[EL] ELB News and Commentary 8/5/13
Daniel Tokaji
dtokaji at gmail.com
Tue Aug 6 08:59:00 PDT 2013
*Tokaji’s Election Law in a Nutshell, Shipping this
Month*<http://electionlawblog.org/?p=54034>
Posted on August 6, 2013 8:47 am <http://electionlawblog.org/?p=54034> by Dan
Tokaji <http://electionlawblog.org/?author=5>
I’m happy to announce the imminent publication of *Election Law in a
Nutshell*, coming later this
month<http://www.westacademic.com/Professors/ProductDetails.aspx?productid=176279&tab=1>from
West Academic Press. It’s designed for use by students with all the
casebooks in the field.* *It will also be useful to practitioners looking
for a succinct summary of the law, and others with an interest in election
law. Here’s the description on West’s website:
*Election law is a dynamic and quickly growing field that has garnered
enormous public interest. It is a subject of great practical importance to
lawyers and law students, with increasing litigation and several important
decisions from the Supreme Court in recent years. This Nutshell provides a
succinct and thorough description of the law governing voting rights,
elections, and the political process in the United States. The topics
addressed include the fundamental right to vote, gerrymandering, minority
voting rights, ballot access, voter identification, recounts, direct
democracy, and campaign finance. The Nutshell covers the constitutional law
in these areas, including rights of free speech and equal protection, as
well as the Voting Rights Act and other essential statutes. It addresses
Shelby County v. Holder and other cases from the 2012-13 Supreme Court
Term. *
I believe that, casebooks aside, this is the first book summarizing the law
in the field (at least in the modern
era<http://books.google.com/books/about/A_treatise_on_the_American_law_of_electi.html?id=cZgRAAAAIAAJ>
).
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Posted in election law biz <http://electionlawblog.org/?cat=51> | Comments
Off |
NYC Campaign Finance Board Rejects Public Funding for Mayoral Candidate
John Liu <http://electionlawblog.org/?p=54031>
Posted on August 6, 2013 8:24 am <http://electionlawblog.org/?p=54031> by Dan
Tokaji <http://electionlawblog.org/?author=5>
The NYT reports on the decision
here<http://www.nytimes.com/2013/08/06/nyregion/campaign-finance-board-denies-liu-public-funds.html>
.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
Off |
FairVote Infographics on Fair Representation and
Gridlock<http://electionlawblog.org/?p=54026>
Posted on August 6, 2013 8:13 am <http://electionlawblog.org/?p=54026> by Dan
Tokaji <http://electionlawblog.org/?author=5>
Available here<http://www.fairvote.org/fair-representation-voting-explained#.UgESJF_D-00>
.
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Posted in political polarization <http://electionlawblog.org/?cat=68>
| Comments
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“The Daily Show Sees a Sharknado’s Worth of Voter
Suppression”<http://electionlawblog.org/?p=54023>
Posted on August 6, 2013 8:06 am <http://electionlawblog.org/?p=54023> by Dan
Tokaji <http://electionlawblog.org/?author=5>
Atlantic Wire<http://www.theatlanticwire.com/entertainment/2013/08/daily-show-sees-sharknados-worth-voter-suppression/68011/>reports
on John
Oliver’s take<http://www.thedailyshow.com/watch/mon-august-5-2013/ballotproof>on
post-
*Shelby *voting bills, including one in North
Carolina<http://electionlawblog.org/?p=53963>,
summarized here<http://www.democracy-nc.org/downloads/MonsterLaw-IDAug2013.pdf>by
Democracy North Carolina.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, election
administration <http://electionlawblog.org/?cat=18>, voter
id<http://electionlawblog.org/?cat=9>,
voter registration <http://electionlawblog.org/?cat=37> | Comments Off |
People Suspected of Being Registered Under False Address to Be
“Warned”<http://electionlawblog.org/?p=54019>
Posted on August 6, 2013 7:46 am <http://electionlawblog.org/?p=54019> by Dan
Tokaji <http://electionlawblog.org/?author=5>
This story<http://www.wvxu.org/post/people-false-voting-addresses-be-warned>from
NPR reports on the decision of the elections board in Hamilton County,
OH, where approximately 100 people are reportedly registered at an address
other than their home address. That includes about 30 police
officers<http://electionlawblog.org/?p=53981>believed to have used a
police station as their registration address.
That’s contrary to state
law<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201308050522/NEWS/308050019&nclick_check=1>,
which says that voters must register where they live, and makes it a
felony<http://codes.ohio.gov/orc/3599.11>to “knowingly” file a false
registration. The board will reportedly send
out letters warning all of the voters to fix the problem or be dropped from
the rolls, while allowing the officers to have their addresses redacted
from public view, as permitted by state law.
I agree with the board’s decision, which represents a restrained response
to a minor violation of the law. But I wonder if the response would have
been so restrained, if some of the alleged violators weren’t police
officers.
*Update*: Today’s Columbus Dispatch has this
story<http://www.dispatch.com/content/stories/local/2013/08/06/officers-voting-address-police-hq.html>on
officers being registered at police headquarters in Franklin County as
well. This story suggests that there’s a double standard, which I find very
troubling.
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Posted in election administration
<http://electionlawblog.org/?cat=18> | Comments
Off |
The Voting Rights Act is 48 Today <http://electionlawblog.org/?p=54016>
Posted on August 6, 2013 7:33 am <http://electionlawblog.org/?p=54016> by Dan
Tokaji <http://electionlawblog.org/?author=5>
Happy (?) Birthday. “Can Moral Monday help counteract SCOTUS?,” asks this
Salon column<http://www.salon.com/2013/08/05/reconstruction_3_0_can_moral_monday_help_counteract_scotus/>by
Gary May, author of a
book on the VRA’s
history<http://www.amazon.com/Bending-Toward-Justice-Transformation-Democracy/dp/0465018467>cited
in Justice Ginsburg’s
*Shelby *dissent.
Huffpost<http://www.huffingtonpost.com/2013/08/06/voting-rights-act-anniversary_n_3713053.html>
and
the Nation<http://www.thenation.com/blog/175618/voting-rights-act-peril-48th-anniversary#>
also
have posts on the birthday.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments
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“RNC Accuses NBC and CNN of Boosting Hillary, Threatens to Nix
Debates”<http://electionlawblog.org/?p=54013>
Posted on August 6, 2013 7:19 am <http://electionlawblog.org/?p=54013> by Dan
Tokaji <http://electionlawblog.org/?author=5>
WaPo reports<http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/05/rnc-accuses-nbc-and-cnn-of-boosting-hillary-threatens-to-nix-debates/>
on
the RNC’s response to the networks’ planned Hillary films. Chair Reince
Preibus calls them a “thinly veiled attempt at putting a thumb on the
scales of the 2016 presidential election,” and says: ““If they have not
agreed to pull this programming prior to the start of the RNC’s Summer
Meeting on August 14, I will seek a binding vote stating that the RNC will
neither partner with these networks in 2016 primary debates nor sanction
primary debates they sponsor.”
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Posted in political polarization <http://electionlawblog.org/?cat=68>
| Comments
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More on NY Absentee Ballot Fraud
Allegations<http://electionlawblog.org/?p=54011>
Posted on August 6, 2013 7:12 am <http://electionlawblog.org/?p=54011> by Dan
Tokaji <http://electionlawblog.org/?author=5>
Dan Janison has this
column<http://www.newsday.com/columnists/dan-janison/fraud-cases-center-on-absentee-ballots-1.5828034>in
Newsday, discussing the 94-count
indictment <http://electionlawblog.org/?p=53734> against the Democratic
Commissioner of the Dutchess County Election Board, as well as a
former Republican commissioner.
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Posted in chicanery <http://electionlawblog.org/?cat=12> | Comments Off |
“Did Shelby County Impact Congress’s Authority Under Section 2 of the 13th
Amendment?” <http://electionlawblog.org/?p=54009>
Posted on August 6, 2013 7:01 am <http://electionlawblog.org/?p=54009> by Dan
Tokaji <http://electionlawblog.org/?author=5>
Josh Blackman blogs<http://joshblackman.com/blog/2013/08/05/did-shelby-county-impact-congresss-authority-under-section-2-of-the-13th-amendment-federalism-individual-liberty-and-the-hates-crime-prevention-act/>on
a constitutional challenge to the Hate Crimes Prevention Act.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments
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“GOP Congressman Provides Super PAC Seed
Funding”<http://electionlawblog.org/?p=54005>
Posted on August 5, 2013 2:10 pm <http://electionlawblog.org/?p=54005> by Dan
Tokaji <http://electionlawblog.org/?author=5>
According to the Center for Public
Integrity<http://www.publicintegrity.org/2013/08/05/13129/gop-congressman-provides-super-pac-seed-funding>:
“The campaign of Rep. Steve Pearce, R-N.M., provided two-thirds of the
first $15,000 raised by a super PAC that employs his brother and a former
congressional aide….”
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Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
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Torres-Spelliscy on SEC Regulation of Money in
Politics<http://electionlawblog.org/?p=54001>
Posted on August 5, 2013 10:58 am <http://electionlawblog.org/?p=54001> by Dan
Tokaji <http://electionlawblog.org/?author=5>
Ciara Torres-Spelliscy’s article “Safeguarding Markets from Pernicious Pay
to Play: A Model Explaining Why the SEC Regulates Money in
Politics<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2184554>”
is out. From the abstract:
At first blush, the SEC’s regulation of money in politics may seem to fall
outside of its jurisdiction, but this is a mistake. This view ignores
three previous times when the SEC stepped in to curb pay to play: (1) in
the municipal bond market in 1994; (2) in the public pension fund market in
2010; and (3) in investigating questionable payments post-Watergate from
1974 to 1977. The result of the first two interventions led to new
Commission rules and the third intervention resulted in the Foreign Corrupt
Practices Act (a federal statute).
When these three previous SEC interventions into the role of money in
politics are examined, a principled model emerges for when the Commission’s
regulatory intervention is appropriate. The principled model, hereinafter
known as the “Money in Politics Model,” has the following characteristics:
there must be (1) a potential for market inefficiencies; (2) a problem that
is not likely self-correct through normal market forces; (3) a lack of
transparency; (4) a material amount of aggregated money at stake; and (5) a
high probability for corruption of the government….
The SEC is not new to the inherent conflicts of interest between business
and government, especially when elected officials have the ability to make
private contractors in the financial services industry rich through
commissions and fees. The risk of corruption is intrinsic in such a
situation. Here corruption is best captured by the definition as “the
misuse of public … office for direct or indirect personal gain.” What is
new as of January 2010, thanks to Citizens United, is the potential for
every publicly traded company to try to influence the government not just
through traditional lobbying, but also through campaign expenditures.
This new problem merits a new SEC intervention to reveal the campaign
activities of public companies.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, conflict
of interest laws <http://electionlawblog.org/?cat=20> | Comments Off |
Judge Marbley Extends Ohio Provisional Voting/ID Consent
Decree<http://electionlawblog.org/?p=53997>
Posted on August 5, 2013 10:51 am <http://electionlawblog.org/?p=53997> by Dan
Tokaji <http://electionlawblog.org/?author=5>
U.S. District Judge Algenon Marbley has issued this
order<http://electionlawblog.org/wp-content/uploads/NEOCH-Order-2013-0805.pdf>
extending
the consent decree in Northeast Ohio Coalition for the Homeless v.
Husted<http://moritzlaw.osu.edu/electionlaw/litigation/NEOCHv.Blackwell.php>
through
2016. The Columbus Dispatch reports
here<http://www.dispatch.com/content/stories/public/2013/08/05/provisional-ballots-ID-voting-rules-extended.html>
.
This lawsuit was originally filed to challenge disparities in the
implementation of Ohio’s then-new voter ID law. A consent
decree<http://moritzlaw.osu.edu/electionlaw/litigation/documents/NEOCH-Decree-4-19-10.pdf>in
place since 2010 addresses provisional voting by people using the last
four digits of their SSN as identification. The decree was to expire June
30, but was temporarily extended since then, pending consideration of
plaintiffs’ motion for an indefinite extension.
Today’s order extends the consent decree through the end of 2016. It
concludes that an extension is warranted, given the failure to achieve the
decree’s intended purpose of ensuring that “valid ballots cast by SSN-4
voters are counted.” The court relies in part on an affidavit from former
Ohio Secretary of State, Democrat Jennifer Brunner, on her understanding
and expectation that “broad enfranchisement and consistency in providing
equal and fair access would become institutionalized in Ohio statutory
provisions,” due to the consent decree.
The central disputed legal question is whether it’s appropriate for the
court to extend the consent decree without finding constitutional
violations. The court concludes that it is – and that without the decree,
there’s nothing to prevent Ohio counties from going back to the “haphazard”
practices that previously prevailed.
Here’s a choice excerpt from Judge Marbley’s ruling:
At the hearing on the Motion, in an unfortunate choice of words,
Defendants’ counsel dismissed the purposes or goals of the Consent Decree
as “flowery language.” The Court finds nothing “flowery” about the Consent
Decree’s instruction that “[a]ll legal votes that are cast by indigent and
homeless voters on Election Day will be counted.” The Court will not do
Defendants the disservice of presuming that they would oppose such a
result, or, that they would prefer that registered voters who cast valid
provisional ballots under Ohio law not have their votes counted because
county boards of election misinterpret Ohio laws.
According to the Dispatch story, a spokesperson for the Secretary of State
says extension of the consent decree doesn’t change current practice, and
that Secretary Husted hasn’t decided whether to appeal. Plaintiff’s
counsel Subodh Chandra responds: “If the consent decree doesn’t really do
anything, as he claims, then why fight it?”
*Update*: Chandra adds the following by email:
The federal Consent Decree incorporates a directive from now former Ohio
Secretary of State Jennifer Brunner to Ohio’s 88 county elections boards.
The directive provides for broadly expansive and enfranchising definitions
of all forms of voter ID. For example, “government documents” are broadly
defined to include things like letters from public universities. “Utility”
bills include not just landline, electric, and gas bills, but cellphone
bills (which younger, more transient voters tend to have). And “current”
billing statements can be up to a year old. (Some elections boards used to
reject anything more than a couple of months old.) Without Secretary
Brunner’s directive, Ohio’s 88 elections boards used to apply broadly
differing interpretations of voter ID. The bottom line is that the federal
Consent Decree is broadly enfranchising where Ohio statutes,
elections-board practice, and the whimsy of its secretary of state at any
given moment may not be.
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Posted in provisional ballots <http://electionlawblog.org/?cat=67>, voter
id <http://electionlawblog.org/?cat=9> | Comments Off |
“The Root of Washington’s Ills” <http://electionlawblog.org/?p=53994>
Posted on August 5, 2013 10:04 am <http://electionlawblog.org/?p=53994> by Dan
Tokaji <http://electionlawblog.org/?author=5>
It’s the lobbyists, according to Fareed
Zakaria<http://www.washingtonpost.com/opinions/fareed-zakaria-the-root-of-washingtons-ills/2013/08/01/085392aa-fa15-11e2-8752-b41d7ed1f685_story.html>
.
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Posted in lobbying <http://electionlawblog.org/?cat=28>,
Uncategorized<http://electionlawblog.org/?cat=1>
| Comments Off |
“A Full Commission Should Address FEC Rules
Changes”<http://electionlawblog.org/?p=53992>
Posted on August 5, 2013 10:00 am <http://electionlawblog.org/?p=53992> by Dan
Tokaji <http://electionlawblog.org/?author=5>
WaPo editorializes
here<http://www.washingtonpost.com/opinions/a-full-commission-should-address-fec-rules-changes/2013/08/02/24f5ce36-fa1b-11e2-9bde-7ddaa186b751_story.html>
.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off |
--
> Daniel Tokaji
> Robert M. Duncan/Jones Day Designated Professor of Law
> The Ohio State University | Moritz College of Law
> 55 W. 12th Ave. | Columbus, OH 43210
> 614.292.6566 | tokaji.1 at osu.edu
>
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