[EL] Colorado: Coalition for Secular Government

Mon Oct 13 10:34:23 PDT 2014

“Judge Rules Colorado Disclosure Law Unconstitutional”<http://electionlawblog.org/?p=66798>
Posted on October 13, 2014 9:34 am<http://electionlawblog.org/?p=66798> by Justin Levitt<http://electionlawblog.org/?author=4>

CCP reacts<http://www.campaignfreedom.org/2014/10/11/judge-rules-colorado-disclosure-law-unconstitutional/> to the Colorado case I mentioned yesterday<http://electionlawblog.org/?p=66752>.

-- I'm not sure "reaction" is quite the right word. To be clear, CCP was counsel for the plaintiffs in this case.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Justin Levitt [levittj at lls.edu]
Sent: Monday, October 13, 2014 12:37 PM
To: law-election at UCI.EDU
Subject: [EL] ELB News and Commentary 10/13/14

Who, What, Where, When, How – but not Why<http://electionlawblog.org/?p=66804>
Posted on October 13, 2014 9:36 am<http://electionlawblog.org/?p=66804> by Justin Levitt<http://electionlawblog.org/?author=4>

In the WaPo, Robert Barnes discusses the Supreme Court’s decisions last week<http://www.washingtonpost.com/politics/courts_law/supreme-courts-actions-are-monumental-but-the-why-of-its-reasoning-often-missing/2014/10/12/ca1ccc9c-4fca-11e4-8c24-487e92bc997b_story.html> not to take the same-sex marriage cases, and to stay voting decisions from the courts of appeals, shaping the law without offering much contemporaneous rationale.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
“The Selective Reading of the Supreme Court’s Decision in Citizens United”<http://electionlawblog.org/?p=66802>
Posted on October 13, 2014 9:35 am<http://electionlawblog.org/?p=66802> by Justin Levitt<http://electionlawblog.org/?author=4>

The Washington Post notes<http://www.washingtonpost.com/opinions/the-selective-reading-of-the-supreme-courts-decision-in-citizens-united/2014/10/12/4b0f39a4-50b4-11e4-babe-e91da079cb8a_story.html> that Citizens United protected independent speech, but much current spending seems decidedly non-independent.  And it concludes that the spenders are ignoring or dodging the Court.

I think the blame is misplaced.  In making constitutional rulings, the Court doesn’t directly govern private activity – instead, it reviews the lawfulness of statutes or regulations that govern private activity.  The Court protected independent speech from much regulation, yes.  But that doesn’t mean it declared speech coordinated with candidates to be unlawful.  Statutes and regulations  do that for some speech in some ways, and forego that decision for some speech in some ways.  If the regulatory regime isn’t as comprehensive as desired within the bounds deemed permissible by the courts, that’s the fault of the elected branches of government, and not “evading” of Citizens United.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Political Spending Double-Cross”<http://electionlawblog.org/?p=66800>
Posted on October 13, 2014 9:35 am<http://electionlawblog.org/?p=66800> by Justin Levitt<http://electionlawblog.org/?author=4>

The WSJ continues to beat the drum<http://online.wsj.com/articles/political-spending-double-cross-1413150303> against the CPA-Zicklin index<http://www.politicalaccountability.net/index.php?ht=d/sp/i/8051/pid/8051> of corporate political disclosure.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Judge Rules Colorado Disclosure Law Unconstitutional”<http://electionlawblog.org/?p=66798>
Posted on October 13, 2014 9:34 am<http://electionlawblog.org/?p=66798> by Justin Levitt<http://electionlawblog.org/?author=4>

CCP reacts<http://www.campaignfreedom.org/2014/10/11/judge-rules-colorado-disclosure-law-unconstitutional/> to the Colorado case I mentioned yesterday<http://electionlawblog.org/?p=66752>.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Ballot Item Would Reform Redistricting, at Least in Theory”<http://electionlawblog.org/?p=66796>
Posted on October 13, 2014 9:34 am<http://electionlawblog.org/?p=66796> by Justin Levitt<http://electionlawblog.org/?author=4>

A NY Times report about the constitutional amendment on the ballot in New York to change the redistricting structure<http://www.nytimes.com/2014/10/13/nyregion/ballot-item-would-reform-redistricting-at-least-in-theory.html>.  Unlike other states that have recently changed their redistricting process  (like California and Florida), New York has no citizens’ ballot initiative: amendments to the New York constitution must be legislatively referred.

I’ll have more to say about the New York measure in the days to come.

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Posted in direct democracy<http://electionlawblog.org/?cat=62>, redistricting<http://electionlawblog.org/?cat=6>
“What’s In A Name? It Could Matter If You’re Writing To Your Lawmaker”<http://electionlawblog.org/?p=66794>
Posted on October 13, 2014 9:33 am<http://electionlawblog.org/?p=66794> by Justin Levitt<http://electionlawblog.org/?author=4>

NPR reports<http://www.npr.org/blogs/codeswitch/2014/10/13/329581400/whats-in-a-name-it-could-matter-if-youre-writing-to-your-lawmaker> on a fascinating (and alarming) study — I’d seen an earlier draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2422596>.  Researchers emailed state legislators, asking what kind of documentation they needed; the only difference in the emails was the name of the sender (Jacob Smith or Santiago Rodriguez).  Then they tracked response rates.

The intriguing findings are in line with an earlier study<http://www.ocf.berkeley.edu/%7Ebroockma/broockman_discriminate.pdf> with a similar design: an email to state legislators asking for help registering.  Two variations: sometimes a party was identified, sometimes not; some emails came from Jake Mueller and some from DeShawn Jackson.  The differential response rates are striking (and deeply unfortunate).

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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, voter id<http://electionlawblog.org/?cat=9>
“GOP-Backed Voting Limits Spur Backlash”<http://electionlawblog.org/?p=66792>
Posted on October 13, 2014 9:33 am<http://electionlawblog.org/?p=66792> by Justin Levitt<http://electionlawblog.org/?author=4>

And here come the backlash stories.  A snippet<http://www.fayobserver.com/news/nation/gop-backed-voting-limits-spur-backlash/article_73f6587d-ccef-514e-8351-13d39816501e.html> of the latest:

Already, more Americans than ever will face new voting restrictions in November as 15 states – some with the closest midterm races in the country – begin implementing laws banning same-day registration, requiring photo IDs or shortening the period for early voting.

Less anticipated, however, was the robust and sometimes creative backlash that has followed from Democrats and their allies, who are launching a spirited counteroffensive that strategists say could end up benefiting party turnout on Election Day.

Don’t misunderstand – a backlash leading to higher turnout does not itself justify whatever policy caused the backlash.

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“The Most Persuasive Judicial Response to Voter Suppression Laws Yet”<http://electionlawblog.org/?p=66790>
Posted on October 13, 2014 9:31 am<http://electionlawblog.org/?p=66790> by Justin Levitt<http://electionlawblog.org/?author=4>

Andrew Cohen connects<http://theweek.com/article/index/269786/the-most-persuasive-judicial-response-to-voter-suppression-laws-yet> Judge Ramos to Judge Posner in The Week.

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Posted in election administration<http://electionlawblog.org/?cat=18>, election law and constitutional law<http://electionlawblog.org/?cat=55>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
“The Big Lie Behind Voter ID Laws”<http://electionlawblog.org/?p=66788>
Posted on October 13, 2014 9:31 am<http://electionlawblog.org/?p=66788> by Justin Levitt<http://electionlawblog.org/?author=4>

Yesterday’s editorial from the New York Times<http://www.nytimes.com/2014/10/13/opinion/the-big-lie-behind-voter-id-laws.html?_r=0>.

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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>
Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case<http://electionlawblog.org/?p=66784>
Posted on October 13, 2014 1:06 am<http://electionlawblog.org/?p=66784> by Rick Hasen<http://electionlawblog.org/?author=3>

Last week<http://electionlawblog.org/?p=66601> the Supreme Court voted 6-3 <http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf> to stop a horrendous<http://electionlawblog.org/?p=66413> 7th Circuit court order allowing Wisconsin to immediately put its voter id law into effect. Regardless of where you stand on the desirability of voter id laws (I oppose these tough state laws but support a national voter id program coupled with universal voter registration done by the federal government with the government picking up all costs of verifying identity), the Supreme Court made the right call. Wisconsin had an 8 month plan to implement ID which was going to have to be done within 8 weeks; the state conceded that up to 10 percent of eligible voters might not be able to get ID in time for the election; and the parties agreed that some WI voters born out of state who had to get out of state birth certificates were going to have a very difficult time getting their documentation in time.  On top of that, there were absentee voters who had already voted before the ID law was in effect, and they were going to be disenfranchised unless they followed up with getting additional documentation to WI election officials in time.

Faced with all of this, the majority put WI’s voter id law on hold for this election, so that it may be rolled out in a smoother way over time.  But Justice Alito, joined by Justices Scalia and Thomas, dissented. They seemed to acknowledge the disenfranchising risks and the “Purcell principle<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/supreme_court_voting_rights_decisions_contradictions_in_wisconsin_ohio_north.html>” that courts should not change election rules just before an election, but they saw a bigger principle at stake:

There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and‘demonstrably’ erred in its application of ‘accepted standards.’” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op., at 1) (SCALIA, J., concurring in denial of application to vacate stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers);some internal quotation marks omitted). Under that test, the application in this case should be denied.

The bigger principle Justice Alito recognizes is deference to the Court of Appeals. Of course, the Supreme Court showed no deference in Purcell itself, when the Ninth Circuit issued a stay stopping use of Arizona’s law. No deference to the Courts of Appeal in the Ohio or North Carolina cases either, both cases in which Courts expanded voting rights. So why deference here? Because the 7th Circuit was clearly right? Well that’s belied by the 7th Circuit’s 5-5 split over whether to rehear the Wisconsin case en banc.

Further, why should a principle of deference which is applied as a matter of equity trump the actuality, and not merely the risk, of voter disenfranchisement in Wisconsin? Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court (which is also shown in their separate opinion in the 2008 Crawford Indiana voter id case, where Justice Scalia wrote for these Justices that so long as most people would not be disenfranchised by a voter id law, then no one could challenge that law—even those people who would have special difficulty getting an ID.)

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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>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Braced for Voter Fraud in Colorado”<http://electionlawblog.org/?p=66781>
Posted on October 12, 2014 10:50 pm<http://electionlawblog.org/?p=66781> by Justin Levitt<http://electionlawblog.org/?author=4>

John Fund’s latest<http://www.nationalreview.com/article/390139/braced-voter-fraud-colorado-john-fund> in the National Review Online.

Mr. Fund is a very careful writer.  One paragraph (the brackets are mine) states:

One of the examples [Secretary Gessler] cites [as reason to be afraid of same-day registration] is Wisconsin. In 2008, a 68-page Milwaukee Police Department report confirmed that in the last presidential election, claims that thousands “more ballots [were] cast than voters recorded were found to be true.” The report found that there had been an organized effort by political operatives from out of state to swing the election. It concluded “that the one thing that could eliminate a large percentage of fraud or the appearance of fraudulent voting in any given election is the elimination of the on-site or same-day voter registration system.”

The second sentence describes administrative incompetence.  The third sentence — “an organized effort by political operatives from out of state to swing the election” — describes every election in which campaign staff aren’t all local natives.  And the fourth sentence describes the potential for elimination of same-day registration to prevent the appearance of fraud.

But those reviewing the report in question for proof of an organized effort by political operatives from out of state to swing an election through fraud will be disappointed.  Instead, the report found votes by 16 campaign workers whose residency was questioned by the Milwaukee Police Department in an apparent disagreement about the basis for establishing residency for voting purposes with the attorneys of the Milwaukee prosecutors’ office.  (There’s more on the police department reporthere<http://electionlawblog.org/?p=61230>.)  Just FYI.

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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>
Collateral Damage from the Voting Wars?<http://electionlawblog.org/?p=66775>
Posted on October 12, 2014 2:37 pm<http://electionlawblog.org/?p=66775> by Justin Levitt<http://electionlawblog.org/?author=4>

NPR profiles the surprisingly close election for Kansas Secretary of State<http://www.npr.org/2014/10/11/355303012/a-republican-battles-to-keep-his-job-in-deep-red-kansas>.

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>
“Judge Richard A. Posner’s Riposte Skewers State’s Flawed Voter ID Law”<http://electionlawblog.org/?p=66773>
Posted on October 12, 2014 2:36 pm<http://electionlawblog.org/?p=66773> by Justin Levitt<http://electionlawblog.org/?author=4>

Today’s editorial in the Milwaukee Journal-Sentinel<http://www.jsonline.com/news/opinion/judge-richard-a-posners-riposte-skewers-states-flawed-voter-id-law-b99368933z1-278916181.html>.

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Posted in election administration<http://electionlawblog.org/?cat=18>, election law and constitutional law<http://electionlawblog.org/?cat=55>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>

--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>
ssrn.com/author=698321
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