[EL] ELB News and Commentary 7/2/14
Rick Hasen
rhasen at law.uci.edu
Tue Jul 1 20:55:43 PDT 2014
<http://electionlawblog.org/>
"It Could Have Been Worse" is Not Saying Much About McCutcheon
<http://electionlawblog.org/?p=62949>
Posted on July 1, 2014 8:52 pm <http://electionlawblog.org/?p=62949>by
Rick Hasen <http://electionlawblog.org/?author=3>
David Cole's piece
<http://www.nybooks.com/blogs/nyrblog/2014/jun/30/supreme-court-could-have-been-worse/>
on the ending Supreme Court term says it could have been worse in
/McCutcheon /(and in many other cases on the Court's docket this term).
For example, Cole notes, the Court could have adopted strict scrutiny to
apply to contribution limits. Nonetheless, as I showed at Slate
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html>,
Reuters
<http://blogs.reuters.com/great-debate/2014/04/07/opening-the-political-money-chutes/>,
and the Daily Journal
<http://electionlawblog.org/wp-content/uploads/hasen-thomas-daily-journal.pdf>
right after the opinion came out, McCutcheon was pretty darn bad. I rate
it also as one of the most significant civil cases of the term, next to
/Town of Greece/ (and /Harris //and //Hobby Lobby/ may turn out to have
great significance down the road).
As I explain in Legislation, Statutory Interpretation, and Election Law:
Examples & Explanations
<http://www.amazon.com/Examples-Explanations-Legislation-Statutory-Interpretation/dp/1454845414/ref=sr_1_1?ie=UTF8&qid=1401919780&sr=8-1&keywords=hasen+legislation>
(Aspen Publishers, 2014) (due out any day):
Despite the Court's failure to adopt strict scrutiny for review of
campaign contribution limitations in McCutcheon (something the Court
left the door open to in a future case), the plurality opinion is
doctrinally very significant and makes it much more likely that
other campaign contribution limits could be struck down as
unconstitutional going forward. To begin with, the opinion
incorporated the narrow definition of corruption from the spending
limits case, Citizens United, ignoring the much broader definition
in cases such as Shrink Missouri.57 ''Ingratiation and access'' or
''undue influence'' do not count as ''corruption'' for purposes of
determining the constitutionality of contribution limits. Similarly,
the opinion read ''appearance of corruption'' narrowly, to apply
only to an ''appearance of quid pro quo corruption,'' much narrower
than Buckley's language about ''appearance of improper
influence.''58 Finally, the Court ratcheted up the meaning of
''exact scrutiny'' so that it is apparently a much more ''rigorous''
test for reviewing the constitutionality of contribution limits.59
How close it is to strict scrutiny is uncertain.
Also of note is dicta appearing in McCutcheon extolling the virtues
of money flowing through political parties, perhaps laying the
groundwork for a renewed attack on the soft money limitations in the
McCain-Feingold law.....
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
2014 Supplement to Lowenstein, Hasen, & Tokaji: Election Law Cases
and Materials Coming in July <http://electionlawblog.org/?p=61460>
Posted on July 1, 2014 4:10 pm <http://electionlawblog.org/?p=61460>by
Rick Hasen <http://electionlawblog.org/?author=3>
[UPDATE: The Supplement is at the publisher and should be available free
to adopting instructors next week and via Amazon for purchase soon
thereafter.]
The 2014 Supplement to the 5th edition of /Election Law--Cases and
Materials
<http://www.cap-press.com/books/isbn/9781611631784/Election-Law-Fifth-Edition>
/will be downloadable without cost for any professors adopting the
casebook and for their students by early July. For the first time,
others will have the option to purchase the Supplement for use
(including in their courses) electronically on Amazon. The Supplement
will be up-to-date through the end of the Supreme Court's October 2013
term. It will include an edited version of of the Supreme Court's new
campaign finance case, /McCutcheon v. FEC/, an edited version of /Shelby
County v. Holder/, and an edited version of the lower court decision in
the Alabama redistricting cases which the Supreme Court will hear in the
October 2014 term.
The supplement will also consider developments in Voting Rights Act
litigation after the Supreme Court's /Shelby County/ case as well as
cover litigation over citizenship and other state registration and
voting requirements under the Elections Clause following the Supreme
Court's opinion last term in /Arizona v. Inter Tribal Council. /It also
covers the new /Susan B. Anthony/ false campaign speech case.
You will find information about the Supplement when it is available on
the Election Law casebook page
<http://www.cap-press.com/books/isbn/9781611631784/Election-Law-Fifth-Edition>
at Carolina Academic Press. (Instructors wishing a review copy or a
teacher's manual can request these items on that page as well). Here is
a description of the Fifth Edition, which was published in 2012:
The first edition of /Election Law/ was the first modern casebook
on the subject of election law. Now in its fifth edition, the
leading election law casebook covers the right to vote and voter
turnout, legislative districting, the Voting Rights Act, racial
gerrymandering cause of action, ballot propositions, constitutional
rights and obligations of political parties, bribery, regulation of
campaign speech, campaign finance, and election administration.
The streamlined and student-friendly fifth edition of /Election
Law/ fully covers developments in election law in the 2012 election
season including: extensive coverage of /Citizens United/, super
PACs, and other campaign finance developments; emerging issues in
voting rights and redistricting, including coverage of the Texas
redistricting and voter identification cases; and new coverage of
issues in judicial elections. It will continue to include
perspectives from law and political science, and is appropriate in
both law and political science courses. The extensive campaign
finance coverage makes the book appropriate for a campaign finance
seminar as well.
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Posted in pedagogy <http://electionlawblog.org/?cat=23>
#MSSEN and the New Transparency Onslaught
<http://electionlawblog.org/?p=62946>
Posted on July 1, 2014 4:04 pm <http://electionlawblog.org/?p=62946>by
Rick Hasen <http://electionlawblog.org/?author=3>
The following is a guest post from Rebecca Green
<http://law2.wm.edu/faculty/bios/fulltime/rgreen.php> of William and Mary:
For those watching what's unfolding in Mississippi
<http://talkingpointsmemo.com/dc/chris-mcdaniel-plan-challenge-runoff-results-thad-cochran>,
there's more going on than fiery partisan intrigue. What's
increasingly at stake is election transparency and specifically how
far election officials should go in letting outside groups
<http://www.scribd.com/doc/232166906/True-the-Vote-v-Mississippi-Complaint>
pore over election materials to satisfy themselves that outcomes are
correct. On one hand, democracy will not function if elections are
not fully transparent. Especially in a country in which partisan
officials often preside over election administration, any attempt to
hide how elections are run will certainly delegitimize outcomes. On
the other hand, we may be deeply worried about outside groups
accessing election information when they have strong political
agendas of their own. When it comes to contesting election outcomes,
such groups and individuals invariably populate the losing side and
are therefore single-minded in their goal: delegitimizing the
outcome. Since the point of transparency in the election context is
to ensure legitimacy, this could be a problem.
In the old days, we didn't have to worry about this problem very
much. Most states limited election oversight to candidates and their
appointed representatives (many still do). Much like courts relying
on the adversarial system to ensure just outcomes, states relied on
vigilant candidates to make sure the other side didn't pull a fast
one and election officials did their jobs correctly. Plus, not many
members of the public had the time, energy, or resources to march to
the clerk's office to sort through boxes of paper records. But in
the years since /Bush v. Gore/, several trends have combined to
challenge the old system. First, more and more people want to
scrutinize the administration of our elections. Second, digital
technology now allows them to do so with relative ease (at least
assuming election officials cooperate). Combine these trends with a
huge rise
<http://www.huffingtonpost.com/michael-p-mcdonald/a-modest-early-voting-ris_b_3430379.html>in
mail in and provisional voting and the digitization of election
administration and it's clear that sitting back and hoping the old
rules will carry us through is problematic. It's unlikely that the
public will accept attempts to deny outside groups access to
election materials. Indeed, True the Vote in Mississippi alleges
that federal law
<http://www.eac.gov/assets/1/workflow_staging/Page/27.PDF> requires
it. It's likewise the case that old rules are seldom comprehensive
enough to handle the New Transparency onslaught.
There's some reason to hope that throwing back the curtain may in
fact not be as dangerous as it might seem. In the Obenshain-Herring
recount
<http://www.washingtonpost.com/local/virginia-politics/obenshain-appears-headed-for-razor-thin-victory-in-virginia-attorney-generals-race/2013/11/05/08d13182-4255-11e3-a624-41d661b0bb78_story.html>
last fall, Virginians experienced the micro-transparency phenomenon
firsthand---bloggers and tweeters
<http://abcnews.go.com/Politics/twitter-helped-bring-va-attorney-general-race-17/story?id=20852924>
pouring over election materials and identifying potential places of
error. The leader of the pack, David Wasserman
<http://cookpolitical.com/about/staff/david-wasserman>, described
his surprise
<http://www.businessweek.com/news/2013-11-13/twitter-postings-alert-virginia-vote-counters-to-errors-in-race>
that his efforts did not infuriate Virginia's election officials. In
fact, they thanked him. In the end, especially when full
transparency does not necessarily mean the cooks need to be actually
/in/ the kitchen (much oversight can be done remotely) perhaps we
have nothing to fear.
Then again, so far we've seen this New Transparency unfold in
relatively small-scale races. What would /Bush v. Gore/ be like
today---particularly if state legislatures do nothing to update
election transparency statutes to accommodate new realities? If
election transparency is to serve its principal goal of ensuring
public trust in electoral outcomes, much thinking should be
done---well in advance of Election Day---to ensure that new realties
are taken into account.
/Rebecca Green co-directs William & Mary Law School's Election Law
Program
<http://law.wm.edu/academics/intellectuallife/researchcenters/electionlaw/>.
Her article, Rethinking Transparency in U.S. Elections will be
published in the Ohio State Law Journal in Winter 2015./
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Posted in election administration <http://electionlawblog.org/?cat=18>
"Ninth Circuit Urged to Overturn Ruling that Ignored Precedent to
Strike Down Montana Political Campaign Contribution Limits"
<http://electionlawblog.org/?p=62944>
Posted on July 1, 2014 2:13 pm <http://electionlawblog.org/?p=62944>by
Rick Hasen <http://electionlawblog.org/?author=3>
Seethis press release
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2514:july-1-2014-ninth-circuit-urged-to-overturn-ruling-that-ignored-precedent-to-strike-down-montana-political-campaign-contribution-limits&catid=63:legal-center-press-releases&Itemid=61>
from reform groups.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Political Corruption in the United States: A Design Draft"
<http://electionlawblog.org/?p=62942>
Posted on July 1, 2014 2:12 pm <http://electionlawblog.org/?p=62942>by
Rick Hasen <http://electionlawblog.org/?author=3>
Amitai Etzioni has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378486> on SSRN
(forthcoming PS). Here is the abstract:
To establish the scope and level of corruption in the contemporary
United States, a collaborative project of political scientists is
called for. Such a study best start with explicating the definition
of corruption various scholars employ. Three are here employed:
using public goods for personal gains, deflecting public goods to
private groups, and making such moves when they are legal but
illicit. To assess corruption on all these levels, we must take into
account that various forms --- outlined below --- that 'capture'
takes beyond the corruption of the laws themselves. A study of the
major differences in the level of corruption among the three
branches of government may help deepen our understanding of the
prevalence and causes of corruption. A study of 'rent' may help
predict that future course of corruption. Other facets to be studied
are merely listed as topics whose study warrants collaborative
investigation.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"How Parties Communicate Without Coordinating"
<http://electionlawblog.org/?p=62940>
Posted on July 1, 2014 2:10 pm <http://electionlawblog.org/?p=62940>by
Rick Hasen <http://electionlawblog.org/?author=3>
Roll Call reports
<http://blogs.rollcall.com/rothenblog/campaign-ads-how-parties-communicate/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
True the Vote Files Federal Lawsuit in #MSSEN Seeking Records of
Voters Voting in Democratic Primary
<http://electionlawblog.org/?p=62937>
Posted on July 1, 2014 1:58 pm <http://electionlawblog.org/?p=62937>by
Rick Hasen <http://electionlawblog.org/?author=3>
Press release via email:
*TRUE THE VOTE FILES SUIT AGAINST MISSISSIPPI, STATE REPUBLICAN PARTY
*
*/REQUESTS IMMEDIATE ACCESS TO ELECTION RECORDS AHEAD OF
CERTIFICATION DEADLINE/*
* OXFORD, MS. --- July 1, 2014:* True the Vote
<http://www.truethevote.org/> (TTV), the nation's leading voters'
rights and election integrity organization, today filed suit in
federal court against the Mississippi Secretary of State and the
State Republican Party, asking the Court to immediately order that
election records be shared to inspect for illegal votes ahead
of certification for the June 24 U.S. Senate Primary Runoff Election
(True the Vote, et. al v. State of Mississippi, et. al.
(3:14cv144-MPM-SAA))
<http://www.scribd.com/doc/232166906/True-the-Vote-v-Mississippi-Complaint>.
True the Vote <http://www.truethevote.org/> and associated
plaintiffs argue that the defendants failed to properly abide by
federal election record maintenance and open records provisions
codified in the National Voter Registration Act of 1993 (NVRA).
Records made partially available to the plaintiffs indicated
"double-voting" from Democratic to Republican primaries ---
potentially diluting votes in violation of the Equal Protection Clause.
"All we are asking is that the MS State Republican Party follow the
law; allow their designated county representatives to inspect the
poll books and ballots, give them the review time they are permitted
by law, and allow them to uphold their responsibility to MS voters,"
True the Vote President *Catherine Engelbrecht* said. "True the Vote
has been inundated with reports from voters across Mississippi who
are outraged to see the integrity of this election being undermined
so that politicos can get back to business as usual. Enough is enough."
"This isn't about personality, party, or politics. Senators come and
go," *Engelbrecht* continued. "What must withstand the test of time
is the integrity of the process by which we elect our
representatives and establish our government. No candidate or party
should ever be allowed to twist election laws or subvert voters'
rights in the interest of political ambition."
True the Vote <http://www.truethevote.org/> has closely followed
developments surrounding the Mississippi Republican Primary Runoff
from the beginning. On June 21, TTV released figures
<http://www.truethevote.org/true-vote-discovers-unusual-voting-pattern-data-mississippi-senate-primary-between-cochran-and> demonstrating
unusual voter turnout patterns based on historic data. On June 25,
the organization formally requested
<http://www.scribd.com/doc/231410911/Chairman-Nosef-Ltr-6-25-14> that MS
Republican Party Chairman Joe Nosef delay certification of the
election and share voting records for independent review. Finding no
assistance from the state party, TTV and the collected 13 plaintiffs
were left no option but to pursue the matter in federal court.
True the Vote <http://truethevote.org/>'s lawsuit consists of three
counts:
*Count One:* /Violation of NVRA's Public Disclosure Provision/.
Shortly before the Republican Primary Runoff Election, True the
Vote, via its volunteer base, made a valid and timely request to
review voter rolls and poll books under the NVRA, but it was denied
access to those records.
*Count Two:* /Individual Plaintiffs Allege a Violation of NVRA Based
on Conflict with State Laws/. Plaintiffs seek a declaration that the
NVRA preempts any state requirement calling for public election
information to be redacted at the cost of the requestor.
*Count Three:* /Individual Plaintiffs Allege an Equal Protection
Violation/. Discovering potential instances of "double-voting"
between Democratic and Republican primaries are unlawful dilutions
of individual votes.
True the Vote <http://www.truethevote.org/> engaged legal
representation with the firm of Beirne, Maynard & Parsons L.L.P.
TTV's complaint was filed in the United States District Court for
the Northern District of Mississippi, Oxford Division.
A copy of the complaint has been made available here
<http://www.scribd.com/doc/232166906/True-the-Vote-v-Mississippi-Complaint>.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, NVRA (motor
voter) <http://electionlawblog.org/?cat=33>
"Cochran campaign denies vote-buying report"
<http://electionlawblog.org/?p=62931>
Posted on July 1, 2014 12:20 pm <http://electionlawblog.org/?p=62931>by
Rick Hasen <http://electionlawblog.org/?author=3>
Clarion Ledger
<http://www.clarionledger.com/story/news/politics/2014/07/01/cochran-campaign-denies-vote-buying/11911539/>:
"The report says Fielder is an associate pastor at First Missionary
Baptist Church in Meridian. Church Deacon Robert Markham said Fielder is
not an associate pastor at the church, but is a self-proclaimed minister."
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Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery
<http://electionlawblog.org/?cat=12>
Ron Collins #SCOTUS First Amendment Review and Preview of Things to
Come <http://electionlawblog.org/?p=62929>
Posted on July 1, 2014 10:30 am <http://electionlawblog.org/?p=62929>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.concurringopinions.com/archives/2014/07/fan-21-first-amendment-news-looking-back-on-the-2013-2014-term-on-the-roberts-courts-overall-free-speech-record.html#more-88357>.
He flags the soft money case as one to watch.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>, Supreme Court
<http://electionlawblog.org/?cat=29>
"McDaniel's Bizarre Plan To Challenge The Senate Race In
Mississippi" <http://electionlawblog.org/?p=62927>
Posted on July 1, 2014 9:28 am <http://electionlawblog.org/?p=62927>by
Rick Hasen <http://electionlawblog.org/?author=3>
Daniel Strauss reports
<http://talkingpointsmemo.com/dc/chris-mcdaniel-plan-challenge-runoff-results-thad-cochran>
for TPM.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, recounts
<http://electionlawblog.org/?cat=50>
"Shedding New Light on Dark Money"
<http://electionlawblog.org/?p=62925>
Posted on July 1, 2014 9:26 am <http://electionlawblog.org/?p=62925>by
Rick Hasen <http://electionlawblog.org/?author=3>
Freepress
<http://www.freepress.net/blog/2014/07/01/shedding-new-light-dark-money>: "July
1 is a bright summer day for most of the nation, made even more so by a
new tool designed to shed light on the dark money behind political
advertising this year. On Tuesday, every major broadcast television
station in the United States is required to post online information
about the political ads
<http://www.freepress.net/resource/94410/citizens-inundated-report> that
they air. These broadcasters were already required by law to keep a
"political file
<http://www.wbklaw.com/uploads/file/Articles-%20News/Online%20Political%20File%20presentation%20June%202014.pdf>"
on site at their stations. Now this file will also be maintained at the
Federal Communications Commission website
<https:/stations.fcc.gov/> with stations posting copies of contracts
showing who these political advertisers are, how much they're spending
on ads, and where and when their ads air."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
2014 Election Law Teacher Database Now Available
<http://electionlawblog.org/?p=62922>
Posted on July 1, 2014 8:59 am <http://electionlawblog.org/?p=62922>by
Rick Hasen <http://electionlawblog.org/?author=3>
I have posted it here.
<http://electionlawblog.org/wp-content/uploads/2014-election-law-teacher-database.xlsx>
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Posted in election law biz <http://electionlawblog.org/?cat=51>,
pedagogy <http://electionlawblog.org/?cat=23>
"How Supreme Court justices 'benchslapped' each other in the Hobby
Lobby case" <http://electionlawblog.org/?p=62920>
Posted on July 1, 2014 8:30 am <http://electionlawblog.org/?p=62920>by
Rick Hasen <http://electionlawblog.org/?author=3>
Amanda Hollis-Brusky writes
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/07/01/how-supreme-court-justices-benchslapped-each-other-in-the-hobby-lobby-case/>
for The Monkey Cage.
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Posted in political polarization <http://electionlawblog.org/?cat=68>,
Supreme Court <http://electionlawblog.org/?cat=29>
"Not Really a Problem of Agency Discretion"
<http://electionlawblog.org/?p=62917>
Posted on July 1, 2014 8:25 am <http://electionlawblog.org/?p=62917>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bauer blogs
<http://www.moresoftmoneyhardlaw.com/2014/07/really-problem-agency-discretion/>.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"The Roberts Court Thinks Corporations Have More Rights Than You Do:
The chief justice continues his First Amendment revolution"
<http://electionlawblog.org/?p=62915>
Posted on July 1, 2014 8:23 am <http://electionlawblog.org/?p=62915>by
Rick Hasen <http://electionlawblog.org/?author=3>
David Gans writes
<http://www.newrepublic.com/article/118493/john-roberts-first-amendment-revolution-corporations>
for TNR.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"It's Time to Throw the Drunks Out of the Bar"
<http://electionlawblog.org/?p=62912>
Posted on July 1, 2014 8:17 am <http://electionlawblog.org/?p=62912>by
Rick Hasen <http://electionlawblog.org/?author=3>
Y'all Politics <http://yallpolitics.com/index.php/yp/post/38469/> has
had enough of McDaniel-Cochran.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Fairfax County fires an attorney for winning a city election"
<http://electionlawblog.org/?p=62910>
Posted on July 1, 2014 7:37 am <http://electionlawblog.org/?p=62910>by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/blogs/local/wp/2014/06/27/fairfax-county-fires-an-attorney-for-winning-a-city-election/>:
"Fairfax County fired one of its assistant county attorneys Friday
afternoon because she won election last month to the Fairfax City
Council, allegedly creating an incurable conflict in legal matters that
might involve both the city and the county."
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Posted in conflict of interest laws <http://electionlawblog.org/?cat=20>
"Congress Quietly Deletes a Key Disclosure of Free Trips Lawmakers
Take" <http://electionlawblog.org/?p=62908>
Posted on July 1, 2014 7:35 am <http://electionlawblog.org/?p=62908>by
Rick Hasen <http://electionlawblog.org/?author=3>
National Journal:
<http://www.nationaljournal.com/congress/congress-quietly-deletes-a-key-disclosure-of-free-trips-lawmakers-take-20140630>"It's
going to be a little more difficult to ferret out which members of
Congress are lavished with all-expenses-paid trips around the world
after the House has quietly stripped away the requirement that such
privately sponsored travel be included on lawmakers' annual
financial-disclosure forms."
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Posted in conflict of interest laws
<http://electionlawblog.org/?cat=20>, legislation and legislatures
<http://electionlawblog.org/?cat=27>, lobbying
<http://electionlawblog.org/?cat=28>
--
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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