[EL] Grimes lawsuit

Sat Nov 1 11:32:40 PDT 2014

While I agree with Rick that the intimidation charge won't stick, there may
be something to the defamation claim. I'd be happy to hear critiques of the
defamation claim.

http://ballots.blogspot.com/2014/10/mcconnell-in-cahoots-with-ky-gop-sent.html

If Grimes loses narrowly, a jury could find substantial damages. Is this a
case that can get to a jury? I would think whether the allegation of
election violations constitutes defamation per quod is a matter of law.

On the other hand, I assume the senders have their own lawyers on tap and
crafted the letter to avoid liability. Whether legal or not, it's tacky.
McConnell, in McConnell v FEC and elsewhere, has been a champion for free
speech. Dirty tricks like this one undercut his case. As far as I know, he
was solidly leading before this went out,and didn't need it. Not sure what
they were thinking.

On Sat, Nov 1, 2014 at 7:55 AM, Lillie Coney <coney at lillieconey.net> wrote:

> Imagery matters in campaigns—from the Daisy Commercial to Deaver’s work
> with Ronald Reagan pictures had the power to influence some voters.
>
> What I find  interesting is the use of subliminal advertisement in
> political campaign advertisement. One example was a discovery during the
> Bush/Gore campaign.  http://www.youtube.com/watch?v=2NPKxhfFQMs
>
> In any case attempting to reach voters on a subconscious level has been
> part of the Madison Avenue approach to campaigning for sometime.
>
> In a close election year—if campaigns think it will give them an edge they
> may try it. While no one wants to believe they can be influenced by these
> types of advertisements, I am not sure if there is clinical research on
> either side that can answer the question of how effective these
> advertisements are in influencing voters.
>
> It would be interesting to see research on the topic.
>
> Lillie Coney
>
> On Oct 31, 2014, at 8:23 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>  So you see this as a serious suit and not simply a publicity stunt to
> accuse McConnell of being a vote suppressor?
>
> I surely don't.
>
> Rick
>
> On 10/31/14, 5:15 PM, John W. Farrell wrote:
>
> Sorry Professor, I've witnessed legitimate qualified voters intimidated by
> a lot less than that envelope.
>
>  Reread district court findings in DNC v. RNC.
>
>  Scammers regularly get people to fork over money simply but using an
> envelope that looks like it came from the IRS or other governmental agency.
>
>   John W. Farrell
> Attorney at Law
>
>      <Mail Attachment.jpeg>
>
>
> 11350 Random Hills Road | Suite 500
> Fairfax, Virginia 22030-7421
> direct (703) 934-1182 | cell (703) 507-1182
>   website <http://mccandlishlawyers.com/> | bio
> <http://mccandlishlawyers.com/attorney/john-w-farrell/> | vCard
> <http://www.dynasend.com/signatures/vcard/jfarrell-at-mccandlishlawyers.com.vcf>
>  | map
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>  | email <jfarrell at mccandlishlawyers.com>
> <Mail Attachment.gif><Mail Attachment.gif>
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> <http://www.linkedin.com/company/mccandlish-&-lillard-p.c.><Mail
> Attachment.gif>
>
> This email is not intended, nor shall it be deemed, unless otherwise
> expressly provided in writing, to (1) constitute or provide legal advice or
> counsel, unless the recipient already has an attorney-client relationship
> with the firm or me; (2) create an attorney-client relationship; or (3)
> contain my electronic, or other implied, signature.
>
>
>
>  <http://www.youtube.com/user/McCandlishLillard>
>
>  On Oct 31, 2014, at 7:40 PM, Rick Hasen wrote:
>
>     Super Creepy Picture of the Day <http://electionlawblog.org/?p=67778>
> Posted on October 31, 2014 3:38 pm <http://electionlawblog.org/?p=67778>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> <141031_ScaryAds.jpg.CROP_.promovar-mediumlarge.jpg>
> <http://electionlawblog.org/wp-content/uploads/141031_ScaryAds.jpg.CROP_.promovar-mediumlarge.jpg>
>
> From a real live judicial elections ad, as described in the new Slate
> piece
> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/judicial_election_outrageous_ads_campaign_contributions_break_records.html>
>  with Dahlia Lithwick
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67778&title=Super%20Creepy%20Picture%20of%20the%20Day&description=>
>   Posted in judicial elections <http://electionlawblog.org/?cat=19>
>      Updated Analysis: Grimes Campaign Suing over McConnell “Election
> Violations” Mailer <http://electionlawblog.org/?p=67776>
> Posted on October 31, 2014 3:34 pm <http://electionlawblog.org/?p=67776>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> So reports
> <http://www.thedailybeast.com/articles/2014/10/31/grimes-campaign-exploring-legal-options-against-mcconnell.html>
>  The Daily Beast. UPDATE: TPM has the complaint
> <https://www.scribd.com/doc/245146077/Grimes-Campaign-Complaint-10-31-14>.
> It alleges a violation of KRS 119.155
> <http://www.lrc.ky.gov/Statutes/statute.aspx?id=27752>, which makes it a
> crime to, among other things “intimidate[] or attempts to intimidate any
> voter so as to prevent him from casting his ballot.” That’s what the Grimes
> campaign alleges the flyer does.
>
> I don’t buy it. Some people might be confused by the flyer and maybe even
> think they are accused of some kind of elections code violation. But anyone
> who reads it will see it is clearly a nasty attack ad aimed at Grimes.
>
> Voters are not stupid nor so easily intimidated.
>
> Yes we are knee deep in the silly season.
>
> [This post has been updated.]
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67776&title=Updated%20Analysis%3A%20Grimes%20Campaign%20Suing%20over%20McConnell%20%E2%80%9CElection%20Violations%E2%80%9D%20Mailer&description=>
>   Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery
> <http://electionlawblog.org/?cat=12>, The Voting Wars
> <http://electionlawblog.org/?cat=60>
>      “Georgia, North Carolina midterms: Race matters”
> <http://electionlawblog.org/?p=67774>
> Posted on October 31, 2014 3:32 pm <http://electionlawblog.org/?p=67774>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> AP reports
> <http://www.bellinghamherald.com/2014/10/31/3945695/georgia-north-carolina-midterms.html>
> .
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67774&title=%E2%80%9CGeorgia%2C%20North%20Carolina%20midterms%3A%20Race%20matters%E2%80%9D&description=>
>   Posted in campaigns <http://electionlawblog.org/?cat=59>, Voting Rights
> Act <http://electionlawblog.org/?cat=15>
>      Sen. McConnell Sends “Election Violation Notice” Mailers to Voters
> <http://electionlawblog.org/?p=67772>
> Posted on October 31, 2014 2:37 pm <http://electionlawblog.org/?p=67772>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Dems yell vote suppression
> <http://talkingpointsmemo.com/dc/mcconnell-mailers-election-violation>.
> It is pretty low tactic, but will it really deter anyone from voting.
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67772&title=Sen.%20McConnell%20Sends%20%E2%80%9CElection%20Violation%20Notice%E2%80%9D%20Mailers%20to%20Voters&description=>
>   Posted in campaigns <http://electionlawblog.org/?cat=59>, The Voting
> Wars <http://electionlawblog.org/?cat=60>
>      “Devising a Standard for Section 3: Post-Shelby County Voting Rights
> Litigation” <http://electionlawblog.org/?p=67770>
> Posted on October 31, 2014 2:03 pm <http://electionlawblog.org/?p=67770>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Roseann Romano
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2490215>, adding to a
> growing list of important student notes on bail-in, for the Iowa Law Review:
>
> In response to the Supreme Court’s decision in Shelby County v. Holder,
> which dismantled the modern voting rights enforcement regime by declaring
> section 4(b) of the Voting Rights Act (“VRA”) unconstitutional, plaintiffs
> in voting rights lawsuits have sought protection from a little-used
> provision of the VRA: section 3(c). Section 3(c) allows courts to require
> jurisdictions whose voting practices violate the Fourteenth or Fifteenth
> Amendment to submit future voting changes to a preclearance process.
> However, in light of little legislative history and only one instance of
> judicial interpretation of the provision, courts face a challenge in
> determining when a jurisdiction’s behavior triggers the section 3(c)
> remedy. Accordingly, this Note examines section 3(c) and the legal
> standards applied to find Fourteenth or Fifteenth Amendment violations in
> voting rights cases. This Note then proposes an invidious discrimination
> standard for determining when a jurisdiction’s voting practices trigger
> section 3(c). By applying this standard to two ongoing voting rights cases,
> this Note argues that a less burdensome standard than the intentional
> discrimination standard does not dramatically depart from past voting
> rights jurisprudence and is necessary to strengthen the voting rights
> enforcement regime.
>
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67770&title=%E2%80%9CDevising%20a%20Standard%20for%20Section%203%3A%20Post-Shelby%20County%20Voting%20Rights%20Litigation%E2%80%9D&description=>
>   Posted in Department of Justice <http://electionlawblog.org/?cat=26>, Voting
> Rights Act <http://electionlawblog.org/?cat=15>
>      ACS Briefing on Alabama Redistricting Cases
> <http://electionlawblog.org/?p=67768>
> Posted on October 31, 2014 2:01 pm <http://electionlawblog.org/?p=67768>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> November 10 (two days before argument).  Details and RSVP
> <https://acslaw.secure.force.com/rsvp?id=a0YG0000007Or62MAC>.
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67768&title=ACS%20Briefing%20on%20Alabama%20Redistricting%20Cases&description=>
>   Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme
> Court <http://electionlawblog.org/?cat=29>, Voting Rights Act
> <http://electionlawblog.org/?cat=15>
>
>    --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
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>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
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