soapbox

Hasen points to a talk by Rick Pildes, and thinks its very important and will be influential. Pildes suggests replacing primaries with an IRV general election.
This is not the worst imaginable system. It lets republicans prefer republicans, democrats prefer democrats, independents to vote for who they like,and the mechanism sorts it out till a winner is a declared. I tried to think about what are the possible flaws. I'm not one of those political scientists expert at applying game theory to election procedures. But here's what I've come up with. Pildes' system will encourage each faction to coalesce around a front runner. Because when one party has a front runner and the other party has a hotly contested race, the front-runner is more likely to pick up enough votes from independents to reach a majority, on some round of balloting. I could be wrong about this, but that seems to be how it would shake out.
That provides an incentive for parties to develop mechanisms to find a front runner, and these mechanisms might be less democratic in process.
Here in Indiana, the parties hold a slating convention, at which candidates can buy onto a slate by donating 10% of a year's salary. If more than one person buys in, the convention decides between them. Voting is done by precinct captains, who are usually controlled by a county chair. The slated candidate usually but not always wins at the primary. Indiana's slating convention is an example of the "smoke-filled room" method. Both times I've run as Republican in Indiana, I was not the slated candidate. In my first race neither I or my opponent was slated. This time the slated candidate ended up not filing and I was unopposed at the primary.
The jaybird primary, a privately held whites-only primary found unconstitutional in one of the White Primary cases from 1940s Texas, is another example of a mechanism to determine a front runner before the official election.
Primaries were one of the great reforms of the progressive era, 1900-1920. The goal was to reduce the power of the bosses and empower the rank and file party member.
Various plans to eliminate or re-tinker the primary system, including Pildes' proposal, blanket primaries or top-two run-off systems, risk undercutting this progressive goal of democratizing the party nomination process.
I agree with Pildes (and others) that IRV is a sensible way to run elections and has cost savings over a run-off method. But I do not agree that his system eliminates the need for primaries altogether. He would need to make a stronger case that the cost savings outweigh the value of the democratic processes lost in the shuffle if we eliminate the primary in exchange for an IRV general election.
Maybe one of the game theory types can comment on my concerns.

===
update: here's a guest blog from an anonymous commenter

On 8/27/10, Robbin Stewart wrote:
> This is not the worst imaginable system.

No offense, but I smiled here. What an endorsement! :)

I'm concerned that IRV nearly forces us into secret (and therefore
unaccountable) vote counts since the analysis gets too hard for some
people to do on paper and prove to themselves that it was done right.
"Trust the computer" is not working as a strategy for trust in
election results. The proper way, In my view, is more like the "don't
trust, verify" system fo bank tellers and customers watching each
other warily about counting cash. Bankers, who really do care about
money, : ) , have found no better and more accurate way to count than
to use two or more fallible human beings who DO NOT TRUST each otehr
and try to catch mistakes. the system is simple but ingenious. We
did the same in elections for over a century and perhaps the very
simple genius of the system hid its merits so that we applied business
values like efficiency instad of the values of democracy like
accountability, transparency and non-secrecy

From the necessary perspective of freedom and democracy, the people
must rule, and the voice of the people determined in elections (only)
in its authoritative voice, must prevail as the most serious issue.
The most important time for the will of the people to prevail is in
elections to remove corrupt criminal incumbents. Though we may never
agere on exactly which elections this means, we know for certain these
elections exist and that there is such a thing as corrupt criminal
incumbents.

Now, with computerized elections using much more complicated IRV, can
corrupt election officials rig the count? Of course. Can we get
security from that? No -- can your own computer you're reading this
on be secured FROM YOU? Will anybody understand the wonky expert
trying to explain to the people how the election was stolen by the
criminal incumbents? it gets very complicated very fast statistically
and so forth, the other side will have their own experts, and the
public will be both stymied by this "battle of experts" as well as
paralyzed by the post-election "root for the home team" bias in which
Democrats make pro-democratic calls and vice versa with Republicans.

IRV is another step, but a big step, in lokcing down an inability on
the part of the american people to "kick the bums out" and that
ability is the acid test of freedom and democracy. If a system
doesn't help us when we need it the most, what good is it?

All the "goods" of IRVs and so forth proceed immediately away from
what serves democracy's primary values and on to what serves secondary
values or mere business values like efficiency, cost savings, etc.
That, IMHO, is dangerous. The question ought to be "Which election
systems BEST SERVE the authority of the people, and best serve
democracy and its principles and values?" Nothing could be more
important than that, when you think of the kicking the bums out test.
But the discussion is always focused on the less important values, and
it is merely presumed that the more important things are taken care
of. Vigilance is not the etermal price of liberty?
--

Poly-ticks: This is kind of interesting: "Only 2% of Republicans had bedbugs, while 12% of Democrats did." - the instawife

Kinda long, I havent gotten a shorter link for it yet, but here's my first rough draft of an amicus brief in NOM v McKee, a Maine case that upheld a disclaimer law under the apparent authority of citizens united.

@@Notes for an amicus in NOM nom nom v McKee

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

NATIONAL ORGANIZATION FOR )
MARRIAGE et al., )
PLAINTIFFS )
) Case # __________
v. ) previously NO. 09-538-B-H
) DISTRICT OF MAINE,
WALTER F. McKEE, ET AL., ) Judge Hornby
DEFENDANTS )

AMICUS BRIEF OF ROBBIN STEWART

Robbin Stewart
gtbear at gmail.com
Box 29164
Indianapolis IN 46229-0164

Interest of Amicus
Table of cases
Issue presented
Summary of Argument
Argument
Conclusion

08:54:51 PM 08/20/10

Interest of Amicus

Amicus is a private citizen. I am a past and current candidate for office. Following Stewart v Taylor, SD Ind (1997), which stuck down Indiana's disclaimer rules as unconstitutional. I have been monitoring states' compliance or noncompliance with the Talley and McIntyre decisions.
As a single male, I am among the class of people NOM seeks to discriminate against, although as an Indiana resident I have no plans to get married in Maine.
I do not agree with NOM's message, but support their right to free speech and their lawsuit to invalidate certain unconstitutional bans of such speech by defendants.
Freedom of speech protects not just popular speech that I agree with, but ugly and disturbing speech.

@ to do proofread, table of cases. certifications

Table of cases
Issue presented.
The only issue addressed in this brief is the constitutionality of Maine's disclaimer statute, cite.
Summary of Argument
1.Plaintiff National Organization for Marriage, (“NOM”), itself a corporation, has standing to challenge as unconstitutional a disclaimer rule that applies to everyone and is not limited to corporations and unions.
2.The Court below erred in construing Citizens United as having overruled longstanding predecents including Talley and McIntyre, under which the maine statute is unconstitutional. The judgment below should be reversed as to disclaimers.
Argument
Conclusion

NOM v McKee is a case involving a non-profit corporation which was active in successfully campaigning for a referendum which overturned legislative recognition of lesbian and gay marriages in Maine. NOM objects to disclosure of its financial backers, reasonably fearing that they will face harassment or worse, and knowing that their fundraising efforts will be chilled if contributors may face being fired, boycotted, and threatened. See Doe v Reed, in which the Supreme Court stayed disclosure of singers to a anti-gay-marriage petition in Washington state, pending litigation below as to the likelihood of harrasment.
It objects as well to the government editing the content of its communications, to require identification of the name and address of the speaker and a statement of whether or not it is authorized by a candidate. NOM wants to engage in promoting or opposing legislative candidates via issue ads, but has refrained from doing so because of overregulation and possible criminal penalties. It is this part of the litigation which results in the current appeal.
Most of the argument by the parties and the court below focuses on issues of express advocacy and major purpose test. In the process, the court below managed to lose sight of the proper standards and precedents to be applied when government seeks to control the content of campaign speech. Plaintiffs seek an expedited appeal of a complex set of issues. It is my hope by this brief to add some clarity to this one issue, the constitutionality of Maine's disclaimer statutes.
Maine's disclaimer statute is as follows.
21-A M.R.S.A. §1014. Publication or distribution of political communications
1. Authorized by candidate.  Whenever a person makes an expenditure to finance a communication expressly advocating the election or defeat of a clearly identified candidate through broadcasting stations, newspapers, magazines, campaign signs or other outdoor advertising facilities, publicly accessible sites on the Internet, direct mails or other similar types of general public political advertising or through flyers, handbills, bumper stickers and other nonperiodical publications, the communication, if authorized by a candidate, a candidate's authorized political committee or their agents, must clearly and conspicuously state that the communication has been so authorized and must clearly state the name and address of the person who made or financed the expenditure for the communication....
Not authorized by candidate.  If the communication described in subsection 1 is not authorized by a candidate, a candidate's authorized political committee or their agents, the communication must clearly and conspicuously state that the communication is not authorized by any candidate and state the name and address of the person who made or financed the expenditure for the communication. If the
communication is in written form, the communication must contain at the bottom of the communication in print that is no smaller in size than 10-point bold print, Times New Roman font, the words "NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE."
3-B. Newspapers.  A newspaper may not publish a communication described in subsections 1 to 2-A without including the disclosure required by this section.
4....the commission may impose a fine of no more than $5,000 against the person responsible for the communication.
http://www.mainelegislature.org/legis/statutes/21-A/title21-Asec1014.html

The court below, ruling on the constitutionality of 21-A 1014, the disclaimer regulation, found that
Citizens United

The court below framed the issue by stating that Maine did not ban any speech, but merely regulated it.
The court found that the standard of review was the 'exacting scrutiny” test of Buckley v Valeo, rather than strict scrutiny as urged by plaintiffs.
The court below found that the recent decision in Citizens United is dispositive concerning disclaimer regulations such as Maine's.

The court below framed the issue incorrectly, applied the wrong standard of review, and misread the scope of the Citizens United decision. The court below failed to mention or discuss the controlling United States Supreme Court precedents applicable to disclaimer regulations. The court arrived at the wrong answer, that disclaimer mandates are constitutional under Citizens United, instead of unconstitutional under Talley v California.

This court has a duty to correct this error of law.
Alternatively, it might be possible for this court to construe the statute narrowly, to apply to a corporation such as NOM, under authority of Citizens United. The statute could be read as constitutional if limited to corporations and unions.
Alternatively, the court could certify to the Maine Supreme Court the statutory interpretation question of whether the statute can be narrowly construed to reach only corporations or unions.
The court below held, “3. Attribution and Disclaimer Regulation Citizens United has effectively disposed of any attack on Maine’s attribution and disclaimer requirements.”
Citizens United is a recent case in which the Supreme Court overturned a ban on independent expenditures by corporations and unions. The Court lifted the ban, but substituted disclaimer and disclosure requirements as a more modest way to promote the government interests in avoiding distortions which might be created by for-profit corporations seeking to invest in politicians. See Massey. Citizens United did not overturn Talley, McIntyre, Buckley v ACLF, and Watchtower v Stratton. It created an important but narrow exception to these cases. If Citizens United had overturned Talley, it would have said so. Maine's disclaimer statute applies to everyone. It is in direct conflict with Talley and McIntyre, and upon a proper challenge should easily be found unconstitutional.
The issue here is whether a corporation such as NOM has a justiciable controversy to bring that challenge. The statute is drastically overbroad. Post- Citizens United, it could be applied to corporations and unions, but those are only a few of the many who engage in campaign speech in Maine. In several recent cases, Washington State Grange and Crawford v Marion County, the supreme court has tightened up what were traditionally loose requirements for third party standing in the First amendment context. (I was an amicus in Crawford, and am one of the voters who has been disenfranchised by that decision.) However, in Crawford, the complaint was defective. The plaintiffs conceded that the statute was constitutional for up to 99% of voters, and tried to argue based on the interests of the 1% (which may be more like 6%; the numbers remain in dispute.) Here, corporations and unions are only a few of the affected speakers,and the overbreadth is substantial.
Because this is a question of law, this court could resolve the issue of whether NOM has third party standing to raise the interests of individuals like Manuel Talley or Margaret McIntyre. Because this question was not addressed by the court below, it could remand to have that question considered.
The court could avoid the issue by narrowly construing the statute to reach only corporations and unions, pursuant to the doctrine of constitutional avoidance. The court could certify to the Maine court whether a narrowing construction is feasible. Possibly this court could find that NOM lacks third party standing to bring a facial challenge to the disclaimer statute,and dismiss that part of the suit. I think to do so would be error, but a less aggregious error than that made below.
What this court should not do is affirm the erroneous decision below.
Because the 2010 elections are in progress, and the unconstitutional disclaimer statutes are chilling speech and disrupting the outcome of the election, it would be appropriate for this court to issue a temporary injunction, upon a proper motion by a party.
Citizens United does not provide authority for Maine to impose a general ban on speech in newspapers, radio and tv, flyers, and suchlike, which does not contain the compelled content. Maine attempts to ban speech such as “Vote for Smith.” It is a general principle of First Amendment law that the government cannot compel speech, outside of some very limited categories of exceptions. Maynard could not force Wooley to proclaim “Live Free or Die!” on his license plate. Tornillo could not dictate the contents of the Miami Herald's editorial pages. Citizens United did not overrule these cases.
In 1960, fifty years ago, Manual Talley was fined $10 for distributing a civil rights flier with no disclaimer. The Supreme Court ruled that his flier was free speech,and that anonymous speech is protected speech. Talley was one of a trio of landmark civil rights cases along with NAACP v Alabama ex rel Patterson (1958) and Bates v Little Rock (1961) which recognized a right to privacy, and that the public's wish to know can be overcome by rights of political association and petition.
Citizens United did not undo these cases; they remain good law. However, Talley, like Brown v Board, met resistance, and even today the resistance continues. About two thirds of the many cases since then have followed Talley, but there is a significant line of minority rule cases in places like Kentucky which have refused to comply with the controlling precedent of the United States Supreme Court. This court should not allow Maine to join them. The split in case law has continued for 50 years. It remains unresolved even after the Supreme Court has ruled again and again that disclaimers requirements are unconstitutional and anonymous speech is protected. Citizens United is a very narrow exception to this rule. In 1995, the Court ruled in McIntyre that there is no “elections exception” to Talley's rule that disclaimer requirements are unconstitutional. The court found that the Ohio court had erred in applying
Anderson balancing, and should have applied strict scrutiny. Mrs. McIntyre had been fined $100 after her citizens group was able to defeat a local school tax increase.
Here, the court below erred in applying Buckley's exacting scrutiny balancing test instead of strict scrutiny. In Victoria Buckley v American Constitutional Law Foundation (1999) [ACLF], all nine members of the court agreed that name badges could not be required for petition circulators, because under Talley and McIntyre such anonymous speech is protected. This consensus is spread out over a set of concurring and dissenting opinions; it was the only issue on the case on which all agreed. In Watchtower v Stratton, 2005, this anonymity principle was used to rule that Jehovah's Witnesses could not be required to register at the mayor's office before going door to door.
In McConnell v FEC and Citizen's United, disclaimer regulations were small parts of complex cases, like this one. Each time, plaintiffs did not solidly ground their challenge on Talley and McIntyre and the right to anonymous speech, but instead relied mostly on arguments about express advocacy that the court found unpersuasive. McConnell recognized, at note 88, that McIntyre was still good law. The way the case was framed did not put that question squarely before them. This might have been because of the jurisdictional requirements for the expedited review at the Supreme Court. In McConnell, the Court upheld BCRA against a pre-enforcement facial challenge to the whole thing, striking down only a few provisions. Instead, the court waited for the series of as-applied challenges that followed, which so far have included WRTL, Davis, and Citizens United. Eventually, the “stand by your ad” provisions of BCRA will reach the high court in a concrete as-applied challenge and be struck down on the authority of Talley, McIntyre, and cases such as Wooley, and Tornillo (riley v federation of the blind).
It is entirely possible that members of the panel of this circuit won't like Talley and McIntyre, in terms of policy. But this court is obligated to follow the binding precedents of the Supreme Court. When it comes to the constitutionality of a Maine statute which compels all speakers to include a disclaimer, Talley and McIntyre are directly on point and are controlling, while Citizens United is not.
Citizens United only comes into play at all is that the plaintiff is a corporation. (I do not know know offhand if the second plaintiff, American Principles in Action, is a corporation.)
Citizens United is a new case,and the disclaimer part of the case is not a model of clarity; the court announced a new rule with very little in the way of analysis or explanation. I think the court below made an honest mistake in misunderstanding the scope and reach of Citizens United, and was not engaged in willful defiance of the Supreme Court. It is an error that this court should correct.
Respectfully Submitted,
Robbin Stewart.

Certifications.
I certify that I have sent copies via electronic mail to the following counsel for the parties,and have offered to provide hard copy upon request. I do not require copies of filings in this case to be sent to me, but if they are, my email is gtbear at gmail.com, preferred, or my smailmail is P O Box 29164, Indianapolis IN 46229-0164. I can be reached at 317.375.0931.




United states court of appeals for the (first) circuit



NATIONAL ORGANIZATION FOR )
MARRIAGE et al., )
PLAINTIFFS )
) Case # __________
vi. ) previously NO. 09-538-B-H
) DISTRICT OF MAINE,
WALTER F. McKEE, ET AL., ) Judge Hornby
DEFENDANTS )

Motion for leave to file AMICUS BRIEF OF ROBBIN STEWART
Comes now Robbin Stewart, pro se, and for his motion for leave to file an amicus brief states as follows.
I read on August 20th the decision by the court below, and noticed that it was in error. I have been following the issue of disclaimer legislation and litigation closely after a short-lived victory in getting Indiana's disclaimer statute declared unconstitutional per McIntyre in Stewart v Taylor (SD Ind 1997).
My brief, attached herewith, addresses only the disclaimer issue, the constitutionality of 21-A 1014, and is silent as to the many other interesting issues in the case. The court is being asked to decide complex issues in a short time, so I have tried to be genuinely a “friend of the court” in providing some information and argument to try to show how the court below erred and can be corrected.
I am pro se and ask that any minor irregularities in form be waived; I have made a good faith effort to submit this filing in the usual format.


James Bopp, Jr.Jeffrey Gallant
Josiah Neeley
Joseph Vanderhulst
Randy Elf
Bopp, Coleson & Bostrom
1 South Sixth Street
Terre Haute, IN 47807-3510
(812) 232-2434
email: jboppjr@aol.com
jgallant@bopplaw.com
jneeley@bopplaw.com
jvanderhulst@bopplaw.com
relf@bopplaw.com
Stephen C. Whiting
The Whiting Law Firm
75 Pearl Street, Suite 207
Portland, ME 04101
(207) 780-0681
email: mail@whitinglawfirm.com

Phyllis Gardiner
Thomas A. Knowlton
Assistant Attorney Generals
Office of the Maine Attorney General
6 State House Station
Augusta, ME 04333-0006
(207) 626-8830
email: phyllis.gardiner@maine.gov
thomas.a.knowlton@maine.gov

Manual Talley, who in 1960 won the right under the first amendment to distribute ads without identification disclaimers.

This is a rough draft for a post on cal fppc's new disclaimer regs, which are unconstitutional under talley v california, bonjiorni, drake, canon city, and the 1999 ruling in griset.

schnur editorial

The rebuttal by Alison hayward, while right about the points it discusses misses the main point; as often happens simple questions about unconstitutional disclaimer rules get sidetracked by complicated questions about express advocacy.

Schnur says we must strike a balance between two equal rights: the public's right to know,and the freedom of speech. But he's wrong. These rights are not equal.
The right to know comes from state statutes (and the wish lists of the 'reform" faction) which Schnur, leading the Cal FPPC, is trying to extend beyond the authority given to him by the statutes. But the right to free speech comes from the First Amendment, and from the California constitution, and from the Supreme Court rulings of the civil rights era which said there is no "right to know" the author of an ad or the membership of a group like the NAACP.
There is no right to know what a woman tells her doctor at the doctors office, what I tell my priest at confession, what a wife tells her husband in the bedroom, or what a prisoner tells a cop when beaten with a rubber hose. The California constitution contains an explicit textual right to privacy. There is no comparable "right to know" amendment. Schnur is acting unethically when he conspires to violate the civil rights of californians who speak out politically.

Recently in Citizens United the Supreme Court held for the first time that the right to privacy to run anonymous ads does not apply to corporations. Perhaps the FPPC could look into a rule requiring disclaimers by corporations, if consistent with statutes and the california constitution. But the broader rule Schnur seeks to impose is illegal and is wrong on both moral and practical grounds,and is likely to waste money on needless lawsuits, while setting a bad example for a world in which free elections and free speech are emerging in some places, but still fragile and threatened. California civil rights leaders should not allow Schnur and the FPPC to try to roll back civil rights to the Jim Crow days before Talley v California and NAACP v Alabama.

Moreover, there can be no doubt that there is affirmative
constitutional value in at least some knowingly false statements
of fact. Satirical entertainment such as The Onion, The
Daily Show, and The Colbert Report thrives on making deliberate
false statements of fact.
9th circuit case about lies by an elected offical, strikes the right balance.
http://www.ca9.uscourts.gov/datastore/opinions/2010/08/17/08-50345.pdf
hat tip eugene volokh. professor volokh i have a long running disagreement about the scope of the false statements exception to the first amendment. this is only a divided panel of the 9th circuit, and doesn't settle the issue, but it expresses my poinbt iof view more articulately than i've been able to.

This last post was more than a month after the one before, which means I've failed in my minimum goal for this blog,of at least one post a month, and I should probably just hang it up.

Today I read Wolfson v Brammer pdf to see A) if it shed new light on how the 9th circuit will handle standing in the prop 8 case - it doesn't, much, and B) whether it mentioned Majors v Abell, my 7th circuit case about standing and mootness when an elections case is improperly dismissed. It did.
Wolfson is Bopp case following up on MN v White; it's about what judge candidates can do or say, that had been improperly dismissed when Wolfson didnt keep running for judge year after year as the case chugged along.