Robbin Stewart's Election law blog. "Andy Horning for Senate"
hendricks county complaint
in the @ court of hendricks county indiana
county of hendricks
ss
state of indiana
John Doe, plaintiff,
v Cause # _____ Judge _______
Hendricks County Election Board, defendants.
Complaint
Comes now plaintiff John Doe by Counsel and for his complaint states as follows.
1. This is a complaint for declaratory relief, injunction, damages, involving the election board's anti-sign policy, loosely based on IC 3-9-3-2,5.
2.Jurisdiction
3. Venue
4. Parties.
a b and c are the members of the Hendricks county election board.
5. Facts
6 Claims - state art I section 9, 12, 1, art II section, state declaratory judgment act
- federal First, Fourteenth, 42 US 983 et seq.
7 Relief Sought
my theory of the case is it's fundamentally unfair, ex post facto,
fails to announce a standard of review on the 17th amendment claim,
severely burdens voting rights,
is in conflict with Trump v Anderson. is in conflict with Harmon v Forssenius,
misapplied Collins v Day, is in conflict with Anderson v Celebrezze, misapplied Takushi, and failed to give deference to the trial court's findings of fact.
two things. first, i'm very interested in the rust case. I would appreciate it if you would keep me in the loop with copies of filings.
I may end up participating as an amicus. Andrew horning, the LP senate candidate, is also willing to be an amicus. alternatively, if you wanted to add me as a party, as a voter with association rights who wants to vote for rust in a free and equal election, I'd be fine with that. maybe it's too late to add parties.
ok the other thing is I recently bought a church building in terre haute, which I will be leasing to a local church group. right now it's my own name, but I want to create a non-profit business entity to take title, to avoid paying property taxes on a church.
that looks like it is in the wheelhouse of your firm.
The court could have used strict scrutiny, pointed to yulee and burson v freeman, and ruled against Rust.
Or, the court could have used the Anderson 4 factor balancing test, and ruled against Rust.
But by using Takushi, the court erred. Since the primary is rapidly approaching, ...
ok, should move for a stay pending appeal from insc, which will be denied, then move at SCOTUS.
4 factor injunction:
irreparable Harmon, yes, balance of burdens yes but arguable, public interest yes, likelihood of success moderate.
balance of burdens: the burden of the court's decision falls most heavily on a non-party, Jim Banks. Banks may be completely innocent here, unless he conspired with the GOP amici. John Rust will live to fight another day, but if Banks becomes senator, he will be tainted with a perception that he stole the office rather than winning a free and equal election. In 1954 Lyndon Johnson entered the Senate as the result of theft and fraud, as documented in the Robert Caro biography. That tainted his subsequent career. I recall in 1968 he announced that he would not run again. This court should "stop the steal", stay the mandate, allow the election to take place, and remand for consideration in light of Anderson v Celbrezze, Norman v Reed, and Trump v Anderson.
= stopping here 4:30 pm saturdaay /3/89/24. need to take a load before dark.
Hi Professor Redacted.
I wanted to bring to your attention an opinion released yesterday by the Indiana Supreme Court, in which a gop senate candidate was removed from the ballot, using the burdick v takushi framework.
Notes on Rust v Morales.
This is the rare 17th Amendment case. I have not gotten to that part of the ruling yet.
The trial court found that John Rust had a right to ballot access under the first and 17th amendments and under Article I section 23. I tend to agree on the first two, and disagree on the state claim; I am confident the 3-2 majority will cite Collins v Day, which has eviscerated section 23.
The Supreme Court took jurisdiction and stayed the ruling, so Rust has been removed from the ballot.
Ooh! I wonder if Trump has any comment.
Then a few weeks ago they formally ruled that Rust is off the ballot, but the written opinions were only announced yesterday (as I write this first draft anyway, it was yesterday.) And I should be doing chores right now instead of diving into this case, but I'm finding it intellectually interesting. More later as Maron would say.
The opinion begins by citing Term Limits v Thornton, which it then fails to follow.
Standard of Review Here, the Affiliation Statute is cloaked with “the presumption of constitutionality until clearly overcome by a contrary showing.” Horner v. Curry, 125 N.E.3d 584, 588 (Ind. 2019).
I think that is error. That's not the Anderson v Celebrezze standard, relied on in Trump v Anderson. And that error contaminates all the reasoning that follows. The Anderson test was also used in Crawford v. Marion County Election Board. I have not read the briefs, but a reasonable argument can be made for strict scrutiny due to the severe burden on voting rights.
Splintered parties and unrestrained factionalism may do significant damage to the fabric of government.” storer v brown. Here, the Court acts to splinter the party and remove a restraint on factionalism. Instead of a primary, Hoosier GOP voters such as myself face a coronation. I personally would prefer to vote for a queer egg farmer than one of our incumbent congressmen.
As it happens, the remaining candidate is affiliated with a twice-impeached former president who is continuing his attempt to overthrow the government. Very recently in Trump v. Anderson the US Supreme Court reversed the state of Colorado as to Trump's ballot access. Because these cases were being written at the same time, the Indiana case does not reference the Trump case at all. Yet the Trump case is now the controlling authority, and the Indiana case may need to be re-written.
It does have some good parts.
We start with first principles of free association. The First Amendment, “applicable to the States through the Fourteenth Amendment,” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), prohibits the government from “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,” U.S. CONST. amend. I.
It's going to take me hours to work through this, and I have pressing chores and it's already past noon. Is there any way to make this time billable? I don't think so. I could move to intervene.
add an interests of amicus paragraph here later.
I suspect that procedurally the right thing to do is a motion for reconsideration in light of Trump v Anderson.
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ok, the message I sent did not cut and paste here. i'll try again.
Good meeting with potential cocounsel.
We will draft a complaint for Hendricks county, and maybe do an amicus in the sf case.
while we wait for today's opinion announcement, which will probably be trump v colorado,
old.reddit.com/r/supremecourt let me know that alan gura has submitted his cert petition in the san francisco No on E case.
This post is to make a few notes while giving the cert petition a first read.
I quibble semantically with the framing of the question, as whether strict scrutiny or exacting scrutiny applies. here, exacting scrutiny is strict scrutiny, using the McIntyre definition, not the Valeo one.
So point 1, exacting scrutiny is a contronym, explained by the tale of two Buckleys, Buckley v Valeo 1976, and Buckley v ACLF (2000).
Point 2: The parties and the court have chosen to ignore the state cases and the state constitution. The ordinance is void as a matter of state law, Schuster (1980), and probably also violate sthe California right to privacy. This supports Gura's point that the rule does not survive exacting scrutiny because no legitimate state interest.
Point 3: The decision is at odds with scotus precedent from barnette to 303. specifically, Talley mcintyre and aclf are the controlling precedents, which were not changed by citizens united, and by Reed v Town of Gilbert, Janus, NIFLA, and 303. Bonta is related but not controlling since it is a disclosure case and not a disclaimer case. Tornillo (pronounced Tor Nil' O) is also controlling, and was the focus of oral argument in a recent compelled speech case (but which one, mental lapse here)
Point 4: The version of Citizens United being promoted by the Campaign Legal Center is wrong for 6 reasons. Cases adopting this theory, including Gaspee Project, Helzer, and the Arizona Free Enterprise case, are erroneous and should be declared overruled.
Point 5: Since 1961, there has been a split of authority in lower courts, with about 1/3 of the cases refusing to follow scotus precedents of Talley McIntyre and ACLF. 60 years is too long a delay to constitute all deliberate speed. As the court did in Cooper v Aaron, it should make a strong unequivocable statement and resolve the split. Tables 2 and 1 list the cases on either side. Failure to have free speech undermines the integrity of the election process. Free elections are preservative of all other rights.
Ok, that's the general idea. 0.50 hours. Now back to reading the filing.
https://lawyers4reporters.org/
hasen links to a story about the ohio attorney general denying a ballot measure, the ohio voters bill of rights, because he doesn't like the title. the group claims that he lacks authority to remove a ballot measure.
If that's true, and it's a big IF, this might be reportable misconduct.
I do not assume that the media always has all the facts right. I have not read their complaint, or heard the AG's side of it, or read the text of the proposed initiative So I am not taking sides on the controversy at this time. I'm saying that IF the AG improperly kept the measure off the ballot, that might be misconduct, which could be brought to the attention of the ohio disciplinary authorities. I think AG's, like prosecutors, usually get a pass, but not always.
I live in Indiana, where AG Theodore "Todd" Rokita was recently disciplined for his remarks about a doctor who helped an Ohio teenager get an abortion. I have strong policy disagreements with Rokita, and have concerns about his role in Trump's efforts to abuse the election process, but I want to stress that I have no issues with the man personally, and we got along fine when we once litigated together.
And when I lived in Missouri, AG William Webster was, I think, disbarred, in an incident having to do with worker's comp.
I was a lawyer in Indiana for over 25 years before ever filing a disciplinary complaint against anyone, even when I had strong grounds to do so. I do not believe, for example, that it is proper to use the disciplinary process as a tactic in litigation. Nonetheless, I have begun occasionally filing against what I see as corrupt officials misusing their powers. I think these complaints have been put into the round file so far, but it is an available tactic.
In the Ohio case, I would not be making a complaint, but at most an inquiry. I, or someone else, could send a letter to the Ohio Bar saying, these facts concern me, and perhaps you folks could look into this to see if there is probable cause to think an ethics violation may have occurred, because I myself am not sure.
happy birthday to eugene volokh.
edit: the nebraska AGO, finding a gun control law void under the state constitution and the second amendment, as reported by volokh at the volokh conspiracy, must have been a nice birthday present.
our modern understanding of the 2d amendment comes from Eugene's law review articles, then endorsed by the courts in Emerson, Heller, Cayetano, McDonald and Bruen.
https://www.ncsl.org/elections-and-campaigns/disclaimers-on-political-advertisements
maine notes
An independent expenditure is defined in the Maine Election Law (21-A M.R.S. § 1019-B) to mean any expenditure for a communication (e.g., palm cards, newspaper or other media advertisements, phone banks, etc.) that expressly advocates the election or defeat of a clearly identified candidate.
In addition, payments or obligations made to design, produce or disseminate a communication are considered automatically to be independent expenditures if the communication names or depicts a clearly identified candidate and is disseminated within 28 days before a primary election; during the 35 days, including election day, before a special election; or from Labor Day to a general election. Those who wish to disseminate communications naming or depicting a clearly identified candidate within these time periods without the communications being considered IEs must request a determination from the Commission.
Independent expenditure communications must generally identify the top three funders (PDF) of the organization making the expenditure.
= this almost certainly violates 1st A and maine constitution, 72 "opinion of the justices" case.
https://www.fox4now.com/naples/florida-election-police-probe-misleading-texts-in-collier-county
typical tv journalism, only tells one side of the story, the government's side, and doesn't seem to have any way to contact the reporter, mamoud bennett.
there are two issues in the story, which is about texts without disclaimers.
i think texts are intrusive, and requiring the disclaimer might be reasonable. i do think that about phone calls. i do not text myself, and might not be up on the social norms of texting.
but the official goes on to complain about lack of disclaimers on websites and mailers. she has packaged this stuff and sent it to the prosecutors. i would consider that state action. so it's criminal and tortious.
of course the facts might not be as presented on tv, and to dig into this further i might write to the official and request a copy of the packet.
NAPLES, Fla. — Florida's election police are delving into allegations of misleading text messages sent to voters in Collier County, signaling an investigation into potential election crimes.
According to the Collier County Supervisor of Elections Office, numerous complaints have been lodged by voters who received messages falsely thanking them for requesting mail-in ballots.
These messages, however, did not originate from the county.
"We packaged everything we had – some complaints from voters, along with the actual text message and some other things we had received – and sent it to that office of elections crimes and security," stated Melissa Blazier, Supervisor of Elections for Collier County.
Collier County Supervisor of Elections
Rev Dr Martin Luther King Jr Building
3750 Enterprise Avenue
Naples, FL 34104
Supervisor.Elections@CollierVotes.gov
"our mission: protecting the integrity of the election process" [by unlawfully censoring core political speech.]
In accordance with F.S. 119.12, the Collier County Supervisor of Elections office is the custodian of their agency’s public records.
draft only:
softball letter
Dear Ms. Blazier,
I read with interest the recent article on channel 4 by Mr. Bennett in which you said you have sent a packet of material to an election crimes prosecution unit.
If it is possible, I would like to receive a copy of what was sent. If it can be sent by email, great.
If it can only be sent via snailmail, my address is
Robbin Stewart, esq. POB 29164 Cumberland IN 46229.
I am happy to pay any postage or copying fees. If these need to be prepaid let me know. While this is not a formal public records request under FS 119.12, or a subpoena, I trust this letter should be enough.
I may have further comment after reviewing the packet. I do not want to assume that everything in a media report is necessarily gospel truth, so at this stage I am researching the facts.
Thanks in advance,
Robbin Stewart.
softball letter sent 10:22 am 2/24/24 copy to my lawyer.
hardball letter (do not send)
Dear Ms. Blazier,
I am writing to you in your official and personal capacities. This letter is to inform you that you and your office must immediately cease and desist from any further harm to the integrity of the election process by attempting to compel the use of disclaimers in political communications such as websites or mailers. Doing so would be illegal and tortious in light of the controlling United States Supreme Court precedents which include 303 Creative LLC (2023), McIntyre v Ohio Elections Commission (1995) and Talley v California, see also Reno v ACLU.
Additionally I would suggest that the disclaimer policy violates the Florida constitution, although the case law is less clear, e.g. Doe v Mortham. You have, I think, sworn to uphold the Florida constitution.
I appreciate you giving me the opportunity to share this information with you. If it would be helpful, I can send you a box of 50 cases agreeing with my position, or I could just email you a table of the cases. None of these matter much anymore now that 303 LLC has ruled, but they go to show this is not something new, but has been the law since the civil rights movement of the 1960s.
I have not yet retained local counsel in florida, so we are still in the preliminary discussion phase, but eventually if you resist compliance with what the supreme court has ordered, our response will include but not be limited to litigation. We would try to focus adverse publicity, file disciplinary complaints against attorneys, refer the matter for possible state or federal prosecution, neither of which i would expect to happen, look into any available remedies through a state ethics board or however Florida handles such things, and generally raise hell.
I recognize running elections is a complicated job, and generally commend you on a job well done. That would not excuse deliberate malfeasance when it comes to protecting core political speech.
Please let me know within 10 days what your response is.
[wait 24 hours to revise this draft. do not send.]
billing note 1.0 hours 9:30-10:30
With this case, we recognize that both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference.
- tattered cover v thornton 44 P.3d 1044 (2002)
We hold that the Colorado Constitution requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to execution of a search warrant seeking customer purchase records. ... In order for law enforcement officials to prevail, they must demonstrate a compelling governmental need for the specific customer purchase records that they seek.
The panel in No on E v. Chiu upheld an election disclosure regulation that burdens Plaintiffs’ First Amendment speech and association rights, and that will inevitably result in voter confusion. It did so on the ground that the law advances the government’s interest in educating the electorate. That ruling subverts the First Amendment rights of many San Franciscans and encourages increasingly onerous compelled disclosure laws that will similarly fail to advance an important government interest. This is not the exacting scrutiny the Supreme Court reminded our circuit to undertake when it reversed us only two years ago. See Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).
[dissent from denial of en banc review]
2 The caselaw typically labels an entity’s on-ad identification of itself as a “disclaimer” and an entity’s report to the state listing its top donors as a “disclosure.” See, e.g., Citizens United v. FEC, 558 U.S. 310, 366–67 (2010). But because both are more intuitively understood as disclosures, I will refer to the law here as requiring on-ad disclosures.
When a committee runs political advertisements, it must include on the ad the identity of who paid for the ad, i.e., the name of the committee, and list the committee’s top three contributors of “fifty thousand ($50,000) or more.” Id. §§ 84501(c), 84502, 84503.
D) A campaign button smaller than 10 inches in diameter; a bumper sticker smaller than 60 square inches; or a small tangible promotional item, such as a pen, pin, or key chain, upon which the disclosure required cannot be conveniently printed or displayed.
(E) Wearing apparel.
(F) Sky writing.
(G) Any other type of communication, as determined by regulations of the Commission, for which inclusion of the disclosures required by Sections 84502 to 84509, inclusive, is impracticable or would severely interfere with the committee's ability to convey the intended message due to the nature of the technology used to make the communication.
Current as of January 01, 2023 | Updated by FindLaw Staff
(a)(1) Any advertisement not described in subdivision (b) of Section 84504.3 that is paid for by a committee pursuant to subdivision (a) of Section 82013, other than a political party committee or a candidate controlled committee established for an elective office of the controlling candidate, shall include the words “Ad paid for by” followed by the name of the committee as it appears on the most recent Statement of Organization filed pursuant to Section 84101.
(2) Any advertisement not described in subdivision (b) of Section 84504.3 that is paid for by a committee pursuant to subdivision (a) of Section 82013 that is a political party committee or a candidate controlled committee established for an elective office of the controlling candidate shall include the words “Ad paid for by” followed by the name of the committee as it appears on the most recent Statement of Organization filed pursuant to Section 84101 if the advertisement is any of the following:
(A) Paid for by an independent expenditure.
(B) An advertisement supporting or opposing a ballot measure.
(C) A radio or television advertisement.
(D) A text message advertisement that is required to include a disclosure pursuant to Section 84504.7.
(b) Any advertisement not described in subdivision (b) of Section 84504.3 that is paid for by a committee pursuant to subdivision (b) or (c) of Section 82013 shall include the words “Ad paid for by” followed by the name that the filer is required to use on campaign statements pursuant to subdivision (o) of Section 84211.
(c) Notwithstanding subdivisions (a) and (b), if an advertisement is a printed letter, internet website, or email message, the text described in subdivisions (a) and (b) may include the words “Paid for by” instead of “Ad paid for by.”
(d) Notwithstanding subdivisions (a) and (b), if an advertisement is a text message, the text described in subdivisions (a) and (b) may include the words “Paid for by” or “With,” instead of “Ad paid for by.”
(e) Notwithstanding subdivision (a), if an advertisement is a video advertisement that is disseminated over the internet, is a print advertisement that is larger than those designed to be individually distributed subject to subdivision (b) of Section 84504.2, is an electronic media advertisement subject to subdivision (b) of Section 84504.3, or is a text message advertisement subject to Section 84504.7, then the text for the name of the committee may be shortened by either of the following:
(1) Displaying only enough of the first part of the committee name to uniquely identify the committee. If the committee is a sponsored committee, then the name displayed must include the portion of the committee name that identifies the sponsor or sponsors, unless all of the sponsors are disclosed on the ad as top contributors as required by Section 84503. For example, if ACME Corporation is not listed as a top contributor, then a committee named “Yes on 99, Californians for a Better Tomorrow, a coalition of X, Y, and Z. Sponsored by ACME Corporation” may be disclosed as only “Yes on 99, Californians for a Better Tomorrow. Sponsored by ACME Corporation.”
(2) If the advertisement is paid for by a committee that has top contributors and is subject to Section 84503, then the committee name may be replaced by displaying the words “Committee ID” followed by the committee's identification number.
cases cited:
Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).
Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam).
See ACLU of Nev. v. Heller, 378 F.3d 979, 988 (9th Cir. 2004);
Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 797 (1988).
2023 Foundation for Individual Rights and Expression
510 Walnut St. | Suite 1250
Philadelphia, PA 19106
The constitutional guarantee of free speech has its "fullest and most urgent application" in political campaigns. Brown v. Hartlage, 456 U.S. 45, 53, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)). Therefore, the State bears a "well-nigh insurmountable" burden to justify RCW 42.17.530's restriction on political speech. Meyer v. Grant, 486 U.S. 414, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). This burden requires the court to apply "exacting scrutiny" to RCW 42.17.530(1)(a). Meyer, 486 U.S. at 420, 108 S. Ct. 1886. See also Buckley v. Valeo, 424 U.S. 1, 39, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Exacting scrutiny will invalidate the statute unless the State demonstrates a compelling interest that is both narrowly tailored and necessary. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S. Ct. 1511, 1519, 131 L. Ed. 2d 426 (1995); Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846, *695 119 L. Ed. 2d 5 (1992). Such burdens are rarely met. Burson, 504 U.S. at 199-200, 112 S. Ct. 1846. Ino Ino, Inc. v. City of Bellevue, 132 Wash. 2d 103, 114, 937 P.2d 154 (1997) ("The State bears the burden of justifying a restriction on speech."). washington v no on 119! committee (WA 1998).
could quote from comm. v. wadzinski as well.
First Amendment protection for anonymous speech was first articulated a half-century ago in the context of political speech, Talley v. California, 362 U.S. 60, 64–65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), but as the Supreme Court later observed, the Talley decision harkened back to “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).
In re Anonymous Online Speakers
Turning to the substantive issue in the case, we must determine whether section 3-9-3-2 violates Stewart's First Amendment right to freedom of speech. In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995), the Supreme Court struck down as unconstitutional an Ohio statute that required all printed political campaign literature in the state to contain the name and address of the person or head of the organization responsible *1054 for the publication of the literature. The Court held that the Ohio statute violated the First Amendment because it burdened core political speech in a manner that was not narrowly tailored to serve an overriding state interest. Id. at ___ - ___, 115 S. Ct. at 1519-24. Stewart contends that this case is controlled by McIntyre. Stewart is correct.
The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is "core political speech" that is entitled to the fullest protection of the First Amendment.
https://electionlawblog.org/?p=139726
The panel’s result in this case seems both correct and one that the Supreme Court could well agree to hear and overturn. (For reasons I explain here.)
==
I got this story planted. I had not seen the decision until yesterday, and neither had rick. Maybe I should intervene, or at least do an amicus.
A Bucks County judge has ruled that Democrats can take down campaign signs posted on public property in the Central Bucks School District that target their candidates but don't say who paid for them. The signs — some of which read “Hey Democrats!1 day ago
philly enquirer story, paywalled.
https://news.yahoo.com/judge-orders-removal-illegal-signs-173208100.html
I have found and read the 5 page decision to take down the signs. it's wrong.
