[EL] ELB News and Commentary 4/15/14
Rick Hasen
rhasen at law.uci.edu
Tue Apr 15 08:47:42 PDT 2014
"Kansas Gets Extra Time In Voter Registration Case"
<http://electionlawblog.org/?p=60507>
Posted on April 15, 2014 8:43 am <http://electionlawblog.org/?p=60507>by
Rick Hasen <http://electionlawblog.org/?author=3>
The latest <http://www.kscbnews.net/news/?nk=35687>on Kobach v. EAC.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Election Assistance Commission <http://electionlawblog.org/?cat=34>,
Elections Clause <http://electionlawblog.org/?cat=70>
Congratulations to Donald Tobin <http://electionlawblog.org/?p=60505>
Posted on April 15, 2014 8:35 am <http://electionlawblog.org/?p=60505>by
Rick Hasen <http://electionlawblog.org/?author=3>
The tax law/election law scholar and teacher from OSU's Moritz College
of Law isthe new dean
<http://www.oea.umaryland.edu/communications/news/?ViewStatus=FullArticle&articleDetail=22561>at
the University of Maryland Law School.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
"Public Trust Act -- A Public Financing Trial and Tribulation"
<http://electionlawblog.org/?p=60503>
Posted on April 15, 2014 8:32 am <http://electionlawblog.org/?p=60503>by
Rick Hasen <http://electionlawblog.org/?author=3>
Jisha Dymond
<http://www.corporatepoliticalactivitylaw.com/new_york/public-trust-act-public-financing-trial-tribulation>on
the new NYS public financing law.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"New Proposal: 15 Executive Actions to Overcome Government
Dysfunction" <http://electionlawblog.org/?p=60501>
Posted on April 15, 2014 8:27 am <http://electionlawblog.org/?p=60501>by
Rick Hasen <http://electionlawblog.org/?author=3>
Press release:
<http://www.brennancenter.org/press-release/new-proposal-15-executive-actions-overcome-government-dysfunction>"Following
the Obama administration's vow to use strong executive action in the
face of a paralyzed Congress, the Brennan Center for Justice at NYU
School of Law released a new policy proposal today
<http://www.brennancenter.org/publication/15-executive-actions>
outlining 15 steps the administration can take to strengthen democracy,
secure justice, and further the rule of law."
Of the 15, it looks like these are the ones related to voting and elections:
1.
Direct federal agencies to find ways to increase voter
participation nationwide.
2.
Direct federal agencies to accept designation as NVRA agencies.
3.
Enlist the private sector to assure free and fair elections.
4.
Appoint Republicans and Democrats to the Election Assistance and
Federal Election Commissions.
5.
Sign an executive order requiring disclosure of political
spending by entities awarded government contracts.
6.
Request that the Securities and Exchange Commission to issue
regulations requiring disclosure of corporate political spending.
7.
Request that the Federal Communications Commission to require
more thorough disclaimers of outside spending on political
advertisements.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
election administration <http://electionlawblog.org/?cat=18>
"TurboTax Maker Linked to 'Grassroots' Campaign Against Free, Simple
Tax Filing" <http://electionlawblog.org/?p=60499>
Posted on April 15, 2014 8:19 am <http://electionlawblog.org/?p=60499>by
Rick Hasen <http://electionlawblog.org/?author=3>
Must-read ProPublica
<http://www.propublica.org/article/turbotax-maker-linked-to-grassroots-campaign-against-free-simple-tax-filing>:
Over the last year, a rabbi, a state NAACP official, a small town
mayor and other community leaders wrote op-eds and letters to
Congress with remarkably similar language
<https://projects.propublica.org/graphics/tax-letters> on a
remarkably obscure topic.
Each railed against a long-standing proposal that would give
taxpayers the option to use pre-filled tax returns. They warned that
the program would be a conflict of interest for the IRS and would
especially hurt low-income people, who wouldn't have the resources
to fight inaccurate returns. Rabbi Elliot Dorff wrote in a Jewish
Journal
<http://www.jewishjournal.com/opinion/item/irs_return_free_bad_for_most_vulnerable>
op-ed
<http://www.jewishjournal.com/opinion/item/irs_return_free_bad_for_most_vulnerable>
that he "shudder[s] at the impact this program will have on the most
vulnerable people in American society."
"It's alarming and offensive" that the IRS would target the "the
most vulnerable Americans," two other letters said. The concept,
known as return-free filing, is a government "experiment" that would
mean higher taxes for the poor, two op-eds argued.
The letters and op-eds don't mention that, as ProPublica laid out
last year
<http://www.propublica.org/article/how-the-maker-of-turbotax-fought-free-simple-tax-filing>,
return-free filing might allow tens of millions of Americans to file
their taxes for free and in minutes. Or that, under proposals
authored by several federal lawmakers, it would be voluntary, using
information the government already receives from banks and employers
and that taxpayers could adjust. Or that the concept has been
endorsed by Presidents Obama and Reagan and is already a reality in
some parts of Europe.
So, where did the letters and op-eds come from? Here's one clue:
Rabbi Dorff says he was approached by a former student, Emily
Pflaster, who sent him details and asked him to write an op-ed
alerting the Jewish community to the threat.
What Pflaster did not tell him is that she works for a PR and
lobbying firm with connections to Intuit, the maker of best-selling
tax software TurboTax.
"I wish she would have told me that," Dorff told ProPublica.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, lobbying
<http://electionlawblog.org/?cat=28>
"How Democrats Work To Restrict Voting and Disenfranchise People in
a Purple State" <http://electionlawblog.org/?p=60497>
Posted on April 15, 2014 8:12 am <http://electionlawblog.org/?p=60497>by
Rick Hasen <http://electionlawblog.org/?author=3>
RNLA blog post
<http://thereplawyer.blogspot.com/2014/04/how-democrats-work-to-restrict-voting.html>
on Virginia.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>
CPI Documents How Some Political Consultants Reward Themselves
Handsomely via Super PACs <http://electionlawblog.org/?p=60495>
Posted on April 15, 2014 8:08 am <http://electionlawblog.org/?p=60495>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.publicintegrity.org/2014/04/15/14537/super-pac-leaders-score-perks-political-donations>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Can You Lie in Politics? Supreme Court Will Decide"
<http://electionlawblog.org/?p=60493>
Posted on April 15, 2014 8:07 am <http://electionlawblog.org/?p=60493>by
Rick Hasen <http://electionlawblog.org/?author=3>
Roll Call reports
<http://blogs.rollcall.com/hawkings/chabot-driehaus-lying-supreme-court-ohio-case/?dcz=>.
Despite the headline, I don't expect
<http://electionlawblog.org/?p=57900> that the Supreme Court will reach
the merits of the question in the upcoming /Susan B. Anthony /case.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Commentaries: The Congressional Response to Shelby County"
<http://electionlawblog.org/?p=60490>
Posted on April 14, 2014 10:09 pm
<http://electionlawblog.org/?p=60490>by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Harvard Law Review Forum/ has posted
<http://harvardlawreview.org/roundtable/commentaries-the-congressional-response-to-shelby-county/>
Dismissing Deterrence
<http://harvardlawreview.org/2014/04/dismissing-deterrence/>
The VRAA's proposed preclearance regime would still be vulnerable to attack
By Ellen D. Katz <http://harvardlawreview.org/authors/ellen-d-katz/>
Read More
<http://harvardlawreview.org/2014/04/dismissing-deterrence/>
Voting Rights Law and Policy in Transition
<http://harvardlawreview.org/2014/04/voting-rights-law-and-policy-in-transition/>
Activists ought not settle for the valiant but modest VRAA
By Guy-Uriel E. Charles
<http://harvardlawreview.org/authors/guy-uriel-e-charles/> & Luis E.
Fuentes-Rohwer <http://harvardlawreview.org/authors/luis-e-fuentes-rohwer/>
Read More
<http://harvardlawreview.org/2014/04/voting-rights-law-and-policy-in-transition/>
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
" Top-two primary might be bad for small-party candidates"
<http://electionlawblog.org/?p=60488>
Posted on April 14, 2014 10:06 pm
<http://electionlawblog.org/?p=60488>by Rick Hasen
<http://electionlawblog.org/?author=3>
LA Times
<http://www.latimes.com/local/la-me-small-parties-20140415,0,2247816,full.story#axzz2yvcJ8j8h>:
When California voters decided to change the way the state's primary
elections work, the move was cast as an effort to moderate a state
Capitol gripped by polarization.
If the top two vote-getters in a primary faced off against one
another in November regardless of their party affiliation, the
reasoning went, hard-nosed politicians who typically put party
purity above all else would be forced to court less partisan voters.
That could mean more centrists elected to office, more political
compromise and better governance.
But with the approach of only the second election since the
enactment of the "jungle" primary --- the first featuring candidates
for statewide office --- some argue that the change has had a
decidedly undemocratic effect, muzzling the voices of small-party
candidates.
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Posted in political parties <http://electionlawblog.org/?cat=25>,
primaries <http://electionlawblog.org/?cat=32>, third parties
<http://electionlawblog.org/?cat=47>
"Obama on Voter Suppression: The Right Speech in the Wrong Place"
<http://electionlawblog.org/?p=60483>
Posted on April 14, 2014 3:37 pm <http://electionlawblog.org/?p=60483>by
Rick Hasen <http://electionlawblog.org/?author=3>
Andrew Cohen
<http://www.theatlantic.com/politics/archive/2014/04/obama-on-voter-suppression-the-right-speech-in-the-wrong-place/360573/>:
He's got to engage with the woman who says blithely: "If I need to
show ID to get cold medicine why shouldn't I have to show an ID to
vote?" He's got to engage with the man who cries that "voter fraud"
is rampant but cannot cite proof that this is so. There is an
excellent case to be made against voter suppression, and the
president has consistently shown that he knows how to make it, but
it has to be directed at the right audience and it has to be made
over and over and over again until it seeps through.
John Kennedy stood up to the Protestant ministers in September 1960
<http://www.npr.org/templates/story/story.php?storyId=16920600> and
talked about how his Catholic faith would (and would not) affect his
work as president. A few years later, Lyndon Johnson stood up to his
fellow southern Democrats
<http://www.theatlantic.com/magazine/archive/2014/04/what-the-hells-the-presidency-for/358630/>
and told them there would be civil-rights legislation. Barack Obama
needs to do something like that for voter suppression.
It could be on Fox News. It could be from the Oval Office. It could
be in the form of a "town meeting" on voting rights. It could be in
the form of a debate with any one of a dozen Republican senators who
wear their backing voter suppression as a badge of honor. It doesn't
matter. If Obama is as serious on the topic as he appears to be,
what matters now is that he show the courage to go into hostile
venues and work to change hearts and minds until the myths about
voter fraud dissipate and the truth about voter suppression emerges.
MORE
<http://www.theatlantic.com/politics/archive/2014/04/barack-obamas-challenge-to-american-morality/360643/>
from Ta-Nehisi Coates.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>
Updated/Final Versions of Some of My Articles on Campaign Finance,
Voting Rights <http://electionlawblog.org/?p=60478>
Posted on April 14, 2014 3:29 pm <http://electionlawblog.org/?p=60478>by
Rick Hasen <http://electionlawblog.org/?author=3>
I've posted an updated version, including a short discussion of
/McCutcheon/, ofSuper PAC Contributions, Corruption, and the Proxy War
over Coordination
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383452>,
/f/orthcoming in the /Duke Journal of Constitutional Law & Public Policy/.
I have posted the final version of Three Wrong Progressive Approaches
(and One Right One) to Campaign Finance Reform,
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979> 8 /Harvard
Law & Policy Review/ 21 (2014)
I have posted the final version of Shelby County and the Illusion of
Minimalism <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>,
22 /William and Mary Bill of Rights J./ 713 (2014)
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
About that WSJ Article on VRA Section 3 and Travis Crum...
<http://electionlawblog.org/?p=60476>
Posted on April 14, 2014 12:38 pm
<http://electionlawblog.org/?p=60476>by Rick Hasen
<http://electionlawblog.org/?author=3>
Reader Paul Wiley writes:
The Wall Street Journal's profile of Travis Crum
<http://electionlawblog.org/?p=60445> and his influential Note about
the VRA's Section 3
<http://www.yalelawjournal.org/note/the-voting-rights-acts-secret-weapon-pocket-trigger-litigation-and-dynamic-preclearance> sheds
light on one of the Justice Department's most important tools in the
ongoing voting rights battles. But it also gets a few things wrong,
either explicitly or by implication.
For one, the article says that using Section 3 would "expand the
reach of the federal government over states' voting laws beyond the
handful of states---primarily in the South---that have traditionally
been subject to the Voting Rights Act." It may seem nitpicky, but
every state has always been subject to the Voting Rights Act.
Section 5 pre-clearance---the kind the Court gutted in /Shelby
County/---was traditionally applied in Southern states, true. But
the VRA is more than just Section 5. And Section 3 has already been
applied outside the "traditional" footprint of Section 5
pre-clearance: counties in Nebraska, South Dakota, California, and
even the entire state of New Mexico have been under Section 3
pre-clearance orders.
As another matter, Bert Rein's comments in the article
mischaracterize Section 3. Mr. Rein, who argued Shelby County's
appeal to the Supreme Court, seems to criticize Section 3 by saying
"it's better to give [a challenged jurisdiction] a day in court than
assume by legislation their past history makes them a bad actor."
But Section 3 DOES give the challenged jurisdiction its day in
court. Instead of imposing pre-clearance by statutory or
administrative formula---as Section 5 did via the now-defunct
coverage formula of Section 4(b)---Section 3 is only imposed as an
equitable remedy, either after a trial or by a consent decree
entered into by the litigants. If the day in court is the preferred
way of balancing the franchise with state sovereignty, as Mr. Rein
seems to be suggesting, then Section 3 fits the bill.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"If the IRS Was Targeting Karl Rove's Shadowy Group, It Was Doing
Its Job" <http://electionlawblog.org/?p=60474>
Posted on April 14, 2014 9:46 am <http://electionlawblog.org/?p=60474>by
Rick Hasen <http://electionlawblog.org/?author=3>
Alec MacGillis
<http://www.newrepublic.com/article/117345/irs-tea-party-scandal-karl-roves-crossroads-gps-now-plays-victim>
for TNR.
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Posted in tax law and election law <http://electionlawblog.org/?cat=22>
"Officials shouldn't be beholden to special interest groups"
<http://electionlawblog.org/?p=60472>
Posted on April 14, 2014 9:32 am <http://electionlawblog.org/?p=60472>by
Rick Hasen <http://electionlawblog.org/?author=3>
CLC Blog.
<http://www.clcblog.org/index.php?option=com_content&view=article&id=557:officials-shouldnt-be-beholden-to-special-interest-groups>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
conflict of interest laws <http://electionlawblog.org/?cat=20>
"Democrats Support Voting Rights. Republicans Should Too"
<http://electionlawblog.org/?p=60470>
Posted on April 14, 2014 8:21 am <http://electionlawblog.org/?p=60470>by
Rick Hasen <http://electionlawblog.org/?author=3>
Ari Berman
<http://www.thenation.com/blog/179325/democrats-support-voting-rights-republicans-should-too#>:
It's also unfortunate that many in the media continue to report on
voting rights like it's a left versus right issue, as if supporting
a fundamental democratic right suddenly makes one a flaming liberal.
Jamie Fuller of the Washington Post called voting rights "the
Democrats' most important project in 2014
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/04/10/why-voting-rights-is-the-democrats-most-important-project-in-2014/>."
Michael Shear of the New York Times dubbed Obama's speech an effort
"to rally his political base
<http://www.nytimes.com/2014/04/12/us/politics/criticizing-gop-obama-says-the-right-to-vote-is-threatened.html?_r=0>."
The right to vote used to be regarded as a moral issue, not a
partisan one. As LBJ said when he introduced the VRA
<http://www.greatamericandocuments.com/speeches/lbj-voting-rights.html>
before Congress: "It is wrong---deadly wrong---to deny any of your
fellow Americans the right to vote in this country."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"Shaun McCutcheon's Victory Lap" <http://electionlawblog.org/?p=60468>
Posted on April 14, 2014 8:20 am <http://electionlawblog.org/?p=60468>by
Rick Hasen <http://electionlawblog.org/?author=3>
Politico reports.
<http://www.politico.com/story/2014/04/shaun-mccutcheon-supreme-court-case-105646.html>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
The Court and Institutional Realism: McCutcheon
<http://electionlawblog.org/?p=60454>
Posted on April 14, 2014 8:02 am <http://electionlawblog.org/?p=60454>by
Richard Pildes <http://electionlawblog.org/?author=7>
The majority in /McCutcheon /invokes the fact that other institutions
--- namely, Congress and/or the FEC --- have the power to fill any
regulatory gaps that might emerge from the Court's striking down the
aggregate contribution limits. Some critics of the decision excoriate
the Court for invoking the power of Congress or the FEC to act, based on
what I call the "institutionally realist" view that it is unlikely that
either a polarized Congress or gridlocked FEC will do anything. Indeed,
Rick Hasen accuses the Chief Justice of a tactical use of "faux"
"political naivete" in invoking the powers of Congress or the FEC;
according to Rick, here
<http://www.scotusblog.com/2014/04/symposium-does-the-chief-justice-not-understand-politics-or-does-he-understand-it-all-too-well/>,
the "Chief Justice understands exactly what is going on politically,"
knows nothing will happen, and is therefore deceptively hiding the truth
about /McCutcheon's /effects. Put another way, we can ask: should
/McCutcheon -- /and cases like it --- be decided differently based on
the Court's judgments of "political realism" about how the political
branches and regulatory agencies are likely to respond?
/McCutcheon /is thus a perfect example of what I have recently come to
realize is one of the most profound and pervasive issues in all of
constitutional and public law, a problem that we have not yet fully
recognized or appreciated. It's the problem of what I call
"institutional formalism versus institutional realism" in how the Court
does or should review the actions of other institutions of government:
in deciding cases, should the Court take into account its own view of
how other institutions are "realistically" likely to act or should the
Court's decisions rely only on the formal legal powers other
institutions have, without regard to how they are likely to exercise (or
fail to exercise) those powers? In my view, this problem runs
throughout public law and is inescapable. There is no clear or
consistent answer to it, either in doctrine or the way commentators
write about the Court. In reaction to any one case, like /McCutcheon/,
one's views about how "realist" or "formalist" the Court should be tend
to be dominated by how one feels about the particular outcome. But only
when we see how pervasive this issue is across different areas of
constitutional law, does the depth and complexity of this
"realist/formalist" tension become fully apparent.
I have recently written about this in /Institutional Formalism And
Realism in Constitutional and Public Law, /forthcoming in The Supreme
Court view,here.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2411141> Here is
the abstract:
Constitutional and public law often entail judicial review of the
actions of public institutions. In engaging in this review, courts
can adopt a stance of either "institutional formalism" or
"institutional realism" regarding how the institution in question
functions. After defining those terms, this article argues that the
tension between institutionally formalist and realist approaches is
a pervasive one, even if obscured or latent, throughout the
constitutional and public law of institutions. We cannot understand
these bodies of law fully without recognizing this fact. Many
scholars in discrete areas of law can be understood as grappling
with this tension in some form. But we have not appreciated how
profound this institutional issue is, nor how it transcends specific
areas of law to stand as one of public law's general, defining problems.
This formalist/realist institutional tension structures public-law
doctrine and debates regarding judicial oversight of virtually all
the institutions of governance. As this article demonstrates, that
is so for judicial review of the actions of Congress, the President,
federal administrative agencies, state legislatures, and state
courts. After developing this framework, the article applies it to
the Supreme Court's Shelby County decision, in which the Court
struck down part of the Voting Rights Act, and shows that the case
hinges on how formalist or realist the Court ought to be regarding
Congress.
The general struggle in how the law should conceive public
institutions can be seen as the modern successor to the early 20th
century tension between formalist and realist approaches to the
substantive content of legal concepts, categories, and doctrines.
Now, the tension between institutional formalism and realism
re-raises the question of how much pragmatism -- this time, at the
level of institutions and processes -- is compatible with certain
conceptions of the rule of law. Focusing more directly on this
tension illuminates public law and its controversies but cannot
suggest that any final resolution is available. Yet to understand
public law fully requires appreciating the powerful role this
tension quietly plays.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Scrutinizing Federal Electoral Qualifications"
<http://electionlawblog.org/?p=60463>
Posted on April 14, 2014 7:56 am <http://electionlawblog.org/?p=60463>by
Rick Hasen <http://electionlawblog.org/?author=3>
Derek Muller has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2418517> on SSRN
(forthcoming /Indiana Law Journal). /Here is the abstract:
Candidates for federal office must meet several constitutional
qualifications. Sometimes, whether a candidate meets those
qualifications is a matter of dispute. Courts and litigants often
assume that a state has the power to include or exclude candidates
from the ballot on the basis of the state's own scrutiny of
candidates' qualifications. Courts and litigants also often assume
that the matter is not left to the states but to Congress or another
political actor. But those contradictory assumptions have never been
examined, until now.
This Article compiles the mandates of the Constitution, the
precedents of Congress, the practices of states administering the
ballot, and scraps of judicial precedents in litigated cases. It
concludes that states have no role in evaluating the qualifications
of congressional candidates --- the matter is reserved to the
people, and to Congress. It then concludes that while states do have
the power to scrutinize qualifications for presidential candidates,
they are not obligated to do so under the Constitution. If state
legislatures choose to exercise that power, it comes at the risk of
ceding reviewing power to election officials, partisan litigants,
and the judiciary. The Article then offers a framework for future
litigation that protects the guarantees of the Constitution, the
rights of the voters, and the authorities of the sovereigns.
Looking forward to reading this!
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Posted in Elections Clause <http://electionlawblog.org/?cat=70>, The
Voting Wars <http://electionlawblog.org/?cat=60>
--
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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