[EL] ELB News and Commentary 12/7/11

[Soren Dayton]

An Ohio paper has now clarified

http://www.cleveland.com/open/index.ssf/2011/12/report_says_newt_gingrich_migh.html


On Wed, Dec 7, 2011 at 11:29 AM, Joe La Rue <joseph.e.larue at gmail.com>wrote:

> 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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> Joseph E. La Rue, Esq.
>
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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
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
>>
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>> Law-election at department-lists.uci.edu
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>>
>
>
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