[EL] ELB News and Commentary 6/7/13

Fri Jun 7 07:36:55 PDT 2013

    Local Virginia Officials Deny DOJ Request to Inspect Polls
    <http://electionlawblog.org/?p=51398>

Posted on June 7, 2013 7:34 am <http://electionlawblog.org/?p=51398> by 
Rick Hasen <http://electionlawblog.org/?author=3>

"Too disruptive," Augusta County officials say 
<http://www.newsleader.com/article/20130605/NEWS01/306050020/County-electoral-board-balks-Dept-Justice-request?gcheck=1>, 
apparently about investigation into a possible problem related to access 
to polling for the disabled.

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Posted in direct democracy <http://electionlawblog.org/?cat=62>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    "Congressmen Come and Go, but Corruption Is Here to Stay"
    <http://electionlawblog.org/?p=51395>

Posted on June 7, 2013 7:23 am <http://electionlawblog.org/?p=51395> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Lessig 
<http://www.thedailybeast.com/articles/2013/06/07/congressmen-come-and-go-but-corruption-is-here-to-stay.html> 
brings Lesterland to the Daily Beast.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "The Federal Election Commission and its Choice of a General
    Counsel" <http://electionlawblog.org/?p=51392>

Posted on June 7, 2013 7:16 am <http://electionlawblog.org/?p=51392> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Bob Bauer blogs 
<http://www.moresoftmoneyhardlaw.com/2013/06/fec-general-counsel/>.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal 
election commission <http://electionlawblog.org/?cat=24> | Comments Off

    Gilbert: Logrolling and Germaneness?
    <http://electionlawblog.org/?p=51389>

Posted on June 6, 2013 7:36 pm <http://electionlawblog.org/?p=51389> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Here is a guest post from Mike Gilbert 
<http://www.law.virginia.edu/lawweb/Faculty.nsf/FHPbI/2131153> of U Va:

    The single subject rule strikes again.
    <http://electionlawblog.org/?p=51355>  This week the Supreme Court
    of Oklahoma invalidated
    <http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=469532>
    the state's Comprehensive Lawsuit Reform Act of 2009 for violating
    the state constitution, which reads in pertinent part:  "Every act
    of the Legislature shall embrace but one subject, which shall be
    clearly expressed in its title."  The Act addressed Medicaid
    refunds, seat belts, physician testimony in asbestos litigation,
    liability for livestock, and the conduct of school district
    representatives, among other topics.  "[W]e will not sit by and
    ignore violations of our Constitution," the Court declared.  It
    struck down the Act by a vote of 7 to 2.

    The opinion illustrates the fundamental flaw in single subject
    jurisprudence:  the test for determining compliance with the rule
    does not systematically further the rule's purpose.  The principal
    objective of the rule is to prevent logrolling, i.e., vote trading.
      The Court wrote, "the constitutional infirmity of logrolling . . .
    is the basis of this opinion."  It turns out logrolling in
    legislatures may not be so bad (see here
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1448019> for a
    discussion), but ignore that and take the purpose as given.  To
    determine whether logrolling occurred, the Court used (as most do)
    the "germaneness" test, asking whether the Act's components were
    "germane" to one another or instead reflected "unrelated provisions"
    lacking "a common, closely akin theme or purpose."  That approach
    cannot reliably identify logrolls.  It upholds acts comprising
    topically related provisions--corporate taxes, farm subsidies--that
    resulted from logrolling (no individual provisions would have passed
    alone).  And it invalidates acts comprising disparate provisions
    that did not involve logrolling (every provision would have passed
    alone).
    Bob Cooter and I proposed a solution
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1448043> to this
    problem.  We suggested that judges focus not on the topical
    similarity of the provisions of an act but on whether voters (or
    legislators) can make independent judgments about them.  If most can
    decide how to vote on provision A without knowing whether B will
    become law and vice versa, then A and B are separate subjects and
    cannot be combined in one act.  Otherwise they can.  We believe this
    approach is intuitive, and we prove that it would prevent
    logrolling.  So unlike the traditional approach, ours would further
    the purpose of the rule.  (Hasen and Matsusaka critique our proposal
    here <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1590508>,
    and we reply here
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1679533>.)
    Alas, the courts have ignored us, and we get opinions like this.  It
    condemns logrolling, it applies the test, it strikes down the act,
    and it provides no reason--no theory, no evidence--to believe
    logrolling took place.

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Posted in statutory interpretation <http://electionlawblog.org/?cat=21> 
| Comments Off

    "Clarifying common misconceptions about the IRS targeting campaign"
    <http://electionlawblog.org/?p=51384>

Posted on June 6, 2013 12:18 pm <http://electionlawblog.org/?p=51384> by 
Rick Hasen <http://electionlawblog.org/?author=3>

WaPo. 
<http://www.washingtonpost.com/blogs/federal-eye/wp/2013/06/06/common-misconceptions-about-the-irs-targeting-campaign/>

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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

    "Group 'deeply disturbed' over possible voter prosecution"
    <http://electionlawblog.org/?p=51381>

Posted on June 6, 2013 12:12 pm <http://electionlawblog.org/?p=51381> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Cincinnati Enquirer 
<http://news.cincinnati.com/article/AB/20130606/NEWS0106/306060151/Group-deeply-disturbed-over-possible-voter-prosecution>:

    The League of Women Voters of Ohio is "deeply disturbed" by the
    possible prosecution of 39 Hamilton County voters.In an open letter
    sent to election officials, LWVO President Nancy Brown said the
    citizens involved in 39 cases of possible voter fraud acted in line
    with Ohio's election law.

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

    "Dueling Speech or Debate Privileges in the Renzi Case"
    <http://electionlawblog.org/?p=51378>

Posted on June 6, 2013 11:42 am <http://electionlawblog.org/?p=51378> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Interesting discussion 
<http://www.pointoforder.com/2013/06/06/dueling-speech-or-debate-privileges-in-the-renzi-case/> 
at Point of Order.

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Posted in Speech or Debate Clause <http://electionlawblog.org/?cat=36> | 
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    "New York AG Leads the Way on 501(c)(4) Political Disclosure"
    <http://electionlawblog.org/?p=51374>

Posted on June 6, 2013 11:28 am <http://electionlawblog.org/?p=51374> by 
Rick Hasen <http://electionlawblog.org/?author=3>

CLC Blog 
<http://www.clcblog.org/index.php?option=com_content&view=article&id=521:new-york-ag-leads-the-way-on-501c4-political-disclosure->.

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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

    "How Section 5 Blocked a GOP Power Grab in Texas"
    <http://electionlawblog.org/?p=51371>

Posted on June 6, 2013 11:19 am <http://electionlawblog.org/?p=51371> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Zack Roth writes 
<http://tv.msnbc.com/2013/06/06/how-section-5-blocked-a-gop-power-grab-in-texas/> 
for MSNBC.

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

    "News Analysis: Substantial Minority of Scrutinized EOs Were Not
    Conservative" <http://electionlawblog.org/?p=51368>

Posted on June 6, 2013 10:11 am <http://electionlawblog.org/?p=51368> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Tax Analysts 
<http://www.taxanalysts.com/www/features.nsf/Articles/D2A6C735EAFA7A9085257B7B004C0D90>:

    We know now that the IRS used "inappropriate criteria" --- names and
    policy views associated with conservative and Tea Party causes ---
    for selecting applications for tax-exempt status for extra review.
    The Treasury Inspector General for Tax Administration laid out the
    charges in a May 14 report, and the IRS has admitted it made errors.

    But TIGTA's report doesn't shed much light on whether other
    organizations were subject to similar review. As the early furor
    gives way to more careful investigations, it will be important to
    get a more complete picture of IRS processing of applications for
    tax exemption.

    The IRS has helped somewhat by releasing a list of all the
    "centralized" groups (that is, organizations whose applications were
    referred to specialists for closer review) that were granted
    tax-exempt status as of May 9, 2013. Though the overlap between the
    subset and the full set of centralized groups isn't perfect, the
    list suggests that the majority of groups selected for extra
    scrutiny probably matched the political criteria the IRS used and
    backed conservative causes, the Tea Party, or limited government
    generally. But a substantial minority --- almost one-third of the
    subset --- did not fit that description.

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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

    "FBI looking at California lawmaker's water legislation"
    <http://electionlawblog.org/?p=51365>

Posted on June 6, 2013 9:54 am <http://electionlawblog.org/?p=51365> by 
Rick Hasen <http://electionlawblog.org/?author=3>

AP 
<http://www.pressdemocrat.com/article/20130606/WIRE/130609724/1316/lifestyle12>: 
"The FBI investigation of state Sen. Ron Calderon involves legislation 
he introduced for a Los Angeles-area water district that uses his 
brother as a consultant, according to two people questioned by federal 
agents."

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

    "DOJ Asks DC Circuit to Uphold Lobbyist Ban"
    <http://electionlawblog.org/?p=51362>

Posted on June 6, 2013 9:35 am <http://electionlawblog.org/?p=51362> by 
Rick Hasen <http://electionlawblog.org/?author=3>

BLT: 
<http://legaltimes.typepad.com/blt/2013/06/doj-asks-dc-circuit-to-uphold-lobbyist-ban.html>

    The U.S. Justice Department on Wednesday fired back at six lobbyists
    who are in the U.S. Court of Appeals for the D.C. Circuit
    challenging the Obama administration ban on federal lobbyists
    serving on agency boards and commissions.

    The D.C. Circuit should uphold the ban that a Washington federal
    trial judge, Amy Berman Jackson, found constitutional last year,
    Michael Raab, an assistant director of the DOJ Civil Division
    appellate staff, wrote yesterday in the government's opening brief
    <http://legaltimes.typepad.com/files/govt-appeal-respons-for-autor-6_5.pdf>
    in the appellate court.

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

    "Leaders call on Justice Scalia to recuse self from Section 5 case"
    <http://electionlawblog.org/?p=51359>

Posted on June 6, 2013 9:33 am <http://electionlawblog.org/?p=51359> by 
Rick Hasen <http://electionlawblog.org/?author=3>

News 
<http://www.wsfa.com/story/22504335/leaders-call-on-justice-scalia-to-recuse-self-from-section-5-case> 
from Alabama.

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

    "Reflections from a Stormy Election Day in Ohio"
    <http://electionlawblog.org/?p=51357>

Posted on June 6, 2013 9:32 am <http://electionlawblog.org/?p=51357> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Adam Ambrogi 
<http://www.democracyfund.org/blog/entry/reflections-from-a-stormy-election-day-in-ohio>: 
"Election Day, Cleveland, Ohio 2004.  I participated in an election 
observation trip for the newly established U.S. Election Assistance 
Commission <http://www.democracyfund.org/blog/entry/%5C%5Cwww.eac.gov>, 
travelling around Cuyahoga County, Ohio, from dawn until dusk.  The goal 
was to observe as many different kinds of polling places as 
possible---more than a dozen locations that spanned Cleveland's diverse 
neighborhoods."

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

    Oklahoma Supreme Court Strikes Down Legislature's Tort Reform
    Measure on Single Subject Grounds <http://electionlawblog.org/?p=51355>

Posted on June 6, 2013 9:31 am <http://electionlawblog.org/?p=51355> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Wow <http://howappealing.law.com/060613.html#051386>, that's pretty 
rare. Single subject challenges usually are much more successful against 
initiatives than legislative measures.  More later.

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Posted in legislation and legislatures 
<http://electionlawblog.org/?cat=27>, statutory interpretation 
<http://electionlawblog.org/?cat=21> | 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

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