[EL] SBA false speech case decided/more news

Rick Hasen rhasen at law.uci.edu
Thu Sep 11 14:23:00 PDT 2014


    Breaking: Federal Court Strikes Down Ohio False Campaign Speech
    Statute: Analysis <http://electionlawblog.org/?p=65323>

Posted onSeptember 11, 2014 2:09 pm 
<http://electionlawblog.org/?p=65323>byRick Hasen 
<http://electionlawblog.org/?author=3>

On remand from the Supreme Court, a federal district court has decided 
the /Susan B. Anthony List v. Driehaus case/ 
<http://www.sba-list.org/sites/default/files/content/shared/doc_139_order_granting_permanent_injunction_0.pdf>, 
granting a preliminary injunction and summary judgment to the 
challengers of the law.

The result in this case is not that much of a surprise and is in line 
with a recent 8th Circuit decision, the281 Care Committee v. Arneson c 
<http://electionlawblog.org/wp-content/uploads/281care.pdf>ase, about 
which Iblogged. <http://electionlawblog.org/?p=64874> Today's case cites 
the 8th Circuit case.

The trial court decision relies almost exclusively on the Supreme 
Court's opinion in the /U.S. v. Alvarez/case, which struck down the 
"Stolen Valor Act" on First Amendment grounds. That law made it a crime 
to lie about having won the Congressional Medal of Honor.

In/A Constitutional Right to Lie in Campaigns and Elections?/ 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>, I wrote 
specifically about the question of the relevance of /Alvarez /to the 
false campaign speech law in Ohio and elsewhere. There was no majority 
opinion in /Alvarez/, and there is some question as to whether Justices 
Breyer and Kagan, who concurred separately, might come out differently 
on the question of the law's constitutionality. Justice Breyer 
specifically mentioned the difficult balancing question which comes up 
with laws involving false campaign speech: on the one hand there is the 
harm to the public from false statements; on the other hand there is a 
great risk when government regulates political speech. I was very 
surprised to see the judge in today's opinion barely make mention of the 
separate Breyer opinion, or quote or analyze that language in the opinion.

In the end, this opinion might be affirmed by the 6th Circuit (despite 
earlier cases which upheld portions of Ohio's law in the past). But I 
think a more subtle analysis of the issues presented here would have 
been in order.

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Posted incampaigns <http://electionlawblog.org/?cat=59>


    The "Reverse Torricelli" in #KSSEN <http://electionlawblog.org/?p=65319>

Posted onSeptember 11, 2014 1:59 pm 
<http://electionlawblog.org/?p=65319>byRick Hasen 
<http://electionlawblog.org/?author=3>

Taniel notes <https://twitter.com/Taniel/status/510167676396662784>that 
also at issue in the #KSSEN race is a provision which requires the party 
to appoint a replacement if Taylor is successfully removed from the 
ballot.  I expect Democrats to argue that there's no time for a 
replacement to be appointed, given the imminent need to print ballots.

There is an interesting contrast here with the Torricelli case in NJ. 
  There, Democrats went to the NJ Supreme Court and argued for the right 
to replace Sen. Robert Torricelli as the Democratic nominee for Senate 
on the ballot with former Senator Frank Lautenberg.  Torricelli was 
mired in an ethics scandal and decided to withdraw. The NJ Supreme 
Court, in a controversial decision (because the statutory time for 
withdrawal and replacement arguably passed---more on that controversy 
inmy Democracy Canon piece 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1344476>) allowed 
the replacement. The NJ Supreme Court was condemned by Republicans (and 
some others) as being biased toward the Democrats.

In this case, Democrats want a Reverse Torricelli. They want to be able 
to remove a candidate from the ballot but NOT replace him. The idea is 
that they don't want anti-Roberts voters to split their votes between 
the independent likely to caucus with the Democrats and someone listed 
as a Democrat on the ballot. (Someone at Daily Kos cheekily suggested 
finding a "Pat Roberts" to be the Democrats stand-in candidate.)

I expect Republicans will howl if the KS Supreme Court not only orders 
Taylor off the ballot (on grounds his letter complied with the statute 
by saying he was withdrawing "pursuant to" the relevant section of the 
ballot)  but says that  Democrats don't have to replace him on the ballot.

Stay tuned.

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


    "2 Year Voter Fraud Probe Results in Arrest
    <http://electionlawblog.org/?p=65317>

Posted onSeptember 11, 2014 1:49 pm 
<http://electionlawblog.org/?p=65317>byRick Hasen 
<http://electionlawblog.org/?author=3>

AP <http://www.ocala.com/article/20140911/APN/309119711>: "A two year 
voter fraud probe is wrapping up with the arrest of a former employee of 
a company once aligned with the Republican Party of Florida."

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Posted inchicanery <http://electionlawblog.org/?cat=12>,election 
administration <http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    "State Judges and the Right to Vote"
    <http://electionlawblog.org/?p=65315>

Posted onSeptember 11, 2014 1:28 pm 
<http://electionlawblog.org/?p=65315>byRick Hasen 
<http://electionlawblog.org/?author=3>

Josh Douglas has postedthis draf 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2495078>t on SSRN. 
  Here is the abstract:

    State courts are paramount in defining the constitutional right to
    vote. This is in part because the right to vote is, in many ways, a
    state-based right protected under state constitutions. Yet our focus
    on state courts and on how state judges interpret the right to vote
    is sorely lacking. This article remedies that deficiency. It
    examines numerous state court cases involving voter ID, felon
    disenfranchisement, and the voting process, demonstrating that state
    courts vary in whether they rule broadly or narrowly toward voting
    rights. When state courts issue rulings broadly defining the
    constitutional right to vote, they best protect the most fundamental
    right in our democracy. On the other hand, state decisions that
    constrain voting to a narrower scope do harm to that ideal. Further,
    a preliminary analysis shows that liberal judges, as well as those
    who earn their seats through merit selection, are more likely to
    define the right to vote robustly as compared to their conservative
    and elected counterparts. Given that state judges impact our
    election system in significant ways through broad or narrow rulings
    on voting rights, we should advocate in favor of state courts and
    state judges who will broadly construe and protect the state-based
    constitutional right to vote.

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


    "Voting rights cases may be headed back to Supreme Court"
    <http://electionlawblog.org/?p=65313>

Posted onSeptember 11, 2014 1:00 pm 
<http://electionlawblog.org/?p=65313>byRick Hasen 
<http://electionlawblog.org/?author=3>

Important Richard Wolf report 
<http://www.usatoday.com/story/news/nation/2014/09/11/voting-rights-states-courts-wisconsin-texas-north-carolina-ohio/15279621/>from 
USA Today.

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Posted inelection 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>


    No Factfinding Necessary in #KSSEN Dispute?
    <http://electionlawblog.org/?p=65309>

Posted onSeptember 11, 2014 12:55 pm 
<http://electionlawblog.org/?p=65309>byRick Hasen 
<http://electionlawblog.org/?author=3>

Via 
TPM<http://talkingpointsmemo.com/livewire/kansas-supreme-court-order-taylor-vs-kobach>comes 
news that the Kansas Supreme Court has agreed to hear the question 
whether to remove Chad Taylor's name from the ballot (a move that could 
help coalesce support around independent Greg Orman and against 
Republican incumbent Senator Pat Roberts). But there was something 
unusual about theKansas Supreme Court's order 
<http://www.scribd.com/doc/239463596/Kansas-Supreme-Court-Order-Taylor-v-Kobach>related 
to what happened in the elections office.

In Taylor's filing 
<http://www.kansas.com/news/politics-government/election/article2044679.ece/binary/Chad%20Taylor%20memorandum%20in%20support%20of%20petition.pdf>, 
he claimed that he was given assurances by election officials that his 
letter was sufficient to withdraw from the race, even though it did not 
mention the magic words of being "incapable" of serving in the Senate as 
listed in the withdrawal statute.

In Kobach's responsive pleading 
<http://www.scribd.com/doc/239353264/Kobach-Response-Taylor-Lawsuit>, 
Kobach argued (among other things) that the Kansas Supreme Court should 
not take original jurisdiction over this case because there was a 
disputed finding of fact: Kobach has said that election officials deny 
telling Taylor his letter was sufficient for withdrawal. Generally trial 
courts do factfinding and appellate courts like the Kansas Supreme Court 
are not in a position to do factfinding.

In today's Kansas Supreme Court order, the court specifically addressed 
the point as follows:

ksc <http://electionlawblog.org/wp-content/uploads/ksc.png>

It is hard to know what to make of this. Is the court saying that it is 
going to rule against Taylor on the question whether the government is 
estopped from claiming he can't withdraw from the race, and therefore 
the evidence in Taylor's affidavit is irrelevant? Or is the court going 
to take Taylor's representations on face value, even though there may be 
contrary evidence?  The former would seem more likely but I would have 
expected the court to want briefing on the estoppel question before 
making such a determination.

Whatever the court decides, this is a very interesting development.

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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns 
<http://electionlawblog.org/?cat=59>


    "End the Flood of Dark Money in Politics"
    <http://electionlawblog.org/?p=65307>

Posted onSeptember 11, 2014 12:18 pm 
<http://electionlawblog.org/?p=65307>byRick Hasen 
<http://electionlawblog.org/?author=3>

Lisa Gilbert CNN oped. 
<http://www.cnn.com/2014/09/11/opinion/gilbert-end-dark-money-in-politics/index.html?sr=sharebar_twitter>

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


    "FEC to Move on Citizens United Rules Without Disclosure"
    <http://electionlawblog.org/?p=65305>

Posted onSeptember 11, 2014 12:17 pm 
<http://electionlawblog.org/?p=65305>byRick Hasen 
<http://electionlawblog.org/?author=3>

Breaking news via email from Bloomberg BNA Money & Politics report: "In 
a surprise move, a majority of the Federal Election Commission have 
reached agreement on new regulations to implement the Supreme Court's 
2010 decision in Citizens United v. FEC, commission Chairman Lee Goodman 
announced Sept. 11."

Chair Ravel reportedly will be joining the Republican commissioners on 
these rules, which will not address additional disclosure requirement 
sought by Democratic commissioners.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal 
election commission <http://electionlawblog.org/?cat=24>


    "Voters Hate Money In Politics...Sort Of"
    <http://electionlawblog.org/?p=65303>

Posted onSeptember 11, 2014 11:27 am 
<http://electionlawblog.org/?p=65303>byRick Hasen 
<http://electionlawblog.org/?author=3>

NPR reports 
<http://www.npr.org/blogs/itsallpolitics/2014/09/11/347711715/voters-hate-money-in-politics-sort-of>.

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    "Longshot campaign finance bill falls short"
    <http://electionlawblog.org/?p=65299>

Posted onSeptember 11, 2014 11:24 am 
<http://electionlawblog.org/?p=65299>byRick Hasen 
<http://electionlawblog.org/?author=3>

No surprises dept 
<http://www.washingtonpost.com/blogs/post-politics/wp/2014/09/11/longshot-campaign-finance-bill-falls-short/>: 
"An improbable effort by Senate Democrats to push forward 
<http://www.washingtonpost.com/politics/longshot-campaign-finance-bill-a-partisan-flash-point-in-the-senate/2014/09/08/2899a372-3783-11e4-bdfb-de4104544a37_story.html> a 
constitutional amendment that would have granted lawmakers more power to 
constrain campaign spending failed to move forward Thursday after 
several days of heated debate."

A Public Citizen press release inexplicably declares: "We celebrate 
today's vote as an unexpected leap forward for the democracy movement. 
The day is not far off when we will be celebrating the enactment of the 
28th Amendment to the U.S. Constitution."

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


    "Elections Staff Calls Police on Principal for Holding Lunch in
    Voting Area" <http://electionlawblog.org/?p=65297>

Posted onSeptember 11, 2014 10:20 am 
<http://electionlawblog.org/?p=65297>byRick Hasen 
<http://electionlawblog.org/?author=3>

Clash 
<http://www.dnainfo.com/new-york/20140910/upper-west-side/elections-staff-calls-police-on-principal-for-holding-lunch-voting-area?utm_source=Upper+West+Side+%26+Morningside+Heights&utm_campaign=0e47b6ada5-Mailchimp-NYC&utm_medium=email&utm_term=0_7b32a2c556-0e47b6ada5-132081165>on 
the upper west side.

The Bauer-Ginsberg report flagged issues with using schools as polling 
places, and suggested student free days for those days.

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


    "Sometimes it's the simple things; Johnson Co., Kansas finds simple
    solution for proof-of-citizenship" <http://electionlawblog.org/?p=65295>

Posted onSeptember 11, 2014 10:17 am 
<http://electionlawblog.org/?p=65295>byRick Hasen 
<http://electionlawblog.org/?author=3>

That's the lead story in this week'sElectionline Weekly 
<http://www.electionline.org/index.php/electionline-weekly>.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter registration 
<http://electionlawblog.org/?cat=37>


    Teachout to Lecture on Her Corruption Book at Harvard's Safra Center
    <http://electionlawblog.org/?p=65293>

Posted onSeptember 11, 2014 10:16 am 
<http://electionlawblog.org/?p=65293>byRick Hasen 
<http://electionlawblog.org/?author=3>

Details 
<http://campaign.r20.constantcontact.com/render?ca=caf9b61a-76a9-48a0-8d45-25228d60dcef&c=5d0348b0-3699-11e4-b345-d4ae52a68661&ch=5eb194f0-3699-11e4-b3a8-d4ae52a68661>.

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


    "Voter ID Laws May Worsen Voter Fraud"
    <http://electionlawblog.org/?p=65291>

Posted onSeptember 11, 2014 10:15 am 
<http://electionlawblog.org/?p=65291>byRick Hasen 
<http://electionlawblog.org/?author=3>

Dahlia Lithwick 
writes<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voter_id_laws_analysis_shows_they_could_make_fraud_worse_and_disenfranchise.html?wpsrc=fol_tw>for 
Slate, citing Michael Gilbert'snew article 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488645>.

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Posted inelection 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>


    MS Considers Changes to Its Primary Election Rules; McDaniel, Chair
    of Senate Elections Committee, Absent
    <http://electionlawblog.org/?p=65289>

Posted onSeptember 11, 2014 9:18 am 
<http://electionlawblog.org/?p=65289>byRick Hasen 
<http://electionlawblog.org/?author=3>

See here. 
<http://www.washingtonpost.com/blogs/govbeat/wp/2014/09/11/after-close-senate-race-mississippi-considers-elections-changes/>

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


    "SOS Says Bernalillo, Santa Fe Counties Can't Put Advisory Votes on
    Ballot" <http://electionlawblog.org/?p=65286>

Posted onSeptember 11, 2014 8:50 am 
<http://electionlawblog.org/?p=65286>byRick Hasen 
<http://electionlawblog.org/?author=3>

New Mexico Telegram 
<http://www.nmtelegram.com/2014/09/10/sos-says-bernalillo-santa-fe-counties-cant-put-pot-votes-on-ballot/>sees 
a partisan battle behind this fight over marijuana measures.

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Posted incampaigns <http://electionlawblog.org/?cat=59>


    "We Lost. Beautifully: On Zephyr and Tim's Amazing Win"
    <http://electionlawblog.org/?p=65284>

Posted onSeptember 11, 2014 8:47 am 
<http://electionlawblog.org/?p=65284>byRick Hasen 
<http://electionlawblog.org/?author=3>

Lessig 
<http://lessig.tumblr.com/post/97217942832/we-lost-beautifully-on-zephyr-and-tims-amazing-win>.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    "Ignore Endorsements From Politicians"
    <http://electionlawblog.org/?p=65282>

Posted onSeptember 11, 2014 8:45 am 
<http://electionlawblog.org/?p=65282>byRick Hasen 
<http://electionlawblog.org/?author=3>

David Firestone 
<http://takingnote.blogs.nytimes.com/2014/09/10/ignore-endorsements-from-politicians/?smid=tw-share>and 
Tim Wu blame Mayor Di Blasio for Wu's poorer showing in NYC.

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Posted incampaigns <http://electionlawblog.org/?cat=59>


    Ga. Sec. of State Appears Critical of Dem Efforts to Register "All
    These Minority Voters" <http://electionlawblog.org/?p=65280>

Posted onSeptember 11, 2014 7:59 am 
<http://electionlawblog.org/?p=65280>byRick Hasen 
<http://electionlawblog.org/?author=3>

Againvia AJC 
<http://politics.blog.ajc.com/2014/09/11/fulton-lowndes-counties-follow-dekalbs-lead-and-schedule-sunday-voting/>:

    The audio clip is only 19 seconds long, and so it might not include
    any mitigating context....

    Nonetheless, here's the transcript:

    /"In closing I just wanted to tell you, real quick, after we get
    through this runoff, you know the Democrats are working hard, and
    all these stories about them, you know, registering all these
    minority voters that are out there and others that are sitting on
    the sidelines, if they can do that, they can win these elections in
    November."/

    //

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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,Voting 
Rights Act <http://electionlawblog.org/?cat=15>


    "Individual-Candidate Super PACs Threaten to Wipe Out Candidate
    Contribution Limits" <http://electionlawblog.org/?p=65278>

Posted onSeptember 11, 2014 7:44 am 
<http://electionlawblog.org/?p=65278>byRick Hasen 
<http://electionlawblog.org/?author=3>

Fred Wertheimer blogs 
<http://www.huffingtonpost.com/fred-wertheimer/individual-candidate-super-pacs_b_5791620.html>.

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


    NYT Ed Board Sorta Endorses Dems' Campaign Finance Constitutional
    Amendment <http://electionlawblog.org/?p=65276>

Posted onSeptember 11, 2014 7:07 am 
<http://electionlawblog.org/?p=65276>byRick Hasen 
<http://electionlawblog.org/?author=3>

See here. 
<http://www.nytimes.com/2014/09/11/opinion/an-amendment-to-cut-political-cash.html?_r=0>

But it seems more an endorsement of putting it forward than of actually 
passing it.

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


    "Top outside spenders in 2014 primaries: Winners, losers and some
    long-term investors" <http://electionlawblog.org/?p=65274>

Posted onSeptember 11, 2014 7:04 am 
<http://electionlawblog.org/?p=65274>byRick Hasen 
<http://electionlawblog.org/?author=3>

Sunlight Foundation blog. 
<http://sunlightfoundation.com/blog/2014/09/11/top-outside-spenders-in-2014-primaries-winners-losers-and-some-long-term-investors/>

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Posted incampaign 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 92697-8000
949.824.3072 - office
949.824.0495 - fax
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http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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