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Thursday, October 30, 2014

 Why Beth White isn't guilty of anything this time, and what she is actually guilty of.

 America is founded on the idea that people have rights, and these rights can best be protected by a democratic republic, in which the people elect leaders in free and open elections. That includes the right to speak against or for candidates. For example I have the right to put a sign in my yard that says "Vote for Smith".


But in Indiana, where I live, such a sign could earn me 5 years in prison, under a statute requiring the sign to have certain fine print on it of the government's choosing. Trust me, Indiana is somewhere you don't want to be in prison.


The statute's obviously unconstitutional, under both the state and federal constitutions.


Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 


Talley v California and McIntyre v Ohio are the leading cases that find disclaimer laws unconstitutional. Citizens United found a limited exception: the government can require speech by corporations to have disclaimers. Before CU, corporations were entirely banned from speaking in favor of candidates; now they can do so but with disclaimer rules.


The cases are a subset of the more general principle that the government can't tell you what to say.

Tornillo v Miami Herald, Wooley v Maynard. As they say on TV, you have the right to remain silent.

Recently Beth White got some campaign postcards back from the printer where the disclaimer had been accidentally left off. Beth is our county clerk and is running for secretary of state. She's a Democrat, I'm not. This isn't about partisan politics. I have sued Beth before, over a voter ID policy both she and I think is unconstitutional. She doesn't let me vote, because I won't show ID. So we aren't exactly friends.


But I support her right to hand out her postcards. The state GOP has filed a complaint against her with the state election division. If she wins the fall election (at which she didn't let me vote) she will be the boss of the election division, although they have some independence.


The election division thinks the statute is enforceable,and could fine her, although it can't directly send her to jail, do not pass go. That would be up to the prosecutor, who is also a Democrat.

So we won't likely see a criminal case in which the statute could be found unconstitutional. Instead, it's up to folks like me to file suit, and maybe I will and maybe I won't.

This is an embarrasing situation for White, because she is a defendant in Mulholland v Election Board, because in the 2012 election she sent her goon, a guy named Kip Tew, to seize Zach Mulholland's campaign literature, because it didn't have the fine print about slating disclaimer.

But a federal judge, in Ogden v Marendt, had already declared the slating disclaimer rules unconstitutional and void, so it was unlawful for White to try to enforce them.

That's what she did  wrong and doesn't deserve to be secretary of state, not passing out some postcards that she had every right to pass out. As an elections official and a lawyer, she has sworn to uphold the constitution. When she conspired with Tew to steal Mulholland's fliers, she broke that promise.


 If I could vote, I would vote for the Libertarian candidate. Instead, White is going to throw away my provisional ballot, as she has done 5 times before. I've lost that case enough times I can't sue again, but I've asked some friends to go vote provisional so they will have standing to challenge this other unconstitutional act by White. Ginsberg's recent dissent in the Texas ID case shows that at least 3 of the judges are concerned about how states like Texas and Indiana are charging poll taxes to let people vote. 


 When I challenge disclaimer rules, I'm typically fighting liberals and Democrats. When I fight poll taxes, I'm typically fighting conservatives and Republicans. All I'm trying to do is keep America safe for democracy, in which the people elect leaders in free and open elections. 

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