[EL] ELB News and Commentary 9/19/12
Rick Hasen
rhasen at law.uci.edu
Tue Sep 18 23:17:08 PDT 2012
The Pa. Supreme Court's Curious Voter ID Punt
<http://electionlawblog.org/?p=40364>
Posted on September 18, 2012 11:14 pm
<http://electionlawblog.org/?p=40364> by Rick Hasen
<http://electionlawblog.org/?author=3>
Today the Supreme Court of Pennsylvania issued a 4-2 per curiam
(unsined) decision
<http://www.pacourts.us/OpPosting/Supreme/out/J-114-2012pco.pdf> and two
dissenting
<http://www.pacourts.us/OpPosting/Supreme/out/J-114-2012ds1.pdf>
statements
<http://www.pacourts.us/OpPosting/Supreme/out/J-114-2012ds2.pdf>,
sending the challenge to the state's new tough voter i.d. law back to
the trial court for more factfinding. The four Justices in the majority
(3 Republicans and a Democrat) want the trial court to take a second
look at whether Pennsylvania can actually get new state-issued i.d.'s
into the hands of voters before the November election. The majority
strongly suggested that the evidence demonstrates the state cannot do
so, and it has directed the trial court to put the voter id law on hold
for this election if voters will be disenfranchised by the new law.
(The two dissenters believe there is already enough evidence in the
record to conclude that Pa. officials cannot get the i.d.'s into the
hands of officials in time for this election and would therefore hold
the trial court abused its discretion in not preliminarily enjoining
application of the law.)
Here's the operative instruction to the trial court from the Supreme
Court majority:
Thus, we will return the matter to the Commonwealth Court to make a
present assessment of the actual availability of the alternate
identification cards on a developed record in light of the
experience since the time the cards became available. In this
regard, the court is to consider whether the procedures being used
for deployment of the cards comport with the requirement of liberal
access which the General Assembly attached to the issuance of
PennDOT identification cards. If they do not, or if the Commonwealth
Court is not still convinced in its predictive judgment that t*here
will be no voter disenfranchisement arising out of the
Commonwealth's implementation of a voter identification requirement*
for purposes of the upcoming election, that court is obliged to
enter a preliminary injunction.
(my emphasis)
The decision, and division, on the Court is quite odd.
First, it seems very likely that Pa/.will/ have an identification
requirement in place for the 2016 presidential election. As one of the
two dissenters (joined by the other dissenter) wrote, "I have no
argument with the requirement that all Pennsylvania voters, at some
reasonable point in the future, will have to present photo
identification before they may cast their ballots, it is clear to me
that the reason for the urgency of implementing Act 18 prior to the
November election is purely political." It looks like all the Justices
(perhaps based upon a concession of David Gersch at the oral argument)
will vote that a fairly and fully implemented voter id law does not
violate the state constitution.
Second, it seems that /all/ the Pa. Justices agree that there are
serious doubts about whether PennDOT can actually implement voter id in
time for November---it appears many people, including what the majority
calls the most "vulnerable" in the state (the elderly, disabled, and
financially disadvantaged), still lack the id and cannot get the i.d.'s
before Election Day. This is not a newly discovered problem. Back on
July 31 I had a post entitled: Pa Voter ID Law Just Not Ready for Prime
Time <http://electionlawblog.org/?p=37813>. And the new order looks to
impose a very tough standard for PA to meet: "no voter disenfranchisement"
So put 1 and 2 together, and it looks like the Court could have crafted
a narrow unanimous opinion that said (1) the Pa. law, when fully
implemented, is likely to be constitutional; but (2) the trial court
abused its discretion in not temporarily barring the use of the i.d.
requirement until the state could show it could get i.d.'s into the
hands of all voters that need them.
So what happened? Why give the trial court another chance to reconsider
the evidence and issue a ruling by October 2 subject to a second
expedited appeal to be heard just days before election day, something
that will present a recipe for confusion of voters and poll workers at
the polls no matter what eventually happens?
I can think of a few unsatisfying possibilities. (1) The Supreme Court
wanted to give the trial court a chance to fix its own mess. (2) The
Justices wanted to give the state one more chance to see if it could
prove it could get its act together before the election. (3) This was
some sort of compromise among the 4 Justices in the majority.
None of these convince me as to the reason for the remand, but I cannot
think of any other possibilities. Nor does it seem justified to stretch
out this uncertainty into the few weeks before election day. That does
no one any good.
(For a news roundup of the case, see Howard Bashman's post.)
<http://howappealing.law.com/091812.html#047162>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"Romney Campaign Borrowed $20 Million to Get Through Convention"
<http://electionlawblog.org/?p=40361>
Posted on September 18, 2012 10:28 pm
<http://electionlawblog.org/?p=40361> by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://thecaucus.blogs.nytimes.com/2012/09/18/romney-campaign-borrowed-20-million-to-get-through-convention/>:
"Mitt Romney borrowed $20 million for his presidential campaign in
August, a campaign official said on Tuesday, money that helped carry Mr.
Romney through the Republican convention until he could tap into tens of
millions of dollars in general election money his campaign raised. The
loan, which was reported on Tuesday by The National Review
<http://www.nationalreview.com/corner/327793/romney-campaign-borrowed-20-million-robert-costa#>,
underscored the significant cash flow problem that afflicted Mr. Romney
even as he was outraising President Obama in June and July."
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Voters Annoyed by Hard-to-Read Ballots"
<http://electionlawblog.org/?p=40358>
Posted on September 18, 2012 10:26 pm
<http://electionlawblog.org/?p=40358> by Rick Hasen
<http://electionlawblog.org/?author=3>
News from NY
<http://www.nytimes.com/2012/09/18/nyregion/new-york-city-voters-annoyed-by-hard-to-read-ballots.html?ref=politics>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
voting technology <http://electionlawblog.org/?cat=40> | Comments Off
"Congress Nearing End of Session Where Partisan Input Impeded
Output" <http://electionlawblog.org/?p=40355>
Posted on September 18, 2012 10:24 pm
<http://electionlawblog.org/?p=40355> by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2012/09/19/us/politics/congress-nears-end-of-least-productive-session.html?ref=politics>.
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68> | Comments Off
"Jim Crow II: Voter fraud and party politics"
<http://electionlawblog.org/?p=40352>
Posted on September 18, 2012 10:20 pm
<http://electionlawblog.org/?p=40352> by Rick Hasen
<http://electionlawblog.org/?author=3>
Linda Stamato has written this oped
<http://blog.nj.com/njv_linda_stamato/2012/09/jim_crow_ii_voter_fraud_and_pa.html>
for NJ.com.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Outside groups make up almost half of all presidential campaign
ads" <http://electionlawblog.org/?p=40349>
Posted on September 18, 2012 10:05 pm
<http://electionlawblog.org/?p=40349> by Rick Hasen
<http://electionlawblog.org/?author=3>
NBC News reports
<http://firstread.nbcnews.com/_news/2012/09/17/13917146-outside-groups-make-up-almost-half-of-all-presidential-campaign-ads?lite>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"The Lie Factory: How Politics Became a Business"
<http://electionlawblog.org/?p=40347>
Posted on September 18, 2012 10:04 pm
<http://electionlawblog.org/?p=40347> by Rick Hasen
<http://electionlawblog.org/?author=3>
This article
<http://www.newyorker.com/reporting/2012/09/24/120924fa_fact_lepore> on
political consultants appears in /The New Yorker./
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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"Looking, Very Closely, for Voter Fraud; Conservative Groups Focus
on Registration in Swing States" <http://electionlawblog.org/?p=40344>
Posted on September 18, 2012 9:59 pm
<http://electionlawblog.org/?p=40344> by Rick Hasen
<http://electionlawblog.org/?author=3>
Front-page, must-read extensive NYT article
<http://www.nytimes.com/2012/09/17/us/politics/groups-like-true-the-vote-are-looking-very-closely-for-voter-fraud.html?smid=pl-share>
on "True the Vote." It begins:
It might as well be Harry Potter
<http://topics.nytimes.com/top/reference/timestopics/complete_coverage/harry_potter/index.html?inline=nyt-classifier>'s
invisible Knight Bus, because no one can prove it exists.
The bus has been repeatedly cited by True the Vote, a national group
focused on voter fraud. Catherine Engelbrecht, the group's leader,
told a gathering in July about buses carrying dozens of voters
showing up at polling places during the recent Wisconsin recall
election.
"Magically, all of them needed to register and vote at the same
time," Ms. Engelbrecht said. "Do you think maybe they registered
falsely under false pretenses? Probably so."
Weeks later, another True the Vote representative told a meeting of
conservative women about a bus seen at a San Diego polling place in
2010 offloading people "who did not appear to be from this country."
Officials in both San Diego and Wisconsin said they had no evidence
that the buses were real. "It's so stealthy that no one is ever able
to get a picture and no one is able to get a license plate," said
Reid Magney, a spokesman for the Wisconsin agency that oversees
elections. In some versions the bus is from an Indian reservation;
in others it is full of voters from Chicago or Detroit. "Pick your
minority group," he said.
The buses are part of the election fraud gospel according to True
the Vote, which is mobilizing a small army of volunteers to combat
what it sees as a force out to subvert elections. Ms. Engelbrecht's
July speech in Montana was titled "Voter Fraud: The Plot to
Undermine American Democracy."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
fraudulent fraud squad <http://electionlawblog.org/?cat=8>, The Voting
Wars <http://electionlawblog.org/?cat=60> | Comments Off
"House Dems push new campaign finance reform"
<http://electionlawblog.org/?p=40342>
Posted on September 18, 2012 9:56 pm
<http://electionlawblog.org/?p=40342> by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/blogs/election-2012/wp/2012/09/14/house-dems-push-new-campaign-finance-reform/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Florida Loses Bid to Toss Suit Challenging Voter Purge"
<http://electionlawblog.org/?p=40339>
Posted on September 18, 2012 9:51 pm
<http://electionlawblog.org/?p=40339> by Rick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg reports
<http://www.bloomberg.com/news/2012-09-18/florida-loses-bid-to-toss-suit-challenging-voter-purge.html>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Court Accepts Legal Center Brief Defending Contribution Limits
Despite Opposition from Illinois Liberty PAC"
<http://electionlawblog.org/?p=40335>
Posted on September 18, 2012 9:45 pm
<http://electionlawblog.org/?p=40335> by Rick Hasen
<http://electionlawblog.org/?author=3>
See this press release
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1890:september-18-2012-court-accepts-legal-center-brief-defending-contribution-limits-despite-opposition-from-illinois-liberty-pac&catid=63:legal-center-press-releases&Itemid=61>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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DC Circuit Reverses in Van Hollen Case, Reinstates Weak Disclosure
Rules for the Remainder of the Election
<http://electionlawblog.org/?p=40333>
Posted on September 18, 2012 9:44 pm
<http://electionlawblog.org/?p=40333> by Rick Hasen
<http://electionlawblog.org/?author=3>
You can find the unanimous opinion of the DC Circuit here
<http://www.cadc.uscourts.gov/internet/opinions.nsf/582177A123FA411885257A7D004DA421/$file/12-5117-1394950.pdf>.
See this story from the LA Times
<http://www.latimes.com/news/nationworld/nation/la-na-campaign-disclosure-20120919,0,1555685.story>:
"The panel chided the FEC for not clearly dealing with the changes in
the law or defending its stance in court. But with the FEC locked in
partisan gridlock, it remains unclear whether the six commissioners will
be able to come to agreement on how to proceed."
More from National Journal
<http://influencealley.nationaljournal.com/2012/09/van-hollen-disclosure-ruling-b.php>,
Politico <http://www.politico.com/news/stories/0912/81337.html?hp=l5>,
Roll Call
<http://www.rollcall.com/news/appeals_court_rejects_bid_to_demand_full_campaign_finance_disclosure-217645-1.html?pos=opolh>,
The Hill
<http://thehill.com/blogs/blog-briefing-room/news/250121-appeals-court-overturns-disclosure-ruling>,
AP
<http://www.washingtonpost.com/politics/appeals-court-reverses-ruling-on-disclosure-of-campaign-donors-for-some-ads/2012/09/18/45cafd38-01a7-11e2-bbf0-e33b4ee2f0e8_story.html>,
Huffington Post
<http://www.huffingtonpost.com/2012/09/18/dark-money-groups-court-ruling_n_1893745.html>,
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=28039284&vname=mpebulallissues&jd=a0d4r6p7g8&split=0>.
See the statements by Fred Wertheimer
<http://www.democracy21.org/index.asp?Type=B_PR&SEC=%7B91FCB139-CC82-4DDD-AE4E-3A81E6427C7F%7D&DE=%7BF1DE73EE-13DE-4EA2-B911-BAA00714A208%7D>,
Sunlight
<http://organizing.sunlightfoundation.com/page/m/64f5889e/28885e2d/33c06268/680263b5/209583604/VEsE/>,
CLC
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1886:september-18-2012-appeals-court-panel-overturns-van-hollen-v-fec-disclosure-laws-on-hold-for-2012-cycle-statement-of-j-gerald-hebert-executive-director&catid=63:legal-center-press-releases&Itemid=61>,
Steve Hoersting
<http://www.nationalreview.com/corner/324687/sigh-relief-501c4s-and-their-contributors-stephen-m-hoersting>,Center
for Competitive Politics
<http://www.campaignfreedom.org/2012/09/18/van-hollen-reversal-a-victory-for-free-speech/>.
Given the IRS's failure to show new desire to enforce limits on
501(c)(4) rules, and the apparent workaround these groups have achieved
through the use of "express advocacy," it is not clear how much of a
difference this ruling will make at this point.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22> | Comments Off
9th Circuit, on 2-1 Vote, Strikes Down Montana Ban on Political
Party Endorsement of Judicial Candidates
<http://electionlawblog.org/?p=40330>
Posted on September 18, 2012 9:23 pm
<http://electionlawblog.org/?p=40330> by Rick Hasen
<http://electionlawblog.org/?author=3>
Howard links <http://howappealing.law.com/091812.html#047168> to the
majority and dissenting opinions as well as commentary. More from
Thomson Reuters
<http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=57118>.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, judicial
elections <http://electionlawblog.org/?cat=19> | Comments Off
Obama Campaign Files Sixth Circuit Brief in Ohio Early Voting Case
<http://electionlawblog.org/?p=40326>
Posted on September 18, 2012 9:14 pm
<http://electionlawblog.org/?p=40326> by Rick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/BriefforPlaintiffs-Appellees.pdf>.
More from Bloomberg.
<http://www.bloomberg.com/news/2012-09-18/obama-campaign-tells-court-ohio-early-vote-laws-are-burdensome.html>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"The Politics of Voter Suppression"
<http://electionlawblog.org/?p=40324>
Posted on September 18, 2012 9:12 pm
<http://electionlawblog.org/?p=40324> by Rick Hasen
<http://electionlawblog.org/?author=3>
This event
<http://moritzlaw.osu.edu/emails/el_tovawang/el_tovawang.html> featuring
Tova Wang and Kathleen Clyde (moderated by Dan Tokaji) will take place
September 24 at Moritz.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"What You See Is What You Get On 501(c)(4) Politicking, IRS
Officials Say" <http://electionlawblog.org/?p=40321>
Posted on September 18, 2012 9:06 pm
<http://electionlawblog.org/?p=40321> by Rick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=28019646&vname=mpebulallissues&jd=a0d4q6q9w7&split=0>:
"Tax-exempt practitioners looking for new answers to big questions about
how their clients should handle political involvement in the run-up to
the November election did not get them at the American Bar Association
Section of Taxation and Section of Real Property, Trust & Estate Law,
Division of Trust and Estate Law Joint Fall CLE meeting in Boston."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22> | Comments Off
"Readers Debate the Merits of Post-election Audits"
<http://electionlawblog.org/?p=40318>
Posted on September 18, 2012 8:53 pm
<http://electionlawblog.org/?p=40318> by Rick Hasen
<http://electionlawblog.org/?author=3>
This item
<http://ncsl.typepad.com/the_thicket/2012/09/readers-debate-the-merits-of-post-election-audits.html>
appears at NCSL's "The Thicket."
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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"How Much Voter Fraud Is There? A state-by-state map reveals the
answer: almost none." <http://electionlawblog.org/?p=40316>
Posted on September 18, 2012 8:52 pm
<http://electionlawblog.org/?p=40316> by Rick Hasen
<http://electionlawblog.org/?author=3>
Interactive /Slate/ map <http://t.co/mLzPsGMC>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
fraudulent fraud squad <http://electionlawblog.org/?cat=8>, The Voting
Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"Jolivette out of 51st District race"
<http://electionlawblog.org/?p=40313>
Posted on September 18, 2012 8:36 pm
<http://electionlawblog.org/?p=40313> by Rick Hasen
<http://electionlawblog.org/?author=3>
News from Ohio
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201209150958/NEWS0106/309150044>:
"It looks like former Butler County Commissioner Greg Jolivette won't be
on the November ballot for Ohio's 51st House District. The U.S. Sixth
Circuit Court of Appeals in Cincinnati on Friday affirmed
<http://www.ca6.uscourts.gov/opinions.pdf/12a0336p-06.pdf> a recent
district court decision that barred Jolivette from running as an
independent candidate."
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Posted in ballot access <http://electionlawblog.org/?cat=46>, campaigns
<http://electionlawblog.org/?cat=59>, third parties
<http://electionlawblog.org/?cat=47> | Comments Off
"Xavier students: Let candidates appear"
<http://electionlawblog.org/?p=40310>
Posted on September 18, 2012 8:18 pm
<http://electionlawblog.org/?p=40310> by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Cincinnati Enquirer /reports.
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201209161821/NEWS010601/309160025>
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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"The Epidemiology of Voter Fraud" <http://electionlawblog.org/?p=40307>
Posted on September 18, 2012 8:06 pm
<http://electionlawblog.org/?p=40307> by Rick Hasen
<http://electionlawblog.org/?author=3>
Doug Chapin
<http://blog.lib.umn.edu/cspg/electionacademy/2012/09/the_epidemiology_of_voter_frau.php?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHElections+%28The+Election+Aacdemy%29>:
Judging only by actions, it would appear that these officials
consider voter fraud to be a serious threat along the lines of
smallpox -- a highly contagious, lethal disease -- and thus are
willing to tolerate a high number of false positives in order to
isolate and "cure" the true positives and protect the rest of the
population from an epidemic. Opponents of these efforts can (and
already have) suggested that such fears are overblown; in essence,
that voter fraud is an isolated disease with a low degree of contagion.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
fraudulent fraud squad <http://electionlawblog.org/?cat=8>, The Voting
Wars <http://electionlawblog.org/?cat=60> | Comments Off
"California: Threat to recall San Bernardino councilman not a crime"
<http://electionlawblog.org/?p=40305>
Posted on September 18, 2012 8:04 pm
<http://electionlawblog.org/?p=40305> by Rick Hasen
<http://electionlawblog.org/?author=3>
This item
<http://recallelections.blogspot.com/2012/09/california-threat-to-recall-san.html>
appears at the Recall Elections Blog.
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Posted in recall elections <http://electionlawblog.org/?cat=11> |
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--
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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