[EL] more news 6/19/14

Thu Jun 19 10:34:57 PDT 2014

    Breaking: "Prosecutors allege Walker at center of 'criminal scheme'"
    <http://electionlawblog.org/?p=62540>

Posted on June 19, 2014 10:30 am <http://electionlawblog.org/?p=62540>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel 
<http://www.jsonline.com/news/statepolitics/federal-judge-unseals-hundreds-of-documents-in-john-doe-probe-b99295017z1-263839791.html>:

    Prosecutors allege that Gov. Scott Walker was at the center of an
    effort to illegally coordinate fundraising among conservative groups
    to help his campaign and those of Republican senators fend off
    recall elections during 2011 and '12, according to documents
    unsealed Thursday.

    In the documents, prosecutors lay out what they call a "criminal
    scheme" to bypass state election laws by Walker, his campaign and
    two top deputies --- R.J. Johnson and Deborah Jordahl.

    The governor and his close confidants helped raise money and control
    spending through 12 conservative groups during the recall elections,
    according to the prosecutors' filings.

    The documents include an email in which Walker tells Karl Rove,
    former top adviser to President George W. Bush, that Johnson would
    lead the coordination campaign. Johnson is also chief adviser to
    Wisconsin Club for Growth, a conservative group active in the recall
    elections.

You can find the documents here. 
<http://host.madison.com/unsealed-documents-from-john-doe-ii-lawsuit/pdf_e6b7181d-e5f7-576e-a60d-1d67d373846c.html>

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, 
chicanery <http://electionlawblog.org/?cat=12>

    Texas Swagger Costs It Attorneys Fees in Voting Rights Case
    <http://electionlawblog.org/?p=62537>

Posted on June 19, 2014 10:21 am <http://electionlawblog.org/?p=62537>by 
Rick Hasen <http://electionlawblog.org/?author=3>

See this order 
<http://electionlawblog.org/wp-content/uploads/texas-order.pdf> in 
/State of Texas v. Davis/:

    This matter presents a case study in how not to respond to a motion
    for attorney fees and costs. At issue is whether
    defendant-intervenors, who prevailed in Voting Rights Act litigation
    before a three-judge panel, may recoup attorney fees and costs even
    though the Supreme Court vacated that opinion in light of the
    Supreme Court's subsequent decision in a different lawsuit that
    declared a section of the Voting Rights Act unconstitutional. A
    quick search of the Federal Reporter reveals the complexity of this
    narrow question. Yet, rather than engage the fee applicants,
    Plaintiff Texas basically ignores the arguments supporting an award
    of fees and costs. In a three-page filing entitled "Advisory," Texas
    trumpets the Supreme Court's decision, expresses indignation at
    having to respond at all, and presumes that the motion for attorney
    fees is so frivolous that Texas need not provide further briefing in
    opposition unless requested. Such an opposition is insufficient in
    this jurisdiction. Circuit precedent and the Local Rules of this
    Court provide that the failure to respond to an opposing party's
    arguments results in waiver as to the unaddressed contentions, and
    the Court finds that Texas's "Advisory" presents no opposition on
    the applicable law. Accordingly, the Court will award the requested
    fees and costs.

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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>

    "First Person Singular: The dirty secrets of ballot counting"
    <http://electionlawblog.org/?p=62535>

Posted on June 19, 2014 10:01 am <http://electionlawblog.org/?p=62535>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Paul Mitchell 
<http://www.electionline.org/index.php/electionline-weekly> has lead 
story at Electionline Weekly.

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Posted in election administration <http://electionlawblog.org/?cat=18>

    "Soft Money's Squishy Political Influence"
    <http://electionlawblog.org/?p=62530>

Posted on June 19, 2014 9:20 am <http://electionlawblog.org/?p=62530>by 
Rick Hasen <http://electionlawblog.org/?author=3>

NYT's "The Upshot" 
<http://www.nytimes.com/2014/06/19/upshot/soft-moneys-squishy-political-influence.html?_r=0> 
on Tokaji-Strause.

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

    J. Christian Adams Wrongly Suggests Poll Workers Should Exclude
    Democrats from Voting in Mississippi Primary, Ignoring Relevant Case
    Law and an AG Opinion <http://electionlawblog.org/?p=62528>

Posted on June 19, 2014 9:12 am <http://electionlawblog.org/?p=62528>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Via Josh Marshall 
<http://talkingpointsmemo.com/edblog/in-it-to-win-it--7>, comes a story 
at Breitbart, Former DOJ Attorney: Illegal for Democrats to Vote in MS 
GOP Primary Runoff 
<http://www.breitbart.com/Big-Government/2014/06/18/Top-Ex-DOJ-Attorney-It-s-Illegal-For-Democrats-To-Vote-In-Mississippi-s-GOP-Primary-Runoff>.  
Here's the relevant part of the article:

    J. Christian Adams, a former Civil Rights Division attorney at the
    Department of Justice with experience litigating election law cases
    in Mississippi, said a law there prevents people from voting in the
    primary for candidates they don't plan to support in the general
    election....

    The Mississippi law Adams cites, MS Code 23-15-575, states: "No
    person shall be eligible to participate in any primary election
    unless he intends to support the nominations made in which he
    participates."

    "Mississippi law prohibits Democrats from voting in a Republican
    primary," Adams said in an emailed statement. "Obviously poll
    workers aren't mind readers. But if someone doesn't intend to
    support the nominee in November, then that person isn't allowed to
    vote in the Republican primary."

    In addition, the state Democratic Party sued Gov. Haley Barbour and
    others in the mid-2000s regarding just that matter---prompting
    United States District Judge W. Allen Pepper to write in a June 8,
    2007, opinion that it is the responsibility and right of the
    political party holding a primary election to ensure that the
    elections are fair and legal. In the case of a Republican primary
    and runoff, only Republicans vote, and in the case of a Democrat
    primary and runoff, only Democrats vote---and it is the role of the
    political parties to ensure that process is handled correctly.

    The Supreme Court determined in a 2005 case that the First Amendment
    "protects the right of political parties to associate with fellow
    members and disassociate with non-members," Judge Pepper wrote in
    his opinion. So technically it's the party's responsibility---i.e.,
    in this case, state GOP chairman Joe Nosef's responsibility---to
    protect GOP voters' First Amendment rights by working to keep
    Democrats from voting in the GOP primary runoff.

Here's what Adams does not tell you in the piece: Judge Pepper's opinion 
in /Mississippi State Democratic Party v. Barbour/, 491 F.Supp.2d 641 
(N.D. Miss. 2007) was reversed and remanded in an opinion by Judge Edith 
Jones for a unanimous 5th Circuit, 529 F.3d 538 (5th Cir. 2008). In the 
course of holding that the state Democratic Party lacked standing and 
that the case was not appropriate for federal court review, Judge Jones 
rejected the analysis of Judge Pepper, and explained how MS Code 
23-15-575 had been interpreted by the Mississippi Attorney General:

    In June 2003, the Mississippi State Democratic Party and Mississippi
    State Democratic Party Executive Committee (collectively "MSDP")
    asked the state attorney general ("AG") how the party could enforce
    § 23--15--575
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-575&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>,
    which it had not done before. The MSDP wanted to curtail alleged
    "party raiding" and crossover voting "whereby voters in sympathy
    with one party designate themselves as voters of another party so as
    to influence or determine the results of the other party's
    primary."^2
    <https://a.next.westlaw.com/Document/I303e9f792ceb11ddb6a3a099756c05b7/View/FullText.html?listSource=RelatedInfo&docFamilyGuid=I303e9f7a2ceb11ddb6a3a099756c05b7&originationContext=appellatehistory&transitionType=HistoryItem&contextData=%28sc.Search%29#co_footnote_B00222016191757>
    This practice is forbidden by the plain language of § 23--15--575
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-575&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>.
    The AG responded with an opinion ("/Cole Opinion/") stating that a
    party may challenge a voter in a primary only in accordance with
    Miss.Code Ann. § 23--15--579
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-579&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>,
    which outlines strict procedures for challenging a voter. The AG
    stated further that a voter may be challenged only for the reasons
    listed in Miss.Code Ann. § 23--15--571
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-571&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>.^3
    <https://a.next.westlaw.com/Document/I303e9f792ceb11ddb6a3a099756c05b7/View/FullText.html?listSource=RelatedInfo&docFamilyGuid=I303e9f7a2ceb11ddb6a3a099756c05b7&originationContext=appellatehistory&transitionType=HistoryItem&contextData=%28sc.Search%29#co_footnote_B00332016191757>
    /See /2003 WL 21962318 (Miss. A.G. Op. No. 2003--0316 July 21, 2003)
    <https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0295698412&pubNum=0000999&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>.
    According to the AG:

           [W]e find nothing that would allow a poll worker, poll
    watcher or another voter to ask a voter if he or she intends to
    support the nominees of the party once the voter presents himself or
    herself to vote. Challenges may be made ... for the reason that the
    voter does not intend to support the nominees of the party per
    Section 23--15--575
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-575&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>
    ...
             If a challenge of a voter is properly initiated in strict
    accordance with Section 23--15--579
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-579&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>
    and the voter then openly declares that he or she does not intend to
    support the nominees of the party, the poll workers could find the
    challenge to be well taken and mark the ballot "challenged" or
    "rejected" consistent with the provisions of said statute. On the
    other hand, if the voter openly declares his or her intent to
    support the nominees, then a challenge is not proper under Section
    23--15--575
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-575&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>.
    ....
           [W]e have previously opined that absent an obvious factual
    situation such as an independent candidate attempting to vote in a
    party's primary, the stated intent of the voter is controlling....
    No past action by a voter can form the basis of a valid challenge
    under Section 23--15--571(3)(g)
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-571&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=SP&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_1988000045090>
    and Section 23--15--575
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-575&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>.
    /Id./

    (FN 3 read: 3
    <https://a.next.westlaw.com/Document/I303e9f792ceb11ddb6a3a099756c05b7/View/FullText.html?listSource=RelatedInfo&docFamilyGuid=I303e9f7a2ceb11ddb6a3a099756c05b7&originationContext=appellatehistory&transitionType=HistoryItem&contextData=%28sc.Search%29#co_footnoteReference_B00332016191757_ID0EVFBG>

    Section 23--15--571
    <https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000933&cite=MSSTS23-15-571&originatingDoc=I303e9f792ceb11ddb6a3a099756c05b7&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29>
    states that "[a] person offering to vote may be challenged upon the
    following grounds":
    (a) That he is not a registered voter in the precinct;
    (b) That he is not the registered voter under whose name he has
    applied to vote;
    (c) That he has already voted in the election;
    (d) That he is not a resident in the precinct where he is registered;
    (e) That he has illegally registered to vote;
    (f) That he has removed his ballot from the polling place; or

    (g) That he is otherwise disqualified by law.)

In other words, the state law has been interpreted by the state attorney 
general so that poll workers may /not/ challenge a voter, despite that 
voters past history of voting for Democrats unless the voter comes in 
and "openly declares that he or she does not intend to support the 
nominees of the party."
It sure seems that the Breitbart story should have mentioned the appeal, 
and vacating of Judge Pepper's opinion, as well as the AG opinion.
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Posted in political parties <http://electionlawblog.org/?cat=25>, 
primaries <http://electionlawblog.org/?cat=32>

    "Unregulated, Outside Spending by Koch-Related Group Plagues Local
    Elections, Public Citizen Report Finds"
    <http://electionlawblog.org/?p=62526>

Posted on June 19, 2014 7:46 am <http://electionlawblog.org/?p=62526>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Press release 
<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=4223>: 
"Unregulated, undisclosed spending made possible by the U.S. Supreme 
Court's 2010 decision in Citizens United v. Federal Election Commission 
has left local communities defenseless against big money national 
organizations intent on interfering with their elections, according to a 
report released 
<http://www.citizen.org/americans-for-prosperity-local-affairs-report> 
today by Public Citizen."

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

    Three-Judge Court Unanimously Dismisses Partisan Gerrymandering
    Claim Against Texas 2013 Redistricting
    <http://electionlawblog.org/?p=62524>

Posted on June 19, 2014 7:43 am <http://electionlawblog.org/?p=62524>by 
Rick Hasen <http://electionlawblog.org/?author=3>

You can find the order here. <http://t.co/QPHnNvZbWk>

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Posted in redistricting <http://electionlawblog.org/?cat=6>

    "Campaign-Finance Reform Has to Be Cross-Partisan"
    <http://electionlawblog.org/?p=62522>

Posted on June 19, 2014 7:27 am <http://electionlawblog.org/?p=62522>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Lessig in the Atlantic. 
<http://www.theatlantic.com/politics/archive/2014/06/campaign-finance-reform-has-to-be-cross-partisan/372983/>

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

    "The Limits of 'The New Soft Money'"
    <http://electionlawblog.org/?p=62520>

Posted on June 19, 2014 7:04 am <http://electionlawblog.org/?p=62520>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Bauer 
<http://www.moresoftmoneyhardlaw.com/2014/06/limits-new-soft-money/>on 
the Tokaji-Strause report <http://moritzlaw.osu.edu/thenewsoftmoney/>.

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

    Senate Judiciary Committee Subcommittee [Corrected] Votes 5-4 in
    Favor of Campaign Finance Amendment
    <http://electionlawblog.org/?p=62507>

Posted on June 19, 2014 6:50 am <http://electionlawblog.org/?p=62507>by 
Rick Hasen <http://electionlawblog.org/?author=3>

So reports Peter Overby. 
<https://twitter.com/peteroverby/status/479358474066087936>

[This post has been corrected and bumped to the top.]

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

-- 
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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