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

[Soren Dayton]

News reports were that he qualified. And it looks like the bill getting
fast tracked has a one-time filing deadline of December 30.

On Thu, Dec 15, 2011 at 9:28 AM, Jonathan Singer
<jonathanhsinger at gmail.com>wrote:

> So with the Ohio primary now moving back to March, does that mean that
> Gingrich will not make it on the ballot? Or did he turn in sufficient
> signatures?
>
>
> On Wed, Dec 7, 2011 at 11:58 AM, Michael McDonald <mmcdon at gmu.edu> wrote:
>
>> 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
>> ___________________
>> 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…
>> 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
>> 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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>
>
>
> --
> Jonathan Singer
> http://www.polising.com
> Cell: (503) 705-2952
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