Wednesday, May 24, 2017



Two lawsuits about recall elections.


Monday, May 22, 2017

I have no opinion yet on today's 5-3 decision on North Carolina redistricting, Cooper v Harris.

But it's always a good time to keep in mind Cooper v Aaron. That was a case fromm the 1950s, or was it 1960? (1958, same year as Alabama v NAACP) that held, so much for "all deliberate speed"; the southern states needed ot get witt the program and implement the desegregation ordered by Brown v Board. It was an assertion of power by the judical branch over the legislative and executive, and an assertion of federal power over the states. During the Trump admistration whether 4 years, or less, or 8 years, these tensions will be at issue.


North Carolina's 12th district was the subject of Shaw v. Reno509 U.S. 630 (1993), Hunt v. Cromartie526U.S. 541 (1999), and Easley v. Cromartie532 U.S. 234 (2001).
I remember Shaw v Reno, but I have not kept track of the more recent cases; redistricting  and gerrymandering just isn't an issue I follow closely.

Today's decision was a win for Rev. Barber, the charismatic and confrontational leader of the N Car. NAACP who I have worked with slightly in his Moral Mondays program. The attemp to get an Indiana chapter going seems to have fizzled, or maybe I've just fallen out of touch.

Friday, May 19, 2017

I wonder if felon disenfranchisement raises 19th amendment issues? it's mostly males who are felons, probably enhanced among blacks. can the 15th and 19th and maybe 14th be chained together?


The GOP is running its anti-abortion playbook against voting rights — and it’s working

Want to know what the future of voting rights looks like? Look at how the GOP went after abortion.

post deleted, mistakenly posted to wrong blog.


The piece of House legislation presented was authored by Rep. Phil King, R-Weatherford, and mirrors the legislation passed in the Senate by Sen. Joan Huffman, R-Houston, earlier in the session.

I suggest we call it the 2017 PhilKing Voter ID Act.

(terminology note: according to my stylebook, it's an Act or  bill and if passed a statute, but not a "law" until constititutional issues are resolved. Some people are comfortable using the term "law" to refer to a void unconstitutional statute; I'm not.)

Filking, see Filk Music: Filk music is a musical culture, genre, and community tied to science fiction/fantasy/horror fandom and a type of fan labor. The genre has been active since the early 1950s, and played primarily since the mid-1970s.

Wednesday, May 17, 2017

5 Winter v. Wolnitzek, 186 F.3d 673, 693 (E.D. Ky. 2016)

A case to read, if I can ever get around to it.


Having just briefly skimmed it, I endorse his nomination to the 6th circuit. When I ran for judge, I encountered many of these restrictions on speech by judicial candidates. Mn GOP v White was supposed to have settled much of this.
here is the letter opposing him.

Tuesday, May 16, 2017


I don't know if an independent can win in philly, but it's worth a shot.
ah, apparently he's not running as an independent but in today's primary.
with 11%, Krasner has a strong lead.

Friday, May 12, 2017


FBI raids office of Republican campaign consultant in Annapolis



FBI may be investigating russian money laundering to trump campaign via internet fundraising and a bunch of small gop ad brokers.


Trump warns sacked FBI chief Comey not to 'leak' conversations.

Because what we need right now is more Watergate references.
In the old days, it was said that J Edgar Hoover's FBI could take out any politican that stood in his way. Deep Throat was Mark Feltz, #3 at the FBI. I don't know if the FBI will take an active role in investigating Trump, and whether firing Comey made that better or worse for Trump.

Note how "Repub,ican" is in the headlines, which it should be, but contrast with

Ex-Florida Congresswoman Convicted of Taking Money Meant for Charity.

Paragraph 7 finally gets around to mentioning that she's a Democrat. She intends to seek a new trial, and I express no opinion about whether she's guilty, legally or morally.
update: the instapundit made this same point yesterday.  https://pjmedia.com/instapundit/264708/



FBI may be investigating russian money laundering to trump campaign via internet fundraising and a bunch of small gop ad brokers.

Thursday, May 11, 2017


note to self: send a resume to the Biden center at U of Del.

When Roosevelt appointed Joe Kennedy to head the new Securities and Exchange Commission, he said "It takes a thief to catch a thief." Now Trump has appointed Kobach to look for voter fraud.
Kobach's rise to power reminds me a bit of the doctor in Urula LeGuin's The Lathe of Heaven.
Kobach somehow became a law professor at my alma mater UMKC. He then parleyed that into a race for Kansas Secstate. he then got the legislature to give him prosecution powers so he could chase voter fraud. He was on Trump's transition team, I think. Now he has a national pulpit. We'll see what he does with it.

Wednesday, May 10, 2017


placeholder for a post on eisenhower and the 26th amendment.

Nebraska Lawmakers Kill Voter ID Amendment Proposal

for now anyway. 

Friday, May 05, 2017

http://www.desmoinesregister.com/story/news/politics/2017/05/05/branstad-signs-controversial-voter-id-bill-into-law/311568001/ (link plays annoying music)

"Iowa voters soon will need to show identification at the polls under a new law signed Friday by Gov. Terry Branstad. 
The measure overhauls Iowa's election laws through a series of changes that Republicans say are needed to ensure the integrity of the process and to prevent fraud, but which Democrats and others argue will suppress votes by creating barriers for the poor, elderly, people with disabilities and minorities. "

So Iowa passed that voter ID bill, so what are the details, and who is suing?

I do not know whether thebill, now act, is constitutional in its details.

Kansas court upholds grandfather clause on rational basis review.

Next up, literacy tests, poll taxes, lynching?

I forget the name of the 1915 grandfather clause case. Guinn v United States?
I don't think it was US v Classic (1940).
The Texas voter ID litigation seems like a continuation of the white primary cases,
Nixon v Herndon, Nixon v Condon, etc. I'm a little rusty on that history.
Yes, Guinn v. United States, 238 U.S. 347 (1915).

It seemed odd the court made no mention of Guinn.


Not sure yet where the daily bruin is. I'm guesssing a California public college, which would make its internet regulations unconstitutional - both state and federal.

University of California Los Angelos.

Thursday, May 04, 2017

I wondered what the indiana law blog would have to say on the early voting lawsuit, but it turns out it shut down last week. This might be a bluff to get more funding, but for now it's gone. But it lives on as a twitter account.

All the cool blogs have moved to twitter.

Wednesday, May 03, 2017

I heard a rumour that Indiana Common Cause filed suit against Marion County for not having more than 1 early voting location. details may follow.


it was suggested to me that i contact julia re my voter ID issues, which is a good tip.

ah here we go


edit: of course hasen already covered this earlier today. i am in a news vacuum while at work so ,u blogging is  a bit off.


I see this lawsuit as a bit of a long shot.

With votes still waiting to be counted supporters of the sugary-drink tax have conceded the election in what is turning out to be a lopsided defeat.
The city ballot measure would have levied a two-cents-per-ounce tax on distributors of sugary drinks; revenue from the tax would have expanded early childhood education in the city.
Early unofficial results, around 9:30 p.m., from the city clerk show 63% voted against the ballot measure, while 37% voted for it.
The New Mexican will soon have district-by-district voting data, as well as expanded coverage of the decision, on its homepage, santafenewmexican.com.
The vote brings to an end a brief but hotly contested special-election campaign that drew millions in out-of-state donations and a spotlight to Santa Fe, the latest progressive outpost to consider such an initiative.
But unlike Philadelphia, Berkeley, Calif., and others, Santa Fe turned it down, suggesting resistance to what opponents said was a regressive and unfair tax, targeting lower-income families.
Opponents of the proposed tax argued it would discourage the purchase of sugary drinks and thus imperil the revenue source for the proposed prekindergarten expansion.
This story is developing. Check santafenewmexican.com for more.

Tuesday, May 02, 2017

It was election day in Carmel Indiana today. A referendum, probably to riase school taxes. It's an off year for most elections, and I didnt realize this one was happening, but someone caame into work with an "I voted" sticker.

Yup, school tax hike. Hamilton County is a rich suburb north of Indy.

If I'd known this was happpening I might have been able to organize some opposition, or at least monitor the polls for irregularies.

Friday, April 28, 2017

Menendez donor, Florida Man, found guilty on all counts; may be pressured to testify.

Thursday, April 27, 2017


possible wag the dog tv series. de niro attached,

Monday, April 24, 2017

Centrist Macron leads Le Pen to runoff May 7th in France. Septo de Mayo?

Meanwhile Trump puts a 20% tax on the Canadian lumber he will use to build a wall on the Canadian border, and

 Theresa May become the most powerful leader in Europe.

Sunday, April 23, 2017



http://www.millenniumpost.in/delhi/voters-brave-heat-only-to-find-names-missing-238219 (india).

Thursday, April 20, 2017

Disclosure kills department:

Orin Kerr at Volokh musing about whether a motorist actually has a right to remain silent.

The FEC voted 2-3, I assume, to deny a continued exemption to disclosure for the socialist worker's party. 4 votes are needed to do anything, and merely continuing the exemption counts as doing something.

The best response would be for Trump to appoint a socialist worker's party representative to Ann Ravel's open seat on the FEC, but this won't occur to anyone, and I don't know if it's politically feasible.

Meanwhile, the SW could probably win in court, if they could afford a lawyer. My plate is probably too full to assist.

Leftist 3rd parties, including the Greens, hurt the D's, so the D's tend to make their lives unpleasant with ballot access hurdles and chilling disclosure regimes. That photo of Stein with Putin is highly significant. I can't recall if I posted that here yet.

The GOP members of the commish voted, probably not out of partisanship, but because as they correctly point out, there's no compelling interest in the finances of this tiny legacy party. Unless somebody can show they are cashing checks from the Kremlin, or something like that.


adding stein-putin photo

Wednesday, April 19, 2017


Hoosier congresscritter proposes national voter ID law.

The GA special election  for congress will go to a run-off, where the GOP holds a slight edge.
The Dem got 49%, just under the 50% needed to avoid a run-off. No 3rd party candidate as far as I know. 1 Dem and a dozen GOP dwarves. D's spent 6+ million, gop 3 million, if what I heard is right.

Tuesday, April 18, 2017

The Dutch election.

Next, France.
Now, Prime Minister May has called for elections. Her conservative party currently holds a 15 seat lead. She hopes to expand this to up to 100 seats and gain a personal mandate.
It is likely that Labour will lose seats and the whoevers, the 3rd party, liberal democrats will gain from their current 9 seats.
 I'm unclear if the Scottish National Party is still a thing; I assume they function as an anti-Brexit faction. I don't think the Greens have any seats right now.

                                            This may not be the May I'm looking for.


Monday, April 17, 2017


A lot in the news lately about Trump's tax returns.

I don't think anybody's noticed yet, but what's really at stake is abortion rights.
There's no freestanding right to an abortion as such.
What there is is a right to privacy, which includes the doctor-patient relationship.
Roe v Wade, as written, was not so much about the rights of women, as it wwas about the rights of doctors. The court felt that abortion bans intruded on the doctor patient relationship and the right to privacy.

 The skirmishes over Trump's tax returns involve his right to privacy. Under the 16th Amendment, the government gets some special powers to compel speech, in order to make the income tax workable.
But that is speech to the government, not to the public at large.

Generally, no one has a "public right to know" someone else's tax returns. That can change when litigation makes such records public records, but such testimony is often under seal.
I'm not awarre of of any lawsuit involving trump's tax returns where the evidence would be more probative than prejudicial, or where a seal order wouldn't be reasonable.

There are a host of problems with the various schemes to try to compel Trump to reveal his tax records. There's an ex post facto problem, a bill of attainder issue, etc. There's a matter of executive privilege. There's the Term Limits v Thorton issue that one can't restrict ballot access by adding qualifications for president or congress.
There's a first amendment problem when speech is regulated for its content; courts tend to apply strict scrutiny and judge such statutes harshly.
This comes into play in the compelled speech cases such as Wooley v Maynard, Barnette v W. Va Board of Education, Riley v Federation of the Blind, Tornillo v Miami Herald, Talley v California, McIntyre v Ohio, Watchtower v Stratton.If we have one right in this country, it's the right to remain silent.

 The core issue is his right to privacy. I used to know, via an online mailing list, a guy named Walker Chandler. In Chandler v Miller, the supreme court said that Georgia couldn't make Chandler take a drug test to get on the ballot. Doing so would violate his constitutional right of privacy under the Fourth Amendment.
Anatole France one said something along the lines of in America, the rich as well as the poor have the right to sleep under bridges.

Here, President Trump is more likely than the average guy to win a case about his right to privacy over his tax returns. First, because he's the president, and can bill his legal defense to the taxpayers, and second, because he's Trump, a man who can afford to keep whole law firms busy.

Maybe that's the real game plan here - to set up a collusive lawsuit Trump will win, to make a point about the right to privacy, which underlies a woman's right to choose. But I don't think anybdy's playing the game that many moves ahead. It's just a matter of strange bedfellows.

Sunday, April 16, 2017


Friday, April 14, 2017

Thursday, April 13, 2017

A proposed solution for Guam voting rights:

Allow Hawaii to annex Guam, Amercan Samoa, Saipan, any other pacific ocean US territory I may be forgetting. This would require that congress, the state of hawaii, and the territory in question to all agree. Guam would become a county, of Hawaii, just like Maui is now, so it would gain a right to vote in presidential elections, but lose its observer in congress, if it has one of those.
A bill in congress that allowed but did not require this solution could ease some of the current sore feelings fromt he continuing impact of the Insular Cases. I am not clear why the issue of Guam is currently before the 7th circuit, which mostly deals with Illinois, Indiana and Wisconsin.
So far I've never been to Guam. I used to work with some American Samoans, and was impressed.

Tuesday, April 11, 2017

article at demos, linked by hasen, discusses state right to free and equal elections.


If I get more time I may add some thoughts. At least 30 states have a free and equal elections clause. In some states it's "free and open". A few states, such as Missouri and Colorado, have important decisions under the clause, while there are other states like Delaware that have no reported cases.
I wrote on this topic in my 1994 thesis at UMKC.

I'm a Gorsuch fan. But for the many who are not, this is a good time to get to know your state constitution, what's in it, how and why to litigate under it, how to add to it with amendments or legislation.

Justice Brennan was a champion of the  state constitutional approach, as he saw federal retrenchment under Reagan-Bush. He came from the New Jersey high court, which has always had a strong independent civil rights tradition. On the West Coast, Hans Linde was another advocate of rights under state constitutions. Unfortunately, the Brennan Center shares only the name, not the philosophy.


LA city council to vote to infringe right to keep arms in the home.


France nervous about upcoming election. Kenya too, for other reasons.

At my new temporary job I sit in front of a computer all day and I'm not supposed to use the internet for my usual news junky stuff; it's frustrating.

Chief Justice Roberts is already the swing vote, sometimes.

In Crawford, he and Kennedy joined Steven's narrow holding that plaintiff's facial challenge failed on the facts they gave. I disagree with that position but it was far better than Scalia's concurrence.

In the Obamacare case, he boldly reasserted limits to the commerce clause, but then upheld the statute under the taxing power. That's a politically nuanced position that may have set up the Trump win.

Courtwatchers could point to more eamples.

Saturday, April 08, 2017

I am currently, temporarily, employed, and it's a high security facility, so I didnt know till today that the filibuster is gone, Gorsuch was confirmed, and it all played out like Trump said it would a week ago. As 'Pope-elect', he starts hearing cases net week. A triumph for the federalist society.
He might not be another Scalia, but he's a strong addition to the court, and will let the Roberts court go in some new directions.

Friday, April 07, 2017


Monday, April 03, 2017


gorsuch passes out of committee on party line vote.

filibuster likely.



lisa s davis had voting problems. another lisa s davis had her same birthday. this probably happens a lot. well written article.

Seal or no seal?
Was white house offcial's tweet against Amash a Hatch Act violation?
We don't know, but the tweet has reposted to no longer show the presidential seal.

Saturday, April 01, 2017


dark money against gorsuch.


same info as was in the new yorker article, but audio option.


Trump: US will act unilaterally on North Korea if necessary


Senators fear fallout of nuclear option


100 Days of Trump: For Senate GOP and the nuclear option, it’s pay me now or pay me later

with trump in the white house, could we please stop calling it the nuclear option?

Thursday, March 30, 2017

http://associatesmind.com/new-start-here/ site with commentary on the legal profession.

Disclosure kills department:
Hasen has an article at politico discussing how democrats in control of state legislatures could pass bills to make Trump disclose his tax returns as a condition of ballot access.


He admits that such a plan would be of dubious constitutionality, citing Term Limits v Thornton
(states can't add extra qualification for congress) but contrasts with Bush v Gore (states have wide authority to run their elections so Bush wins.) Such a plan would also have political risks of GOP retalation. 

Will solidly Republican states allow electors to vote only for Republican candidates for president? If the tax gambit is OK, then such a law might also be constitutional.

It is possible that I'm missing the tone of the piece and this is all just satire or wild speculation. But in Walker Chandler v Miller, the court held that it would be a 4th Amendment violation to piss-test GA state legislative candidates. 
This would seem controlling. 

The column also assumes that the Democratic controlled states would be willing to pass something rather obviouly unconstitutional, and would face no consequences for doing so.
Unfortunately, he's probably right, and this is not limited to just one side of the aisle.

I think that a GOP state allowing only GOP votes for president would also be obviously unconstitutional, maybe on 1st Amendment or 14th Amendment grounds. I'm not sure which case controls. 

If somebody wants to see Trump's tax returns, the way to go about is by warrant or possibly subpoena. That would involve some allegation of criminal or civil liability where his financial records wwould be more probative than predjudicial. The way things are going, that could happen. US v Nixon, about the release of watergate tapes, might be the case on point. 

   I don't think it is only democrats in congress who will have issues with the way Trump is governing. Today he attacked the freedom caucus, for defeating the health care bill. That's a group whose support he urgently needs to support his budget. I still have an open mind about Trump. Clown, or crazy like a fox? He's great for the news cycle. NYT subscriptions are up, and CNN is raking in cash. I enjoy a good floorshow.


Tuesday, March 28, 2017


Hong Kong voter data stolen. I'm not sure what the fus sis abut; for $5K I can get you Indiana's voter data.
Turns out the data wasn't even stolen; the laptops were, but the data was encrypted.

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

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