[EL] ELB News and Commentary 12/16/11

Fri Dec 16 16:48:16 PST 2011

Maybe I'm missing something, and I have no dog in the fight, but
regarding the Justice Gableman story, since when has the provision of
legal services in an unsuccessful contingency fee case constituted a
"gift"?  If that's the case, I know a lot of clients of plaintiffs'
attorneys who can look forward to having a very uncomfortable discussion
with the IRS.

Bill

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Friday, December 16, 2011 7:56 AM
To: law-election at UCI.EDU
Subject: [EL] ELB News and Commentary 12/16/11

"Reform-minded groups starting push for constitutional amendment to
change redistricting" <http://electionlawblog.org/?p=26687>  

Posted on December 16, 2011 7:49 am
<http://electionlawblog.org/?p=26687>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

News
<http://www.cleveland.com/open/index.ssf/2011/12/reform-minded_starting_
push_fo.html>  from Ohio.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26687&title=%E2%80%9CReform-minded%20groups%20starting%20push%
20for%20constitutional%20amendment%20to%20change%20redistricting%E2%80%9
D&description=> 

Posted in citizen commissions <http://electionlawblog.org/?cat=7> , 
redistricting <http://electionlawblog.org/?cat=6>  | Comments Off 

"Walker, GOP sue state elections and ethics agency over recall effort"
<http://electionlawblog.org/?p=26685>  

Posted on December 16, 2011 7:47 am
<http://electionlawblog.org/?p=26685>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Journal-Sentinel:
<http://www.jsonline.com/news/statepolitics/assembly-leader-wants-to-rep
lace-state-elections-agency-5u3f2or-135669843.html> 

	There have been scattered reports that some people have signed
recall petitions against Walker more than once, either to inflate the
number of signatures or because they were concerned that their original
signature might not be properly counted.

	Fitzgerald said state law needed to be changed to guard against
that, but also criticized the accountability board for not coming out
more strongly against that possibility. He also criticized the board for
saying its staff would not automatically strike names in the recall
petition such as "Mickey Mouse" and instead in some cases would just
flag those names for Walker's campaign to challenge.

	But accountability board spokesman Reid Magney said the board
was simply following the law and carrying out a process that would
ultimately weed out bad signatures after Walker's campaign called for
striking them.

	"There's an adversarial process designed to weed out fake names
as well as people who aren't qualified to sign and duplicate
signatures," Magney said.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26685&title=%E2%80%9CWalker%2C%20GOP%20sue%20state%20elections
%20and%20ethics%20agency%20over%20recall%20effort%E2%80%9D&description=>

Posted in direct democracy <http://electionlawblog.org/?cat=62> , recall
elections <http://electionlawblog.org/?cat=11>  | Comments Off 

"Newt Gingrich tries to re-write history of his ethics scandal (Fact
Checker biography)" <http://electionlawblog.org/?p=26682>  

Posted on December 16, 2011 7:39 am
<http://electionlawblog.org/?p=26682>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

WaPo's "The Fact Checker" reports
<http://www.washingtonpost.com/blogs/fact-checker/post/newt-gingrich-tri
es-to-re-write-history-of-his-ethics-scandal-fact-checker-biography/2011
/12/14/gIQA4AOcwO_blog.html> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26682&title=%E2%80%9CNewt%20Gingrich%20tries%20to%20re-write%2
0history%20of%20his%20ethics%20scandal%20%28Fact%20Checker%20biography%2
9%E2%80%9D&description=> 

Posted in conflict of interest laws <http://electionlawblog.org/?cat=20>
, ethics investigations <http://electionlawblog.org/?cat=42>  | Comments
Off 

"NH Gingrich camp denies charge it made illegal 'robo calls'"
<http://electionlawblog.org/?p=26679>  

Posted on December 16, 2011 7:38 am
<http://electionlawblog.org/?p=26679>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

The Manchester Union-Leader reports
<http://www.unionleader.com/article/20111215/NEWS0605/111219937/0/NEWS10
> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26679&title=%E2%80%9CNH%20Gingrich%20camp%20denies%20charge%20
it%20made%20illegal%20%E2%80%98robo%20calls%E2%80%99%E2%80%9D&descriptio
n=> 

Posted in campaigns <http://electionlawblog.org/?cat=59> , chicanery
<http://electionlawblog.org/?cat=12>  | Comments Off 

"California lobbyists write checks to legislators running for Congress"
<http://electionlawblog.org/?p=26676>  

Posted on December 16, 2011 7:36 am
<http://electionlawblog.org/?p=26676>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

The Sacramento Bee reports
<http://www.fresnobee.com/2011/12/16/v-print/2651208/california-lobbyist
s-write-checks.html> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26676&title=%E2%80%9CCalifornia%20lobbyists%20write%20checks%2
0to%20legislators%20running%20for%20Congress%E2%80%9D&description=> 

Posted in campaigns <http://electionlawblog.org/?cat=59> , lobbying
<http://electionlawblog.org/?cat=28>  | Comments Off 

"Voting Rights Controversies Wreak Havoc in Texas"
<http://electionlawblog.org/?p=26673>  

Posted on December 16, 2011 7:34 am
<http://electionlawblog.org/?p=26673>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

ABC News reports
<http://abcnews.go.com/blogs/politics/2011/12/voting-rights-controversie
s-wreak-havoc-in-texas/> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26673&title=%E2%80%9CVoting%20Rights%20Controversies%20Wreak%2
0Havoc%20in%20Texas%E2%80%9D&description=> 

Posted in Department of Justice <http://electionlawblog.org/?cat=26> , 
redistricting <http://electionlawblog.org/?cat=6> , Supreme Court
<http://electionlawblog.org/?cat=29> , Voting Rights Act
<http://electionlawblog.org/?cat=15>  | Comments Off 

"APPRECIATION: Texas' Ann McGeehan elects to seek new challenges"
<http://electionlawblog.org/?p=26670>  

Posted on December 16, 2011 7:25 am
<http://electionlawblog.org/?p=26670>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Doug Chapin blogs
<http://blog.lib.umn.edu/cspg/peea/2011/12/appreciation_texas_ann_mcgeeh
a.php?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHE
lections+%28Program+for+Excellence+in+Election+Administration%29> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26670&title=%E2%80%9CAPPRECIATION%3A%20Texas%E2%80%99%20Ann%20
McGeehan%20elects%20to%20seek%20new%20challenges%E2%80%9D&description=> 

Posted in election law biz <http://electionlawblog.org/?cat=51>  |
Comments Off 

Robbin Stewart on Indiana Case Allowing Disenfranchisement of
Misdemeanants <http://electionlawblog.org/?p=26667>  

Posted on December 16, 2011 7:22 am
<http://electionlawblog.org/?p=26667>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Here
<http://ballots.blogspot.com/2011/12/indiana-supreme-court-has-issued.ht
ml> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26667&title=Robbin%20Stewart%20on%20Indiana%20Case%20Allowing%
20Disenfranchisement%20of%20Misdemeanants&description=> 

Posted in voting <http://electionlawblog.org/?cat=31>  | Comments Off 

"Why Eric Holder's Effort to Help Minority Voters Could Backfire"
<http://electionlawblog.org/?p=26665>  

Posted on December 16, 2011 7:20 am
<http://electionlawblog.org/?p=26665>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

John McWhorter has written this piece
<http://www.tnr.com/article/put-differently/98535/holder-voting-rights-i
d-sham?utm_source=The+New+Republic&utm_campaign=81a961a44d-TNR_Daily_121
511&utm_medium=email>  for The New Republic.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26665&title=%E2%80%9CWhy%20Eric%20Holder%E2%80%99s%20Effort%20
to%20Help%20Minority%20Voters%20Could%20Backfire%E2%80%9D&description=> 

Posted in election administration <http://electionlawblog.org/?cat=18> ,
The Voting Wars <http://electionlawblog.org/?cat=60> , Voting Rights Act
<http://electionlawblog.org/?cat=15>  | Comments Off 

"If a Fraudulent Vote Falls in the Woods . . ."
<http://electionlawblog.org/?p=26662>  

Posted on December 16, 2011 7:17 am
<http://electionlawblog.org/?p=26662>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

This National Review piece
<http://www.nationalreview.com/corner/285771/if-fraudulent-vote-falls-wo
ods-christian-schneider> makes a common argument that there could be
lots of voter impersonation fraud but it is just too hard to detect.

I take this argument on directly in my forthcoming book, The Voting
Wars.  Briefly, the argument is not persuasive for two reasons.  First,
impersonation fraud is an illogical and inefficient way to steal
elections (compared to, for example, vote buying through absentee
ballots).  Second, other types of fraud (such as vote buying through
absentee ballots) are in fact caught and prosecuted, and there is no
reason to suspect that impersonation fraud would be harder to catch.
Indeed, it should be easier to catch, because it would involve a vast
conspiracy of people showing up at the polls claiming to be either
someone on the rolls or a falsely registered person (who under HAVA
would have to produce ID as a first time voter).

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26662&title=%E2%80%9CIf%20a%20Fraudulent%20Vote%20Falls%20in%2
0the%20Woods%20.%20.%20.%E2%80%9D&description=> 

Posted in fraudulent fraud squad <http://electionlawblog.org/?cat=8>  |
Comments Off 

"Justice Gableman not charged legal fees in ethics case"
<http://electionlawblog.org/?p=26659>  

Posted on December 16, 2011 7:11 am
<http://electionlawblog.org/?p=26659>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Milwaukee Journal-Sentinel
<http://www.jsonline.com/news/statepolitics/gableman-not-charged-legal-f
ees-pc3f5do-135711223.html> : "State Supreme Court Justice Michael
Gableman received free legal service worth thousands of dollars from one
of Wisconsin's largest law firms as it defended him against an ethics
charge, according to a letter released Thursday by the firm."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26659&title=%E2%80%9CJustice%20Gableman%20not%20charged%20lega
l%20fees%20in%20ethics%20case%E2%80%9D&description=> 

Posted in conflict of interest laws <http://electionlawblog.org/?cat=20>
, ethics investigations <http://electionlawblog.org/?cat=42>  | Comments
Off 

Walker Recall Petitions: Why Equal Protection?
<http://electionlawblog.org/?p=26653>  

Posted on December 15, 2011 8:27 pm
<http://electionlawblog.org/?p=26653>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Following up on this post <http://electionlawblog.org/?p=26616> , and
this response from Ann Althouse
<http://althouse.blogspot.com/2011/12/gov-walker-sues-to-require-governm
ent.html> , I started seeing a different parallel to Bush v. Gore.  One
of the smartest pieces on the doctrine of Bush v. Gore is Roy
Schotland's article
<https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentD
isplay&crawlid=1&doctype=cite&docid=34+Loy.+U.+Chi.+L.J.+211&srctype=smi
&srcid=3B15&key=247792defa2ac5cb720ea50557fdad67>  on why the case was
really about due process (as in, arbitrary and disparate government
treatment of votes). That fits much better than the Bush v. Gore's equal
protection idea of the counting as valuing one voter over that of
another.

It strikes me that there's a similar dynamic here.  I don't know enough
about what is happening in Wisconsin to know if the description in
Althouse's post is correct.  But if it is true that the G.A.B. is both
refusing to verify the accuracy of signatures without evidence of
inaccuracies from challengers, and failing to give challengers enough
time to compile that evidence, that could well be a due process
violation.  At least that seems like much less of a stretch than the
argument that the G.A.B. procedures is violating the equal protection
rights of Wisconsinites who don't sign the recall petitions.

UPDATE: Joshua Spivak weighs in
<http://recallelections.blogspot.com/2011/12/mickey-mouse-signatures-and
-wisconsin.html> :

	The argument that Walker will only have 10 days to review the
signatures (if that limit remains) is mitigated by the fact that Walker
and his family are not checking signatures with some hearty band of
volunteers. Every single signature examined by the GAB will be closely
watched by at least two sets of well-trained, and possibly well paid,
eyes from both sides of the aisle. This recall, like the earlier Senate
ones, involves two heavily financed sides, both willing to spend
whatever it takes to win. Let's not let that fact escape our mind.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26653&title=Walker%20Recall%20Petitions%3A%20Why%20Equal%20Pro
tection%3F&description=> 

Posted in direct democracy <http://electionlawblog.org/?cat=62> , recall
elections <http://electionlawblog.org/?cat=11>  | Comments Off 

"Possible primary election deal comes into focus"
<http://electionlawblog.org/?p=26650>  

Posted on December 15, 2011 8:19 pm
<http://electionlawblog.org/?p=26650>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

The latest
<http://www.mysanantonio.com/default/article/Possible-primary-election-d
eal-comes-into-focus-2406334.php> from Texas: "Acrimony among elected
Republican officials, the statewide Republican Party
<http://www.mysanantonio.com/?controllerName=search&action=search&channe
l=news%2Flocal_news&search=1&inlineLink=1&query=%22Republican+Party%22>
leadership and Attorney General Greg Abbott
<http://www.mysanantonio.com/?controllerName=search&action=search&channe
l=news%2Flocal_news&search=1&inlineLink=1&query=%22Greg+Abbott%22>
spilled into public Thursday as a bitter fight over whether to split the
state's primary elections rages on. That dispute was partially
responsible for the cancellation of a planned mediation session between
Republican and Democratic Party officials, which was supposed to take
place Thursday in Austin."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26650&title=%E2%80%9CPossible%20primary%20election%20deal%20co
mes%20into%20focus%E2%80%9D&description=> 

Posted in redistricting <http://electionlawblog.org/?cat=6>  | Comments
Off 

"Professor Blasts Bill O'Reilly, Says Need For Voter ID Bills Is The
Same For Bills To Protect People From Lightning"
<http://electionlawblog.org/?p=26645>  

Posted on December 15, 2011 5:27 pm
<http://electionlawblog.org/?p=26645>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Watch
<http://thinkprogress.org/justice/2011/12/15/389885/professor-blasts-bil
l-oreilly-says-need-for-voter-id-bills-is-the-same-for-bills-to-protect-
people-from-lighnting/> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26645&title=%E2%80%9CProfessor%20Blasts%20Bill%20O%E2%80%99Rei
lly%2C%20Says%20Need%20For%20Voter%20ID%20Bills%20Is%20The%20Same%20For%
20Bills%20To%20Protect%20People%20From%20Lightning%E2%80%9D&description=
> 

Posted in voter id <http://electionlawblog.org/?cat=9>  | Comments Off 

"Source of negative Gingrich fliers in question"
<http://electionlawblog.org/?p=26642>  

Posted on December 15, 2011 4:35 pm
<http://electionlawblog.org/?p=26642>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

CNN reports
<http://politicalticker.blogs.cnn.com/2011/12/15/source-of-negative-ging
rich-fliers-in-question/?utm_source=feedburner&utm_medium=feed&utm_campa
ign=Feed%3A+rss%2Fcnn_politicalticker+%28Blog%3A+Political+Ticker%29> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26642&title=%E2%80%9CSource%20of%20negative%20Gingrich%20flier
s%20in%20question%E2%80%9D&description=> 

Posted in campaigns <http://electionlawblog.org/?cat=59> , chicanery
<http://electionlawblog.org/?cat=12>  | Comments Off 

"Challenge to Florida's Political Disclosure Laws Draws Legal Center
Brief in 11th Circuit" <http://electionlawblog.org/?p=26636>  

Posted on December 15, 2011 3:08 pm
<http://electionlawblog.org/?p=26636>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

See this press release
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=ar
ticle&id=1567:december-15-2011-challenge-to-floridas-political-disclosur
e-laws-draws-legal-center-brief-in-11th-circuit&catid=63:legal-center-pr
ess-releases&Itemid=61> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26636&title=%E2%80%9CChallenge%20to%20Florida%E2%80%99s%20Poli
tical%20Disclosure%20Laws%20Draws%20Legal%20Center%20Brief%20in%2011th%2
0Circuit%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  |
Comments Off 

"Over GOP Protests, Court Upholds Illinois Map"
<http://electionlawblog.org/?p=26633>  

Posted on December 15, 2011 2:59 pm
<http://electionlawblog.org/?p=26633>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Roll Call:
<http://www.rollcall.com/news/over_gop_protests_court_upholds_illinois_m
ap-211111-1.html?pos=hln>  "The ruling means Democrats will have the
opportunity to pick up several House seats in 2012 as many Illinois
Republican House Members seek re-election in drastically redrawn
districts and unfriendly GOP territory next year."

If anyone has a copy of the ruling of the three-judge court, please send
it along.

UPDATE:  Here
<http://electionlawblog.org/wp-content/uploads/ill-opn.pdf>  is a copy
of the 55-page opinion, rejecting partisan gerrymandering, racial
gerrymandering, and Voting Rights Act section 2 violations.  Thanks to a
reader for sending this along.

I wonder whether this three-judge court opinion will be appealed to the
Supreme Court.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26633&title=%E2%80%9COver%20GOP%20Protests%2C%20Court%20Uphold
s%20Illinois%20Map%E2%80%9D&description=> 

Posted in redistricting <http://electionlawblog.org/?cat=6>  | Comments
Off 

"New-style scandal fixer helps Rick Perry, Herman Cain"
<http://electionlawblog.org/?p=26630>  

Posted on December 15, 2011 2:42 pm
<http://electionlawblog.org/?p=26630>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Interesting Ken Vogel report
<http://www.politico.com/news/stories/1211/70492.html>  on the new type
of campaign staffer to add to the payroll.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26630&title=%E2%80%9CNew-style%20scandal%20fixer%20helps%20Ric
k%20Perry%2C%20Herman%20Cain%E2%80%9D&description=> 

Posted in campaigns <http://electionlawblog.org/?cat=59>  | Comments Off

"Jon Huntsman Dances Around Independent Run Question"
<http://electionlawblog.org/?p=26627>  

Posted on December 15, 2011 2:15 pm
<http://electionlawblog.org/?p=26627>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

The Americans Elect candidate-in-waiting
<http://livewire.talkingpointsmemo.com/updates/2839> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26627&title=%E2%80%9CJon%20Huntsman%20Dances%20Around%20Indepe
ndent%20Run%20Question%E2%80%9D&description=> 

Posted in third parties <http://electionlawblog.org/?cat=47>  | Comments
Off 

"Supreme Court to Mess with Texas" <http://electionlawblog.org/?p=26624>

Posted on December 15, 2011 2:11 pm
<http://electionlawblog.org/?p=26624>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Politico reports <http://www.politico.com/news/stories/1211/70525.html>
.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26624&title=%E2%80%9CSupreme%20Court%20to%20Mess%20with%20Texa
s%E2%80%9D&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 

"Fifth Circuit affirms use of total population rather than CVAP"
<http://electionlawblog.org/?p=26621>  

Posted on December 15, 2011 2:09 pm
<http://electionlawblog.org/?p=26621>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

TxRedistricting
<http://txredistricting.org/post/14277514430/fifth-circuit-affirms-use-o
f-total-population-rather> : "In a case involving the City of Irving and
its city council districts, the Fifth Circuit yesterday affirmed the
constitutionality of using total population rather than citizen voting
age population (CVAP) in balancing out population among districts.
Plaintiffs in the Irving case had alleged that because some parts of
Irving have a high non-citizen population, those districts contained
fewer actual voters than districts with a higher citizenship rate."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D26621&title=%E2%80%9CFifth%20Circuit%20affirms%20use%20of%20to
tal%20population%20rather%20than%20CVAP%E2%80%9D&description=> 

Posted in redistricting <http://electionlawblog.org/?cat=6>  | 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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20111216/64b853c8/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 1520 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20111216/64b853c8/attachment.png>