[EL] ELB News and Commentary 3/19/14

Rick Hasen rhasen at law.uci.edu
Tue Mar 18 21:36:20 PDT 2014


<http://electionlawblog.org/>


    "Dale Schultz: 'I am not willing to defend them anymore'"
    <http://electionlawblog.org/?p=59535>

Posted on March 18, 2014 9:34 pm <http://electionlawblog.org/?p=59535>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Capital Times 
<http://host.madison.com/ct/news/local/writers/jack_craver/dale-schultz-i-am-not-willing-to-defend-them-anymore/article_7c3598f2-ae16-11e3-8097-0019bb2963f4.html>:

    Wisconsin state Sen. Dale Schultz, R-Richland Center, will not ride
    off quietly into the sunset.

    In an appearance on the Devil's Advocate radio show
    <http://www.themic921.com/onair/the-devils-advocates-47215/state-senator-dale-schultz-on-sd-12150295/>
    (The Mic/92.1 FM) last week, Schultz told hosts Mike Crute and
    Dominic Salvia that his party's support for a series of election law
    changes was indefensible.

    "I am not willing to defend them anymore," he explained when Salvia
    asked why Republicans sought to limit the number of voting hours a
    municipality could offer. "I'm just not and I'm embarrassed by this."

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60>


    "Lobbyist faces $5 million fine for allegedly failing to file
    disclosure reports" <http://electionlawblog.org/?p=59533>

Posted on March 18, 2014 9:30 pm <http://electionlawblog.org/?p=59533>by 
Rick Hasen <http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/politics/lobbyist-faces-5-million-fine-for-allegedly-failing-to-file-disclosure-reports/2014/03/18/10bd8ad0-aee3-11e3-96dc-d6ea14c099f9_story.html>: 
"Federal prosecutors have charged a lobbyist and his Alexandria firm 
with violating federal lobbying law by failing to submit dozens of 
disclosure reports, a rare legal move that could carry a fine of up to 
$5.2 million."

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Posted in lobbying <http://electionlawblog.org/?cat=28>


    "State of Texas seeks records relating to voter fraud from DOJ,
    members of Congress" <http://electionlawblog.org/?p=59531>

Posted on March 18, 2014 9:20 pm <http://electionlawblog.org/?p=59531>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Texas Redistricting 
<http://txredistricting.org/post/79922055563/state-of-texas-seeks-records-relating-to-voter-fraud>: 
"In a *response* 
<https://drive.google.com/file/d/0BxeOfQQnUr_gQjNicFR2QkZVeWM/edit?usp=sharing> 
filed today in the Texas voter ID case, the State of Texas told Judge 
Nelva Gonzales Ramos that it was entitled to review Justice Department 
"files relating to voter fraud investigations" as well as documents 
maintained by 22 current and former members of Congress who have opposed 
voter ID laws."

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id 
<http://electionlawblog.org/?cat=9>


    "FEC Complaint Calls for Investigation of Possible Illegal Soft
    Money Solicitations by Vitter Super PAC"
    <http://electionlawblog.org/?p=59529>

Posted on March 18, 2014 9:18 pm <http://electionlawblog.org/?p=59529>by 
Rick Hasen <http://electionlawblog.org/?author=3>

See here. 
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2409:march-18-2014-fec-complaint-calls-for-investigation-of-possible-illegal-soft-money-solicitations-by-vitter-super-pac&catid=63:legal-center-press-releases&Itemid=61>

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


    "Fred Wertheimer Challenges Call by RNC Chairman Priebus to Allow
    Unlimited Contributions to Political Parties"
    <http://electionlawblog.org/?p=59527>

Posted on March 18, 2014 9:06 pm <http://electionlawblog.org/?p=59527>by 
Rick Hasen <http://electionlawblog.org/?author=3>

See here 
<http://www.democracy21.org/money-in-politics/press-releases-money-in-politics/fred-wertheimer-challenges-call-by-rnc-chairman-priebus-to-allow-unlimited-contributions-to-political-parties/>.

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


    Justice Scalia's Interesting Views of Shelby County and the "Equal
    Sovereignty" Principle <http://electionlawblog.org/?p=59524>

Posted on March 18, 2014 1:13 pm <http://electionlawblog.org/?p=59524>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Eric Segall 
<http://www.dorfonlaw.org/2014/03/the-day-constitution-lived-guest-post.html> 
has an important guest post at Dorf on Law about a recent constitutional 
law conference in Atlanta.  Read the whole thing.  But for ELB purposes, 
the end is the most interesting, about a Q&A session with Justice Scalia 
where the Justice answered questions written on index cards:

    The very next unsigned question was one that I had written. I asked
    him how he could sign on to Justice Roberts' opinion in the recent
    voting rights case (/Shelby County v. Holder
    <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>/) which
    announced a brand new constitutional principle-that Congress could
    not treat different states differently without a really strong
    reason-given that this limitation is nowhere in the text of the
    Constitution nor supported by its original meaning.  Scalia fumbled
    a bit, said he didn't read the case that way, and then asked who
    wrote the question.  I was sitting in the front row and made eye
    contact with the moderator to see if he wanted me to identify
    myself. He motioned for me to rise so a microphone was brought over
    and I nervously repeated the question. I don't often argue with
    Supreme Court Justices in front of a full house. Scalia again
    fumbled, and then said I read the case wrong and the decision only
    required a rational basis (not a strong reason) for Congress to
    treat different states differently. I will let history be my judge
    on this dispute (I'm right) but I was most interested to hear Scalia
    go on to say that, even if Congress had a rational basis for
    treating different states differently at the time of the Civil War,
    that rational basis no longer exists in today's United States, so
    the Shelby County Court was correct to rule the way it did. In other
    words, what "equal state sovereignty" meant in 1868 is very
    different than what it means today, as a matter of constitutional law.

    I agree with Scalia's approach, and would use the same method of
    interpretation for principles like "equal protection of the law,"
    and "cruel and unusual punishment," and the living Constitution
    lives on for at least another day.

I reflect on the rationality standard and other odd things in the 
/Shelby County/ opinions in this forthcoming piece 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>. Justice 
Scalia's comments provide an interesting window into the standard of 
review question unanswered in this case.

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


    "Treating Voters the Same, Not Counties and Towns"
    <http://electionlawblog.org/?p=59522>

Posted on March 18, 2014 1:03 pm <http://electionlawblog.org/?p=59522>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Jon Sherman 
<http://fairelectionsnetwork.com/blog/treating-voters-same-not-counties-and-towns>: 
"Last week, the Wisconsin State Senate approved a bill that would bar 
early voting on weekends 
<http://www.jsonline.com/news/statepolitics/senate-back-in-session-after-democrats-delayed-key-votes-b99223756z1-249764691.html> 
and cap total early voting per week at 45 hours.  If this bill is passed 
and signed, early voting in clerks' offices will only take place on 
weekdays between 8 a.m. and 7 p.m.  Utah is on the verge of passing 
Election Day registration; Massachusetts is set to approve early voting; 
and voters in Missouri are collecting signatures to put early voting on 
the ballot in November.  But Wisconsin seems determined to march into 
the past."

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60>


    "Chad Vader votes in Dane County" <http://electionlawblog.org/?p=59520>

Posted on March 18, 2014 10:37 am 
<http://electionlawblog.org/?p=59520>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Election geeks (yes, I'm talking to you, Chapin) rejoice: a Dane County 
video <https://www.youtube.com/watch?v=w0cTaFr7Jkk#t=12> on how to fill 
out a new ballot which is sure to get the attention of Lucas Films' 
legal department.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
election law "humor" <http://electionlawblog.org/?cat=52>


    Section 2: Under Construction? <http://electionlawblog.org/?p=59515>

Posted on March 18, 2014 10:21 am 
<http://electionlawblog.org/?p=59515>by Justin Levitt 
<http://electionlawblog.org/?author=4>

Rick linked, here <http://electionlawblog.org/?p=59492>, to an argument 
by Mr. Clegg and Mr. von Spakovsky 
<http://www.heritage.org/research/reports/2014/03/disparate-impact-and-section-2-of-the-voting-rights-act> about 
the proper construction of section 2 of the Voting Rights Act. The 
argument is predicated on the notion that it's constitutionally 
questionable to construe section 2 to exact liability upon statistical 
evidence of disparate impact alone. They ask the courts to steer clear 
of this purported danger zone, and counsel for a much narrower 
interpretation of section 2.

But the statute only needs extra steering if there's actually a danger.  
The image of section 2 as predicated on effects alone is yet another bad 
caricature <http://ssrn.com/abstract=2265729> of what the Voting Rights 
Act does. (I've been working on a sequel to that linked paper. There are 
plenty of assumptions about what section 2 does and doesn't do that 
aren't based on the actual statute.)

It's true that section 2 is often called an "effects" or "results" test 
--- as imprecise shorthand.  But as Mr. Clegg and Mr. von Spakovsky 
mention, and as I've explained 
<http://redistricting.lls.edu/files/_%20Levitt%20responses%20to%20Franken%20QFRs.pdf#page=5>, 
that's not what the text does. At least recently (and perhaps since the 
1982 amendment), courts have demanded more than just purely disparate 
results.  That is, "calling section 2?s test a 'results test' is 
something of a misnomer" --- US v. Blaine County, 363 F.3d 897, 909 (9th 
Cir. 2004).  And Mr. Clegg and Mr. von Spakovsky themselves cite a 
litany of cases holding that section 2 is not violated purely by a 
showing of disparate impact.

If the actual statute doesn't create liability on disparate impact alone 
(with nothing more to add to the "totality of circumstances"), and if 
courts aren't misconstruing the statute to do so, doesn't that suggest 
that section 2 is already tailored to avoid the supposed constitutional 
difficulty?

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


    "Fearing the Attack Ad: 'Politicians vs. Sick Kids'"
    <http://electionlawblog.org/?p=59517>

Posted on March 18, 2014 10:13 am 
<http://electionlawblog.org/?p=59517>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Meredith McGehee blogs. 
<http://www.clcblog.org/index.php?option=com_content&view=article&id=552:fearing-the-attack-ad-politicians-vs-sick-kids>

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


    "IRS Should Take the Middle Ground on Nonprofit Politicking"
    <http://electionlawblog.org/?p=59514>

Posted on March 18, 2014 10:12 am 
<http://electionlawblog.org/?p=59514>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Larry Ottinger has writtenthis piece 
<http://philanthropy.com/article/IRS-Should-Take-the-Middle/145375/?cid=pt&utm_source=pt&utm_medium=en> 
for the /Chronicle of Philanthropy./

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


    "Recalibrating Campaign Finance Law"
    <http://electionlawblog.org/?p=59512>

Posted on March 18, 2014 10:11 am 
<http://electionlawblog.org/?p=59512>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Anthony Johnstone has posted this draft 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2394937>on SSRN 
(forthcoming, /Yale Law and Policy Review/).  Here is the abstract:

    This essay suggests a framework for recalibrating campaign finance
    contribution limits and disclosure thresholds to the current
    campaign practices of particular jurisdictions. Campaign finance
    regimes have varied widely across several political eras and several
    jurisdictional scales. Strikingly, although similar six-figure
    campaign finance scandals prompted the reforms of each era, federal
    lawmakers have drawn progressively lower one-size-fits-all
    contribution limits and disclosure thresholds. Meanwhile, state
    campaign finance laws often are more carefully calibrated to reflect
    the electoral and financial fundamentals of various campaigns. As
    current campaign finance doctrine narrows the permissible ends of
    campaign finance regulation to anti-corruption and publicity, it
    also requires a better fit between those ends and the means of
    setting contribution limits and disclosure thresholds. Under this
    more demanding doctrine, recalibration can better align these
    specific regulations with the general constitutional justifications
    for --- and policy goals of --- our system of campaign finance law.
    Recalibration offers an opportunity for both opponents and
    proponents of regulation to ensure a better fit between the means
    and ends of campaign finance law.

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


    "Americans in territories have earned the right to pick president"
    <http://electionlawblog.org/?p=59510>

Posted on March 18, 2014 10:09 am 
<http://electionlawblog.org/?p=59510>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Neil Weare has written this oped 
<http://www.orlandosentinel.com/news/opinion/os-ed-territories-vote-031814-20140317,0,4970280.story> 
for the /Orlando Sentinel./

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Posted in voting <http://electionlawblog.org/?cat=31>


    DOJ Shifts Voting Section Priorities after Shelby County Guts
    Section 5 <http://electionlawblog.org/?p=59507>

Posted on March 18, 2014 10:07 am 
<http://electionlawblog.org/?p=59507>by Rick Hasen 
<http://electionlawblog.org/?author=3>

>From DOJ's budget submission 
<http://www.justice.gov/jmd/2015justification/pdf/crt-justification.pdf> 
to Congress (p. 44):

    Because of the Shelby County case, the Voting Section's work will
    necessarily shift to greater affirmative efforts to detect and
    investigate voting practices that violate federal law, to more
    affirmative litigation to enjoin such practices, and to additional
    monitoring of elections throughout the country each year.

    Resources previously devoted to Section 5 reviews are being shifted
    to monitoring, identifying and investigating voting changes that may
    violate federal law, as well as assisting with litigation
    challenging such practices. These monitoring, investigative and
    litigation efforts will be very resource intensive.

    VOT will place major emphasis going forward on affirmative
    enforcement of Section 2 of the VRA, which prohibits voting
    practices that are discriminatory in purpose or effect. VOT has
    opened a number of new investigations under Section 2 as a result of
    its initiative to identify election systems that may dilute minority
    voting strength, in light of the new decennial census data released
    in 2011, as well as investigation of voting practices that may deny
    or abridge the right to vote. In FY 2013, VOT has filed a Section 2
    case against Texas challenging its 2011 photo identification
    requirement for voters, and VOT filed a complaint in intervention
    under Section 2 in a case against Texas challenging its 2011
    statewide redistricting plans. The D.C. District Court had
    previously found Texas had failed to meet its burden of proving that
    its voter identification law and its statewide redistricting plans
    were not discriminatory under Section 5 of the Voting Rights Act.
    Those decisions were vacated after the decision in Shelby
    County. Also, in FY 2013, VOT filed a Section 2 case against North
    Carolina challenging its 2013 photo identification requirement for
    voters and new procedures regarding early voting, same day voter
    registration and provisional balloting. In these new cases under
    Section 2 , VOT is also seeking to have the federal courts impose a
    new preclearance requirement on Texas and North Carolina under
    Section 3(c) of the Act to prevent implementation of new
    discriminatory voting changes. The Department also has filed amicus
    briefs on Section 2 issues.

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Posted in Department of Justice <http://electionlawblog.org/?cat=26>, 
Voting Rights Act <http://electionlawblog.org/?cat=15>


    "Super PAC" Makes the Dictionary <http://electionlawblog.org/?p=59504>

Posted on March 18, 2014 9:25 am <http://electionlawblog.org/?p=59504>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Read all about it 
<https://www.publicintegrity.org/2014/03/17/14427/merriam-webster-makes-super-pac-official>.

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


    Q&A with Adam Lioz on Upcoming SCOTUS McCutcheon Campaign Finance
    Decision <http://electionlawblog.org/?p=59502>

Posted on March 18, 2014 9:23 am <http://electionlawblog.org/?p=59502>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Here. 
<http://www.salon.com/2014/03/18/scalias_looming_fiasco_obscure_new_scotus_case_may_be_worse_than_citizens_united/>

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


    "A Campaign Inquiry in Utah Is the Watchdogs' Worst Case"
    <http://electionlawblog.org/?p=59500>

Posted on March 18, 2014 9:22 am <http://electionlawblog.org/?p=59500>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Must-read Nick Confessore NYT piece 
<http://www.nytimes.com/2014/03/18/us/politics/a-campaign-inquiry-in-utah-is-the-watchdogs-worst-case.html?smid=tw-share&_r=2> 
on the Swallow investigation:

    It is the nightmare scenario for those who worry that the modern
    campaign finance system has opened up new frontiers of political
    corruption: A candidate colludes with wealthy corporate backers and
    promises to defend their interests if elected. The companies spend
    heavily to elect the candidate, but hide the money by funneling it
    through a nonprofit group. And the main purpose of the nonprofit
    appears to be getting the candidate elected.

    But according to investigators, exactly such a plan is unfolding in
    an extraordinary case in Utah, a state with a cozy political
    establishment, where business holds great sway and there are no
    limits on campaign donations.

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


    Bob Bauer Address on Lobbying Reform in the Obama Administration
    <http://electionlawblog.org/?p=59498>

Posted on March 18, 2014 9:21 am <http://electionlawblog.org/?p=59498>by 
Rick Hasen <http://electionlawblog.org/?author=3>

You can read it here 
<http://www.moresoftmoneyhardlaw.com/2014/03/assessing-lobbying-reform-obama-administration/>.

I offer my own, somewhat bleaker assessment in this Stanford piece 
<http://www.stanfordlawreview.org/print/article/lobbying-rent-seeking-and-constitution>.

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Posted in lobbying <http://electionlawblog.org/?cat=28>


    Yes, Election Law Blog Was Down <http://electionlawblog.org/?p=59496>

Posted on March 18, 2014 9:11 am <http://electionlawblog.org/?p=59496>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Large outage at UCI.  Things should be back to normal, although there 
could be more intermittent trouble today.

Thanks for your patience.

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

-- 
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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