[EL] ELB News and Commentary 2/4/13

Tue Feb 4 06:59:18 PST 2014

Holy charge-backs, Batman...  What's the non-"we're trying to trick donors" reason for putting "Kyrsten Sinema for Congress" at the top of that webpage?

________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock<http://www.capdale.com/jbirkenstock>
*also admitted to practice in CA
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Tuesday, February 04, 2014 12:05 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 2/4/13

“GOP defends tricky campaign contribution websites”<http://electionlawblog.org/?p=58513>
Posted on February 3, 2014 9:02 pm<http://electionlawblog.org/?p=58513> by Rick Hasen<http://electionlawblog.org/?author=3>

NBC News<http://firstread.nbcnews.com/_news/2014/02/03/22559321-gop-defends-tricky-campaign-contribution-websites?lite>:

Republicans are defending a series of websites they established that appear to support Democratic candidates for Congress, but instead direct contributions to the GOP.

The National Republican Congressional Committee (NRCC) said its websites were not confusing, and accused Democrats of crying foul because their candidates were struggling.

The sites, like this one for Arizona Democratic Rep. Kyrsten Sinema<http://contribute.sinemaforcongress.com/>, feature a “Kyrsten Sinema for Congress” banner, and a picture of the first-term congresswoman from a competitive Maricopa County district.

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Posted in campaigns<http://electionlawblog.org/?cat=59>
“The Voting Rights Playbook: Why Courts Matter Post-Shelby County v. Holder”<http://electionlawblog.org/?p=58511>
Posted on February 3, 2014 4:38 pm<http://electionlawblog.org/?p=58511> by Rick Hasen<http://electionlawblog.org/?author=3>

New report<http://www.americanprogress.org/issues/civil-liberties/report/2014/02/03/83264/the-voting-rights-playbook/> from the Center for American Progress.

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Montana AG Gives Up in Campaign Speech Case<http://electionlawblog.org/?p=58509>
Posted on February 3, 2014 4:28 pm<http://electionlawblog.org/?p=58509> by Rick Hasen<http://electionlawblog.org/?author=3>

KXLH: “<http://electionlawblog.org/www.kxlh.com/news/ag-agrees-campaign-mailer-law-is-unconstitutional/>Montana Attorney General Tim Fox says a law about campaign materials that was passed by the Montana Legislature last year is unconstitutionally vague, setting the stage for a federal judge to throw out the law. Matthew Monforton, a Republican running for House District 69 in Bozeman, filed suit to strike down the law, which would have required candidates who publish campaign materials about their opponents’ records to include every vote taken on the issues over the previous six years.”

Good call.

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Posted in campaigns<http://electionlawblog.org/?cat=59>
Top Recent Downloads in Election Law on SSRN<http://electionlawblog.org/?p=58507>
Posted on February 3, 2014 3:50 pm<http://electionlawblog.org/?p=58507> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:

RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of LSN: Election Law & Voting Rights (Topic) [cid:part29.00020004.01000403 at law.uci.edu] <http://papers.ssrn.com/publicRss/rssManagerInc.cfm?journalId=991929>
December 5, 2013 to February 3, 2014

Rank    Downloads       Paper Title
1       115     Universalism and Civil Rights (with Notes on Voting Rights after Shelby) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2367975>
Samuel R. Bagenstos<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=328285>,
University of Michigan at Ann Arbor – Law School – Faculty,
Date posted to database: December 16, 2013
Last Revised: December 18, 2013
2       101     Unteachable: Shelby County, Canonical Apostasies, and Ways Forward for the Voting Rights Act <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361495>
Kareem U. Crayton<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=602663>, Terry Smith<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2164689>,
University of North Carolina (UNC) at Chapel Hill – School of Law, DePaul College of Law,
Date posted to database: November 30, 2013
Last Revised: December 12, 2013
3       81      Super PAC Contributions, Corruption, and the Proxy War Over Coordination <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383452>
Richard L. Hasen<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>,
University of California, Irvine – School of Law,
Date posted to database: January 23, 2014
Last Revised: January 29, 2014
4       66      The Last Rites of Public Campaign Financing? <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378393>
James J. Sample<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=792805>,
Hofstra University, Maurice A. Deane School of Law ,
Date posted to database: January 15, 2014
Last Revised: January 15, 2014
5       46      Political Law <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2369458>
Spencer Overton<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=266965>,
George Washington University – Law School,
Date posted to database: December 19, 2013
Last Revised: December 19, 2013
6       35      Voting Rights Disclosure <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365620>
Spencer Overton<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=266965>,
George Washington University – Law School,
Date posted to database: December 11, 2013
Last Revised: January 9, 2014
7       25      The Law of Deliberative Democracy: Seeding the Field <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2367870>
Ron Levy<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=915969>,
Australian National University,
Date posted to database: December 16, 2013
Last Revised: December 16, 2013
8       23      Outside Influence <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2379171>
Anthony Johnstone<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=546899>,
University of Montana School of Law,
Date posted to database: January 16, 2014
Last Revised: January 17, 2014
9       22      Compulsory Voting and Income Inequality <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2374092>
John Carey<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=868704>, Yusaku Horiuchi<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1101750>,
Dartmouth College, Dartmouth College – Department of Government,
Date posted to database: January 3, 2014
Last Revised: January 3, 2014
10      19      Contestatory Democracy and the Interpretation of Popular Initiatives <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2362994>
Glen Staszewski<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=106992>,
Michigan State University College of Law,
Date posted to database: December 4, 2013
Last Revised: December 4, 2013
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Posted in election law biz<http://electionlawblog.org/?cat=51>
Eugene Kontorovich’s Nonsense About Early Voting<http://electionlawblog.org/?p=58505>
Posted on February 3, 2014 2:45 pm<http://electionlawblog.org/?p=58505> by Rick Hasen<http://electionlawblog.org/?author=3>

Last week I linked<http://electionlawblog.org/?p=58404> to a Politico piece by Eugene Kontorovich and John McGinnis<http://www.politico.com/magazine/story/2014/01/early-voting-the-case-against-102748.html#ixzz2rnqOkgHS> against early voting.  (I also linked to Doug Chapin’s critique<http://blog.lib.umn.edu/cspg/electionacademy/2014/01/so_yesterday_the_rather_outdat.php>.)

In essence, the argument against early voting is that we need a set election day to make a deliberative choice as a nation.  Having people vote early, the argument goes, treats them as a different set of citizens.

This is a coherent argument, albeit one I have little sympathy for. As I explained here,<http://www.sacbee.com/2012/11/03/4958430/republicans-have-pursued-election.html> there is a fundamental divide between liberals and conservatives about what the purpose of voting is for: conservatives see it as about choosing the “best” candidate or “best” policies (meaning limits on who can vote, when and how might make the most sense) and liberals who see it as about the allocation of power among political equals.

Given that I said that Kontorovich’s argument is coherent, where’s the nonsense? It comes from his acceptance of “good old fashioned absentee balloting.”  If one really believes that we need a set election day to all make a deliberative choice together, absentee balloting is even worse than early voting, because it does not even happen in public with other voters.

The current political thinking (which may not even be true anymore) is that early voting helps Democrats while no excuse absentee balloting helps Republicans. So there may be a partisan valence to the Kontorovich suggestion.

Kontorovich has now defended himself in a Volokh blog post.  <http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/03/from-early-voting-to-pre-voting-a-response-to-critics/>

If you read it, here’s what he says about absentee balloting: “Others have asked why if we care about civic participation, why we don’t favor a national election holiday. Or why we would tolerate absentee ballots. Well, it is all a matter of tradeoffs, costs and benefits, and there is no objective scale where these can be weighed.”

This is an incoherent response.  If absentee balloting presents exactly the same risks (or even greater risks) than early voting, how can Kontorovich defend it as a trade-off?

It is no secret I take the view that voting is about the allocation of power among political equals. We should take steps to insure that all eligible voters, but only eligible voters, can easily cast a ballot which will be accurately counted. To accomplish that, in person early voting should be expanded, and we should approach absentee balloting cautiously, given the greater risk of vote buying which has been empirically documented and which is flagged as an issue in the PCEA report. If we want to allow as many eligible voters to participate in the political process as possible, I believe we can tolerate some people voting a few days or a few weeks before election day—when the voter does not have to deal with work or childcare conflicts.

But I don’t see anything in Kontorovich’s post which acknowledges the participatory value and the equal citizenship values that come from making voting for eligible voters easier.

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Posted in election administration<http://electionlawblog.org/?cat=18>
“FPPC goes after more committees in its ‘dark money’ case”<http://electionlawblog.org/?p=58503>
Posted on February 3, 2014 9:29 am<http://electionlawblog.org/?p=58503> by Rick Hasen<http://electionlawblog.org/?author=3>

This item<http://www.politicallawbriefing.com/2014/01/fppc-goes-after-more-committees-in-its-dark-money-case/> appears at Venable’s Political Law Briefing.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
“Bill Maher Takes His Show on the Campaign Trail: the ‘Press Exemption’ After Citizens United and a Lament for the Parties”<http://electionlawblog.org/?p=58501>
Posted on February 3, 2014 6:47 am<http://electionlawblog.org/?p=58501> by Rick Hasen<http://electionlawblog.org/?author=3>

Bauer blogs<http://www.moresoftmoneyhardlaw.com/2014/02/bill-maher-takes-show-campaign-trail-press-exemption-citizens-united-lament-parties/>.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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