[EL] ELB News and Commentary 11/12/12
Rick Hasen
rhasen at law.uci.edu
Mon Nov 12 08:08:01 PST 2012
"Vote over, but election dysfunction remains"
<http://electionlawblog.org/?p=44114>
Posted on November 12, 2012 8:05 am
<http://electionlawblog.org/?p=44114> by Rick Hasen
<http://electionlawblog.org/?author=3>
Nate Persily writes
<http://www.cnn.com/2012/11/11/opinion/persily-voting/index.html?iid=article_sidebar>
at CNN Opinion.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"We Have to Fix That" <http://electionlawblog.org/?p=44111>
Posted on November 12, 2012 8:02 am
<http://electionlawblog.org/?p=44111> by Rick Hasen
<http://electionlawblog.org/?author=3>
Wendy Weiser blogs
<http://www.brennancenter.org/blog/archives/we_have_to_fix_that/> at the
Brennan Center.
See also Modernization Can Fix Long Voting Lines
<http://www.brennancenter.org/blog/archives/modernization_can_fix_long_voting_lines/>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Rethinking Voting" <http://electionlawblog.org/?p=44109>
Posted on November 12, 2012 7:59 am
<http://electionlawblog.org/?p=44109> by Rick Hasen
<http://electionlawblog.org/?author=3>
Today's NPR On Point
<http://onpoint.wbur.org/2012/11/12/rethinking-voting> with Nate
Persily, Wendy Weiser, and Rob Richie.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"One voter's tale tells it all" <http://electionlawblog.org/?p=44106>
Posted on November 12, 2012 7:24 am
<http://electionlawblog.org/?p=44106> by Rick Hasen
<http://electionlawblog.org/?author=3>
Josh Douglas has written this oped
<http://news.cincinnati.com/article/20121112/EDIT02/311120037/One-voter-s-tale-tells-all>in
the /Cincinnati Enquirer/.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
provisional ballots <http://electionlawblog.org/?cat=67>, The Voting
Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Reimagining Democratic Inclusion: Asian Americans and the Voting
Rights Act" <http://electionlawblog.org/?p=44103>
Posted on November 12, 2012 7:22 am
<http://electionlawblog.org/?p=44103> by Rick Hasen
<http://electionlawblog.org/?author=3>
Ming Hsu Chen and Taeku Lee have postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2170524>on SSRN
(forthcoming UC Irvine Law Review). Here is the abstract:
The current legal framework for protecting voting rights in the
United States has been dramatically destabilized by Supreme Court
decisions re-interpreting the protections against minority vote
dilution and requires rethinking to survive modern challenges. At
the same time, the nation has itself undergone dramatic changes in
the racial composition of its polity and in the complexity and
salience of race as a factor in political life. In this paper, we
focus on a relatively unexamined constituent of this complex reality
of modern racial diversity that illustrates some of the core
features that all minority groups face in continuing VRA challenges:
Asian Americans. In the face of apparent political disempowerment,
it is curious that Asian Americans have very rarely succeeded in
invoking Section 2 of the Voting Rights Act, a legal measure devised
specifically to bolster minority political power. Is this because
the necessary conditions for a successful political challenge have
not yet arisen? Is the problem a structural one implicating problems
in institutional design? Or is it some combination of both,
indicating the double harm of a permanent political minority without
ability to secure legal redress under the VRA?
Social science and legal scholarship suggest that the legal
standards used to trigger the special protections of the VRA contain
underspecified assumptions about political behavior and
oversimplified understandings about racial identity. This paper
attempts to mobilize insights about the political behavior of racial
minorities in the service of a multi-dimensional approach toward
thinking about legal remedies for democratic exclusion. Our core
contention is that the problem of democratic exclusion is
multi-factorial and requires a multi-pronged approach to redress.
Such an approach includes augmenting available data about the
political participation of racial minorities, refining empirical
measures to reflect racial politics in a complex, multiracial
electorate, and revisiting available remedies in light of a problem
with both political and legal dimensions.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> |
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"Supreme Court Review Puts Voting Rights Act In Jeopardy After
Election Proves Its Necessity" <http://electionlawblog.org/?p=44101>
Posted on November 12, 2012 7:20 am
<http://electionlawblog.org/?p=44101> by Rick Hasen
<http://electionlawblog.org/?author=3>
Doug Kendall writes
<http://theusconstitution.org/text-history/1682/supreme-court-review-puts-voting-rights-act-jeopardy-after-election-proves-its>
for the Constituional Accountability Center.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"In 59 Philadelphia voting divisions, Mitt Romney got zero votes"
<http://electionlawblog.org/?p=44099>
Posted on November 12, 2012 7:19 am
<http://electionlawblog.org/?p=44099> by Rick Hasen
<http://electionlawblog.org/?author=3>
/Philadelphia Inquirer: /
<http://www.philly.com/philly/news/politics/20121112_In_59_Philadelphia_voting_wards__Mitt_Romney_got_zero_votes.html>"It's
one thing for a Democratic presidential candidate to dominate a
Democratic city like Philadelphia, but check out this head-spinning
figure: In 59 voting divisions in the city, Mitt Romney received not one
vote. Zero. Zilch. These are the kind of numbers that send Republicans
into paroxysms of voter-fraud angst, but such results may not be so
startling after all."
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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"The Man Behind Citizens United Says 2012 Has Vindicated Him"
<http://electionlawblog.org/?p=44097>
Posted on November 12, 2012 7:16 am
<http://electionlawblog.org/?p=44097> by Rick Hasen
<http://electionlawblog.org/?author=3>
Mother Jones talks
<http://www.motherjones.com/mojo/2012/11/james-bopp-2012-election> to
Jim Bopp.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"The Secret to Fixing Long Lines? Math. [Yes, Math.]"
<http://electionlawblog.org/?p=44091>
Posted on November 12, 2012 7:07 am
<http://electionlawblog.org/?p=44091> by Rick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog
<http://blog.lib.umn.edu/cspg/electionacademy/2012/11/the_secret_to_fixing_long_line.php>.
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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Issacharoff, Bauer, and the Ohio Bush v. Gore Sequel
<http://electionlawblog.org/?p=44089>
Posted on November 12, 2012 7:06 am
<http://electionlawblog.org/?p=44089> by Rick Hasen
<http://electionlawblog.org/?author=3>
Interesting Jeffrey Toobin tidbit
<http://www.newyorker.com/talk/2012/11/19/121119ta_talk_toobin> in the
/New Yorker./ I'm writing something more extensive about this case and
related ones for the GW conference.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"It's Appalling that Gerrymandering Is Legal; And if the Supreme
Court guts the Voting Rights Act, it's going to get a lot worse."
<http://electionlawblog.org/?p=44086>
Posted on November 11, 2012 8:02 pm
<http://electionlawblog.org/?p=44086> by Rick Hasen
<http://electionlawblog.org/?author=3>
Emily Bazelon writes
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/11/the_supreme_court_may_gut_the_voting_rights_act_and_make_gerrymandering.html>
for /Slate./
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
"Brewing Senate fight over curbing filibusters could threaten
postelection co-operation" <http://electionlawblog.org/?p=44083>
Posted on November 11, 2012 7:49 pm
<http://electionlawblog.org/?p=44083> by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/politics/congress/brewing-senate-fight-over-curbing-filibusters-could-threaten-postelection-co-operation/2012/11/11/2056f428-2bfd-11e2-b631-2aad9d9c73ac_story.html>:
"A brewing and potentially bitter fight over Democratic efforts to curb
filibusters is threatening to inflame partisan tensions in the Senate,
even as President Barack Obama and Republicans explore whether they can
compromise on top tier issues such as debt reduction and taxes. A
potential showdown vote to limit Senate filibusters would not come until
January. Democrats are threatening to resort to a seldom-used procedure
that could let them change the rules without GOP support, all but
inviting Republican retaliation."
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27> | Comments Off
What Will DC Court Do in Texas Voter ID Case?
<http://electionlawblog.org/?p=44080>
Posted on November 11, 2012 7:26 pm
<http://electionlawblog.org/?p=44080> by Rick Hasen
<http://electionlawblog.org/?author=3>
Texas has nowfiled its reply brief
<https://docs.google.com/file/d/0BxeOfQQnUr_gMkZPQUJPTy1IMnM/edit?pli=1>in
the DC Court, reaching the question whether section 5 of the Voting
Rights Act is unconstitutional as exceeding congressional power. The
issue is now before the Supreme Court in the /Shelby County /case. The
district court could hold for the Supreme Court's decision in that case,
or decide the issue, allowing Texas to take this issue to the Supreme
Court while /Shelby County / is pending.
One interesting question debated in the briefs is whether the
three-judge DC court is bound by the /Shelby County/ precedent.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
NYT Sunday Review on Election Reform Issues
<http://electionlawblog.org/?p=44076>
Posted on November 11, 2012 7:14 pm
<http://electionlawblog.org/?p=44076> by Rick Hasen
<http://electionlawblog.org/?author=3>
Today's Sunday Review section of the NYT featured this cartoon strip
<http://www.nytimes.com/slideshow/2012/07/08/opinion/sunday/the-strip.html?ref=opinion#1>
from Brian McFadden as well as shortened portions of my
<http://www.nytimes.com/roomfordebate/2012/11/08/does-our-voting-system-need-to-be-fixed/nationalize-oversight-and-control-of-elections>
and Cleta Mitchell's
<http://www.nytimes.com/roomfordebate/2012/11/08/does-our-voting-system-need-to-be-fixed/give-partisanship-a-rest-and-address-real-issues>
contributions to the recent "A Better Way to Vote
<http://www.nytimes.com/roomfordebate/2012/11/08/does-our-voting-system-need-to-be-fixed/?ref=opinion>"
question for "Room for Debate."
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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"Updated: Canseco Concedes CD-23 to Gallego"
<http://electionlawblog.org/?p=44073>
Posted on November 11, 2012 7:02 pm
<http://electionlawblog.org/?p=44073> by Rick Hasen
<http://electionlawblog.org/?author=3>
KUT
<http://www.kutnews.org/post/updated-canseco-concedes-cd-23-gallego>:
"U.S. Rep. Francisco 'Quico' Canseco conceded the Congressional District
23 race on Friday. He congratulated state Rep. Pete Gallego, while
renewing allegations that voter fraud skewed the results."
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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What About Section 2? <http://electionlawblog.org/?p=44071>
Posted on November 11, 2012 7:00 pm
<http://electionlawblog.org/?p=44071> by Rick Hasen
<http://electionlawblog.org/?author=3>
Franita Tolson <http://www.law.fsu.edu/faculty/ftolson.html> of FSU has
written this guest post: [now updated]
What about Section 2?
On Friday, the Supreme Court granted cert in /Shelby County/, giving
most voting rights advocates and law professors heart palpitations
in the process (even though we totally expected it). As Rick noted
in an earlier post, the manner in which the Court framed the
question is interesting because it goes beyond focusing on
Congress's authority under the Fifteenth Amendment: "Whether
Congress' decision in 2006 to reauthorize Section 5 of the Voting
Rights Act under the pre-existing coverage formula of Section 4(b)
of the Voting Rights Act exceeded its authority under the Fourteenth
and Fifteenth Amendments and thus violated the Tenth Amendment and
Article IV of the United States Constitution." In an earlier piece,
/Reinventing Sovereignty: Federalism as a Constraint on the Voting
Rights Act/, recently published in the Vanderbilt Law Review, I
argued that Congress did have the authority to reauthorize section 5
of the Voting Rights Act, but I focused on its power pursuant to the
Elections Clause as well as the Fourteenth and Fifteenth
Amendments. I contended that these provisions make Congress
sovereign over elections while states retain only limited
sovereignty, in particular over those state electoral practices that
do not implicate a federal interest.
In the course of writing this article, I wondered what it is that is
so objectionable about section 5---is it the very fact of
preclearance? Or is it that covered states have to preclear all
changes, even those that only affect state and local elections? Or
is it the fact that coverage under the Act is determined based on an
outdated formula? For my current piece, I decided to try to tackle
each of these questions, but by taking a more holistic view of
Congress's authority over elections relative to the states. For
this post, I want to focus on the first two questions: whether
Congress, under its authority under section 5 of the Fourteenth
Amendment, can require states to preclear changes that only affect
state elections. It is certainly easier to make the case that
Congress can require preclearance in the context of federal
elections, although this argument is by no means a slam dunk, but
arguably, the requirement of preclearance in the context of state
elections is much tougher to justify.
Because I am focusing on Congress's authority over elections,
broadly defined, I noticed that there is an important gap in the
literature. I have written about Congress's enforcement authority
under section 5 of the Fourteenth Amendment, section 2 of the
Fifteenth Amendment, and the Elections Clause...but what about the
other section 2? No, not section 2 of the Voting Rights Act.
Rather, section 2 of the Fourteenth Amendment, which allows Congress
to intervene in state elections in a way that is more extreme and
intrusive than its requirement that states preclear every change to
their election laws. Section 2 gives Congress the ability to reduce
a state's representation in the House when it abridges the right to
vote at "any election for the choice of electors for President and
Vice President of the United States, Representatives in Congress,
the Executive and Judicial officers of a State, or the members of
the Legislature thereof... for any reason except for participation
in rebellion, or other crime." Using this provision, my latest
article, tentatively titled /A Structural Theory of Elections,
/shows how even the most objectionable part of the preclearance
regime is constitutional because section 2, with its extreme penalty
for states that abridge the right to vote on almost any grounds in
almost any election (state and federal), stands both as an example
of what would be a "congruent and proportional" remedy under the
Supreme Court's decision in /City of Boerne v. Flores/ to address
abridgment of the right to vote in both state and federal elections,
and it also influences the scope of congressional authority under
section 5 of the Fourteenth Amendment.
In my current piece, I argue that Congress's authority to reduce
representation for abridging the right to vote in both state and
federal elections on grounds not limited to race also includes the
lesser ability to regulate conduct that has the same effect under
section 5 of the Fourteenth Amendment; in other words, that such
regulations would be an "appropriate" way of enforcing the
Fourteenth Amendment. In particular, I point out that requiring
states to preclear any changes to their election laws is actually a
lesser penalty than reducing a state's delegation in Congress under
section 2, and moreover, that preclearance is consistent with the
structure of section 2 and section 5 of the Fourteenth Amendment.
Sorry for the longish post, but I just want to point out why I feel
like an intratextual reading of Congress's authority under the
Fourteenth Amendment is justified in these circumstances. The Court
commonly looks at the substantive protections of section 1 of the
Fourteenth Amendment in assessing the scope of Congress's authority
under section 5. It is not clear to me why the same approach cannot
be taken with section 2, which has languished in obscurity with the
exception of one case, /Richardson v. Ramirez/, which I rely on for
support of this point. In /Richardson/, the Supreme Court held that
section 1 of the Fourteenth Amendment was not violated when states
disenfranchised felons because of section 2's language that states
were not subject to the penalty of reduced representation when they
abridge the right to vote for participating "rebellion, or other
crime." In other words, the Court used section 2 of the Fourteenth
Amendment in order to interpret the substantive reach of section 1;
similarly, I argue that section 2 also influences the scope of
congressional authority under section 5.
I am still in the process of writing the paper, and fleshing out
these arguments. The arguments I make in this post only get me half
way there in defending the constitutionality of section 5 of the
Voting Rights Act. At the very least, however, these are arguments
that the Court should consider before they strike down a landmark
piece of legislation.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"For One Night At Fox, News Tops Agenda"
<http://electionlawblog.org/?p=44068>
Posted on November 11, 2012 6:54 pm
<http://electionlawblog.org/?p=44068> by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2012/11/12/business/media/fox-newss-election-coverage-followed-journalistic-instincts.html?hp>:
By now, most of you have no doubt seen or read about the
election-night stare-down between the anchors at Fox News and Karl
Rove
<http://topics.nytimes.com/top/reference/timestopics/people/r/karl_rove/index.html?inline=nyt-per>,
who, apart from running a "super PAC
<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>"
that aimed to defeat the president, also served as an on-air
commentator. While news outlets love access to insiders, Mr. Rove's
two roles seemed to be in profound conflict after Fox's decision
desk projected that the president had won Ohio, all but guaranteeing
him re-election. Mr. Rove said that the call was premature
<http://www.youtube.com/watch?v=eQLV7nqD3CA> and that the decision
desk was ignoring important data.
While Fox News allowed him to say his piece, it didn't cave --- and,
more important, it didn't question the legitimacy of the election
over all, a move that could have led to all manner of unhealthy
speculation.
The best journalistic instincts of Fox's news people kicked in and
the hard reality of Mr. Obama's triumph was allowed to land as it
occurred. In doing so, the network avoided marginalizing itself and
ended, at least for a night, its war on the president.
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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"Result Won't Limit Campaign Money Any More Than Ruling Did"
<http://electionlawblog.org/?p=44065>
Posted on November 11, 2012 6:51 pm
<http://electionlawblog.org/?p=44065> by Rick Hasen
<http://electionlawblog.org/?author=3>
Must-read Nick Confessore
<http://www.nytimes.com/2012/11/12/us/politics/a-vote-for-unlimited-campaign-financing.html?pagewanted=all&_r=0>
(NYT):
Though the outcome of the 2012 elections dealt a blow to the wealthy
donors who poured several hundred million dollars into groups
seeking to defeat Mr. Obama, the president's re-election does not
presage a repudiation of the deregulated campaign financing
unleashed by the Supreme Court's 2010 Citizens United
<http://www.law.cornell.edu/supct/html/08-205.ZS.html> decision.
Instead, his victory most likely reinforced the practice.
In virtually every respect, the growth of unlimited fund-raising and
the move of outside groups to the mainstream of politics have
magnified the already outsize role of money in political campaigns.
They have changed how incumbents and challengers alike campaign and
raise money, altered how voters experience politics, and expanded
the influence of a small group of large donors on the policies and
messages espoused by candidates.
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"Voter suppression and Florida's butterfly effect"
<http://electionlawblog.org/?p=44063>
Posted on November 11, 2012 6:49 pm
<http://electionlawblog.org/?p=44063> by Rick Hasen
<http://electionlawblog.org/?author=3>
Marc Caputo
<http://www.miamiherald.com/2012/11/11/v-fullstory/3092359/voter-suppression-and-floridas.html>
must-read (/Miami Herald/):
Edgar Oliva waited to vote at Shenandoah Elementary School and fretted.
The line was too long. The clock was ticking. He had to get to work
across town.
Twice before, during in-person early voting, he tried to vote but he
had to leave because lines were even longer. Tuesday was his third
try at voting in between one of his two jobs, cleaning carpets in
Doral and working at an airport hotel.
About 4 p.m. on Election Day, he gave up.
"I had the intention of voting but there were always a lot of
people," Oliva, a native of Guatemala, told a Miami Herald reporter
as he left the scene.
Oliva had so much company on Tuesday.
Voter after voter who spoke to Herald reporters on Election Day said
the longer early voting lines dissuaded them from casting early
ballots in person. And then the unexpected long lines on Election
Day just compounded the sense of frustration in some places. Many
dropped out of line.
Share
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"A Victory Over Suppression?" <http://electionlawblog.org/?p=44061>
Posted on November 11, 2012 6:46 pm
<http://electionlawblog.org/?p=44061> by Rick Hasen
<http://electionlawblog.org/?author=3>
Elizabeth Drew writes
<http://www.nybooks.com/blogs/nyrblog/2012/nov/11/victory-over-suppression/>for
the /NY Review of Books/.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
Comments Off
"Ohio polls need short answer to long lines"
<http://electionlawblog.org/?p=44059>
Posted on November 11, 2012 6:45 pm
<http://electionlawblog.org/?p=44059> by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Cincinnati Enquirer/reports
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201211110522/NEWS010601/311110024>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
--
Rick Hasen
Chancellor's 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
Now available: The Voting Wars: http://amzn.to/y22ZTv
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