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

[Jonathan Singer]

Re "I don't know how anyone can read 'shall' to mean 'may,'" Mr. Kobach
must not read Bryan Garner:
http://www.abajournal.com/magazine/article/shall_we_abandon_shall/

On Thu, Sep 18, 2014 at 5:51 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>    Is SOS Kobach Backing Down from a Second #KSSEN Court Fight?
> <http://electionlawblog.org/?p=65661>
> Posted on September 18, 2014 5:36 pm <http://electionlawblog.org/?p=65661>
>  by Rick Hasen <http://electionlawblog.org/?author=3>
>
> From this important Brian 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.
>
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65661&title=Is%20SOS%20Kobach%20Backing%20Down%20from%20a%20Second%20%23KSSEN%20Court%20Fight%3F&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>  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> 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 - 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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>
> --
> 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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-- 
Jonathan Singer
(503) 705-2952
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