[EL] ELB News and Commentary 3/5/14

Tue Mar 4 20:43:23 PST 2014

    Debo Adegbile Nomination to DOJ Civil Rights Post May Be in Trouble
    <http://electionlawblog.org/?p=59250>

Posted on March 4, 2014 8:41 pm <http://electionlawblog.org/?p=59250>by 
Rick Hasen <http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/politics/1981-shooting-of-officer-takes-center-stage-as-senate-debates-obama-civil-rights-nominee/2014/03/04/cfffa32e-a3da-11e3-84d4-e59b1709222c_story.html>:

    Once considered the world's best-known death row inmate, Abu-Jamal
    has written books from his prison cell, had his cause championed by
    prominent civil rights advocates including Cornel West and Desmond
    Tutu, and had a street in Paris named in his honor.

    And now his case is threatening Debo P. Adegbile's nomination to
    head the Justice Department's Civil Rights Division.

    Adegbile, a voting rights expert and former director of the NAACP's
    Legal Defense Fund, was involved in a handful of the dozens of
    appeals and court briefs filed on behalf of Abu-Jamal. The
    nomination has been opposed by national law enforcement groups.

    Under new Senate rules approved in November, Adegbile will need to
    secure a simple majority of senators --- 51 votes --- to clear a
    procedural hurdle before he is confirmed. But he is at risk of
    falling short of the votes needed because he cannot count on
    Democrats, especially those locked in vulnerable reelection bids, to
    support their president's choice.

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Posted in Department of Justice <http://electionlawblog.org/?cat=26>

    "Group Close to Obama Says It Erred on Donation"
    <http://electionlawblog.org/?p=59248>

Posted on March 4, 2014 8:38 pm <http://electionlawblog.org/?p=59248>by 
Rick Hasen <http://electionlawblog.org/?author=3>

NYT reports 
<http://www.nytimes.com/2014/03/05/us/politics/group-close-to-president-says-it-erred-on-donation.html?ref=politics>.

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

    "Justice Ginsburg's Umbrella" <http://electionlawblog.org/?p=59246>

Posted on March 4, 2014 5:39 pm <http://electionlawblog.org/?p=59246>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Ellen Katz has postedthis draft 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2402868>on SSRN 
(forthcoming, A Nation of Widening Opportunities? The Civil Rights Act 
at Fifty, Samuel Bagenstos and Ellen Katz, eds., University of Michigan 
Press, 2014). Here is the abstract:

    This Essay relies on an analogy pressed in the dissenting opinion in
    Shelby County v. Holder to describe an increasingly prominent
    conception of federal anti-discrimination law. It is a conception
    that sees the existing regime to be a source of unjust enrichment to
    its beneficiaries, one that does not simply make victims of
    undeniable discrimination whole, but instead places a host of
    interested parties, victims included, in a decidedly better position
    than they would have been had the discrimination never occurred.
    Notably, this conception of federal anti-discrimination law does not
    deny the persistence of discrimination, including discrimination
    that is unconstitutional or otherwise invidious. The more pressing
    worry, however, is that the regime today does more harm than the
    discrimination it presently addresses.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15>

    "What the Texas primary will -- and won't -- tell us about voter ID"
    <http://electionlawblog.org/?p=59244>

Posted on March 4, 2014 2:24 pm <http://electionlawblog.org/?p=59244>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Michael Li blogs 
<http://txredistricting.org/post/78569097476/what-the-texas-primary-will-and-wont-tell-us-about>.

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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>

    Brad Smith Appointed by Jon Husted to Resolve Dispute Over
    Libertarian Ohio Gubernatorial Candidate
    <http://electionlawblog.org/?p=59242>

Posted on March 4, 2014 2:22 pm <http://electionlawblog.org/?p=59242>by 
Rick Hasen <http://electionlawblog.org/?author=3>

See this report. 
<http://news.cincinnati.com/viewart/20140304/NEWS010602/303040053/Libertarian-governor-candidate-challenged-Ohio>

Regular blog readers know Smith as a former Republican FEC commissioner 
and campaign finance expert. But he's also the author of Bradley A. 
Smith, Note, Judicial Protection of Ballot-Access Rights: Third Parties 
Need Not Apply, 28 Harvard Journal on Legislation 167 (1991).

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Posted in ballot access <http://electionlawblog.org/?cat=46>

    "Legal Center Defends Mississippi Disclosure Laws in 5th Circuit
    Filing" <http://electionlawblog.org/?p=59240>

Posted on March 4, 2014 2:15 pm <http://electionlawblog.org/?p=59240>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Press release 
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2388:march-4-2013-legal-center-defends-mississippi-disclosure-laws-in-5th-circuit-filing&catid=63:legal-center-press-releases&Itemid=61>: 
"Yesterday, the Campaign Legal Center filed a brief 
<http://www.campaignlegalcenter.org/images/CLC_Amicus_Brief_3-3-2014_FINAL.pdf> 
in the U.S. Court of Appeals for the Fifth Circuit in defense of the 
State of Mississippi's campaign finance disclosure laws.  The brief 
urges the Court of Appeals to overturn a decision by the U.S. District 
Court for the Northern District of Mississippi, which ruled that the 
individuals who brought the case would not have to reveal their spending 
or their funders as they promote the passage or defeat of state 
constitutional amendment ballot measures."

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

    Must-Watch Troubling Report on OFA Fundraising
    <http://electionlawblog.org/?p=59235>

Posted on March 4, 2014 12:25 pm <http://electionlawblog.org/?p=59235>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Chuck Todd for NBC News 
<http://www.msnbc.com/the-daily-rundown/watch/the-murky-world-of-political-nonprofits-181755459705>: 
"To sum up, OFA acknowledges that the executive director John Carson 
actually set up two meetings for a potential donor to discuss his own 
legal problems, one with an official from the White House and the other 
with an official with US AID. OFA says it is now revamping its 
fundraising policies, reaffirming and extending a ban on providing 
access to administration officials and prohibiting the diversion of 
questionable donations to other groups. And finally, in response to 
NBC's Michael Isikoff's reporting, OFA now acknowledges twice before it 
diverted money to so-called 'dark money' non-profits that don't disclose 
donor names."

Watch.

More from NBC here 
<http://www.nbcnews.com/news/investigations/pro-obama-group-fires-fundraiser-who-diverted-felons-100k-gift-n39491>.
This is why a sitting President should not have an organization like OFA.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law 
and election law <http://electionlawblog.org/?cat=22>

    "Texas Elections Mark Start of State Balloting With Photo ID Laws"
    <http://electionlawblog.org/?p=59233>

Posted on March 4, 2014 10:26 am <http://electionlawblog.org/?p=59233>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Bloomberg reports 
<http://www.bloomberg.com/news/2014-03-04/texas-elections-mark-start-of-state-balloting-with-photo-id-laws.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>

    "Rand Paul Hatches A Backup Plan In Case He Runs For President And
    Loses" <http://electionlawblog.org/?p=59231>

Posted on March 4, 2014 9:41 am <http://electionlawblog.org/?p=59231>by 
Rick Hasen <http://electionlawblog.org/?author=3>

TPM 
<http://talkingpointsmemo.com/livewire/rand_paul_seeks_law_change_to_run_for_president_senate>: 
"If Sen. Rand Paul (R-KY) decides to run for president, he doesn't want 
to lose his Senate seat in the process. So Paul is reportedly asking 
Kentucky lawmakers to file a bill clarifying a state law that prevents 
candidates from holding or running for two offices at the same time, 
allowing him to hedge his bet if he launches a 2016 bid."

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Posted in Uncategorized <http://electionlawblog.org/?cat=1>

    "Former FEC General Counsel Larry Noble Joins Campaign Legal Center
    Along with New Legal Fellow & New Operations Manager"
    <http://electionlawblog.org/?p=59229>

Posted on March 4, 2014 9:39 am <http://electionlawblog.org/?p=59229>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Congrats 
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2387:march-3-2014-former-fec-general-counsel-larry-noble-joins-campaign-legal-center-along-with-new-legal-fellow-a-new-operations-manager&catid=63:legal-center-press-releases&Itemid=61> 
to Larry and the Center!  A great match.

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Posted in election law biz <http://electionlawblog.org/?cat=51>

    "Elections Are Still a National Disgrace"
    <http://electionlawblog.org/?p=59227>

Posted on March 4, 2014 9:33 am <http://electionlawblog.org/?p=59227>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Bernstein rant. 
<http://www.bloombergview.com/articles/2014-03-04/elections-are-still-a-national-disgrace>

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

    1/3 of Justice Stevens' Proposed Constitutional Amendments Concern
    Election Law <http://electionlawblog.org/?p=59225>

Posted on March 4, 2014 9:13 am <http://electionlawblog.org/?p=59225>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Josh Blackman 
<http://joshblackman.com/blog/2014/03/04/what-are-justice-stevenss-proposed-six-amendments/> 
lists the Six Amendments from Justice Stevens forthcoming book 
<http://www.hachettebookgroup.com/titles/justice-john-paul-stevens/six-amendments/9780316373722/#desc> 
and two involve election law:

 1.

        Political Gerrymandering -- Districts represented by members of
        Congress, or by members of any state legislative body, shall be
        compact and composed of contiguous territory. The state shall
        have the burden of justifying any departures from this
        requirement by reference to neutral criteria such as natural,
        political, or historical boundaries or demographic changes. The
        interest in enhancing or preserving the political power of the
        party in control of the state government is not such a neutral
        criterion.

 2.

        Campaign Finance -- Neither the First Amendment nor any other
        provision of this Constitution shall be construed to prohibit
        the Congress or any state from imposing reasonable limits on the
        amount of money that candidates for public office, or their
        supporters, may spend in election campaigns.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, 
redistricting <http://electionlawblog.org/?cat=6>, Supreme Court 
<http://electionlawblog.org/?cat=29>

    Ohio AG Files 2 Briefs--On Opposite Sides--in SCOTUS False Speech
    Case <http://electionlawblog.org/?p=59221>

Posted on March 4, 2014 7:31 am <http://electionlawblog.org/?p=59221>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Yesterday Ilinked <http://electionlawblog.org/?p=59212> to anarticle 
<http://www.dispatch.com/content/stories/local/2014/03/03/DeWine-Ohio-Election-law.html> 
about Ohio SG Mike DeWine filing a brief against the constitutionality 
of Ohio's false campaign speech law. On Twitter, I noted that DeWine 
seemed to be following in the footsteps of Eric Holder and some state 
AGs who have refused to defend various laws that the AGs believe are 
unconstitutional.

Well it turns out that DeWine doesn't fit into this category, at least 
not for this case.  Thanks to Jonathan Adler, here is a copy of the 
brief from the Susan B. Anthony case. 
<http://electionlawblog.org/wp-content/uploads/13-193-ac-Ohio-AG-DeWine-Final.pdf> 
And here is the statement from DeWine at the beginning of the brief:

    The Attorney General makes this filing in fulfillment of his duties
    as Ohio's chief law officer, as an officer of the Court, and as an
    independently elected state official. His position as amicus here is
    independent of his representation of the Ohio Elections Commission
    Defendants. He continues zealously to represent those State
    Defendants in a separate capacity, acting through experienced
    lawyers in the Constitutional Offices section of the Attorney
    General's office.2 As set forth below, the Attorney General does not
    express the concerns raised in this brief lightly, but has concluded
    that this Court may benefit in its deliberations from further
    discussion of the actual workings and effect of the Ohio false
    statements statute in practice. [2 The Attorney General has screened
    counsel on this brief from contact with those attorneys, and has
    arranged pro bono outside counsel for the preparation and filing of
    this brief.]

This is not unprecedented. In The Nine Lives of Buckley v. Valeo 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1593253> I tell the 
story of infighting in the Ford Administration over Buckley v. Valeo, 
and how that led to the filing to two briefs, one for the FEC supporting 
the federal campaign finance law and the other, drafted by Robert Bork, 
supposedly "neutral" but actually making the case against the 
constitutionality of aspects of the law.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>

    "2011-2012 Ballot Measure Overview"
    <http://electionlawblog.org/?p=59219>

Posted on March 4, 2014 7:21 am <http://electionlawblog.org/?p=59219>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Here, 
<http://followthemoney.org/press/ReportView.phtml?r=504&utm_campaign=2011-2012-ballot-measures&utm_medium=email&utm_source=nimsp-contacts> 
at the National Institute on Money in State Politics.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, direct 
democracy <http://electionlawblog.org/?cat=62>

-- 
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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