[EL] ELB News and Commentary 9/25/12
Rick Hasen
rhasen at law.uci.edu
Mon Sep 24 21:46:56 PDT 2012
Intermittent Blogging Through Next Week
<http://electionlawblog.org/?p=40680>
Posted on September 24, 2012 9:45 pm
<http://electionlawblog.org/?p=40680> by Rick Hasen
<http://electionlawblog.org/?author=3>
I will be out of pocket Wednesday and travelling Thursday to attend the
Montana election law conference <http://electionlawblog.org/?p=39801>
(presenting my new paper on regulating campaign lies
<http://electionlawblog.org/?p=40666>) and present The Voting Wars
<http://amzn.to/y22ZTv> at a U Montana Law event.
<http://www.acslaw.org/events/2012-09-27/professor-richard-hasen-talks-about-election-law-and-his-new-book-the-voting-wars>
On Monday, October 1, I'll be speaking about The Voting Wars at Stanford
Law at 12:30 pm
<https://www.law.stanford.edu/event/2012/10/01/acs-presents-professor-rick-hasen>
and at UC Berkeley Law at 5 pm
<http://www.acslaw.org/events/2012-10-01/rick-hasen-the-voting-wars-from-florida-2000-to-the-next-election-meltdown>.
Then I'll be speaking about the book in Sacramento on October 2 at noon
<http://www.acslaw.org/SacramentoTheVotingWarsBookEvent>.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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"New Rules Upend House Re-Election Races in California"
<http://electionlawblog.org/?p=40677>
Posted on September 24, 2012 9:38 pm
<http://electionlawblog.org/?p=40677> by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2012/09/25/us/politics/new-rules-upend-house-re-election-races-in-california.html?ref=politics>
on the politics of the top two primary.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, political
parties <http://electionlawblog.org/?cat=25>, primaries
<http://electionlawblog.org/?cat=32> | Comments Off
"Romney Camp Talks of Dialing Down Fund-Raising"
<http://electionlawblog.org/?p=40674>
Posted on September 24, 2012 9:36 pm
<http://electionlawblog.org/?p=40674> by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT's "The Caucus" reports
<http://thecaucus.blogs.nytimes.com/2012/09/24/romney-camp-talks-of-dialing-down-fund-raising/?ref=politics>
that fundraising is taking time away from campaigning.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Romney's Nightmare Scenario" <http://electionlawblog.org/?p=40671>
Posted on September 24, 2012 9:34 pm
<http://electionlawblog.org/?p=40671> by Rick Hasen
<http://electionlawblog.org/?author=3>
Ezra Klein
<http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/09/24/romneys-nightmare-scenario/>
on whether Super PACs and the RNC will partially abandon Romney.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"A Constitutional Right to Lie in Campaigns and Elections?"
<http://electionlawblog.org/?p=40666>
Posted on September 24, 2012 7:17 pm
<http://electionlawblog.org/?p=40666> by Rick Hasen
<http://electionlawblog.org/?author=3>
I have postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on SSRN
(forthcoming in /Montana Law Review/ election law symposium). Here is
the abstract:
For many years, courts have divided on the constitutionality of laws
regulating false campaign speech, with some courts upholding some
false campaign speech laws and other courts striking them down. This
past June, however, the Supreme Court issued an opinion in U.S. v.
Alvarez, a case which no doubt will cause courts to reconsider the
constitutionality of such laws. Although Alvarez did not involve
campaign speech, the Supreme Court discussed the general question
whether the Constitution protects knowing lies in the context of a
federal law barring false statements about military honors. The
Court issued no majority opinion, but all of the opinions had
something to say about laws regulating false speech generally, and
Justice Breyer's opinion (for himself and Justice Kagan) cast
serious doubt on the constitutionality of many laws regulating false
campaign (and possibly false election) speech. The upshot of Alvarez
is that laws regulating false campaign speech are in even more
constitutional trouble than they were before, and that any attempts
to regulate such speech will have to be narrow, targeted, and
careful in its choice of remedies.
Part I of this article briefly describes the pre-Alvarez split in
the lower courts on the regulation of false campaign and election
speech, and the arguments which had been advanced for and against
the constitutionality of regulating false campaign speech. Part II
describes the Supreme Court's fractured opinion in U.S. v. Alvarez.
Part III discusses how Alvarez may affect the constitutional
calculus in the false campaign speech arena and argues that, in
light of Alvarez courts should hold unconstitutional most broad
state laws barring false speech in campaigns. But courts should
reject challenges to narrower laws which, under an actual
malice/clear and convincing evidence standard, (1) bar false (though
not misleading) election speech about the mechanics of voting, such
as false statements about the date and time of voting; (2) give a
government election authority the power to reject false campaign
speech submitted for official ballot materials; and (3) allow a jury
to punish defamatory speech about candidates made with actual
malice. Each of these proposed laws is consistent with the
plurality's and Justice Breyer's opinions in Alvarez, although the
defamation issue is somewhat in question.
The hardest case is whether the government has authority to enjoin
or punish non-defamatory false campaign speech made with knowledge
of falsity (actual malice) which has the potential to trick or
defraud voters into changing their votes. Consider, for example, the
false statement of a judicial candidate on a campaign poster that
she is an incumbent judge, or a statement that the president has
endorsed her for office. While the case is close, I argue that
following Alvarez, courts are likely to conclude that the risks of
allowing the government to punish or enjoin false campaign speech
process outweigh the benefits of providing voters with truthful
information. Further, the narrower solution to the problem of this
type of false campaign speech is counterspeech from opposing
candidates and the media, as well as the use of a government "truth
commission" with the power to declare, before the election but
subject to judicial review, that campaign speech is false.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, Supreme Court
<http://electionlawblog.org/?cat=29> | Comments Off
Does Americans for Prosperity No Longer Think Obama's Policy's
"Disastrous?" <http://electionlawblog.org/?p=40663>
Posted on September 24, 2012 7:15 pm
<http://electionlawblog.org/?p=40663> by Rick Hasen
<http://electionlawblog.org/?author=3>
Back on August 7, Americans for Prosperity told
<http://electionlawblog.org/?p=38228> the /New York Times/ that it was
shifting from running issue ads to express advocacy because of a need to
emphasize the message:
This campaign is the first time the group has expressly advocated
for Mr. Obama's defeat in an ad. "We don't take this lightly," said
Tim Phillips, president of Americans for Prosperity. "We've always
stayed away from express advocacy. But given the president's
disastrous record, we felt this was necessary."
It was clear to me and to others (quoted in the article) that this was
bunk---that this was really being done to prevent disclosure of the
names of donors, thanks to a quirk in the law created by the /Van
Hollen/ ruling. But it was a risky strategy, because running express ads
makes it more likely the group will run into trouble with the FEC and IRS.
And now that /Van Hollen /has been overturned? Bloomberg BNA reports
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=28102695&vname=mpebulallissues&jd=a0d4u1n2j8&split=0>:
In the wake of a key court ruling, the Republican-leaning
organization Americans for Prosperity is reverting to sponsoring
"issue ads" in the presidential campaign, a Sept. 24 announcement
indicates.
AFP is linked to billionaire brothers Charles and David Koch, who
head Koch Industries Inc. A so-called Section 501(c)(4) tax-exempt
group, AFP has spent millions on political ads, including recent ads
that explicitly opposed President Obama's re-election.
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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
DOJ Files Brief Opposing Supreme Court Review of Shelby County Case
Challenging Constitutionality of Section 5 of the Voting Rights Act
<http://electionlawblog.org/?p=40660>
Posted on September 24, 2012 7:10 pm
<http://electionlawblog.org/?p=40660> by Rick Hasen
<http://electionlawblog.org/?author=3>
You can read the brief in opposition here
<http://electionlawblog.org/wp-content/uploads/12-96ShelbyCountyvHolder.pdf>.
As expected <http://electionlawblog.org/?p=39233>, DOJ points (on page
21) to the recent finding of intentional discrimination by Texas in the
redistricting case.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
Supreme Court <http://electionlawblog.org/?cat=29>, The Voting Wars
<http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
Federal Judge Rejects Challenge to Florida Cutback in Early Voting
<http://electionlawblog.org/?p=40656>
Posted on September 24, 2012 7:06 pm
<http://electionlawblog.org/?p=40656> by Rick Hasen
<http://electionlawblog.org/?author=3>
This
<http://jacksonville.com/news/florida/2012-09-24/story/judge-rules-early-voting-florida-can-be-reduced>
is not a surprise: "A federal judge in Jacksonville refused to halt
Florida's plan to cut the number of early voting days from 14 days to
eight days. Judge Timothy Corrigan ruled Monday there was not enough
proof to show that the change approved last year by the Florida
Legislature would harm black Americans' right to vote."
UPDATE: The 35-page written opinion denying a preliminary injunction is
here
<http://electionsmith.files.wordpress.com/2012/09/order-9242012.pdf>.
Key finding:
"Because Florida's Early Voting Statute allows early voting during non-working hours,
as well as voting during the weekend, including one Sunday, voting times which are
important to African American voters, as well
as to GOTV efforts, the Court cannot find that
the 2011 Early Voting Statute denies equal access to the polls."
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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>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Kansas' state voter ID law tested in August primary"
<http://electionlawblog.org/?p=40653>
Posted on September 24, 2012 5:22 pm
<http://electionlawblog.org/?p=40653> by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Joplin Globe/ reports
<http://www.joplinglobe.com/local/x1241959446/Kansas-state-voter-ID-law-tested-in-August-primary>.
"There were 251 votes statewide in Kansas in the Aug. 6 primary that
weren't counted because the voters didn't present the proper photo
identification under the new voter ID law. They probably weren't trying
to commit voter impersonation fraud, sources, including Kansas Secretary
of State Kris Kobach, say. Nor is it likely they were disenfranchised,
the same sources say. Whether others who didn't bother to go to the
polls because of the hurdles created by the law were disenfranchised by
it remains a source of heated disagreement."
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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
"Gov. Jerry Brown signs Election Day voter registration bill into
law" <http://electionlawblog.org/?p=40650>
Posted on September 24, 2012 5:19 pm
<http://electionlawblog.org/?p=40650> by Rick Hasen
<http://electionlawblog.org/?author=3>
The /San Jose Mercury News/ reports
<http://www.mercurynews.com/breaking-news/ci_21621979/gov-jerry-brown-signs-election-day-voter-registration>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Activists Concerned About Latino Voting Rights"
<http://electionlawblog.org/?p=40647>
Posted on September 24, 2012 5:12 pm
<http://electionlawblog.org/?p=40647> by Rick Hasen
<http://electionlawblog.org/?author=3>
Roll Call:
<http://www.rollcall.com/news/activists_concerned_about_latino_voting_rights-217802-1.html>
"Efforts to combat voter fraud in 23 states could jeopardize the voting
rights of more than 10 million Latino voters, a report released today by
the Advancement Project found."
You can find the report at this link
<http://www.advancementproject.org/resources/entry/segregating-american-citizenship-latino-voter-disenfranchisement-in-2012>.
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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
"Pennsylvania Voter ID Law In Jeopardy As Next Court Case Opens"
<http://electionlawblog.org/?p=40644>
Posted on September 24, 2012 4:59 pm
<http://electionlawblog.org/?p=40644> by Rick Hasen
<http://electionlawblog.org/?author=3>
HuffPo reports
<http://www.huffingtonpost.com/2012/09/24/pennsylvania-voter-id-court-case_n_1910970.html?utm_hp_ref=tw>.
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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
"Early Voting Grows In Popularity Across Country"
<http://electionlawblog.org/?p=40641>
Posted on September 24, 2012 4:53 pm
<http://electionlawblog.org/?p=40641> by Rick Hasen
<http://electionlawblog.org/?author=3>
NPR talks
<http://www.npr.org/2012/09/24/161709159/early-voting-grows-in-popularity-across-country>
to Michael McDonald.
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Posted in voting <http://electionlawblog.org/?cat=31> | Comments Off
"South Carolina: Laziness Not An Excuse Under Voter ID Law"
<http://electionlawblog.org/?p=40638>
Posted on September 24, 2012 4:50 pm
<http://electionlawblog.org/?p=40638> by Rick Hasen
<http://electionlawblog.org/?author=3>
Interesting TPM report
<http://tpmmuckraker.talkingpointsmemo.com/2012/09/south_carolina_voter_id_laziness.php>
on the closing arguments in the SC voter id trial.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
election administration <http://electionlawblog.org/?cat=18>, 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
"Conservative 'Super PACs' Synchronize Their Message"
<http://electionlawblog.org/?p=40636>
Posted on September 24, 2012 4:49 pm
<http://electionlawblog.org/?p=40636> by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2012/09/25/us/politics/conservative-super-pacs-sharpen-their-synchronized-message.html?_r=1&partner=rss&emc=rss>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"The Surprisingly Easy Case for the Constitutionality of the Voting
Rights Act" <http://electionlawblog.org/?p=40633>
Posted on September 24, 2012 4:45 pm
<http://electionlawblog.org/?p=40633> by Rick Hasen
<http://electionlawblog.org/?author=3>
David Gans
<http://theusconstitution.org/text-history/1623/surprisingly-easy-case-constitutionality-voting-rights-act>:
The case for the constitutionality of the Voting Rights Act should
be open and shut. The Fifteenth Amendment specifically empowers
Congress to enact "appropriate legislation" to "enforce" the
Amendment's guarantee that "[t]he right of citizens of the United
States to vote shall not be denied or abridged . . . on account of
race . . . ." However, in 2009, in /NAMUDNO v. Holder/, in an
opinion written by Chief Justice John Roberts, the Court concluded
that the Act raised serious constitutional questions, demanding that
the Act's burdens be justified by "current needs" while avoiding
deciding the constitutionality of the Act's preclearance
requirement. /Shelby County/ gives the Court the opportunity to
decide , once and for all, whether the preclearance requirement
falls within the scope of Congress' power to protect the right to
vote free from racial discrimination.
With so much at stake, it is unfortunate that, rather than focusing
on what the Constitution says about the express powers of Congress
to protect the right to vote from the scourge of racial
discrimination, a number of the nation's leading left-leaning
election law experts (see here
<http://www.scotusblog.com/2012/09/online-vra-symposium-the-supreme-court-response-to-congressional-avoidance/>
and here
<http://www.scotusblog.com/2012/09/online-vra-symposium-the-voting-rights-act-congressional-silence-and-the-political-polarization/>)
are focusing on Congress' failure to update the Act's preclearance
coverage formula to account for changing political conditions. In
the words of NYU Professor Rick Pildes
<http://www.scotusblog.com/2012/09/online-vra-symposium-the-supreme-court-response-to-congressional-avoidance/>
on Scotusblog, "Congress has put the Supreme Court in an
excruciatingly difficult position" by not updating the coverage for
preclearance either when it reauthorized the Act in 2006, or after
Chief Justice Roberts' 2009 opinion in /NAMUDNO/. The problem with
this handwringing from the left is two-fold. First, it demonstrates
a remarkable naiveté about the political process: as observers of
the 2006 reauthorization have recognized, opening up the
preclearance coverage formula was a can of worms that almost
certainly would have unraveled the entire effort to renew the Voting
Rights Act. Second, this finger pointing at Congress lets the
Court's conservatives off the hook, when, notwithstanding any
imperfections, the Voting Rights Act is plainly within Congress's
constitutional authority to enforce the Fifteenth Amendment's
prohibition on racial discrimination in voting.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Brown OKs election-day voter registration for future contests"
<http://electionlawblog.org/?p=40630>
Posted on September 24, 2012 3:00 pm
<http://electionlawblog.org/?p=40630> by Rick Hasen
<http://electionlawblog.org/?author=3>
The /LA Times/ reports
<http://latimesblogs.latimes.com/california-politics/2012/09/gov-jerry-brown-approves-election-day-voter-registration-bill-.html>.
See also this release
<http://www.couragecampaign.org/page/content/ElectionDayRegistration>
from the Courage Campaign.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
voter registration <http://electionlawblog.org/?cat=37> | Comments Off
Has Donald Trump Given "Millions" Secretly to Super PACs?
<http://electionlawblog.org/?p=40627>
Posted on September 24, 2012 1:42 pm
<http://electionlawblog.org/?p=40627> by Rick Hasen
<http://electionlawblog.org/?author=3>
See this item.
<http://www.politico.com/blogs/burns-haberman/2012/09/trumps-very-secret-donations-136531.html>
If one is to fib, it might be better to claim contributions to 501c4s,
which are not disclosing their contributors on election-related activity.
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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
"Court rules out-of-state students have right to vote in New
Hampshire" <http://electionlawblog.org/?p=40623>
Posted on September 24, 2012 12:48 pm
<http://electionlawblog.org/?p=40623> by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Union Leader/ reports
<http://www.unionleader.com/article/20120924/NEWS06/120929792>.
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Posted in residency <http://electionlawblog.org/?cat=38>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Obama's Long-Term Small-Donor Strategy Begins to Show Dividends
against Romney in August" <http://electionlawblog.org/?p=40620>
Posted on September 24, 2012 12:08 pm
<http://electionlawblog.org/?p=40620> by Rick Hasen
<http://electionlawblog.org/?author=3>
The latest must-read analysis
<http://cfinst.org/Press/PReleases/12-09-24/Obama%E2%80%99s_Long-Term_Small-Donor_Strategy_Begins_to_Show_Dividends_against_Romney_in_August.aspx>
from the Campaign Finance Institute.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Easing the Burden of Voter Registration"
<http://electionlawblog.org/?p=40617>
Posted on September 24, 2012 12:06 pm
<http://electionlawblog.org/?p=40617> by Rick Hasen
<http://electionlawblog.org/?author=3>
Victoria Bassetti has written this WaPo oped.
<http://www.washingtonpost.com/opinions/easing-the-burden-of-voter-registration/2012/09/21/8cdacfae-040a-11e2-91e7-2962c74e7738_story.html>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
voter registration <http://electionlawblog.org/?cat=37> | Comments Off
Brennan Center Files Amicus Brief in SEIU v. Husted provisional
ballots case <http://electionlawblog.org/?p=40614>
Posted on September 24, 2012 12:01 pm
<http://electionlawblog.org/?p=40614> by Rick Hasen
<http://electionlawblog.org/?author=3>
See here.
<http://www.brennancenter.org/content/resource/count_ohios_votes_court_must_reject_ohio_provisional_ballot_rules>
[corrected link]
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Republicans look for voter fraud, find little"
<http://electionlawblog.org/?p=40611>
Posted on September 24, 2012 11:36 am
<http://electionlawblog.org/?p=40611> by Rick Hasen
<http://electionlawblog.org/?author=3>
Important AP report
<http://news.yahoo.com/republicans-look-voter-fraud-little-172327169--election.html>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
" New Pennsylvania Data Shows True Burden of Selective Voter ID Laws
on Low-Income, Disabled, Minority, and Elderly Americans"
<http://electionlawblog.org/?p=40608>
Posted on September 24, 2012 10:20 am
<http://electionlawblog.org/?p=40608> by Rick Hasen
<http://electionlawblog.org/?author=3>
Color of Change has issued this press release
<http://www.colorofchange.org/press/releases/2012/9/24/new-pennsylvania-data-shows-true-burden-selective-/>.
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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
Speaking About "The Voting Wars" at UC Berkeley Oct. 1 at 5 pm
<http://electionlawblog.org/?p=40605>
Posted on September 24, 2012 10:15 am
<http://electionlawblog.org/?p=40605> by Rick Hasen
<http://electionlawblog.org/?author=3>
Details here
<http://www.acslaw.org/events/2012-10-01/rick-hasen-the-voting-wars-from-florida-2000-to-the-next-election-meltdown>.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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"Constitutional Implications of 'True the Vote'"
<http://electionlawblog.org/?p=40600>
Posted on September 24, 2012 8:54 am
<http://electionlawblog.org/?p=40600> by Rick Hasen
<http://electionlawblog.org/?author=3>
Frank Pasquale blogs
<http://www.concurringopinions.com/archives/2012/09/constitutional-implications-of-true-the-vote.html>
at Concurring Opinions.
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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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