[EL] Judge Randa Does It Again

Tue Oct 14 20:28:02 PDT 2014

I'm confused about Rick's invocation of Purcell's language here.
*Purcell* involved
a system of rules likely injuring one's right of suffrage.  Restrictive
rules were passed close to an election that might impinge on a liberty
interest, so *Purcell* would not allow them in the short-term.  The Court
explained that it was hesitant to implement "Court orders affecting
elections" where they might cause confusion or keep people away from the
polls.

Campaign finance rules, like voter ID rules, impinge on a recognized
liberty, namely the right to speak and associate freely.  If the goal of
*Purcell* is to ensure that liberties may be exercised, wouldn't the rule
work *against* the maintenance of constitutionally suspect campaign finance
laws?  That is, wouldn't it be proper to err under a *Purcell* analysis in
the favor of more, not less, freedom, as it did for Arizona's Voter ID
system?

In addition, *Purcell* seems limited on its face to "Court orders affecting
elections."  While abundant speech and association are vital to elections,
they are not themselves "elections."  It would seem *Purcell, *while
important for structural election law issues, might not weigh so heavily in
favor of regulation here.  This seems especially true given the bevy of
First Amendment case law favoring speech rights near the time of an
election over government interests in coherent, if oppressive, systems of
regulation.

Forward,

Benjamin Barr

On Tue, Oct 14, 2014 at 6:26 PM, Steve Klein <stephen.klein.esq at gmail.com>
wrote:

> This is a separate suit on the same issue--coordination of issue
> advocacy-- untangled from the ongoing O'Keefe / Club For Growth / et al.
> state case. The anti-injunction principles don't apply.
>
> As for the First Amendment merits of this case (and the O'Keefe case), I
> think we have different definitions of "smack down." As for Purcell
> principle... a group will speak out on its own terms during the election.
> Be still my heart.
>
> Nicely done by CRGA.
>
> On Tue, Oct 14, 2014 at 4:12 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>    Judge Randa Does It Again <http://electionlawblog.org/?p=66874>
>> Posted on October 14, 2014 3:07 pm <http://electionlawblog.org/?p=66874>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Via the Milwaukee Journal Sentinel
>> <http://www.jsonline.com/news/statepolitics/judge-says-election-officials-prosecutor-cant-stop-campaign-collaboration-b99371223z1-279187051.html> comes
>> news that Judge Randa has issued an order and opinion
>> <http://electionlawblog.org/wp-content/uploads/CRG-v-Barland-14C1222.pdf>allowing
>> coordination between an outside group and a campaign on First Amendment
>> grounds.
>>
>> I expect this ruling will not stand. To begin with, the last time one of
>> Judge Randa’s extremely deregulatory campaign finance opinions got to the
>> Seventh Circuit, the appellate court smacked down Judge Randa’s reading
>> <http://electionlawblog.org/?p=65859>of the First Amendment rules for
>> campaigns and coordination:
>>
>> The Supreme Court has yet to determine what “coordination” means. Is the
>> scope of permissible regulation limited to groups that advocate the
>> election of particular candidates, or can government also regulate
>> coordination of contributions and speech about political issues, when the
>> speakers do not expressly advocate any person’s election? What if the
>> speechimplies, rather than expresses, a preference for a
>> particular candidate’s election? If regulation of coordination about pure
>> issue advocacy is permissible, how tight must the link be between the
>> politician’s committee and the advocacy group? Uncertainty is a powerful
>> reason to leave this litigation in state court, where it may meet its end
>> as a matter of state law without any need to resolve these
>> constitutional questions….
>>
>> The Supreme Court regularly decides campaign finance issues by closely
>> divided votes. No opinion issued by the Supreme Court, or by any court
>> of appeals, establishes (“clearly” or otherwise) that the First Amendment
>> forbids regulation of coordination between campaign committees and
>> issue-advocacy groups—let alone that the First Amendment forbids even an
>> inquiry into that topic. The district court broke new ground. Its views may
>> be vindicated, but until that day public officials enjoy the benefit of
>> qualified immunity from liability in damages.
>>
>> Further, we might invoke 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>even
>> here: Judge Randa is changing the rules very close to an election, with the
>> risk of confusion about what’s legal and the risk of undermining the
>> interests in preventing corruption that undergird anti-coordination
>> requirements.
>>  [image: Share]
>> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66874&title=Judge%20Randa%20Does%20It%20Again&description=>
>>   Posted in campaign finance <http://electionlawblog.org/?cat=10>
>>
>> --
>> 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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>
>
>
> --
> Steve Klein
> Staff Attorney & Research Counsel*
> Wyoming Liberty Group
> www.wyliberty.org
>
> **Licensed to practice law in Illinois. Counsel to the Wyoming Liberty
> Group pursuant to Rule 5.5(d) of the Wyoming Rules of Professional Conduct.*
>
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