[EL] ELB News and Commentary 3/23/13
Rick Hasen
rhasen at law.uci.edu
Fri Mar 22 19:58:11 PDT 2013
"Dozens of Attorneys Protest IRS Release Of 501(c)(4) Application,
Return, Information" <http://electionlawblog.org/?p=48667>
Posted on March 22, 2013 7:47 pm <http://electionlawblog.org/?p=48667>
by Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=30037686&vname=mpebulallissues&jd=a0d7a7x8d2&split=0>:
"Dozens of attorneys have written to the Internal Revenue Service saying
they are gravely concerned about the disclosure of confidential taxpayer
information from tax code Section 501(c)(4) applications for exemption
and unredacted tax returns that were given to a news organization.
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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
Sen. Tester Pushes Electronic Campaign Disclosure for Senators
through Budget Amendment <http://electionlawblog.org/?p=48663>
Posted on March 22, 2013 3:13 pm <http://electionlawblog.org/?p=48663>
by Rick Hasen <http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2013/03/22/12377/tester-files-e-filing-amendment-senate-budget-bill>
Yes, let's at least bring the Senate into the 20th century, if not the 21st.
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"America's Top Model: The Wisconsin Government Accountability Board"
<http://electionlawblog.org/?p=48660>
Posted on March 22, 2013 3:10 pm <http://electionlawblog.org/?p=48660>
by Rick Hasen <http://electionlawblog.org/?author=3>
Dan Tokaji has posted a draft of this important paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201587>on SSRN
(forthcoming UCI Law Review election law symposium issue). Here is the
abstract:
The United States is an outlier among democratic countries when it
comes to the institutions charged with running our elections. Most
other democratic countries have an independent election authority
that enjoys some insulation from partisan politics in running
elections. In the United States, by contrast, partisan election
administration is the near-universal norm at the state level. In
most states, the chief election authority --- usually the Secretary
of State --- is elected to office as a nominee of his or her party,
while in almost all the remaining states the chief election official
is appointed by partisan officials.
There is one conspicuous exception to the partisan character of
election administration at the state level: Wisconsin's Government
Accountability Board ("GAB"). Established by the Wisconsin state
legislature in 2007, the GAB has responsibility for election
administration, as well as enforcement of campaign finance, ethics,
and lobbying laws. Its members are former judges chosen in manner
that is designed to ensure that they will not favor either major
party. This makes the GAB unique among state election management
bodies in the U.S.
Is there any hope for nonpartisan election administration in an era
of intense political polarization? This article considers this
question by examining and assessing the performance of Wisconsin's
GAB. It concludes that the GAB has been successful in administering
elections evenhandedly during its first five years of existence and,
accordingly, that it serves as a worthy model for other states
considering alternatives to partisan election administration at the
state level. Part II discusses the origins and history of the GAB,
putting it in the context of other electoral institutions in the
U.S., as well as electoral institutions in other democratic
countries. Part III discusses the most important election
administration issues that have come before the Wisconsin GAB since
its creation, including fierce partisan debates over voter
registration and voter identification, errant reporting of election
results in a very close state supreme court race, and contentious
recall elections of the Governor and prominent state legislators.
Part IV concludes by evaluating the GAB's performance during these
trying times and considering whether the Wisconsin model can and
should be exported to other states.
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The%20Voting%20Wars%09%7C%20Comments%20Off%0AIndiana%20Law%20Review%20Symposium%20on%20Merit%20Selection%20of%20Judges%0APosted%20on%20March%2022%2C%202013%203%3A08%20pm%20by%20Rick%20Hasen%0A%0ACheck%20it%20out%3A%0ATable%20of%20Contents%0ASYMPOSIUM%0AReflecting%20on%20Forty%20Years%20of%20Merit%20Selection%20in%20Indiana%3A%20An%20Introduction%20%09Joel%20M.%20Schumm%20%091%0AKeynote%20Address%20Justice%20in%20Jeopardy%3A%20The%20ABA%20Perspective%20%09Wm.%20T.%20%28Bill%29%20Robinson%20III%20%097%0AMerit%20Selection%20in%20Indiana%3A%20The%20Foundation%20for%20a%20Fair%20and%20Impartial%20Appellate%20Judiciary%20%09Judge%20Edward%20W.%20Najam%2C%20Jr.%20%0915%0AMerit%20Selection%20and%20Diversity%20on%20the%20Bench%20%09K.O.%20Myers%20%0943%0AJudicial%20Retention%20Elections%20After%202010%20%09Judge%20Melissa%20S.%20May%20%0959%0AThe%20Perils%20of%20Merit%20Selection%20%09James%20Bopp%2C%20Jr.%20%0987%0AA%20New%20Perspective%20on%20Judicial%20Disqualification%3A%20An%20Antidote%20to%20the%20Effects%20of%20the%20Decisions%20in%20White%20and%20Citizens%20United%20%09Penny%20J.%20White%20%09103%0AAssuring%20Due%20Process%20Through%20Merit%20Selection%20of%20Judges%20%09Frank%20Sullivan%2C%20Jr.%20%09123%0AShare%0APosted%20in%20judicial%20elections%09%7C%20Comments%20Off%0AWhat%20Benjamin%20Jealous%20Said%20to%20the%20Solicitor%20General%20about%20Shelby%20County%0APosted%20on%20March%2022%2C%202013%202%3A56%20pm%20by%20Rick%20Hasen%0A%0AWow%3A%0A%0A%20%20%20%20The%20grilled%20shrimp%20appetizer%20had%20just%20arrived%20at%20the%20128th%20annual%20press-pols%20Gridiron%20dinner%20Saturday%20night%20when%20NAACP%20President%20Benjamin%20Jealous%20fell%20into%20conversation%20with%20a%20fellow%20white-tied%20dinner%20guest%20about%20the%20Supreme%20Court%E2%80%99s%20recent%20argument%20over%20the%20Voting%20Rights%20Act.%0A%0A%20%20%20%20The%20distinguished-looking%20gentleman%20told%20Jealous%20he%20thought%20the%20NAACP%20Legal%20Defense%20Fund%20lawyer%2C%20Debo%20P.%20Adegbile%2C%20had%20done%20a%20fine%20job%20arguing%20that%20the%20law%20needed%20to%20be%20continued.%0A%0A%20%20%20%20Sure%2C%20but%20what%20happened%20to%20the%20solicitor%20general%3F%20Jealous%20wondered%20aloud%2C%20he%20was%20just%20awful.%0A%0A%20%20%20%20Well%2C%20I%20am%20the%20solicitor%20general%2C%20Donald%20Verrilli%20Jr.%20replied.%0A%0ALinc%20Caplan%20uses%20the%20incident%20to%20defend%20Verilli%2C%20and%20to%20argue%20that%20Justice%20Kennedy%20might%20like%20his%20%E2%80%9Cas%20applied%E2%80%9D%20argument%20in%20the%20Shelby%20County%20case%0A%0A%20%0AShare%0APosted%20in%20Supreme%20Court%2C%20Voting%20Rights%20Act%09%7C%20Comments%20Off%0AFred%20Wertheimer%20Doesn%E2%80%99t%20Like%20OFA%20Sharing%20President%20Obama%E2%80%99s%20Twitter%20Account%0APosted%20on%20March%2022%2C%202013%209%3A36%20am%20by%20Rick%20Hasen%0A%0AAaron%20Blake%20reports.%0AShare%0APosted%20in%20campaign%20finance%2C%20tax%20law%20and%20election%20law%09%7C%20Comments%20Off%0A%E2%80%9CThe%20numbers%20prove%20it%3A%20The%20GOP%20is%20estranged%20from%20America%E2%80%9D%0APosted%20on%20March%2022%2C%202013%209%3A22%20am%20by%20Rick%20Hasen%0A%0AFascinating%20argument%20and%20data%20from%20Andrew%20Kohut%20in%20WaPo%3A%0A%0A%20%20%20%20In%20my%20decades%20of%20polling%2C%20I%20recall%20only%20one%20moment%20when%20a%20party%20had%20been%20driven%20as%20far%20from%20the%20center%20as%20the%20Republican%20Party%20has%20been%20today.%0A%0A%20%20%20%20The%20outsize%20influence%20of%20hard-line%20elements%20in%20the%20party%20base%20is%20doing%20to%20the%20GOP%20what%20supporters%20of%20Gene%20McCarthy%20and%20George%20McGovern%20did%20to%20the%20Democratic%20Party%20in%20the%20late%201960s%20and%20early%201970s%20%E2%80%94%20radicalizing%20its%20image%20and%20standing%20in%20the%20way%20of%20its%20revitalization.%0A%0AShare%0APosted%20in%20political%20parties%2C%20political%20polarization%09%7C%20Comments%20Off%0AIlya%20Shapiro%20on%20>
Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
Indiana Law Review Symposium on Merit Selection of Judges
<http://electionlawblog.org/?p=48658>
Posted on March 22, 2013 3:08 pm <http://electionlawblog.org/?p=48658>
by Rick Hasen <http://electionlawblog.org/?author=3>
Check it out:
Table of Contents
*SYMPOSIUM*
Reflecting on Forty Years of Merit Selection in Indiana: An Introduction
<http://indylaw.indiana.edu/ilr/pdf/vol46p1.pdf> /Joel M. Schumm/ 1
Keynote Address Justice in Jeopardy: The ABA Perspective
<http://indylaw.indiana.edu/ilr/pdf/vol46p7.pdf> /Wm. T. (Bill)
Robinson III/ 7
Merit Selection in Indiana: The Foundation for a Fair and Impartial
Appellate Judiciary <http://indylaw.indiana.edu/ilr/pdf/vol46p15.pdf>
/Judge Edward W. Najam, Jr./ 15
Merit Selection and Diversity on the Bench
<http://indylaw.indiana.edu/ilr/pdf/vol46p43.pdf> /K.O. Myers/ 43
Judicial Retention Elections After 2010
<http://indylaw.indiana.edu/ilr/pdf/vol46p59.pdf> /Judge Melissa S.
May/ 59
The Perils of Merit Selection
<http://indylaw.indiana.edu/ilr/pdf/vol46p87.pdf> /James Bopp, Jr./ 87
A New Perspective on Judicial Disqualification: An Antidote to the
Effects of the Decisions in White and Citizens United
<http://indylaw.indiana.edu/ilr/pdf/vol46p103.pdf> /Penny J. White/ 103
Assuring Due Process Through Merit Selection of Judges
<http://indylaw.indiana.edu/ilr/pdf/vol46p123.pdf> /Frank Sullivan,
Jr./ 123
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What Benjamin Jealous Said to the Solicitor General about Shelby
County <http://electionlawblog.org/?p=48655>
Posted on March 22, 2013 2:56 pm <http://electionlawblog.org/?p=48655>
by Rick Hasen <http://electionlawblog.org/?author=3>
Wow
<http://www.washingtonpost.com/blogs/in-the-loop/post/naacp-chief-slams-solicitor-general/2013/03/12/1bec82ac-8b40-11e2-b63f-f53fb9f2fcb4_blog.html>:
The grilled shrimp appetizer had just arrived at the 128th annual
press-pols Gridiron dinner Saturday night when NAACP President
Benjamin Jealous fell into conversation with a fellow white-tied
dinner guest about the Supreme Court'srecent argument
<http://www.washingtonpost.com/politics/supreme-court-majority-skeptical-of-voting-law-provision/2013/02/27/e89b038e-80fd-11e2-b99e-6baf4ebe42df_story.html>
over the Voting Rights Act.
The distinguished-looking gentleman told Jealous he thought the
NAACP Legal Defense Fund lawyer, Debo P. Adegbile, had done a fine
job arguing that the law needed to be continued.
Sure, but what happened to the solicitor general? Jealous wondered
aloud, he was just awful.
Well, I am the solicitor general, Donald Verrilli Jr. replied.
Linc Caplan
<http://takingnote.blogs.nytimes.com/2013/03/22/the-stealthy-solicitor-general/>
uses the incident to defend Verrilli, and to argue that Justice Kennedy
might like his "as applied" argument in the /Shelby County /case
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Fred Wertheimer Doesn't Like OFA Sharing President Obama's Twitter
Account <http://electionlawblog.org/?p=48653>
Posted on March 22, 2013 9:36 am <http://electionlawblog.org/?p=48653>
by Rick Hasen <http://electionlawblog.org/?author=3>
Aaron Blake reports
<http://www.washingtonpost.com/blogs/post-politics/wp/2013/03/22/obama-sharing-twitter-account-with-controversial-campaign-spin-off/>.
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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
"The numbers prove it: The GOP is estranged from America"
<http://electionlawblog.org/?p=48649>
Posted on March 22, 2013 9:22 am <http://electionlawblog.org/?p=48649>
by Rick Hasen <http://electionlawblog.org/?author=3>
Fascinating argument and data
<http://www.washingtonpost.com/opinions/a-20-year-low-for-the-gop/2013/03/21/7e880c20-929c-11e2-9cfd-36d6c9b5d7ad_graphic.html>
from Andrew Kohut
<http://www.washingtonpost.com/opinions/the-numbers-prove-it-the-republican-party-is-estranged-from-america/2013/03/22/3050734c-900a-11e2-9abd-e4c5c9dc5e90_story.html>
in WaPo:
In my decades of polling, I recall only one moment when a party had
been driven as far from the center as the Republican Party has been
today.
The outsize influence of hard-line elements in the party base is
doing to the GOP what supporters of Gene McCarthy and George
McGovern did to the Democratic Party in the late 1960s and early
1970s --- radicalizing its image and standing in the way of its
revitalization.
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Posted in political parties <http://electionlawblog.org/?cat=25>,
political polarization <http://electionlawblog.org/?cat=68> | Comments Off
Ilya Shapiro on Cert Petition in Lepak
<http://electionlawblog.org/?p=48645>
Posted on March 22, 2013 8:52 am <http://electionlawblog.org/?p=48645>
by Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.cato.org/blog/supreme-court-should-clarify-meaning-one-person-one-vote>.
UPDATE: See also this HuffPo Live segment
<http://live.huffingtonpost.com/r/segment/one-person-one-vote-lepak-irving/5148831202a76049bf00002d>
on the case.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Repeal of voter ID law rejected in N.H. House"
<http://electionlawblog.org/?p=48642>
Posted on March 22, 2013 8:12 am <http://electionlawblog.org/?p=48642>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP <http://www.seacoastonline.com/articles/20130322-NEWS-130329916>:
"The New Hampshire House rejected a proposal Thursday to repeal the
state's voter identification law, instead passing legislation that would
prevent tighter regulations from taking effect until the attorney
general's office completes an inquiry into the last election."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Supreme Court Recusal: From Marbury to the Modern Day"
<http://electionlawblog.org/?p=48639>
Posted on March 22, 2013 7:37 am <http://electionlawblog.org/?p=48639>
by Rick Hasen <http://electionlawblog.org/?author=3>
James Sample has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2236367>on SSRN
(/Georgetown Journal of Legal Ethics/). Here is the abstract:
For Justices of the U.S. Supreme Court, controversies pitting
personal conflicts --- whether actual or merely alleged --- against
the constitutional commitment to the rule of law increasingly form
the basis of a caustic and circular national dialogue that generates
substantially more heat than light. While the profile of these
controversies is undoubtedly waxing, the underlying tensions stretch
back at least to Marbury v. Madison.
For all its seminal import, in Marbury, Chief Justice John Marshall
adjudicated a case involving the validity of judicial commissions
Marshall had himself signed and sealed. Equally remarkably, one of
those judicial commissions belonged to Marshall's own brother James.
In the centuries since, issues of actual and/or alleged Supreme
Court conflicts have colored the context of landmark decisions, as
well as the legacies of jurisprudential giants. Exploring many of
the most compelling and controversial recusal sagas in the Court's
history, this Article trains attention on the factually-intensive
real-world relationships that Supreme Court Justices have with
issues and individuals. In today's statutory disqualification
terminology, these relationships fall --- if anywhere --- solely
into the 28 U.S.C. § 455 nebulous catch-all provision in which a
judge must disqualify himself or herself whenever their impartiality
"might reasonably be questioned."
The study yields a layered picture that is rich in historical
imagery, anecdote, and analytically-critical context. In this
respect, the Article includes, but is not limited to, treatments of
the midnight Justices in Marbury; the Steel Seizure case and the
"damned fool" whom Truman felt was the "biggest mistake he had made"
as President; Thurgood Marshall's long arc with the NAACP; perhaps
the best-known duck-hunting trip of all time; Justice O'Connor's
election night outburst preceding Bush v. Gore; profound matters of
issue identification involving Justices Ginsburg and Breyer; and
finally the controversies surrounding the Patient Protection and
Affordable Care Act, including the undisclosed income related to
Virginia Thomas's work opposing the health care legislation and
Justice Kagan's ill-advised e-mails including the memorable "I hear
they have the votes, Larry!!"
The exploration serves as a navigational guide to the difficult but
necessary task of separating the shrill cries from the serious
constitutional concern of genuine Supreme Court conflict. The
Article situates the analysis of Supreme Court disqualification
practice, and particularly the circumstances involving Justices
Thomas and Kagan vis-a`-vis the Patient Protection and Affordable
Care Act, within the broader, enduring legal dichotomy of rules as
opposed to standards. Pointing to Chief Justice Roberts's recent,
relatively bare assertion that when it comes to disqualification,
the Supreme Court is simply constitution- ally and pragmatically
different, the Article asserts that while the Chief Justice's
argument is neither emotionally nor intellectually satisfying, in an
imperfect world, his argument is also entirely correct.
Finally, and in light of constitutional structure and historical
norms, the Article asserts that it was entirely appropriate for both
Justices Thomas and Kagan not to recuse themselves from the legal
challenge to the Affordable Care Act. That said, the Article asserts
that the controversies represent an important teachable moment --- a
moment in which the justices and the academy alike have the
opportunity to elevate, rather than further denigrate, the national
dialogue pertaining to high court conflicts.
James writes some of today's most important work on judicial elections
and judicial recusal. I'm looking forward to reading this.
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Posted in judicial elections <http://electionlawblog.org/?cat=19>,
Supreme Court <http://electionlawblog.org/?cat=29> | 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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