[EL] ELB News and Commentary 12/7/11
Joe La Rue
joseph.e.larue at gmail.com
Wed Dec 7 08:29:32 PST 2011
I said Ohio's primary was June 5. But Soren is right: it's currently
scheduled for June 12. I simply typed too quickly.
Joe
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On Wed, Dec 7, 2011 at 11:06 AM, Soren Dayton <soren.dayton at gmail.com>wrote:
> The Newt story is wrong. On Oct 21, Kasich signed a bill to move the
> primary to June 12. Filing is 90 days prior.
>
> The catch is that laws don't take effect for 90 days. So the law doesn't
> take effect until Jan 20.
>
> Today's filing deadline is a sort of ghost.
>
> On Wed, Dec 7, 2011 at 11:03 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> Will Today Be the Day… <http://electionlawblog.org/?p=26217>
>> Posted on December 7, 2011 8:00 am <http://electionlawblog.org/?p=26217>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> SCOTUS decides on Texas’s request for a stay in the redistricting cases?
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26217&title=Will%20Today%20Be%20the%20Day%E2%80%A6&description=>
>> Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme
>> Court <http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>
>> | Comments Off
>> “Welcome Back My Friends To The Show That Never Ends: First Ballots
>> Cast in 2012 Presidential Election” <http://electionlawblog.org/?p=26215>
>> Posted on December 7, 2011 7:59 am <http://electionlawblog.org/?p=26215>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Who knew Doug Chapin<http://blog.lib.umn.edu/cspg/peea/2011/12/welcome_back_my_friends_to_the.php>was an EL&P fan?
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26215&title=%E2%80%9CWelcome%20Back%20My%20Friends%20To%20The%20Show%20That%20Never%20Ends%3A%20First%20Ballots%20Cast%20in%202012%20Presidential%20Election%E2%80%9D&description=>
>> Posted in election administration <http://electionlawblog.org/?cat=18>
>> | Comments Off
>> “Gingrich May Not Qualify for Ohio Ballot”<http://electionlawblog.org/?p=26212>
>> Posted on December 7, 2011 7:57 am <http://electionlawblog.org/?p=26212>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Oops<http://politicalwire.com/archives/2011/12/07/gingrich_may_not_qualify_for_ohio_ballot.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26212&title=%E2%80%9CGingrich%20May%20Not%20Qualify%20for%20Ohio%20Ballot%E2%80%9D&description=>
>> Posted in ballot access <http://electionlawblog.org/?cat=46>, campaigns<http://electionlawblog.org/?cat=59>
>> | Comments Off
>> Jim Gardner: The Promise of State Constitutional Challenges to
>> Partisan Gerrymandering <http://electionlawblog.org/?p=26209>
>> Posted on December 7, 2011 7:55 am <http://electionlawblog.org/?p=26209>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Jim Gardner<http://www.law.buffalo.edu/faculty_and_staff/dynamic_general_profile.asp?faculty=gardner_james>has written this post on a new election law litigation project of his:
>>
>> I’d like to thank Rick for inviting me to blog about a redistricting
>> legal challenge in which I’m involved. The case, *Pearson v. Koster*,
>> is a partisan gerrymandering challenge to Missouri’s new congressional
>> redistricting plan, which creates six safe Republican districts and two
>> Democratic districts in a state that is much closer to evenly balanced than
>> these numbers suggest. I’m excited about the litigation because the
>> challenge is proceeding solely under the Missouri Constitution<http://www.sos.mo.gov/pubs/missouri_constitution.pdf>
>> .
>>
>> As readers of this blog well know, partisan gerrymandering claims brought
>> under the Equal Protection Clause of the U.S. Constitution have been
>> stalled to the point of uselessness. In a series of splintered opinions
>> beginning with *Davis v. Bandemer<http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=478&page=109>
>> * (1986), the Court has recognized the existence and justiciability of
>> such claims, yet has been unable to agree on a standard under which they
>> might be successfully brought. As a result, not a single partisan
>> gerrymandering claim brought under the U.S. Constitution has ever resulted
>> in the invalidation of a redistricting plan.
>>
>> In a 2004 article<http://www.liebertonline.com/doi/abs/10.1089/elj.2004.3.643>,
>> *A Post-*Vieth* Strategy for Litigating Partisan Gerrymandering Claims*,
>> 3 Election Law Journal 643 (2004), I argued that state constitutions might
>> be more promising avenues for constraining partisan gerrymandering than the
>> federal Constitution, for two reasons. First, such claims may simply be
>> more promising on the merits. Unlike the U.S. Constitution, which says
>> virtually nothing about the conduct of elections, state constitutions are
>> filled with provisions regulating the electoral process. Such provisions
>> typically include an expressly granted right to vote; express protections
>> for the right to vote, such as a requirement that elections be “free and
>> equal” or “free and open”; and specific instructions concerning the drawing
>> of districts, such as requirements of compactness and contiguity, and
>> prohibitions on dividing local municipalities and communities of interest.
>> These kinds of provisions are capable of providing the traction so often
>> lacking in claims hitched to the U.S. Equal Protection Clause.
>>
>> Second, adjudicating partisan gerrymandering claims under state
>> constitutions might ultimately help the U.S. Supreme Court settle on a
>> standard for adjudicating such claims under the federal Constitution.
>> Justice Kennedy, who cast the swing vote in *Vieth*, declined to
>> invalidate the plan challenged there mainly on the ground that “there are
>> yet no agreed upon substantive principles of fairness in districting.”
>> However, he went on to say that he would be willing to consider similar
>> claims in the future “[i]f workable standards do emerge for measuring the
>> burden a gerrymander imposes on representational rights.” Adjudication
>> under state constitutions has the potential eventually to supply such a
>> standard.
>>
>> These contentions are being put to the test in the current Missouri
>> litigation. The plaintiffs have raised claims arising under the state
>> constitution’s right to vote clause, a district compactness clause, a state
>> equal protection clause, a “good of the whole” and a “general welfare”
>> clause, and, most promising in my view, the “free and open elections”
>> clause, a clause that exists in many state constitutions but has rarely
>> been either litigated or construed. Missouri, moreover, is a promising
>> venue in which to bring these claims. Blog readers may recall that in 2006
>> the Missouri Supreme Court invalidated<http://www.clearinghouse.net/chDocs/public/VR-MO-0061-0007.pdf>a photo-ID requirement under the state constitution’s right-to-vote
>> clause. In so doing, the court expressly rejected the U.S. Supreme Court’s
>> reasoning in *Crawford* upholding Indiana’s photo-ID requirement on the
>> ground that “the more expansive and concrete protection of the right to
>> vote under the Missouri Constitution [confers] greater protection than its
>> federal counterpart.” Missouri is thus a jurisdiction with not only a
>> state constitution bristling with promising textual hooks for partisan
>> gerrymandering claims, but a supreme court that has already shown itself
>> willing to invoke the state constitution in cases claiming burdens on the
>> right to vote.
>>
>> Stay tuned! Litigation documents, including an Amended Petition and
>> briefing on a pending motion to dismiss can be found here<http://www.spencerfane.com/PracticeArea/Index.asp?Reference=LItigation&%7E=>
>> .
>>
>>
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26209&title=Jim%20Gardner%3A%20The%20Promise%20of%20State%20Constitutional%20Challenges%20to%20Partisan%20Gerrymandering&description=>
>> Posted in political parties <http://electionlawblog.org/?cat=25>,
>> redistricting <http://electionlawblog.org/?cat=6> | Comments Off
>> Elmendorf: Making Sense of Section 2 – Part 3 (The Electorate as State
>> Actor) <http://electionlawblog.org/?p=26207>
>> Posted on December 7, 2011 7:52 am <http://electionlawblog.org/?p=26207>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Here’ Chris Elmendorf’s latest guest post<http://electionlawblog.org/?p=26100>
>> :
>>
>> In yesterday’s post <http://electionlawblog.org/?p=26156>, I argued that
>> constitutional doubts about Section 2’s results test would be put to rest
>> if plaintiffs were required to show that their injury resulted from
>> race-biased (prejudiced or stereotyped) decisions by conventional state
>> actors or majority-group voters. This is so even if plaintiffs need to
>> establish only a “significant likelihood” of racial bias, as opposed to
>> proving discrimination “more likely than not.” The constitutional argument
>> is straightforward if the discriminators are ordinary state actors, such as
>> legislators, pollworkers, prison wardens, or public school administrators.
>>
>> But what if the plaintiff only shows race-biased decisionmaking by *
>> voters*? Societal discrimination was an overriding concern of the
>> Congress that adopted the results test. Yet private race-discriminatory
>> behavior does not violate the Constitution, so in what sense could a
>> Section 2 that targets such behavior be a congruent and proportional remedy
>> for constitutional violations? The answer lies in the problem of election
>> outcomes that are unconstitutional because they were determined by
>> race-biased voting.
>>
>> Continue reading → <http://electionlawblog.org/?p=26207#more-26207>
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26207&title=Elmendorf%3A%20Making%20Sense%20of%20Section%202%20%E2%80%93%20Part%203%20%28The%20Electorate%20as%20State%20Actor%29&description=>
>> Posted in guest blogging election law scholarship<http://electionlawblog.org/?cat=64>,
>> Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>> “Congress Discusses Enacting Stricter Insider-Trading Laws”<http://electionlawblog.org/?p=26204>
>> Posted on December 6, 2011 9:43 pm <http://electionlawblog.org/?p=26204>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Bloomberg reports<http://www.nytimes.com/2011/12/07/business/congress-considers-new-limits-on-insider-trading.html?ref=politics>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26204&title=%E2%80%9CCongress%20Discusses%20Enacting%20Stricter%20Insider-Trading%20Laws%E2%80%9D&description=>
>> Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>,
>> legislation and legislatures <http://electionlawblog.org/?cat=27> | Comments
>> Off
>> “Voting Laws: Michigan Legislation Could Restrict Voter Registration,
>> Absentee Voters” <http://electionlawblog.org/?p=26201>
>> Posted on December 6, 2011 9:42 pm <http://electionlawblog.org/?p=26201>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> *HuffPo* reports<http://www.huffingtonpost.com/2011/12/06/voting-laws-michigan-voter-registration-absentee-ballot-photo-id_n_1132573.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26201&title=%E2%80%9CVoting%20Laws%3A%20Michigan%20Legislation%20Could%20Restrict%20Voter%20Registration%2C%20Absentee%20Voters%E2%80%9D&description=>
>> Posted in election administration <http://electionlawblog.org/?cat=18>
>> | Comments Off
>> “Ex-Ehrlich campaign manager Schurick convicted in robocall case”<http://electionlawblog.org/?p=26198>
>> Posted on December 6, 2011 9:38 pm <http://electionlawblog.org/?p=26198>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> *WaPo* reports<http://www.washingtonpost.com/local/dc-politics/ex-ehrlich-campaign-manager-schurick-convicted-in-robocall-case/2011/12/06/gIQA6rNsaO_story.html>.
>> The “reverse psychology” defense seems laughable. But the First Amendment
>> issue will be a more serious issue on appeal.
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26198&title=%E2%80%9CEx-Ehrlich%20campaign%20manager%20Schurick%20convicted%20in%20robocall%20case%E2%80%9D&description=>
>> Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>
>> | Comments Off
>> “Hallelujah Corporations” <http://electionlawblog.org/?p=26195>
>> Posted on December 6, 2011 5:10 pm <http://electionlawblog.org/?p=26195>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> *Citizens United*, in the spirit of the season<http://www.youtube.com/watch?v=ws0WSNRpy3g>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26195&title=%E2%80%9CHallelujah%20Corporations%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10>, election
>> law "humor" <http://electionlawblog.org/?cat=52> | Comments Off
>> “PDC staff recommends Americans for Prosperity case be dismissed”<http://electionlawblog.org/?p=26192>
>> Posted on December 6, 2011 3:34 pm <http://electionlawblog.org/?p=26192>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> News<http://blog.thenewstribune.com/politics/2011/12/02/pdc-staff-recommends-americans-for-prosperity-case-be-dismissed/>from Washington State.
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26192&title=%E2%80%9CPDC%20staff%20recommends%20Americans%20for%20Prosperity%20case%20be%20dismissed%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>> “A Madisonian Case for Disclosure”<http://electionlawblog.org/?p=26189>
>> Posted on December 6, 2011 3:23 pm <http://electionlawblog.org/?p=26189>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Anthony Johnstone has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1967196>on SSRN (forthcoming
>> *George Mason Law Review*). Here is the abstract:
>>
>> Notwithstanding its secondary holding that there is “no constitutional
>> impediment” to requiring disclosure of those who fund independent campaign
>> expenditures, the case for campaign finance disclosure is not as clear as
>> Citizens United would suggest. The Supreme Court tends to assume rather
>> than explain the “informational interest” that is cited to support
>> disclosure. Without a clear constitutional justification, that interest
>> does less than it might to define the means and ends of disclosure policy,
>> and to defend that policy against constitutional challenge.
>>
>> This article excavates the existing constitutional foundations for
>> campaign finance disclosure, and roots the informational interest in a
>> republican idea of corruption as factionalism that predates the narrow
>> transactional conception of corruption dominant in contemporary political
>> speech debates. That idea, explicated by James Madison in the Federalist
>> and embodied in the Constitution, motivates an antifactional informational
>> interest both broader and narrower than is presently conceived. It is
>> broader in the sense that informing voters through disclosure of a wide
>> range of interests in political campaigns is critical to the full function
>> of the Constitution’s antifactional machinery. It is narrower in the sense
>> that the interest is in disclosing interests—factions—and not other
>> information that voters may find valuable for other reasons. Rooted in the
>> broad importance and narrow purpose of antifactionalism, a deeper
>> informational interest may better serve the First Amendment’s republican
>> values without violating its libertarian command.
>>
>> An antifactional reconception of the informational interest may help
>> solve, or at least clarify, several puzzles in the First Amendment doctrine
>> of campaign finance law. First, targeting interests instead of individuals
>> for disclosure relieves the latent tension generated by the Court’s embrace
>> of political anonymity in McIntyre. Second, understanding corporations as
>> factions provides a sounder basis on which to distinguish corporate
>> political actors from others after Citizens United. Third, the republican
>> concern about faction offers a coherent rationale for drawing lines between
>> domestic and foreign political speakers, whether the “foreigners” come from
>> a different district, a different state, or a different country. Fourth, by
>> recognizing corruption as the private benefit of factions at the expense of
>> the general welfare, rather than the personal benefit of an officeholder at
>> the expense of a faction, the antifactional interest calls for at least as
>> robust a disclosure system for issue advocacy as it does for express
>> advocacy of candidates.
>>
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26189&title=%E2%80%9CA%20Madisonian%20Case%20for%20Disclosure%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>> “Hillary Clinton presidential campaign peddles ’08 memorabilia in bid
>> to pay off debt” <http://electionlawblog.org/?p=26183>
>> Posted on December 6, 2011 2:51 pm <http://electionlawblog.org/?p=26183>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> *Politico* reports <http://www.politico.com/news/stories/1211/69902.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26183&title=%E2%80%9CHillary%20Clinton%20presidential%20campaign%20peddles%20%E2%80%9908%20memorabilia%20in%20bid%20to%20pay%20off%20debt%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>> “Public Citizen Applauds Ellison’s Constitutional Amendment Allowing
>> Congress to Regulate Corporate Money in Elections”<http://electionlawblog.org/?p=26181>
>> Posted on December 6, 2011 2:50 pm <http://electionlawblog.org/?p=26181>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> See this press release<http://www.citizen.org/documents/Statement-on-Ellison-const-amendment.pdf>[corrected link].
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26181&title=%E2%80%9CPublic%20Citizen%20Applauds%20Ellison%E2%80%99s%20Constitutional%20Amendment%20Allowing%20Congress%20to%20Regulate%20Corporate%20Money%20in%20Elections%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>> “John Edwards’s lawyers defend calling campaign finance experts”<http://electionlawblog.org/?p=26178>
>> Posted on December 6, 2011 2:47 pm <http://electionlawblog.org/?p=26178>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Josh Gerstein blogs<http://www.politico.com/blogs/joshgerstein/1211/John_Edwardss_lawyers_defend_calling_campaign_finance_experts.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26178&title=%E2%80%9CJohn%20Edwards%E2%80%99s%20lawyers%20defend%20calling%20campaign%20finance%20experts%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10>,
>> chicanery <http://electionlawblog.org/?cat=12>, John Edwards<http://electionlawblog.org/?cat=17>
>> | Comments Off
>> “Herman Cain Super PAC Mulls Money”<http://electionlawblog.org/?p=26175>
>> Posted on December 6, 2011 9:24 am <http://electionlawblog.org/?p=26175>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> *Politico* reports <http://www.politico.com/news/stories/1211/69826.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26175&title=%E2%80%9CHerman%20Cain%20Super%20PAC%20Mulls%20Money%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>> “Study Finds Voters Erred Often in Using New Machines”<http://electionlawblog.org/?p=26172>
>> Posted on December 6, 2011 9:22 am <http://electionlawblog.org/?p=26172>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> *NYT*:<http://cityroom.blogs.nytimes.com/2011/12/05/study-finds-voters-erred-often-in-using-new-machines/>
>>
>> As many as 60,000 of the votes cast in New York State elections last year
>> were voided because people unintentionally cast their ballots for more than
>> one candidate, according to a study being released this week<http://www.brennancenter.org/content/resource/design_deficiencies_and_lost_votes/>.
>> The excess-voting was highest in predominantly black and Hispanic
>> neighborhoods, including two Bronx election districts where 40 percent of
>> the votes for governor were disqualified.
>>
>> The study, by the Brennan Center for Justice<http://www.brennancenter.org/>at the New York University Law School, blamed software used with new
>> electronic optical-scan voting machines as well as ambiguous instructions
>> for disenfranchising tens of thousands of voters. The old mechanical
>> lever-operated machines did not allow votes for more than one candidate for
>> the same office.
>>
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26172&title=%E2%80%9CStudy%20Finds%20Voters%20Erred%20Often%20in%20Using%20New%20Machines%E2%80%9D&description=>
>> Posted in election administration <http://electionlawblog.org/?cat=18>
>> | Comments Off
>> --
>> Rick Hasen
>> Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>>
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