[EL] MOVE Act question in #KSSEN/1st Amendment issues

[Rick Hasen]

    Is SOS Kobach Backing Down from a Second #KSSEN Court Fight?
    <http://electionlawblog.org/?p=65661>

Posted onSeptember 18, 2014 5:36 pm 
<http://electionlawblog.org/?p=65661>byRick Hasen 
<http://electionlawblog.org/?author=3>

 From this importantBrian Lowry repor 
<http://www.kansas.com/news/politics-government/election/article2155489.html>t, 
the threat I see from Kobach if Dems don’t appoint is to go to the 
press, not the courts:

    “This says ‘shall.’ I don’t know how anyone can read ‘shall’ to mean
    ‘may’,” Kobach said at a news conference after the court’s decision.

    “Eight days is more than enough time. If the Democratic Party wishes
    to play games with our election laws and not nominate a replacement,
    then I encourage the members of the press corps to ask them why,”
    Kobach said.

And as expected Democrats look like they are going to do nothing:

    “My position is until the court tells me to do something, I’m not
    going to anything,” Joan Wagnon, the chair of the Kansas Democratic
    Party, said earlier in the week, on Tuesday.

    Thursday, Wagnon said in a statement that she applauded the court’s
    “decision to follow the law and stop Kris Kobach from undermining
    Kansas democracy.”

UPDATE: The updated version of the story makes it clear that Kobach said 
he will go to court if necessary.  He’s also offering what appears to be 
a novel interpretation of the MOVE Act:

    Kobach said federal law would allow him to postpone the mailing date
    of overseas absentee ballots as long as the ballots had a 45-day
    window to be counted.

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On 9/18/14, 4:56 PM, Rob Richie wrote:
>
> Almost certainly this is designed to rile up the GOP base in the 
> "reverse Torricelli" way you suggested earlier. But seems high stakes, 
> especially given likely adverse impact on military voters overseas.
>
> California's top two primary allows no changes to ballot choices after 
> June primary and blocks write ins, but forcing a party to nominate 
> someone would seem to be unprecedented and utterly in conflict with 
> the first century of American elections that up until the late 1800s 
> didn't even involve any government-printed ballots.
>
> Rob
>
> On Sep 18, 2014 7:39 PM, "Rick Hasen" <rhasen at law.uci.edu 
> <mailto:rhasen at law.uci.edu>> wrote:
>
>     SOS Kobach says he's pushing the deadline for 8 days (to 9/27).
>     Will he need to get a federal waiver from the MOVE Act?  Is he
>     likely to get it?  What penalty if he does this without a waiver?
>
>     It seems to me that if Democrats say nothing for the 8 days and
>     then appoint no one, then Kobach would be hard pressed to have any
>     time to sue to name a candidate.
>
>     (It also seems that there would be deep First Amendment issues in
>     a judicial order forcing a party to nominate a candidate.)
>
>     Thoughts?
>
>     -- 
>     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 <tel:949.824.3072> - office
>     949.824.0495 <tel:949.824.0495> - fax
>     rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>     http://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 92697-8000
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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