soapbox

a cartoon.

Administrivia:
purpose: one thing i'm not trying to do here is scoop election news.
see www.electionlawblog.org or electionline.com.
What I am trying to do is give my take on some of the stories of the day,
from the point of view of an election lawyer interested in free speech and removing barriers to political participation, especially by individuals, the poor and the less powerful.

I don't fully have the hang of this blogging thing; at the moment this blog lacks permalinks, comments, trackback, hit counter, and the sidebar links have fallen to the bottom.

I have updated the masthead to include "Andy Horning for Congress."
This is a specific example of the format "vote for Smith." I, and the Supreme Court, believe such statements are protected speech. FECA 318 says they are a crime. I invite others to join me in resisting such attempts at censorship.

http://krtrail.blogspot.com/
http://www.electablog.com/
blogger seems to be doing some smart referrals; my blogger page brings up these two election related blogs. i'd seen electablog before, but missed it's snarky funy tone. meanwhile, my links have vanished. they are down at the bottom there someplace. less of an issue on this blog than at vark.blogspot.com where i had more links, same problem.

I tend to accuse common cause of targeting the GOP, so here's an example of the usual suspects filing a losing complaint against mostly democrats. (I don't know if this is infighting among dem factions.)
I'm not saying complaints against dems never happens, just that there's a tendency to focus on the GOP.
(a) Democratic Issues Agenda, Diane Evans, treasurer
(b) Empowerment for the New Century, Antonio Harrison, treasurer
(c) Strategic Task Force to Mobilize People
(d) Progress for America and its treasurer
(e) Democratic Senate Majority Fund – Non-Federal Account, Marc Farinella, treasurer
(f) PAC for a Democratic House – Non-Federal Account, Moses Mercado, treasurer
(g) U.S. Representative Tom DeLay
(h) Americans for a Republican Majority, Corwin Teltschik, treasurer

COMPLAINANTS: Donald J. Simon, Acting President, Common Cause
Fred Wertheimer, Trevor Potter, Larry Noble, SUBJECT:
Establishment, financing, maintenance or control of organizations by national party committees
DISPOSITION: (a-d) No reason to believe*
update: hasen reports that a dem district attorney is continuing to investigate delay. Theory of the case seems to be that contributions = bribes.

I blogged this at vark.blogspot.com but it occurs to me it's election-related too. It may shed some light ont he stand by your ad situation.
Wednesday, February 25, 2004
hat tip julio at wwdn.
cops asks guy for ID. Guy refuses. S Ct takes case.
aclu eff cato john gilmore file amicuses.
whole thing on video at
http://papersplease.org/hiibel/

Sike!
Alaska Greens file frivolous suit in DC to ban out of state contributions.
This case could be a way to contest (indirectly) the alaska state court decision that upheld a ban of out of state donations.
see also http://www.sykesforsenate.com/challenge.html
"© Jim Sykes 2004
Paid for by Sykes for Alaska, PO Box 696 Palmer, AK 99645"
"Mr. Sikes, is it true that you refuse to accept contributions from African-Americans in Indiana?"
On the other hand, the guy lives in a straw bale house, which is cool.


25 Sykes Lawsuit - Southern/APRN/wrap
Green Party candidate Jim Sykes has filed a federal lawsuit challenging the right of out-of-state donors to contribute to the campaigns of Republican U-S Senator Lisa Murkowski and Democratic candidate Tony Knowles.
The lawsuit names as defendants the Federal Elections Commission as well as Washington-based lobbyists, political action committees and party organizations that have given money to Murkowski, Knowles or both. Among the names are Jack Valenti, head of the Motion Picture Association of America and the PAC belonging to the oil industry services company, Halliburton.
Jim Sykes spoke to Alaska reporters today on the front steps of the Washington, D-C federal district court, where the lawsuit was filed yesterday. He says out-of-state contributions will have a big impact on the outcome of this year's Senate race in Alaska. He argues that hurts his ability to make his case to Alaska voters and their right to freely choose a Senator in the upcoming election.
25sykes case1
The lawsuit is a new twist on a campaign finance argument lawyer Don Mitchell has been pushing in state and federal courts for more than 15 years. A federal lawsuit filed in behalf of Green Party candidate Joni (JOHNNY) Whitmore against the F-E-C, Congressman Don Young and Democratic candidate Tony Smith a decade ago was ruled to be frivolous and thrown out. But the new one is aimed at out-of-state contributors. And Sykes says in wake of the U-S Supreme Court's recent decision upholding key parts of the McCain-Feingold campaign finance reform law, it's a good time to take another crack at out-of-state money.
25sykes case2
Senator Lisa Murkowski has not been able to review Sykes' lawsuit, but she questions whether it's much different from the lawsuit that was thrown out. And she challenges Sykes' contention that out-of-state contributions undermine rights of Alaska voters and the representation she provides to Alaskans.
25sykes case3
Jim Sykes acknowledges the chances for his lawsuit are slim. But he says if it moves forward, it could become a landmark in campaign finance law. Meanwhile, he hopes to raise 500-thousand dollars to compete in the Senate race. So far, he has raised only a few thousand dollars, but he has just sent out fundraising letters to potential in-state donors. He says his wife agreed to let him run on the condition that he can't dip into the family bank account.

Here's a concrete example of my take on multi-member districts.
Multi-member districts in Virgin Islands, as currently arranged, discriminate against white and spanish islanders.
The proposed change to single-member districts would ensure continued majoritarianism and introduce gerrymandering.
There's a simple solution: keep the existing districts, move to one voter, one vote, from the current one voter, 17 votes, method.

Indiana candidate list up. Pdf.
Paul Hager, Andy Horning, ex LP, running as republicans.

I still have an "Andy Horning for Congress" sign at my house, as an example of disclaimer-less federal express advocacy.

Professor Bainbridge writes:
Nader announces
Ralph Nader's going to run again, but this time as an independent. Juan Non-Volokh opines that: "Whatever the effect of Nader's campaign on the 2004 election, if it invigorates efforts to improve ballot access for third parties, it will be a plus for the nation." Instapundit applauds Juan for having made the "best observation" on the Nader announcement. Why? Juan's claim is hardly self-evident, but neither Juan nor Glenn provide any justification for it.

In the United States, the Electoral College makes it almost impossible for a third party candidiate to win the Presidency. Countries in which that is not true are not demonstrably better off. Look at the last Presidential election in France: In the first round of voting, Chirac led - but got less than 20% of the vote. Worse yet, nationalist nut-job and perrenial fringe party candidate Jean-Marie Le Pen qualified for the run-off with a mere 17%. Do Juan and Glenn think this is a model we should emulate? Anyway, I doubt very much whether most Americans are dying for third party candidates to have ballot access. As Bruce Bartlett observed: "The recent California election is evidence that there is no real demand for third parties. Despite the fact that anyone with $3500 could be on the ballot for governor and with 135 people running, 95.5 percent of the final vote went to candidates openly identifying themselves as either Republicans or Democrats."

Update: James Joyner elaborates:

A winner-take-all system such as ours produces two moderate “catch-all” parties. Political scientists call this phenomenon "Duverger’s Law." Third parties, by their very definition, are those who can’t attract much popular support. ... The value of third party candidates aside, I also reject the premise that it’s particularly difficult for serious ones to get on the ballot. Ross Perot did it twice, Ralph Nader has done it several times, and all manner of fringe parties manage to do it every year.
Poliblog has links to info about Duverger’s Law.

Nader is sigificant for two reasons. He's a rich and highly skilled lawyer.
If he gets on the ballot in 40 states, count on him winning several ballot access lawsuits. It's an easy target. We saw the same thing in the Anderson race in 1980. I don't mind saying Nader is a better ballot-access lawyer than I am. Also, according to Duverger's law (or some correlary,) a third party can control the idea agenda of the race while two big parties scramble for the middle.

Kausfiles writes:
Psst! Isn't the celebrated, goo-goo "Stand by Your Ad" provision of the McCain-Feingold law, the one that's had such an impact discouraging negative spots in the current campaign, transparently ... you know ... unconstitutional? The provision requires candidates to appear personally and say they approve any TV ad. Since when can the government dictate what candidates must say when? It's not as if the government is declaring that you can't get public financing unless you say this. It's not declaring you can't get discounted TV time unless you say this. It's not giving candidates anything in exchange. It's just decreeing that they have to say it--even in a perfectly legal ad bought for full price with small donations ("hard money") from idealistic individual supporters. Could the government get away with a rule like this for printed speech--say, requiring that the Federalist Papers feature a color photograph of "Publius"? I certainly hope not. (We'd finally find out who "Atrios" is, but it wouldn't be worth it.)

Prof. Hasen agrees that the new rule is "compelled speech" that violates the First Amendment, but notes that Justice Rehnquist seems to have upheld the provision with a few conclusory words in the recent McConnell case. I tend to think Rehquist's pathetic paragraph leaves the particulars of the provision--as opposed to the general idea of making campaigns disclose and ad's source--open to challenge. After all, how does requiring that the candidate himself or herself appear--as opposed to just requiring that funding be disclosed by someone, somehow--shed the "'light of publicity" on campaign financing"? ...

Forget whether or not "money equals speech"--this seems like the Court's outrageous anti-freedom holding. There's no question, after all, that what's being abridged here is speech--the right to say what you want about politics. ... P.S.: As Hasen notes, the provision was explicitly designed to protect politicians from negative ads. And it's helped turn the Democratic primary race into an uninformative blandwagon in which voters know much less, at this stage, about the characters of the two leading candidates than in previous multicandidate primaries (e.g. Mondale and Hart in 1984, Dukakis and Jackson in 1988, Clinton and Tsongas in 1992). ... 2:43 P.M.

Kaus is right that BCRA 311is unconstitutional. McConnell failed to raise the issue of its unconstitutionality per se. That is, plaintiffs made a losing argument that 311 was unconstitutional under the Buckley v. Valeo
express advocacy bright line rule, but failed to argue that it is compelled speech of the sort unconstitutional in Talley McIntyre ACLF Watchtower
Wooley Barnette and Riley v. Federation of the Blind. But who has standing to bring the case? Not my clients. Standing to challenge the underlying federal discaimer statute, FECA 318, is easier to come by.
All you need is a sigh that says "Smith for congress." More on this topic at Majors.blogspot.com.

Indiana bill would remove the 50 foot electioneering requirement,
and repeal the slating provisions found unconstitutional in Ogden v. Marendt. SB 0071.

Votelaw reports,
Elections officials said Sharpton didn't follow state law when his campaign
sent in the $1,125 filing fee to sign up for the election.
What I want to know is, does he get the money back?

contest:
erick writes, under the heading McCain-Feingold Lunacy
I'm hoping this is not true, but I just got an email forwarded to me that had been sent from a staffer in the State Republican Party in Georgia.
The email said, quoting directly: “Concerning the Presidential Preference Primary, due to McCain Feingold, we cannot shoot out an e-mail to our Republican list saying -' Support our President, vote Tuesday' . . ."
Did I miss something? Is this in the law?! If so, putting it in non-academic non-legal genius terms, isn't it stupid that the State Republican Party cannot send out an email saying, "Support our President, vote Tuesday."
What are the Republican and Democratic Parties good for anymore if they can't do that?
Thanks,
Erick Erickson
Discuss.
update: brian writes:
...day-to-day costs from the expenditures that need to be attributed to
candidates. The FEC applied this specifically to e-mail in
http://herndon2.sdrdc.com/ao/ao/990037.html.

The e-mail would have to have a disclaimer, if it were sent to more than 500 people. In short, while there are myriad ways in which BCRA complicates the lives of state parties, this probably isn't one of them.
My thoughts:
point 1: It's easy to say, "This is ok" when it's not yourself at risk.
As the 527 AO indicates, even the experts don't know what McCain-Feingold does or doesn't require. BCRA has added to the fear uncertainty and doubt about the legal status of political speeh, so that such speech is chilled. It is not enough to be within the law. There must also be the appearance of being within the law, or one's opponents will file frivolous complaints with the FEC, and when the FEC dismisses them, Common Cause will sue (if the speaker is Republican.) By the time you win the case, you've lost the election. So better to avoid anything remotely iffy.
Where can a speaker obtain speech insurance, similar to title insurance in a real estate transaction?
Point 2: Erick Erickson asks whether FEC regs (I paraphrase to make a point, he asked about BCRA) prohibit or regulate statements of the form,
"Support the president. Vote Tuesday."
Brain Svoboda responds that, if sent to over 500, a disclaimer would be needed. See FECA 318, while keeping in mind the narrow grounds on whih the Chief Justice upheld BCRA 311. (That is, 311 survived an issue v. express challenge but there was no direct challenge to the stand by your ad disclaimer provisions.)
The case most on point which I found was Stewart v Taylor, 953 F. Supp. 1047 (SD Ind. 1997) which upheld "Robbin Stewart for Township Board - Vote Tuesday." The court found McIntyre directly on point. I conclude that "support the president. vote tuesday" is protected speech for the same reasons. ACLF and Watchtower upheld McIntyre, itself based on Talley v California, and McConnell did not overturn any of these decisions. Dissenting in McConnell, Justice Stevens indicates he may no longer support McIntyre, but meanwhile it remains good law and has the support of a majority of the court. More on this topic at majors.blogspot.com. Disclaimer: My biases should be evident.
A version of this post has been sent to the election law list.

Letter to Wall Street Journal
John Harwood at john.harwood@wsj.com

Dear Mr. Harwood,
Your article of 2/18, McCain-Feingold Helps Democrats Stay Competitive,
which shows that criticism of politicians is being chilled by section 311 of the 'Partisan Campaign Reform Act, leaves out one pertinant detail.
The "stand by your ad" regulations are unconstitutional.
Talley v California and McIntyre v Ohio found that the government cannot require identification disclaimers on campaign speech. These cases have been upheld twice more in American Constitutional Law Foundation and Watchtower v. Stratton. These decisions are consistent with the general rule that the government cannot compel speech, such as "live free or die" in Wooley v Maynard or saluting the flag in Barnette.
You might be thinking, but didn't the Supreme Court uphold 311 in McConnell v. FEC? Yes and No. In McConnell, plaintiffs argued that 311 was a regulation of issue ads, as in Buckley v. Valeo, but did not challenge 311 as an unconstitutional disclaimer under McIntyre. Decision on that issue will have to wait for a case that raises the point. I have had similar rules struck down in Indiana.
Cordially,
Robbin Stewart.

Dean out. Hasn't withdrawn, but folds campaign.
Kerry just barely. WI #'s: Kerry 40%, Edwards 34% Dean 18%, not bad given that the intern flap is blowing over.
Drudge had reported, correctly, that some major media were working on a Kerry intern scandal story. Turned out not to have substance. Drudge's point was widely misunderstood - part of what drudge does is track the media.

Chandler happy in KY. 55% Ben Chandler, 42% GOP, 3%?, for Gov. Fletcher's house seat. Can't think of a "friends" quip.
A chandler, of course, is a guy who sorts eggs, while a fletcher is an arrow-maker. KY has a lot of these names, british isles working class origins.
531 more john doe file sharing suits.
Do not call upheld.

(reg required)
http://seattlepi.nwsource.com/national/apus_story.asp? category=1110&slug=Do%20Not%20Call
http://www.ck10.uscourts.gov/opinions.cfm

http://www.electionprojection.com/essay1.html
pretty good analysis of likely bush election.
meanwhile i've started to add a bit of functionality to majors.blogspot.com,
instead of just using it as a folder to toss stuff in, if anybody's interested in my ongoing anonymity litigation. "started to" the operative term.

update. the site is useful, but the essay on 21 reasons bush will win is mostly wrong. for a pittance, but not for free, i could rewrite that as 21 reasons bush might lose. if anyone bothers to run against him.

Rocky road:
Article about corporate ads when the name of the corporation is the name of the candidate.
Wierd Al lyrics to Rocky Road.
Here, the candidate is gaming the system, and is within his rights in doing so.
His opponent, a lawyer, is acting tortiously and unethically by filing an FEC complaint, seeking state action to retaliate for protected speech.
I won't get around to sending a stern letter.
The candidate could get into trouble under 'pcra if he continues the ad
within 60 days of the primary. It's corporate funded speech, names the candidate, broadcast to the target market.
Are there examples where the ad ban infringes on routine commercial speech? Say Holly Coors runs for congress. Does Coors Beer have to stop
advertising in Colorado?

Thanks rick.
Rick Hasen mentioned this blog on his list thusly:
From: Rick Hasen
Subject: Robbin Stewart on Charles and single-member districts
Date: Thu, 12 Feb 2004 07:34:20 -0800
Next Article (by Date): BCRA Summary "Shapiro, Larry"
Previous Article (by Date): news of the day 2/12/04 Rick Hasen
Articles sorted by: [Date] [Author] [Subject]
See here: ballots.blogspot.com/2004_02_01_ballots_archive.html#107653453356869599

So I might have some new traffic. Unfortunately, my permalinks don't work.
The post in question is (was) about half a page down. (I moved the intervening posts out of the way) Anyone know how to fix permalinks?
Or why I get a paragraph wide gap before a long url?

Multi-member v single-member districts:
Thom Cmar writes:

I read the Charles article with interest. I found it to make a compelling
argument for why, as a policy matter, a switch to multi-member districting might
better vindicate constitutional values.
But the arguments made by Charles seem to go more to the question of what the
law should be, rather than what a court could say the law is without exceeding
its institutional role. Particularly given the current state of the law -- in particular, the discussion in Voting Rights Act cases such as _Holder v. Hall_
-- which suggests that the current Court sees no principled basis for going any
deeper into the "political thicket" than it already has.
Does anyone on the list disagree with me? If one were to take this argument
into a courtroom, is there precedential ground for it to stand on?
Thom Cmar
3L, Harvard Law School

This situation comes up, frequently, when courts are asked to replace multi-member, multi-vote elections with single-member districts.
The charles article helps show that the correct solution is to move to multi-member, single vote, and therefore when the relief sought is a move to single-member districts, relief should be denied.
The move to single-member districts can be an improvement if one assumes the only problem is race, that there is racial housing segregation, and that voters vote in racial blocks.
Multi-member, single-vote, arrangments accomodate diversity of all sorts, whether race, gender, party, creed, or locality.
Minor parties, including the Libertarians and Greens, have done better in multi-member single-vote arrangements.
Examples: Jonesburg is 51% GOP, 49% DEM. The council is elected at large, 7 seats, 7 votes per voter, result 100% GOP.
Plaintiff D's go to court seeking 7 single-member districts, of which they hope to win 2 or 3.
Defendants/intervenors/expert witnesses can suggest a better alternative: 7 seats, one vote. This creates a strong likelihood of
4 GOP 3 DEM council, assuming each party seeks an optimum strategy using game theory concepts. Independents would only need 1/7 +1, rather than 1/3 +1. The result would be a council that looks more like Jonesburg; is more representative, diverse and pluralistic.

My experience: Indianapolis is divided into 9 townships.
These used to have 3 member boards elected at large (3 votes per voter.) The D's sued. I forget whether the solution was court imposed or legislative response to the suit, but the outcome was 7 members by district per township. Center township had always been 100% D, and the other 8 100% R. Looking at the 1994 election results, which had a strong GOP swing, I saw a shot at breaking the monopoly. I won the GOP primary and was cross-nominated by the Libertarians, but lost the suit to run as a fusion candidate and was removed from the GOP ballot line, and so lost the general election. (The court did, though, uphold my sign,
Robbin Stewart for Township Board Vote Tuesday, under McIntyre, a controversy that continues in Majors v Abell.

Most recent action in Majors: the 7th circuit, as expected, denied my motion to strike part of the state's brief on McConnell so now we are just waiting for an opinion.

NYT article (free registration required) on kids as donors.
(When i was a kid, I had no disposable income... a lot like now... but I had worked in political campaigns of three parties, age 10-16. If I had had money to give, it wouldn't have been as a stand-in for my parents.)

www.thinkmajority.com/
litigation docs in georgia redistricting case.

Ashcroft busted.
Although I'm no fan of Ashcroft or Grover Norquist, I'm bothered that the government considers the sharing of a mailing list to be a prohibited corporate contribution. This reaches pretty far into the realm of freedom of association. I'm not aware of any case on point offhand, and can't predict how that would play out. Gang of Five is a good book on Norquist. forbes article another:

http://www.forbes.com/2004/01/16/cz_ms_0116norquist.html

http://www.law.com/jsp/nj/editorials.jsp
Article about aclu-nj suit to restore felon's voting rights, based on an equal protection claim.
What's right about this is that the plaintiffs understand you can't rely just on the first amendment in voting cases; that state constitutions are a source of rights.
What's wrong about this is that it's a loser of a case: equal protection gives way to a specific clause that allows felon disenfranchisement.
It is important to bring only winnable cases at first, to establish clear precedents, before taking on the harder cases.
(The goal might be to lose in court in order to win in the legislature, risky in the long term.)

update: this post today by jake levy at volokh.com is on point:
In the American understanding of federalism, states have their own legal systems, their own legal traditions, and their own constitutions. Even when a state constitution uses the same words as the federal constitution (e.g. in a free speech or equal protection clause), the words may mean something legally different in the state context-- because of a different body of precedent, a different overall constitutional structure in whose light the clause must be interpreted, and so on. The state legal systems have boundaries set by the Constitution, federal law, and the supremacy clause that they may not transgress. But their internal meaning and development is not set federally--

Michigan hypothetical: see this post. (This entry was 2/12, not actually 2/10)

My questions are based on a state criminal felony prosecution brought by
the Michigan Attorney General's office of a person who registered a PAC
with the FEC and raised money for the presidential race in 2000. He was
convicted in state court and is in prison. The discussion of false and
misleading speech prompted my questions.

I am wondering how these cases apply to a fundraising
solicitation for U.S. Presidential candidates or U.S. congressional
candidates. Assume that a PAC files all necessary papers to obtain FEC
status, and files all FEC disclosures, and meets the reporting
requirements. Assume the PAC raises money independently for a candidate
or committee and turns over the money that is raised, minus a fair and
reasonable amount to cover costs of fundraising. (Assume the FEC heard
and denied a complaint seeking to disqualify the PAC and revoke its
status and to impose fines.)

Assume that a State Attorney General then prosecutes the PAC for
statements in fundraising letters that it says are false and misleading.

The prosecution goes forward under state criminal statutes that make it
a felony to take money under false pretenses (a larceny offense) and
"gross fraud" (a statutory larceny offense that codifies a common law
crime.)

I have three basic questions:

(1) Does the First Amendment Apply to protect false and misleading
speech?:
(a) What relevance do the cases that seem to protect false and
misleading speech have in such a case to create a First Amendment
defense to the state criminal charge?
(b) Does strict scrutiny apply to modify the elements of the
state statutory definition of the crime in any way?
(c) Are there any cases where the state criminal statute has
been modified or limited by a federal or state court applying first
amendment principles

(2) Where would you recommend I look to find any such state criminal
cases:
(a) Have state attorneys general viewed it as their duty to
prosecute
(b) Does the Justice Department support a view states can
prosecute in this area involving federal elections
(c) Has a special federal prosecutor ever been appointed to
prosecute federally (e.g. if a party candidate or committee is engaged
in false or misleading speech)

(3) Does federal preemption apply on the theory that federal law
controls
(a) Has the FEC and the federal statutes preempted the field of
state regulation of fund-raising for presidential campaigns
(b) If there is no field preemption, is there limited
preemption?
Patrick Levine Rose, Esq.
321 Woodland Pass
Suite 400
East Lansing, MI 48823
(phone redacted)
patrickrose@voyager.net

I know nothing about michigan post-conviction relief or federal habeus corpus; generally one wants to raise these issues at the first opportunity,
but I don't think that's an absolute bar here.
We don't know the facts: was this a scam all along, or legitimate political expression gone awry somehow?
Strict scrutiny applies in pure speech cases. Expressive speech regulation of money gets laxer scrutiny under McConnell, Valeo, O'Brien, and Burdick v. Takushi. Survival Education Fund, 4th cir., upheld the solicitation prong
of the otherwise unconstitutional federal disclaimer statute. The courts allow more leeway in preventing fraud than in preventing speech.
New York Times v. Sullivan sets out the "false malicious defamatory" standard of applying the first amendment to state regulation of advertizing. I was surprized to see these same three elements present in the Alien and Sedition Act, earlier today.
Some Louisiana disclaimer cases show how hard the NYT standard is, in an election context. Napolean Moses versus somebody, maybe Moses v. State. Earlier cases in that line included ... I used to be able to rattle those off. I even read the case files on my last trip to New Orleans. La. v. Burgess.
Preemption: I certainly think preemption is worth looking into, where there have been FEC proceedings. I'd start with the FEC Record
's index, anything on preemption?
As applied First Amendment claim: can it be fairly said that the prosecution was content-based; that it is retaliation because they don't like the candidate at issue? Who complained and why? A little old lady who wants her money back, or the opposition? Research "selective prosecution." If, in practice, there was some element of retaliation, that makes it easier to argue for strict scrutiny. If it's content neutral, TPM, laxer review.
What are the client's goals? 100% just wants out of jail? or revenge?
I'd prepare (but not file) a 1983 action for injunctive relief and damages,
ethical complaints if there's appearance of impropriety, look into any clemency options if the governor is either a friend or an enemy, and start a public relations campaign, if the equities support it.
Is there any defect in the statute? In New York v. Duryea, for example, Duryea was guilty, but had standing to raise an overbreadth challenge, won, and walked. Dennis v Massachusetts, 1974, Dennis was in prison on a political speech charge and walked due to unconstitutional statute.
Mens rea - criminalization of political speech requires specific intent. Smith v. California. Which is, again, the malice prong of NYT.
This is just off the cuff - with more facts I could speculate further.







Open source election software:
Post-Bush v Gore, everybody's running around buying new voting machines, even if the old ones were fine.
The voting machine companies are getting rich, selling hardware, and software. Then the software doesn't support some extra feature, so they go spend more money on more software. My thought is, the purchasers of this stuff should insist on open-source systems, and then buy hardware that works with the system, so they buy the software once, not over and over. Does this add to or detract from system security?
This also aids in spreading democracy to 3rd world countries, which aren't going to buy the gold-plated HAVA systems. Get some software to give away, and a manual for how to build and test the hardware.

http://www.wired.com/news/business/0,1367,61507,00.html?tw=wn_story_page_prev2
wired story on sale of voter lists.
Indiana voter list for sale $4K, email me.

Electioneering communications.
hat tip to wil wheaton.
http://www.geocities.com/wicked_neil/radiohead/ok.html#elec
ELECTIONEERING

I will stop
I will stop for nothing
Say the right things
When electioneering
I trust I can rely on your vote
When I go forwards
You go backwards
Somewhere we will meet
When I go forwards
You go backwards
And somewhere we will meet
Riot shields
Voodoo economics
It's just buisiness
Cattle prods and the IMF
I trust I can rely on your vote
When I go forwards
You go backwards
Somewhere we will meet
When I go forwards
You go backwards
And somewhere we will meet

Article about bickering at the indiana election commission.

Heidi at letters of marque recommends this (where this = http://www.baen.com/chapters/W200005/0671578855.htm?blurb)
so this is probably worth visiting later, like if i run out of books or links.
www.baen.com in general is spozed to have a lot of good stuff online.
nothing to do with election law; i'm posting in the wrong blog.

Bill Hobbes writes:
Wednesday, February 04, 2004
A Bush Landslide Ahead?
Larry Kudlow on the economy and President Bush's reelection prospects:

Liberal Yale economist Ray Fair has perfected a model that predicts election outcomes. Recently his model has been re-estimated by the well-respected Macroeconomic Advisors of St. Louis. Both models came within a few tenths of a percent of accurately predicting the popular vote in 2000. Taking into account today's strong economy, both predict a Bush victory with roughly 60 percent of the vote come November.
This sounds right to me. Not because I like the guy.

register to vote:
https://www.workingforchange.com/vote/vote_center.cfm?itemid=15625&ms=CRG001

http://www.electablog.com/
Presidential election gossip blog. via boing.boing.net

Kerry is so very...
2d in s.carolina, Kerry is 5 for 6, seems to have the D nomination
wrapped up. Update: Kerry 3rd in OK behind Clark