[EL] ELB News and Commentary 2/25/14
Rick Hasen
rhasen at law.uci.edu
Mon Feb 24 21:16:43 PST 2014
"Iowa voter fraud investigation concludes; 80 additional cases
referred to prosecutors" <http://electionlawblog.org/?p=59011>
Posted on February 24, 2014 9:09 pm
<http://electionlawblog.org/?p=59011>by Rick Hasen
<http://electionlawblog.org/?author=3>
Des Moines Register
<http://www.desmoinesregister.com/article/20140224/NEWS09/302240099/Iowa-voter-fraud-investigation-concludes-80-additional-cases-referred-prosecutors>:
Since September, when DeCamp took over as the lead investigator, the
effort has scrutinized 245 individual voters. Of those, more than 80
have been referred to county attorneys for possible prosecution.
It will be up to prosecutors on whether to bring charges based on
the evidence provided by the DCI.
Since the investigation began in July, 2012, five cases have
resulted in guilty pleas. Fifteen are pending before courts across
the state, DeCamp said.
A Des Moines Register investigation into the five guilty pleas last
December revealed they generally involved voters who didn't
intentionally violate state election laws.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
fraudulent fraud squad <http://electionlawblog.org/?cat=8>, The Voting
Wars <http://electionlawblog.org/?cat=60>
"Romney backs effort to end nominating conventions in Utah"
<http://electionlawblog.org/?p=59009>
Posted on February 24, 2014 7:10 pm
<http://electionlawblog.org/?p=59009>by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/blogs/govbeat/wp/2014/02/24/romney-backs-effort-to-end-nominating-conventions-in-utah/>:
"Former Republican presidential nominee Mitt Romney is lending his
support to an initiative that would change the way Utah political
parties choose their candidates. In an e-mail to former Utah Gov. Mike
Leavitt (R), Romney said he supports Count My Vote, an initiative that
would require party nominees to be chosen in primaries rather than
through a convention system."
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Posted in political parties <http://electionlawblog.org/?cat=25>,
primaries <http://electionlawblog.org/?cat=32>
"State Senate leaders agree boundary law is unclear"
<http://electionlawblog.org/?p=59007>
Posted on February 24, 2014 7:09 pm
<http://electionlawblog.org/?p=59007>by Rick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://hosted.ap.org/dynamic/stories/C/CA_STATE_SENATOR_VOTER_FRAUD_CAOL-?SITE=CAANR&SECTION=HOME&TEMPLATE=DEFAULT>:
The Republican and Democratic leaders of the state Senate on Monday
said a law that ensnared a legislator on perjury and voter-fraud
charges is ambiguous and might need to be changed.
Sen. Roderick Wright is awaiting sentencing in May after he was
convicted last month of lying about his true residence, which a Los
Angeles County jury determined was outside his Senate district.
Senate President Pro Tem Darrell Steinberg, D-Sacramento, and Senate
Minority Leader Bob Huff, R-Diamond Bar, said in separate comments
to reporters that current state law is so ambiguous that other
lawmakers also could be in violation of a requirement that they live
in the district they represent while running for office.
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Posted in residency <http://electionlawblog.org/?cat=38>
"Campaign-finance 'reform' won't solve government corruption"
<http://electionlawblog.org/?p=59005>
Posted on February 24, 2014 4:43 pm
<http://electionlawblog.org/?p=59005>by Rick Hasen
<http://electionlawblog.org/?author=3>
Paul Sherman letter to the editor
<http://www.washingtonpost.com/opinions/campaign-finance-reform-wont-end-government-corruption/2014/02/24/6de19074-9d83-11e3-878c-65222df220eb_story.html>
of WaPo responding to my oped
<http://www.washingtonpost.com/opinions/how-the-next-citizens-united-could-bring-more-corruption--but-less-gridlock/2014/02/21/a190d1c6-95ab-11e3-afce-3e7c922ef31e_story.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Bernstein on Bauer on Hasen and Pildes on McCutcheon on Strong
Parties and Campaign Finance <http://electionlawblog.org/?p=59003>
Posted on February 24, 2014 3:47 pm
<http://electionlawblog.org/?p=59003>by Rick Hasen
<http://electionlawblog.org/?author=3>
Read.
<http://www.bloomberg.com/news/2014-02-24/looser-campaign-finance-laws-won-t-help-parties.html>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Ellen Miller Retiring from Sunlight
<http://electionlawblog.org/?p=59001>
Posted on February 24, 2014 3:26 pm
<http://electionlawblog.org/?p=59001>by Rick Hasen
<http://electionlawblog.org/?author=3>
After very successful stints at CRP and Public Campaign.
Announcement.
<http://sunlightfoundation.com/blog/2014/02/24/time-to-pass-the-baton-at-sunlight/>
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Posted in election law biz <http://electionlawblog.org/?cat=51>
Liptak on Toobin on Justice Thomas
<http://electionlawblog.org/?p=58999>
Posted on February 24, 2014 2:57 pm
<http://electionlawblog.org/?p=58999>by Rick Hasen
<http://electionlawblog.org/?author=3>
Adam's Sidebar
<http://www.nytimes.com/2014/02/25/us/another-test-of-precedent-no-not-thomass-silence.html?smid=tw-share&_r=0>includes
a quick rebuff of Toobin's column:
Jeffrey Toobin of The New Yorker recently called Justice Thomas's
silence "downright embarrassing."
<http://www.newyorker.com/online/blogs/comment/2014/02/clarence-thomas-disgraceful-silence.html>
But the real work of the Supreme Court is done in written opinions,
and there Justice Thomas has laid out a consistent and closely
argued judicial vision.
Yup. <http://electionlawblog.org/?p=58961>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"The McCutcheon Case:The Legal and Political Consequences if the
Supreme Court Strikes Down Overall Contribution Limits"
<http://electionlawblog.org/?p=58997>
Posted on February 24, 2014 1:56 pm
<http://electionlawblog.org/?p=58997>by Rick Hasen
<http://electionlawblog.org/?author=3>
Fred Wertheimer analysis
<http://www.democracy21.org/inside-the-courts/press-releases-inside-the-courts/the-mccutcheon-casethe-legal-and-political-consequences-if-the-supreme-court-strikes-down-overall-contribution-limits/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Hoboken's legacy of vote-by-mail schemes; Rent control referendum
results stand, and shed light on dubious election pastime"
<http://electionlawblog.org/?p=58995>
Posted on February 24, 2014 1:52 pm
<http://electionlawblog.org/?p=58995>by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Hudson Reporter/ reports
<http://hudsonreporter.com/view/full_story/24627525/article-Hoboken-s-legacy-of-vote-by-mail-schemes--Rent-control-referendum-results-stand--and-shed-light-on-dubious-election-pastime--?instance=latest_story>.
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Posted in absentee ballots <http://electionlawblog.org/?cat=53>,
chicanery <http://electionlawblog.org/?cat=12>
"Justice Thomas: leading the way to campaign-finance deregulation"
<http://electionlawblog.org/?p=58992>
Posted on February 24, 2014 9:20 am
<http://electionlawblog.org/?p=58992>by Rick Hasen
<http://electionlawblog.org/?author=3>
/[I originally wrote this piece
<http://www.firstamendmentcenter.org/justice-thomas-leading-the-way-to-campaign-finance-deregulation>/
/for the First Amendment Center
<http://www.firstamendmentcenter.org/justice-thomas-leading-the-way-to-campaign-finance-deregulation>
published Oct. 8, 2007. //It was part of a symposium
<http://www.firstamendmentcenter.org/foreword-justice-thomas-and-the-first-amendment>
on Justice Thomas's First Amendment jurisprudence. I am reprinting it
below here, as it has moved on the Center's website, and I wanted to
make it more available given that I referenced it in a recent post
<http://electionlawblog.org/?p=58961>responding to Jeffrey Toobin
<http://www.newyorker.com/online/blogs/comment/2014/02/clarence-thomas-disgraceful-silence.html>on
Justice Thomas's performance on the Court. I have *not* updated this
piece to take into account many significant post-2007 developments.]/
Justice Thomas: leading the way to campaign-finance deregulation
First Amendment Center
<http://www.firstamendmentcenter.org/author/firstamendmentcenter>
Nashville, Tenn.
Monday, October 8, 2007
T/his article is part of an online symposium
<http://www.firstamendmentcenter.org/collection.aspx?id=19118> on the
First Amendment Center Online concerning Supreme Court Justice Clarence
Thomas's First Amendment jurisprudence./
"In my view, the Constitution leaves it entirely up to citizens and
candidates to determine who shall speak, the means they will use, and
the amount of speech sufficient to inform and persuade."
--- /Nixon v. Shrink Missouri Government PAC/ (2000) (Thomas, J.,
dissenting)
Justice Clarence Thomas has not been afraid to go it alone when it comes
to expressing the view that the First Amendment prohibits most, if not
all, campaign-finance regulation. Twice he has taken a position rejected
by his eight other colleagues in this area. But Justice Thomas' clear,
if radical, deregulatory vision has proven to be influential, drawing
other justices (perhaps soon a majority) toward his view that money
spent on election-related advertising and other forms of speech cannot
be limited by the government.
*Thomas' campaign-finance vision: no contribution limits, no spending
limits, few (if any) disclosure requirements*
/Contribution and spending limits/
Understanding Justice Thomas's vision requires a bit of background on
the Supreme Court's campaign-finance jurisprudence, beginning with
/Buckley v. Valeo
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Buckley_v_Valeo>/
(1976), a case that well preceded Justice Thomas's confirmation to the
high court. In /Buckley,/ the Supreme Court established that the amounts
of campaign /contributions/ could be limited to prevent corruption or
the appearance of corruption, but that limits on /spending/ of money
could not be justified by an anticorruption interest (because of the
lack of evidence that independent spending could corrupt candidates) or
on equality grounds (because doing so would be "wholly foreign" to the
First Amendment). The Court declared that limits on the amount of
contributions only "marginally" restricted First Amendment rights and
were therefore subject to lower constitutional scrutiny, while spending
limits more directly limited speech and were therefore subject to strict
scrutiny.
Since /Buckley,/ the Court's jurisprudence has moved in fits and turns,
as different Court majorities either showed deference toward legislative
efforts to regulate campaign finances or showed hostility to such
regulation on First Amendment grounds. At its most deferential, the
Court, in another pre-Thomas decision, upheld limits on /spending/ by
corporations from their general treasury funds on advertising that
expressly advocated the election or defeat of candidates for office. The
Court, applying strict scrutiny, held that such laws were justified by
the government's compelling interest in preventing "the corrosive and
distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have little or
no correlation to the public's support for the corporation's political
ideas" (/Austin v. Michigan Chamber of Commerce,
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Austin_v_Michican_Chamber_of_Commerce>/
1990). Over the dissent of Thomas and others, the Court in /McConnell v.
FEC
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=McConnell_v_Federal_Election_Commission>/
(2003) extended /Austin/'s holding to unions and to additional
election-related broadcast advertising that did not expressly advocate
the election or defeat of candidates.
Since his first case on the Court raising contribution- or
spending-limits questions, Thomas has been adamant in rejecting the
/Buckley/ framework in favor of a constitutional test that would apply
strict scrutiny to both contribution and expenditure limits and hold all
such laws as violating the First Amendment (/Colorado Republican Federal
Campaign Committee v. FEC,
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=CO_Republican_v_FCC>/
1996 [Colorado I], Thomas, J., concurring in the judgment and dissenting
in part). Speaking only for himself in part II of his /Colorado I/
opinion, Thomas expressed the view that "under traditional strict
scrutiny, broad prophylactic caps on both spending and giving in the
political process ... are unconstitutional."
Justice Thomas seems to accept for the sake of argument the principle
that the government has a compelling interest in preventing corruption
or the appearance of corruption, but has found that various laws the
Court has considered in its campaign finance cases to fail strict
scrutiny on grounds that they are not "narrowly tailored." In each of
these cases, Thomas found that bribery laws or disclosure laws were a
more narrowly tailored means to deal with any problems of corruption or
the appearance of corruption. He further rejected any argument that
campaign contributions are entitled to less constitutional protection
than spending, believing that a person has the same right to spend
directly as to hire others or give money to others to engage in
effective political speech. Thomas believes political speech is entitled
to the highest First Amendment protection.
Thus, Justice Thomas voted:
* To reject a federal law limiting the amounts of funds that political
parties could spend in coordination with or independent of their
candidates (/Colorado I/; /FEC v. Colorado Republican Federal
Campaign Committee,
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Federal_Election_Comm_v_Colorado_Republican_Federal_Campaign_Committee>/
2001 (/Colorado II/).
* To strike down a contribution limit of $1,075 for state office in
Missouri (/Nixon v. Shrink Missouri Government PAC,
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Nixon_v_Shrink_Missouri_Govt>/
2000).
* To reject a law limiting even nonprofit ideological corporations
from making any campaign contributions to candidates for federal
office (/FEC v. Beaumont,
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Federal_Election_Commission_v_Beaumont>/
2003).
* To strike down all major provisions of the Bipartisan Campaign
Reform Act
<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ155.107.pdf>
of 2002 (BCRA, or "McCain-Feingold"), including those limiting the
giving of "soft money" to political parties (/McConnell v. FEC/).
* To strike down Vermont's campaign-contribution limits for state office.
* To overrule /Austin/ and /McConnell/ in a recent challenge to the
McCain-Feingold provisions limiting the spending of corporate
treasury funds on election-related ads (/FEC v. Wisconsin Right to
Life
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Federal_Election_Commission_v_Wisconsin_Right_to_Life_Inc>/
("/WRTL/"), 2007).
From these many opinions, it is clear that Justice Thomas would vote to
strike down every contribution or spending limit that might be enacted
by a legislative body in the United States. Under Thomas's vision, it
would be perfectly permissible, for example, for Microsoft or the
AFL-CIO to give $100 million to a presidential candidate running for
office. The justice believes any corrupt activity would be ferreted out
and prosecuted under applicable federal bribery laws.
Thomas' analysis is perhaps at its weakest when it delves into the realm
of empirical predictions and political science. Besides seriously
underestimating the difficulty of ferreting out prosecutable cases of
bribery, he also takes an unrealistically charitable view of the
motivations of donors. Thus, in response to evidence that "in 1996 and
2000, more than half of the top 50 soft-money donors gave substantial
sums to /both/ major political parties" --- which suggested that major
corporations, unions, and wealthy individuals were purchasing access to
federal officeholders --- Thomas expressed the view that there was
"substantial overlap" between the ideological views of Democrats and
Republicans and "[if] donors feel that both major political parties are
in general agreement over an issue of importance to them, it is
unremarkable that such donors show support for both parties" (/McConnell/).
/Disclosure rules/
In /Colorado I,/ Justice Thomas pointed to campaign-finance disclosure
as a more narrowly tailored means of dealing with the problem of
corruption in the political process: "[D]isclosure laws work to make
donors and donees accountable to the public for any questionable
financial dealings in which they may engage." But the justice over time
has become more skeptical of the constitutionality of campaign finance
disclosure requirements.
Even before /Colorado I,/ Thomas wrote a concurring opinion in /McIntyre
v. Ohio Elections Commission
<http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=McIntyre_v_OH_Elections_Commission>/
(1995) affirming the right of a person to distribute anonymous campaign
literature regarding a school board ballot measure. Thomas based his
view on a historical analysis of how the Framers would have understood
the right to anonymous campaign speech.
The reach of /McIntyre/ remained unclear, and in the 2003 /McConnell/
case, Thomas was alone in voting to strike down BCRA's new disclosure
provisions. That provision was meant to stop the anonymous funding of
ads such as those run in the 2000 New York primary attacking John
McCain's environmental record, and paid for by a previously unknown
group, Republicans for Clean Air. The "group" turned out to be the Wyly
brothers, longtime supporters of George W. Bush from Texas.
In /McConnell,/ Justice Thomas read /McIntyre/ as overruling /Buckley/
at least in part, rendering unconstitutional many campaign-finance
disclosure provisions. It is not clear from Thomas' /McConnell/ opinion
what forms of disclosure may be constitutionally permissible, but at
most the law could extend to disclosure of certain contributions and not
to most expenditures. Thus, under Thomas' vision, for example,
Microsoft, the AFL-CIO or George Soros would have the right to spend
anonymously $100 million independently supporting or opposing a
presidential candidate.
*Thomas' growing influence on the Court in the campaign-finance arena*
Since the beginning of his tenure on the Court, Justice Thomas has
occupied one of the polar positions on the campaign-finance issue: a
clear, deregulatory position. (At the other pole is Justice Stephen
Breyer, whose "participatory self government" rationale would allow for
greater consideration of equality in balancing First Amendment rights
and government interests ^1
<http://www.firstamendmentcenter.org/justice-thomas-leading-the-way-to-campaign-finance-deregulation#f1>
). Thomas' steadfastness and clarity on this issue appears to have
opened up space for additional justices to move toward his position on
the issue.
When Thomas first wrote that /Buckley/ should be overruled in favor of
an across-the-board, strict-scrutiny approach to campaign-finance
regulation, in /Colorado I,/ Chief Justice Rehnquist and Justice Antonin
Scalia notably failed to join that portion of Thomas' opinion. By 2000,
Justice Scalia was on board with overruling /Buckley/'s more complaisant
standard of review for assessing the constitutionality of contribution
limits (/Shrink Missouri/), and by 2001 Justice Anthony Kennedy agreed
as well that Buckley "should be overruled" (/Colorado II/). Together,
these three Justices recently staked out a position for overruling
/Austin/ and /McConnell/ in last term's decision in /WRTL./
Justice Thomas' influence in this area could soon gain majority status.
In /WRTL,/ Chief Justice Roberts and Justice Alito issued an opinion
that did not go quite so far as the other three deregulatory justices
would go, but it still significantly cut back the reach of the
/McConnell/ opinion, thereby allowing more corporate and union
election-related ads to be paid for out of treasury funds. The chief
justice's opinion reads like a Justice Thomas opinion, full of paeans to
the First Amendment and the value of free political debate, unfettered
by campaign-finance rules. In declaring that "Enough is enough" when
faced with an argument that strict campaign-finance laws are necessary
to prevent the circumvention of core limits on money in politics, Chief
Justice Roberts echoed Thomas' skepticism of anti-circumvention
arguments expressed in /McConnell/: "speech regulation will again expand
to cover new forms of 'circumvention,' only to spur supposed
circumvention of the new regulations, and so forth." It seems only a
matter of time before Roberts and Justice Samuel Alito move either
firmly into Thomas' camp or at least close to his position. ^2
<http://www.firstamendmentcenter.org/justice-thomas-leading-the-way-to-campaign-finance-deregulation#f2>
Justice Thomas may not find another four votes for his positions on a
general right to engage in /anonymous/ campaign-finance spending. But he
could well see much of his vision of a deregulated campaign finance
system come into being over the next decade. His influence in this area
should not be underestimated.
____________________________________________________
^1 See /Stephen Breyer, Active Liberty: Interpreting Our Democratic
Constitution,/ ch. 4 (Speech) (2005).
^2 I expand on these ideas in Richard L. Hasen, "Beyond Incoherence: The
Roberts Court's Deregulatory Turn in /FEC v. Wisconsin Right to Life./"
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003922>
------------------------------------------------------------------------
/Richard L. Hasen is the William H. Hannon Distinguished Professor of
Law at Loyola, Los Angeles, Law School. He is a nationally recognized
expert on election law and campaign-finance regulation, is co-author of
a leading casebook on election law, co-editor of the quarterly
peer-reviewed publication /Election Law Journal
<http://www.liebertpub.com/publication.aspx?pub_id=101>/ and the editor
of the widely read Election Law blog. <http://electionlawblog.org/>
Hasen is also the author of/ The Supreme Court and Election Law: Judging
Equality from/Baker v. Carr/ to /Bush v. Gore/ (2003).
Tags: campaign finance
<http://www.firstamendmentcenter.org/tag/campaign-finance>, Clarence
<http://www.firstamendmentcenter.org/tag/clarence>, Thomas
<http://www.firstamendmentcenter.org/tag/thomas>, U.S. Supreme Court
<http://www.firstamendmentcenter.org/tag/u-s-supreme-court>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"If the Supreme Court Strikes Down Campaign Contribution Limits, It
Might Help Kill Off the Tea Party"
<http://electionlawblog.org/?p=58990>
Posted on February 24, 2014 8:59 am
<http://electionlawblog.org/?p=58990>by Rick Hasen
<http://electionlawblog.org/?author=3>
Kevin Drum
<http://www.motherjones.com/kevin-drum/2014/02/if-supreme-court-strikes-down-campaign-contribution-limits-it-might-help-kill-tea>:
"I don't know if I buy this, but I figured I'd pass it along. There's a
good chance the Supreme Court will indeed finish the job of gutting
campaign finance limits, and if that happens we'll all need a bit of
solace."
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
political polarization <http://electionlawblog.org/?cat=68>, Supreme
Court <http://electionlawblog.org/?cat=29>
Federal Court, Relying on Crawford, Rejects Challenge to TN Voter ID
Law <http://electionlawblog.org/?p=58988>
Posted on February 24, 2014 8:19 am
<http://electionlawblog.org/?p=58988>by Rick Hasen
<http://electionlawblog.org/?author=3>
You can read the opinionhere
<http://www.scribd.com/doc/208815196/TN-Opinion-on-Voter-ID> (via RNLA
<http://thereplawyer.blogspot.com/2014/02/is-holders-voter-id-war-also-war.html>).
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>
--
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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