[EL] ELB News and Commentary 9/5/13

Thu Sep 5 09:05:00 PDT 2013

*Election Law Journal 12:3 — Responses to Shelby
County*<http://electionlawblog.org/?p=55031>

Posted on September 5, 2013 8:50 am <http://electionlawblog.org/?p=55031> by
Dan Tokaji <http://electionlawblog.org/?author=5>

The fall issue of *Election Law Journal* is now
available<http://online.liebertpub.com/toc/elj/12/3>.
It features ten short essays on the Supreme Court decision in *Shelby County
* from members of our illustrious editorial
board<http://www.liebertpub.com/editorialboard/election-law-journal-rules-politics-and-policy/101/>.
Here’s the full table of contents:

*The Party Line: *Shelby County* and Beyond*, by Daniel P. Tokaji, Paul
Gronke

*Articles *

*Is It the Message or the Person? Lessons from a Field Experiment About Who
Converts to Permanent Vote by Mail*, by Keith Smith, Dari E. Sylvester

*Gerrymandering from the Bench? The Electoral Consequences of Judicial
Redistricting*, by James B. Cottrill, Terri J. Peretti

*Using Spatial Techniques and Counterfactual Design to Examine Voting
System Performance*, by Iris Hui

*Voting by Senior Citizens in Long-Term Care Facilities*, by Richard J.
Bonnie, Paul Freedman, Thomas M. Guterbock

*Essay *

*Is “Dependence Corruption” Distinct from a Political Equality Argument for
Campaign Finance Laws? A Reply to Professor Lessig*, by Richard L. Hasen

*Forum: Responses to Shelby County *

*What Does the Court’s Decision Mean?*, by Richard H. Pildes

*Why Democrats May Benefit from *Shelby County, by Charles S. Bullock III

Shelby County v. Holder*: A Case of Judicial Hubris or a Clash of Ancient
Principles?*, by Mark Rush

*Judges Are Not Social Scientists (Yet)*, by David C. Kimball

*Voting Rights After* Shelby County*: Bring on the Election Geeks*, by Doug
Chapin

*What Was Wrong with the Record?*, by Ellen D. Katz

*Devising a Sensible Trigger for Section 5 of the Voting Rights Act*, by
Bernard Grofman

*Moving Past Section 5: More Fingers or a New Dike?,* by Bruce E. Cain

*William Faulkner and the Dilemmas of* Shelby County, by David Schultz

*If Congress Won’t Act, the Nonprofit Community Can*, by Edward B. Foley

*Book Review *

*African American Legislators and Substantive Representation in Louisiana*,
by Richard L. Engstrom (reviewing Jas M. Sullivan and Jonathan Winburn, *The
Louisiana Legislative Black Caucus: Race and Representation in the Pelican
State*)

The winter issue (12:4), due out in December, will feature papers on
Deliberative Democracy from a conference at NYU in the spring, organized by
Ron Levy and our International Editor Graeme Orr.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
ACLU and LULAC Suit to Stop Iowa’s Matching of Registration and Immigration
Records <http://electionlawblog.org/?p=55026>
Posted on September 5, 2013 8:25 am <http://electionlawblog.org/?p=55026> by
Dan Tokaji <http://electionlawblog.org/?author=5>

AP has this report<http://www.thonline.com/news/iowa-illinois-wisconsin/article_2be7a60e-ad60-5c2d-98e1-cc718692cfad.html>on
litigation challenging Iowa Secretary of State Matt Schultz’s plan to
compare voter registration records against a federal immigration database,
and send people who aren’t listed a letter challenging their registration
and telling them that registering without citizenship is a felony.
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Posted in voter registration <http://electionlawblog.org/?cat=37>
GW Panel on Government Ethics <http://electionlawblog.org/?p=55024>
Posted on September 5, 2013 8:11 am <http://electionlawblog.org/?p=55024> by
Dan Tokaji <http://electionlawblog.org/?author=5>

George Washington’s Political Law Studies Initiative will host a panel and
networking reception<http://www.law.gwu.edu/Academics/research_centers/politicallaw/Pages/Events.aspx>on
September 12, on “important updates on the ethics process and
developments in Congressional and Executive Branch ethics,” featuring
Allison George of the Office of Government Ethics, John Sassaman of the
Senate Committee on Ethics and Dan Schwager of the House Committee on
Ethics.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
Final Judgment on Texas State Senate Map<http://electionlawblog.org/?p=55022>
Posted on September 5, 2013 8:05 am <http://electionlawblog.org/?p=55022> by
Dan Tokaji <http://electionlawblog.org/?author=5>

Texas Redistricting & Election Law has this
post<http://txredistricting.org/post/60305300247/san-antonio-court-enters-final-judgment-on-state-senate>with
a link to the ruling in
*Davis v. Perry<http://moritzlaw.osu.edu/electionlaw/litigation/DavisvPerry.php>
.*
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Posted in redistricting <http://electionlawblog.org/?cat=6>
Mississippi Democratic Party Asks DOJ to Observe Hattiesburg Mayoral
Election <http://electionlawblog.org/?p=55020>
Posted on September 5, 2013 7:56 am <http://electionlawblog.org/?p=55020> by
Dan Tokaji <http://electionlawblog.org/?author=5>

The AP reports here<http://www.wxvt.com/story/23348495/feds-asked-to-observe-hattiesburg-mayoral-election>
.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>, Voting
Rights Act <http://electionlawblog.org/?cat=15>
“Corruption Meets Incompetence in the Detroit Election
Scandal”<http://electionlawblog.org/?p=55016>
Posted on September 5, 2013 7:50 am <http://electionlawblog.org/?p=55016> by
Dan Tokaji <http://electionlawblog.org/?author=5>

Michigan Radio has this
essay<http://michiganradio.org/post/corruption-meets-incompetence-detroit-election-scandal>from
Jack Lessenberry, on the
controversy <http://electionlawblog.org/?p=54941> surrounding Detroit’s
mayoral primary<http://www.freep.com/article/20130903/NEWS01/309030089/Detroit-mayoral-primary-results>
.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
recounts <http://electionlawblog.org/?cat=50>
“Police Detective Sentenced To Prison in Donovan Campaign Fund
Scandal”<http://electionlawblog.org/?p=55014>
Posted on September 5, 2013 7:35 am <http://electionlawblog.org/?p=55014> by
Dan Tokaji <http://electionlawblog.org/?author=5>

The Harford Courant reports
here<http://www.courant.com/news/connecticut/hc-tirado-donovan-sentencing-20130904,0,3458550.story>on
a “decorated Waterbury [CT] police detective and owner of a
roll-your-own tobacco store … sentenced to 26 months in prison Wednesday
for trying to scuttle a state tobacco tax by attempting to bribe former
state House Speaker and congressional candidate Christopher Donovan.” One
of his employees received a 21 month sentence for a ”scheme to violate
campaign finance laws by disguising the source of contributions to
Donovan’s congressional campaign.”
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Posted in bribery <http://electionlawblog.org/?cat=54>, campaign
finance<http://electionlawblog.org/?cat=10>
Sunlight Foundation on State Disclosure
Bills<http://electionlawblog.org/?p=55012>
Posted on September 5, 2013 7:27 am <http://electionlawblog.org/?p=55012> by
Dan Tokaji <http://electionlawblog.org/?author=5>

Sunlight Foundation has this
report<http://reporting.sunlightfoundation.com/2013/battle-over-dark-money-rages-state-level-open-states-data-shows/>,
“Battle over Dark Money Takes Many Forms on State Level,” analyzing
campaign finance bills introduced in states legislatures in 2012 or 2013,
including legislation that would require disclosure.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, legislation
and legislatures <http://electionlawblog.org/?cat=27>
“Local Public Financing Programs Make Elections More
Local”<http://electionlawblog.org/?p=55010>
Posted on September 5, 2013 7:18 am <http://electionlawblog.org/?p=55010> by
Dan Tokaji <http://electionlawblog.org/?author=5>

Robert Weschler has this blog
post<http://www.cityethics.org/content/local-public-financing-programs-make-elections-more-local>analyzing
New Haven’s public financing program, concluding that “big
contributors from out of town, often contractors, developers, and others
who seek special benefits from the winning candidate, can’t give enough to
matter, because the amount they can contribute is limited.”
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
“Talk Show Host’s PAC Pours Cash into Democratic Primaries for Erie County
Legislature” <http://electionlawblog.org/?p=55008>
Posted on September 5, 2013 7:12 am <http://electionlawblog.org/?p=55008> by
Dan Tokaji <http://electionlawblog.org/?author=5>

The Buffalo News reports
here<http://www.buffalonews.com/city-region/erie-county-politics/talk-show-hosts-pac-pours-cash-into-democratic-primaries-for-erie-county-legislature-20130904>on
allegations of anonymous mass mailings put out by a local talk show
host’s PAC.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Online Discussion of the March @ 50: Voting
Rights<http://electionlawblog.org/?p=55006>
Posted on September 5, 2013 7:06 am <http://electionlawblog.org/?p=55006> by
Dan Tokaji <http://electionlawblog.org/?author=5>

You can now view last night’s “Google Hangout”
discussion<http://www.youtube.com/watch?v=pHC7QZg1P5M>of the March
@ 50′s voting rights segment <http://electionlawblog.org/?p=54989> on PBS.
The discussion features Myrna Perez, Janai Nelson, and me, moderated by
March @ 50 Director Shukree Tilghman.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
“The Fall and Rise of Specialized Federal Constitutional
Courts”<http://electionlawblog.org/?p=55003>
Posted on September 4, 2013 11:00 am <http://electionlawblog.org/?p=55003> by
Rick Hasen <http://electionlawblog.org/?author=3>

Michael Solimine has published this very important
paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2272627>(I’ve
read an earlier draft) on SSRN. Here is the abstract:

Most constitutional challenges in federal court to federal statutes are
litigated in the familiar pattern of a decision by a single U.S. District
judge, followed by an appeal to a three-judge panel of one of the U.S.
Court of Appeals, followed by the filing of a writ of certiorari in the
U.S. Supreme Court, which has discretion to grant or deny the writ.
Sometimes, however, Congress requires a separate path for constitutional
challenges to particular federal statutes, with the frequent challenges to
provisions of the Bipartisan Campaign Reform Act, such as in Citizens
United v. FEC (2010), being a notable example. These provisions often
provide for the convening of a three-judge district court, usually in the
District of Columbia, followed by an ostensibly mandatory appeal to the
Supreme Court. They often also permit members of Congress to bring or
intervene in such actions, and mandate that the federal courts decide the
cases in an expeditious manner. All of these characteristics are absent
from the typical challenge to federal statutes.

These atypical jurisdictional provisions in effect establish specialized if
temporary federal courts to rule on constitutional issues. The causes and
consequences of specialized federal constitutional courts are an
understudied phenomenon in the scholarly literature, a gap filled by this
article. The article first summarizes the history of the three-judge
district court, founded to consider all constitutional challenges to
federal statutes, from its establishment in 1937 to its repeal in 1976. It
next documents the instances when Congress has subsequently created such
courts on a statute-specific basis, and addresses the rationales advanced
in the legislative history, namely, uncertainty over a statute’s
constitutionality, and the asserted need to promptly resolve that issue.
The article then subjects the partial revival of such courts to critical
examination. It argues that a complex and sometimes inconsistent set of
reasons, including but not limited to Congressional abdication of
constitutional deliberation to the judicial branch, explains the ad hoc
adoption of these statutes. The article argues that other provisions of
these laws, such as mandating venue in the District of Columbia or
expeditious treatment, are unnecessary. Finally, it contends that cases
litigated before these courts have a possibly deleterious impact on the
quality of decisions in the Supreme Court. The article concludes that
Congress should not pass these statutes and rather permit all
constitutional litigation to proceed in a uniform manner.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
“Mapping Public Fiduciary Relationships”<http://electionlawblog.org/?p=55001>
Posted on September 4, 2013 10:58 am <http://electionlawblog.org/?p=55001> by
Rick Hasen <http://electionlawblog.org/?author=3>

Ethan Leib, David Ponet and Michael Serota have posted this
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2320548>on
SSRN (forthcoming as a chapter in Andrew Gold & Paul Miller’s THE
PHILOSOPHICAL FOUNDATIONS OF FIDUCIARY
LAW<http://depaullaw.typepad.com/depaul_law_school/2013/06/legal-scholars-to-address-philosophical-issues-raised-by-fiduciary-law.html>).
Here is the abstract:

Fiduciary political theorists have neglected to explore sufficiently the
difficulty of mapping fiduciary-beneficiary relationships in the public
sphere. This oversight is quite surprising given that the proper mapping of
fiduciary-beneficiary relationships in the private sphere is one of the
most longstanding and strongly contested debates within corporate law.
After decades of case law and scholarship directed towards the question of
to whom do a corporation’s directors or managers serve as fiduciaries,
private law theorists remain deeply divided. This debate within private law
should be of perennial interest to public fiduciary theorists because the
cartography of public fiduciary relationships is essential to
operationalizing the project. After all, it is only through identifying the
relevant fiduciary and beneficiary that one is able to determine the
precise contours of the fiduciary framework’s ethical architecture. As
such, loose mapping of fiduciary-beneficiary relationships in the public
sphere precludes a clear understanding of whose interests are pertinent to
the public fiduciary’s representation, and what the public fiduciary is to
do when beneficiaries’ interests collide. The purpose of this chapter,
then, is to explore the central debate in corporate law about
fiduciary-beneficiary relationships to help translate fiduciary principles
into public law configurations.

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Posted in campaigns <http://electionlawblog.org/?cat=59>
“How Fragile Is the New Democratic
Coalition?”<http://electionlawblog.org/?p=54999>
Posted on September 4, 2013 8:44 am <http://electionlawblog.org/?p=54999> by
Rick Hasen <http://electionlawblog.org/?author=3>

More great Tom Edsall
translation<http://opinionator.blogs.nytimes.com/2013/09/03/how-fragile-is-the-new-democratic-coalition/?hp>of
political science data into real political implications.
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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>
“Business Tries to Tame Tea-Party Conservatives It Helped
Elect”<http://electionlawblog.org/?p=54997>
Posted on September 4, 2013 8:26 am <http://electionlawblog.org/?p=54997> by
Rick Hasen <http://electionlawblog.org/?author=3>

Following up on my earlier post
<http://electionlawblog.org/?p=54991>today, I missedthis Jill Lawrence
piece<http://www.nationaljournal.com/domesticpolicy/business-tries-to-tame-tea-party-conservatives-it-helped-elect-20130819>from
last month.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, legislation
and legislatures <http://electionlawblog.org/?cat=27>,
lobbying<http://electionlawblog.org/?cat=28>
“Unions dramatically increase super PAC
donations”<http://electionlawblog.org/?p=54995>
Posted on September 4, 2013 8:25 am <http://electionlawblog.org/?p=54995> by
Rick Hasen <http://electionlawblog.org/?author=3>

CPI reports<https://www.publicintegrity.org/2013/09/04/13274/unions-dramatically-increase-super-pac-donations>
.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>

-- 
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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