ.org or the Independence Institute would be up for challenging Colorado's re-enacted unconstitutional disclaimer statute. or possibly these things could dealt with in an AGO, if there's someone with standing to request it. I'm also wondering if they would welcome my participation in such a challenge. I don't know if the best way to go about it would be a separate lawsuit, or to amend the current one to add the disclaimer issue. I don't know whether I I should seek to intervene, or permissively join as a plaintiff, or whether, because of res judicata concerns, it should stay out of the current litigation. I happen to know a lot about disclaimer litigation, but overall I know I'm not a very good lawyer. What works best for me is to partner up with people who are very good lawyers, so that I can contribute to an effort without all of it being on my shoulders. In the past this sometimes works out well, as in Stewart v Taylor, or badly, as in Anonymous v Delaware. I've had some conversations about this stuff with both I I and Paul Sherman of IJ.org, without getting anywhere, but maybe it's time to renew those conversations.

In Coffman, the Institute raised serious concerns about how Colorado's disclosure regime chills speech, but it lost. The Institute for Justice is taking a second bite at that apple, and as I said last month I'm not sure how that case will turn out; I could see it going either way. Susan B Anthony List v Driehaus may be their best case, but it's not directly on point. In Kelo, IJ lost in court but won the hearts and minds of the people resulting in legislative victories around the country.

   Citizens United has gone sort of the other way. CU won in court but has been losing the battle for hearts and minds; many people think it's just fine to put people in jail for books and movies critical of Hillary Clinton. One of those people is Hillary Clinton, who has promised if elected to appoint justices to overturn CU. After the Iowa caucuses, she remains the front-runner.

    It is possible that the Colorado situation will get a legislative fix. The campaign finance act was adopted as a state constitution amendment via initiative, so I'm unclear how much discretion the legislature has to change the procedures, perhaps none. But then statutes and regulations were written to implement the act, and I think the disclaimer statute is part of those. The disclaimer statute could be fixed legislatively, but I don't see this as popular politically so it's unlikely. A lawsuit is needed. The lawsuit should be fairly easy; just point to Davidson, McIntyre, Talley, as well as such cases as Tattered Cover that found a right to anonymity under the Colorado constitution. But, as with Majors v Abell, it depends a lot which judges you get, and how they feel as well as how they think.
CU has left a big hole of indeterminacy in disclaimer cases, although on its own terms it was only talking about speech by corporations, not the Mrs. McIntyres and Mrs. Hollands.
The Institute could probably fund and win a case on Colorado's disclaimer statutes under McIntyre and recoup its losses in Coffman. When I talked to them last spring I didn't get a strong sense that they want to be litigating; they are a think tank and not an advocacy litigation team like IJ.

I recently authored, but have not yet filed, a brief in a Mississippi disclaimer case which sets out these arguments in more detail. I will probably post a link to it here at some point once it is filed, or can provide copies on request.

Miscellaneous link: Colorado's campaign finance manual.
newspaper article in the paper the ads were printed in.

the constitutional amendment goes on for multiple pages of lawyerspeak.
One of the first things I noticed is that the "voluntary" limits, which double the size of allowed campaign contributions, would seem to violate Free Enterprise Club PAC v Bennett.
So there might be multiple ways the Amendment could be vulnerable to a First Amendment lawsuit, and bringing up the possibility might be leverage in settling the current one. Perhaps some of this has already been litigated, I don't know.

Monday, February 01, 2016

Strange headline for a voter ID story.


DES MOINES, IA—Declaring that all voting-age citizens who took the measures would be spared, Hillary Clinton ominously instructed her supporters throughout Iowa to mark their front doors with her campaign logo before sundown, sources confirmed Sunday.

Sunday, January 31, 2016

The idea of a constitutional convention called by states continues to pick up steam.
About a year ago I interviewed with Rich Nadelman (is that right?) no, Rob Natelson of the Independence Institute in Denver who is pretty much the expert on this stuff.
It's probably a hot topic for law review articles right about now, for those so inclined.
Makes me wonder what Will Baude is up to these days. He hasn't perished, so I assume he's publishing. http://www.law.uchicago.edu/node/17406/publications Less than I expected, although he has been in the NYT and WashPo in the past year, and two articles in 2015, none in 2016 yet,
not counting such venues as scotusblog and volokh.com.

Thursday, January 28, 2016

                                       countries with first past the post voting systems

Wednesday, January 27, 2016



William Barber, a guy i've met and like, took the stand at the North Carolina voter ID trial.
It's an uphill battle after the opinion on denial of preliminary injunction, but Barber has a pretty good track record. He's originally from Indianapolis and came here to form a branch of his Moral Mondays group, which I am part of, but the Indiana group has been pretty mild so far, no arrests, no lawsuits.
At one point I tried to gather enough support to do an amicus in the North Carolina case, but the others backed out and I did not follow through myself. My writing block gets in the way. I have a half-written brief somewhere in my files. Today I'm working on another half-written brief, in a Mississippi case. I need to write to Barber to see if he can find a lawyer for an Indiana voter ID case where I have the plaintiffs but no lawyer. I'm well aware I'm not competent to do it myself.

Sunday, January 24, 2016

letter from a philosopher, reprinted here without permission:


I'm new to the list. Apologies if this is covered in the archives...

I'm a "concerned citizen" without training in law or political science (my Ph.D. is in philosophy). I'm just interested in the following special issue. I was talking to a list-member about the problem and he recommended I check this list out.

I'm trying to understand a problem I encountered last Nov. 4: not being able to find my complete ballot, in advance, including all down-ballot races. I live in an exurb of Columbus, Ohio, in a mostly rural county.

The problem: There were races on my actual ballot that I never saw on the sample ballots I found, I couldn't do my due diligence and make my mind up about the candidates before I stepped in the voting booth. My immediate reaction was: WTF? How is this even possible?

I'm trying to find out how widespread and serious this problem is.

(In case you're curious, here's how it shook out for me. I had moved from a locality that sent voter guides regularly to one that did not. I knew an off-year election was coming up, so I looked on vote411.org and Ballotpedia and a few other places for what would be on my ballot. I even went to the county Board of Elections website (Fairfield County, Ohio), but I couldn't find my ballot there. It turns out it was there, but the procedure for extracting it from the website is so arcane that I couldn't figure it out.)

It turns out that not even the Columbus Dispatch (which I had neglected to check out) had all the downballot races on my ballot; the Dispatch lacked a library board race as well as two or three judgeship races, and possibly something else. The other ballot lookup sites had even less information. Ballotpedia had my school board races, but vote411.org didn't even have that, and neither had my township trustee race.

After my shock at having spent hours doing my due diligence, only to discover that I couldn't vote on the down-ballot races (not honestly), which I hadn't known about, I started checking out the problem. I ended up calling the guy who lost the township trustee race. I asked him if he felt disappointed that many if not most of the people who went to vote in the election didn't even know that an election was taking place. He said he tried to get the word out, but to little avail. I asked if he thought it was a failure of democracy, and he replied that he thought it was a failure of bureaucracy; we concluded by agreeing that bureaucracy had failed democracy.

Here are some of my questions for the experts on this list; any help would be greatly appreciated:
  • Have I somehow misunderstood the situation? Is this somehow not a problem after all?
  • Just how widespread is this problem? For what percentage of the American public is locating a complete ballot, including all down-ballot races, a serious challenge (as it was for me)?
  • I grew up in a locality that supplies a fine voter's guide. This isn't a problem there. Where is it a problem? (Maybe rural or semi-rural places, like mine?)
  • How do local candidates feel about this problem? Surely they realize it is a problem...when it is.
  • And more of a philosophical question: In your expert opinion, does this represent a serious failure of democracy?
  • And if so, why haven't we solved it??
  • Where can I read more about this problem or otherwise get insight?
Thanks in advance for any help!

Larry Sanger

Notes on a response:

One of the Volokh conspirators, perhaps Ilya, has been writing about the problem of political ignorance, which is what you are describing.

One of the main solutions to this problem is party labels. In this model, voters decide which party reflects their values. They then either vote those party candidates or just hit the big green button if the machine is so equipped.
The party chooses its candidates in a primary, where a smaller number of better informed or otherwise motivated voters do the choosing. In my county, the primary is proceeded by a slating convention, at which precinct captains vote on who to slate. Normally, the county chair tells the precinct captains how to vote. Normally, the slated candidate wins the primary. There are occasional exceptions,and occasionally an independent candidate has enough of a following to overcome the party advantage.
  Additionally, many voters are motivated by machines. The machine does a favor for the voter, and in exchange for the favor, the constituent is expected to vote. At one time, the favors came mostly from the party itself. Post-LBJ, the favors were more likely to come from the government, as controlled by the party. Tammany Hall was a pioneer of how this works. Plunkett of Tammany Hall is a book, free online, that talks about this.

  When I ran for a non-partisan school board office, there was great public interest, several debates and extensive news coverage, because the usual signals were missing. When I ran for the legislature, there was no coverage, because we all knew it was a safe seat for the incumbent. He did go out and knock on doors and shake hands.
We all knew and liked John. The book "Positioning" talks about signals that lead people to vote a certain way or buy a brand of a soap. Richard Winger has shown that having the top line on the ballot is good for about 3%.
Names can be signals. I had a client who won a congressional primary as "Bob Kern" who had previously lost running as "Bobby Hildago." My friend Tony Garcia did pretty well running for Lt. Governor in Texas, Although he doesn't look much like what you'd expect a Tony Garcia to look like, the voters didn't know that.

Voter guides help solve the voter ignorance problem. One of our list members, Jim Bopp, has done valuable litigation over voter guides. Signs are another factor. In Indiana, and many other states,, you can go to jail for putting up a sign like "Vote for Smith." I challenged this twice, winning in Stewart v Taylor but losing in Majors v Abell. (Recently cited in Van Hollen v FEC.) I am semi-retired but remain interested in working with people willing to litigate these disclaimer-type cases.   .
    As a political junkie, I know how to go to my county clerk's office website, enter an address, and pull up a sample ballot, but very few people know how to do that, all it gives are the names,and there's no one national site to do that.
It would be feasible for somebody with deep pockets to do a national version. The two big political parties could do this, perhaps only listing their own candidates, or the Koch brothers could do this. I'm not sure common cause or ballotpedia has the resources. I suppose Google could.

The question you've raised is a deep and valuable one. Philosophers have their uses.

Saturday, January 23, 2016


I'm a big fan of IJ and Paul Sherman, but I'm not ready to bet on the success of this challenge to the Colorado Constitution. http://www.coloradoindependent.com/157191/colorado-money-in-politics-lawuit. Sympathic plaintiff with a good story, but the remedy sought is ambitious.

update: new post on this topic coming february 3rd. it's up.

Van Hollen smackdown:
The DC circuit has reversed the lower court.
One one side, Jan Baran, who tends to represent the GOP establishment, and the FEC, on the other  Trevor Potter, Fred Werthheimer, Gerry Herbert, Congressman Van Hollen, the anti-speech "reform" crowd.

Just as BCRA was overreaching that resulted in Citizens United's overturning Austin, here the Reform faction over reached in trying to get the courts to force the FEC to restrict political speech even more than they usually do. Reform had won below, been reversed on other grounds, and won again below. That decision has now been reversed in strong language. As Hasen points out, this could still go en banc. I don't know if anyone would file a cert petition.

Here, it was not the FEC that brought this winning appeal, it was the intervenor, Center for Individual Freedom. This goes to show how important intervening, and not merely being an amicus, can be in such cases. Edit: Jason reminds me that Hispanic Leadership Fund was also an intervenor.

A few highlights.
Disclosure chills speech. Van Hollen v FEC Slip Op. 1 (DC Cir. 1/21/2016). 

And the FEC’s concerns about the competing interests in privacy and disclosure were legitimate. We began this opinion by acknowledging the unmistakable tension that exists in campaign finance law between speech rights and disclosure rules. The Supreme Court has vigorously protected the public’s right to speak anonymously, even recognizing that anonymous speech has “played an important role in the progress of mankind.” Talley v. California, 362 U.S. 60, 64 (1960). “Anonymity,” the Court elsewhere observed, “is a shield from the tyranny of the majority” and “exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995). This is not to say the Court is naïve to the potential downsides that may accompany this right to anonymity. Much to the contrary, the McIntyre Court acknowledged “political speech by its nature will sometimes have unpalatable consequences,” but, vindicating the right to speak anonymously, declared “our society accords greater weight to the value of free speech than to the dangers of its misuse.” Id.

Van Hollen v FEC (DC Cir.1/21/2016), slip op. at 24.

I need to cite this in an amicus I'm supposed to be writing this week in the Mississippi case.

6 Judge Easterbrook, dubitante in Majors v. Abell, 361 F.3d 349, 356 (7th Cir. 2004), also noted “the Justices’ failure to discuss McIntyre” and concluded it was therefore “impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply.” 

Nice to see a case I was involved in being used to defeat Van Hollen and his crew. I lost Majors but it did produce the very interesting dubitante opinion. It gets cited again:

“Disclosure also makes it easier to see who has not done his bit for the incumbents, so that arms may be twisted and pockets tapped.” Majors v. Abell, 361 F.3d 349, 356 (7th Cir. 2004) (Easterbrook, J., dubitante). Van Hollen v FEC (1/21/2016), slip op at 26.

And twice more!

The ones who would truly bear the burden of Van Hollen’s preferred rule would not be the wealthy corporations or the extraordinarily rich private donors that likely motivated Congress to compel disclosure in the first place. Such individuals would have “little difficulty complying” with these laws, as they can readily hire “legal counsel who specialize in election matters,” who “not only will assure compliance but also will exploit the inevitable loopholes.” Majors, 361 F.3d at 357–58 (Easterbrook, J., dubitante). Instead, such requirements “have their real bite when flushing small groups, political clubs, or solitary speakers into the limelight, or reducing them to silence.” Id. at 358. Van Hollen v FEC at 28.

The case finishes with a strong conclusion:
As our discussion of the FEC’s rule has shown, the Supreme Court's campaign finance jurisprudence subsists, for now, on a fragile arrangement that treats speech, a constitutional right, and transparency, an extra-constitutional value, as equivalents. But “the centre cannot hold.” William Butler Yeats, The Second Coming (1919). 

edit: from the election law list:

  To follow up on Brad’s post, I represented another intervenor defendant in the case – Hispanic Leadership Fund.

   If you haven’t read it, I commend to you Judge Easterbrook’s dubitante opinion in Majors v. Abell, 361 F.3d 349 (7th Cir. 2004):  https://scholar.google.com/scholar_case?case=9737092812278680955&q=easterbrook+dubitante&hl=en&as_sdt=6,47  

  Judge Randolph raised this at oral argument, and it clearly played a role in the court’s thinking on the case.  I don’t believe any of the parties cited to this opinion in briefing.

 - Jason

Friday, January 22, 2016

“Native American Voters File Voting Rights Act Suit Challenging North Dakota Voter ID Requirements”

On January 20, 2016, seven Native Americans from North Dakota filed suit under the Voting Rights Act and the U.S. and North Dakota Constitutions challenging North Dakota’s recently enacted voter ID law on the grounds it disproportionately burdens Native Americans and denies qualified voters the right to vote.
Now that's genuinely interesting. North Dakota is the one place I haven't minded voter ID, because North Dakota is the one place that doesn't use voter registration. But these Native Americans are likely to have a point. The suit, properly, relies on both the state and federal constitutions.
I'm not going to try to predict how this one shakes out.

This page is powered by Blogger. Isn't yours?