[EL] ELB News and Commentary 11/20/13
Rick Hasen
rhasen at law.uci.edu
Tue Nov 19 20:57:55 PST 2013
Will Harry Reid Go Nuclear? <http://electionlawblog.org/?p=56844>
Posted on November 19, 2013 8:54 pm
<http://electionlawblog.org/?p=56844>by Rick Hasen
<http://electionlawblog.org/?author=3>
If not,
<http://www.nytimes.com/2013/11/20/us/politics/senate-democrats-consider-move-to-curb-filibusters.html?ref=politics>
he's a good bluffer.
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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>
"Court filings seek to stop Doe probe into recall elections"
<http://electionlawblog.org/?p=56842>
Posted on November 19, 2013 8:30 pm
<http://electionlawblog.org/?p=56842>by Rick Hasen
<http://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel
<http://www.jsonline.com/news/statepolitics/court-filings-target-judge-overseeing-probe-into-conservative-groups-b99145927z1-232536631.html>:
"Three unnamed people have asked state Court of Appeals to temporarily
halt a secret investigation of campaign fundraising and spending during
Wisconsin's recent recall elections."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>, recall elections
<http://electionlawblog.org/?cat=11>
"Pro-Obama nonprofit boosted by undisclosed donors"
<http://electionlawblog.org/?p=56840>
Posted on November 19, 2013 4:33 pm
<http://electionlawblog.org/?p=56840>by Rick Hasen
<http://electionlawblog.org/?author=3>
CPI
<http://www.publicintegrity.org/2013/11/19/13795/pro-obama-nonprofit-boosted-undisclosed-donors>:
"A nonprofit organization started by two former Obama White House
staffers received $5 million --- or most of its $8.4 million in revenue
last year --- from four unnamed donors, new disclosures
<https://www.documentcloud.org/documents/836739-priorities-usa-2012-form-990.html>
obtained by the Center for Public Integrity
<http://www.publicintegrity.org/> indicate."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
Thoughts on Supreme Court's Abortion Order and Changing the Status
Quo <http://electionlawblog.org/?p=56837>
Posted on November 19, 2013 3:29 pm
<http://electionlawblog.org/?p=56837>by Rick Hasen
<http://electionlawblog.org/?author=3>
This afternoon,the Supreme Court on a 5-4 vote refused
<http://www.supremecourt.gov/orders/courtorders/111913zr_6i79.pdf>to
overturn a temporary order of the United States Court of Appeals for the
Fifth Circuit staying a federal district court order putting on hold a
provision of a new Texas abortion law which "requires a physician
performing an abortion to have admitting privileges at a hospital within
30 miles."
The Court split along party/ideological lines, with the five
Republican-appointed/conservative justices allowing Texas to enforce its
law which will lead to rural Texas women indisputably having less access
to abortion while lower courts consider the case and the four
Democrat-appointed/liberal justices voting to keep the status quo and
keep the law on hold, pending final disposition in the Fifth Circuit or
the Supreme Court.
Putting my Remedies hat on for now, here are a few observations:
1. It is not unusual for the Court to deny a request to vacate an
appellate court order staying a district court, it is unusual to have a
concurrence to that order joined by three Justices (Scalia, Thomas,
Alito) and a dissent by four Justices (Breyer, Ginsburg, Kagan,
Sotomayor). It is unusual to have any written opinion at all.
2. Although this is not a final ruling on the merits of the issue by any
means, one of the key factors the Supreme Court considers in a case like
this is how likely it is that one side or the other will win the case.
The fact that 5 Justices refused to vacate the stay here is a pretty
good indication that 5 Justices believe Texas is likely to win its
argument that this law is constitutional and does not an undue burden on
women's access to abortion. Compare, for example, the stay order in Bush
v. Gore, also written by Justice Scalia: "It suffices to say that the
issuance of the stay suggests that a majority of the Court, while not
deciding the issues presented, believe that the petitioner has a
substantial probability of success."
3. Although Chief Justice Roberts and Justice Kennedy did not sign onto
Justice Scalia's opinon, they too voted to keep Texas' law in place.
4. At one time in Remedies practice, when it came to temporary
injunctions or stays, courts really focused on the status quo. Justice
Breyer in his dissent today focuses almost exclusively on how the Fifth
Circuit is allowing the status quo to change while the legal question is
close. Justice Scalia will have none of it: "The dissent declines to
criticize that reasoning, though we are presumably meant to infer
fromits disapproving comments about the stay's 'seriou[s] disrupt[ion of
the] status quo,' post, at 3, that the dissent believes preservation of
the status quo---in which the lawat issue is not enforced---is in the
public interest. Many citizens of Texas, whose elected representatives
voted for the law, surely feel otherwise. But their views go
unacknowledged by the dissent, which again fails to cite any 'accepted
standar[d]' requiring a court to delay enforcement of a state law that
the court has determined is likely constitutional on the ground that the
law threatens disruption of the status quo." Justice Scalia's rejection
of the status quo represents yet another change in injunction practice
before the Supreme Court, part of a broader change I plan to write about
soon in which injunctions are harder for plaintiffs to get and easier
for defendants to get blocked or overturned. More on that next year.
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Posted in Remedies <http://electionlawblog.org/?cat=57>, Supreme Court
<http://electionlawblog.org/?cat=29>
"Does It Matter Who's Behind the Curtain? Anonymity in Political
Advertising and the Effects of Campaign Finance Disclosure"
<http://electionlawblog.org/?p=56835>
Posted on November 19, 2013 2:59 pm
<http://electionlawblog.org/?p=56835>by Rick Hasen
<http://electionlawblog.org/?author=3>
Conor Dowling and Amber Wichowsky have writtenthis article
<http://apr.sagepub.com/content/41/6/965.abstract> for /American
Politics Research./ Here is the abstract:
Despite the Supreme Court's acceptance of disclosure requirements,
some donors have been able to remain anonymous through a combination
of regulatory gaps, complicated financing schemes, and lags in when
information is made public. As a first examination of the potential
consequences of increased anonymity in political advertising we
designed an experiment that varied the amount and format of
information about the interests behind an attack ad sponsored by an
"unknown" group. We find that participants were more supportive of
the attacked candidate after viewing information disclosing donors,
suggesting that voters may discount a group-sponsored ad when they
have more information about the financial interests behind the
message. We also find some evidence that the effect of disclosure
depends on how campaign finance information is presented. Our study
has implications for how (to this point, failed) congressional
efforts to require greater disclosure of campaign finance donors may
affect electoral politics.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Selection Method, Partisanship, and the Administration of
Elections" <http://electionlawblog.org/?p=56833>
Posted on November 19, 2013 2:57 pm
<http://electionlawblog.org/?p=56833>by Rick Hasen
<http://electionlawblog.org/?author=3>
Barry Burden, David Canon, Stephane Lavertu, Ken Mayer and Donald
Moynihan have written this article
<http://apr.sagepub.com/content/41/6/903.abstract> for /American
Politics Research/. Here is the abstract:
The methods used to select public officials affect the preferences
they bring to office, the incentives they face while in office, and,
ultimately, the policy goals they pursue. We argue that the
preferences and actions of local election officials (LEOs) differ
depending on whether they are elected or appointed. We test these
expectations with a data set that includes the survey responses of
1,200 Wisconsin LEOs, structured interviews, census data, and
returns from the 2008 presidential election. Drawing upon a natural
experiment in how officials are selected, we find that, compared to
appointed officials, elected officials express greater support for
voter access and express less concern about ballot security and
administrative costs. For appointed officials, we find that voter
turnout in a municipality is lower when the LEO's self-reported
partisanship differs from the partisanship of the electorate but
only in cases where the official is a Republican.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"The Invisible Hand of Business in the 2012 Election"
<http://electionlawblog.org/?p=56831>
Posted on November 19, 2013 10:21 am
<http://electionlawblog.org/?p=56831>by Rick Hasen
<http://electionlawblog.org/?author=3>
Lee Fang
<http://www.thenation.com/article/177252/invisible-hand-business-2012-election>:
But now, thanks to recently released tax returns, we are beginning
to learn just who some of the dark-money princes were in 2012 and
how much money they spent. As the returns reveal, business interests
were very busy during that election, quietly underwriting potent
partisan activities that, more often than not, benefited Republicans.
Among the biggest dark-money players was Americans for Prosperity,
which dumped $122 million into various election and advocacy
efforts. Founded and largely financed by the Koch brothers, the
organization also drew undisclosed support from major corporations,
according to tax returns and voluntary disclosures. As AFP hammered
Obama with attack ads and sponsored an unprecedented get out the
vote effort, the group quietly received donations from the tobacco
products giant Reynolds American, from a business league of cable
companies, and from the American Petroleum Institute, a trade group
representing firms in the oil industry, including ExxonMobil,
Chevron and the U.S.-subsidiary of TransCanada. And no wonder: one
of the legislative priorities championed by Americans for Prosperity
during the election, the REINS Act, would require Congress to
approve every major regulation put forward by a Federal agency, from
banking rules to clean air and beyond---a radical proposal that
would be a windfall for AFP's corporate backers.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
More Non-Race Based Equal Protection Claims Against Strict Voting
Laws <http://electionlawblog.org/?p=56829>
Posted on November 19, 2013 7:34 am
<http://electionlawblog.org/?p=56829>by Rick Hasen
<http://electionlawblog.org/?author=3>
Following up onthis post <http://electionlawblog.org/?p=56823>, looks
like some other plaintiff
<http://txredistricting.org/post/66800246419/south-texas-voters-file-new-suit-over-voter-id-law>s
raising non-race based equal protection claims in Texas, and the ACLU
has raised such claims in North Carolina
<https://www.aclu.org/files/assets/leaguewomen_complaint.pdf>
andWisconsin
<https://www.aclu.org/files/assets/acluwisconsinvoteridamendedcomplaint.pdf>.
From my perspective, the important thing would be to move away from the
Burdick standard toward a requiring of actual evidence to support state
interests even in the absence of severe burdens, and preserving that
interest for possible change in the Supreme Court.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Eighth Annual Voting and Elections Summit 2014 -- Thursday, January
30th" <http://electionlawblog.org/?p=56827>
Posted on November 19, 2013 7:28 am
<http://electionlawblog.org/?p=56827>by Rick Hasen
<http://electionlawblog.org/?author=3>
Overseas Vote Foundation and U.S. Vote Foundation Save the Date.
<https://www.etouches.com/ereg/index.php?eventid=76570&>
I had very much wanted to attend this event but could not because of
conflicts in my schedule.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Eight-figure checks fuel Crossroads groups"
<http://electionlawblog.org/?p=56825>
Posted on November 19, 2013 7:26 am
<http://electionlawblog.org/?p=56825>by Rick Hasen
<http://electionlawblog.org/?author=3>
Byron Tau
<http://www.politico.com/story/2013/11/crossroads-gps-american-crossroads-fundraising-99995.html?hp=l19>:
Three massive checks helped fuel Karl Rove's $300 million dollar
campaign against President Barack Obama and Senate Democrats.
Crossroads GPS, the nonprofit affiliate of the super PAC American
Crossroads, reported receiving three eight-figure contributions
---of $22.5 million, $18 million and, $10 million, during 2012,
according to tax documents released
<https://www.documentcloud.org/documents/835885-byron.html#document/p1>Monday
<https://www.documentcloud.org/documents/835885-byron.html#document/p1>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
--
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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