[EL] Ohio presidential primary filing deadline confusion
Richard Winger
richardwinger at yahoo.com
Wed Dec 7 09:57:04 PST 2011
The Ohio Secretary of State, Jon Husted, is extremely likely to act in a manner that eliminates any ballot access difficulty for any presidential primary candidates. He already is in the habit of being very flexible about ballot access, because on November 1, 2011, he issued a directive putting five minor parties on the Ohio ballot for 2012, even though they hadn't met any petition requirement. He did this because on September 7, 2011, a US District Court said the new ballot access petition deadline for minor parties (February 2012, at the time) is still unconstitutional (the 6th circuit had thrown out the old law in 2006).
I am just saying that since Husted decided to be flexible for the minor parties, he is probably of a mind-set to say he is certainly going to be equally flexible for Republican presidential candidates.
Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
--- On Wed, 12/7/11, Michael McDonald <mmcdon at gmu.edu> wrote:
From: Michael McDonald <mmcdon at gmu.edu>
Subject: Re: [EL] ELB News and Commentary 12/7/11
To: law-election at uci.edu
Date: Wednesday, December 7, 2011, 8:58 AM
There is a more concrete legal question regarding Gingrich's Ohio filing deadline. There is a court case filed claiming that since the new primary date will not take effect until January 20, a federal court needs to enact a redistricting plan now (the one enacted by the state government) because the current legal candidate filing deadlines formally end today, before the new law takes effect on January 20. I suppose that someone wishing to create mischief could file a similar complaint about Gingrich. I believe both claims are frivolous, but the period between the current deadline and a enactment of a law to change it opens a curious legal door. For you lawyers on the list: is there legal precedent for this situation? Will the court let the redistricting case linger until January 20 and then dismiss it. (Sorry, I do not have a citation, the case was described to me by a reporter.)
============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution
Mailing address:
(o) 703-993-4191 George Mason University
(f) 703-993-1399 Dept. of Public and International Affairs
mmcdon at gmu.edu 4400 University Drive - 3F4
http://elections.gmu.edu Fairfax, VA 22030-4444
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Soren Dayton
Sent: Wednesday, December 07, 2011 11:36 AM
To: Joe La Rue
Cc: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/7/11
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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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…
Posted on December 7, 2011 8:00 am by Rick Hasen
SCOTUS decides on Texas’s request for a stay in the redistricting cases?
Posted in redistricting, Supreme Court, Voting Rights Act | Comments Off
“Welcome Back My Friends To The Show That Never Ends: First Ballots Cast in 2012 Presidential Election”
Posted on December 7, 2011 7:59 am by Rick Hasen
Who knew Doug Chapin was an EL&P fan?
Posted in election administration | Comments Off
“Gingrich May Not Qualify for Ohio Ballot”
Posted on December 7, 2011 7:57 am by Rick Hasen
Oops.
Posted in ballot access, campaigns | Comments Off
Jim Gardner: The Promise of State Constitutional Challenges to Partisan Gerrymandering
Posted on December 7, 2011 7:55 am by Rick Hasen
Jim Gardner 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.
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 (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, 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 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.
Posted in political parties, redistricting | Comments Off
Elmendorf: Making Sense of Section 2 – Part 3 (The Electorate as State Actor)
Posted on December 7, 2011 7:52 am by Rick Hasen
Here’ Chris Elmendorf’s latest guest post:
In yesterday’s post, 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 →
Posted in guest blogging election law scholarship, Voting Rights Act | Comments Off
“Congress Discusses Enacting Stricter Insider-Trading Laws”
Posted on December 6, 2011 9:43 pm by Rick Hasen
Bloomberg reports.
Posted in conflict of interest laws, legislation and legislatures | Comments Off
“Voting Laws: Michigan Legislation Could Restrict Voter Registration, Absentee Voters”
Posted on December 6, 2011 9:42 pm by Rick Hasen
HuffPo reports.
Posted in election administration | Comments Off
“Ex-Ehrlich campaign manager Schurick convicted in robocall case”
Posted on December 6, 2011 9:38 pm by Rick Hasen
WaPo reports. The “reverse psychology” defense seems laughable. But the First Amendment issue will be a more serious issue on appeal.
Posted in campaigns, chicanery | Comments Off
“Hallelujah Corporations”
Posted on December 6, 2011 5:10 pm by Rick Hasen
Citizens United, in the spirit of the season.
Posted in campaign finance, election law "humor" | Comments Off
“PDC staff recommends Americans for Prosperity case be dismissed”
Posted on December 6, 2011 3:34 pm by Rick Hasen
News from Washington State.
Posted in campaign finance | Comments Off
“A Madisonian Case for Disclosure”
Posted on December 6, 2011 3:23 pm by Rick Hasen
Anthony Johnstone has posted this draft 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.
Posted in campaign finance | Comments Off
“Hillary Clinton presidential campaign peddles ’08 memorabilia in bid to pay off debt”
Posted on December 6, 2011 2:51 pm by Rick Hasen
Politico reports.
Posted in campaign finance | Comments Off
“Public Citizen Applauds Ellison’s Constitutional Amendment Allowing Congress to Regulate Corporate Money in Elections”
Posted on December 6, 2011 2:50 pm by Rick Hasen
See this press release [corrected link].
Posted in campaign finance | Comments Off
“John Edwards’s lawyers defend calling campaign finance experts”
Posted on December 6, 2011 2:47 pm by Rick Hasen
Josh Gerstein blogs.
Posted in campaign finance, chicanery, John Edwards | Comments Off
“Herman Cain Super PAC Mulls Money”
Posted on December 6, 2011 9:24 am by Rick Hasen
Politico reports.
Posted in campaign finance | Comments Off
“Study Finds Voters Erred Often in Using New Machines”
Posted on December 6, 2011 9:22 am by Rick Hasen
NYT:
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. 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 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.
Posted in election administration | Comments Off
--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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