[EL] Walker/Wisconsin Club for Growth

Thu Jun 19 12:28:30 PDT 2014

Let’s be accurate: the prosecutor assembled this evidence over months and years, and he did not make the decision to release anything today.  It was 7th Circuit Judge Frank Easterbrook who ordered the documents to be released. http://www.jsonline.com/news/statepolitics/federal-judge-unseals-hundreds-of-documents-in-john-doe-probe-b99295017z1-263839791.html ]

--Adam

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Hoersting
Sent: Thursday, June 19, 2014 2:57 PM
To: Byron Tau
Cc: law-election at UCI.edu
Subject: Re: [EL] Walker/Wisconsin Club for Growth

I am not the source you're looking for, Byron. 

But I will say this is regrettable. If issue advocacy is at the heart of the activity in question, as all court documents up-to-now bear out, then any "excitement" on anyone's part doesn't raise the facts to the level of legal significance. 

Boy, these are interesting allegations for this prosecutor to make: 

1) Six months out from the November election. 

2) On the heels of Walker's settlement negotiations. I haven't heard the results of those. Are we to infer Walker didn't see the case the same way the prosecutors did, was unwilling to settle, and this press release is meant to correct his thinking?

3) In hopes of winning another set of elections using Lawfare? If so, this is becoming a pattern.

Allow me to point out that these events -- IRS targeting and "lost" emails, as an example -- mark a trend no society can long withstand. Whether Democrat, Green, Libertarian, or Republican, this is not a state of affairs you want your kids growing up in. 

Steve

On Thu, Jun 19, 2014 at 2:16 PM, Byron Tau <btau at politico.com> wrote:

If anyone has been closely following the legal issues in this Walker case and wants to walk me through them, I'm at either number below and poking around on something regarding the election law around this.

-- 

Byron Tau

Lobbying and campaign finance reporter || POLITICO

c: 202-441-1171

d: 703-341-4610

Follow: @byrontau <http://twitter.com/byrontau> 

Subscribe to: http://www.politico.com/politicoinfluence/

  _____  

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: Thursday, June 19, 2014 1:34 PM
To: law-election at UCI.edu
Subject: [EL] more news 6/19/14

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> 

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62540&title=Breaking%3A%20%E2%80%9CProsecutors%20allege%20Walker%20at%20center%20of%20%E2%80%98criminal%20scheme%E2%80%99%E2%80%9D&description=> Share

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.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62537&title=Texas%20Swagger%20Costs%20It%20Attorneys%20Fees%20in%20Voting%20Rights%20Case&description=> Share

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.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62535&title=%E2%80%9CFirst%20Person%20Singular%3A%20The%20dirty%20secrets%20of%20ballot%20counting%E2%80%9D&description=> Share

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.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62530&title=%E2%80%9CSoft%20Money%E2%80%99s%20Squishy%20Political%20Influence%E2%80%9D&description=> Share

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.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62528&title=J.%20Christian%20Adams%20Wrongly%20Suggests%20Poll%20Workers%20Should%20Exclude%20Democrats%20from%20Voting%20in%20Mississippi%20Primary%2C%20Ignoring%20Relevant%20Case%20Law%20and%20an%20AG%20Opin> Share

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.”

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62526&title=%E2%80%9CUnregulated%2C%20Outside%20Spending%20by%20Koch-Related%20Group%20Plagues%20Local%20Elections%2C%20Public%20Citizen%20Report%20Finds%E2%80%9D&description=> Share

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> 

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62524&title=Three-Judge%20Court%20Unanimously%20Dismisses%20Partisan%20Gerrymandering%20Claim%20Against%20Texas%202013%20Redistricting&description=> Share

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/> 

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62522&title=%E2%80%9CCampaign-Finance%20Reform%20Has%20to%20Be%20Cross-Partisan%E2%80%9D&description=> Share

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/> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62520&title=%E2%80%9CThe%20Limits%20of%20%E2%80%98The%20New%20Soft%20Money%E2%80%99%E2%80%9D&description=> Share

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.]

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62507&title=Senate%20Judiciary%20Committee%20Subcommittee%20%5BCorrected%5D%20Votes%205-4%20in%20Favor%20of%20Campaign%20Finance%20Amendment&description=> Share

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

-- 
Rick Hasen
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UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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