[EL] Breaking news/Breaking news/Breaking news/more news
Rick Hasen
rhasen at law.uci.edu
Wed Sep 24 13:45:23 PDT 2014
So much for light blogging.
Breaking: #KSSEN Case to Force Democrats To Appoint a Candidate Sent
to En Banc Lower Court <http://electionlawblog.org/?p=65865>
Posted onSeptember 24, 2014 1:43 pm
<http://electionlawblog.org/?p=65865>byRick Hasen
<http://electionlawblog.org/?author=3>
Order of Assignment En Banc 092414
<http://electionlawblog.org/wp-content/uploads/Order-of-Assignment-En-Banc-092414.pdf>.
As I have indicated, <http://electionlawblog.org/?p=65779>it looks
pretty good for Democrats to run out the clock on this. But SOS Kobach
isnot yet giving up <http://electionlawblog.org/?p=65815>on forcing the
issue.
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Posted inballot access <http://electionlawblog.org/?cat=46>
Breaking: 7th Circuit Lets WI John Doe Campaign Finance
Investigation Go Forward: Analysis <http://electionlawblog.org/?p=65859>
Posted onSeptember 24, 2014 1:24 pm
<http://electionlawblog.org/?p=65859>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the unanimous 14-page opinion by Judge Easterbrookat this
link <http://electionlawblog.org/wp-content/uploads/7th-john-doe.pdf>.
The court reversed acontroversial district court
order<http://electionlawblog.org/?p=61282>from Judge Randa which
enjoined a state investigation into possible illegal coordination
between the WI Club for Growth and Wisconsin candidates.
Here is my analysis.
1.The principal basis for the 7th Circuit decision was that it was
improper under the Anti-Injunction Act and abstention principles (which
caution against federal court involvement in ongoing state judicial
matters) for the trial court to issue an order shutting down the state
proceeding. State courts had already stopped the John Doe
investigations, in rulings up on appeal to the state Supreme Court.
Until the state Supreme Court acts, there is no reason for federal
courts to get involved.
2. In the course of discussing whether an exception to abstention might
apply if state officials investigating were acting in bad faith, the
Court discussed some of the merits of the campaign finance controversy.
It rejected the far-out anti-regulation view of Judge Randa, essentially
saying that only Justice Thomas has indicated agreement with Judge
Randa's positions. The scope of the constitutionality of regulating
coordination is up for grabs at the Supreme Court, and for now
contribution limit laws (related to coordination) are not subject to
strict scrutiny. A snippet:
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.
3. What happens next? There could be an attempt to go en banc to the 7th
Circuit, or more likely a cert. petition. In the meantime, nothing
changes with the John Doe investigation until the WI Supreme Court opens
it back up.
[This post has been updated.]
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
Breaking: 6th Circuit Upholds Federal Court Order Extending Ohio
Early Voting: Analysis <http://electionlawblog.org/?p=65853>
Posted onSeptember 24, 2014 12:58 pm
<http://electionlawblog.org/?p=65853>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the unanimous 46 page opinionat this link
<http://electionlawblog.org/wp-content/uploads/6th-early.pdf>. This
result is as expected after the same 6th Circuit panelrefused an earlier
stay <http://electionlawblog.org/?p=65407>request from Ohio. Here are
my thoughts on this opinion.
1. Like the district court, this (very liberal) panel of 6th Circuit
judges reads both the Equal Protection Clause of the U.S. Constitution
as well as Section 2 of the Voting Rights Act very broadly to hold it
illegal for Ohio to move from 35 to 28 days of early voting, to
eliminate a Sunday of voting used by African-American churches for
"Souls to the Polls" drives, and to eliminate "Golden Week," in which a
new (or moving) voter can both register to vote and vote early at the
same time. The court barely mentioned the fact that every voter in Ohio
has received a no-excuse absentee ballot application as well.
2. Both the Equal Protection and Voting Rights Act readings are
expansive. On equal protection, the 6th Cir. panel uses the
Burdick-Anderson balancing test (rather than rational basis). I think
this is the right test, but the part that is controversial is the
court's holding that the burden imposed on voters in the mild cutbacks
in early voting is /significant/. As I wrote inmy analysis
<http://electionlawblog.org/?p=64964> of the earlier district court
order
<http://electionlawblog.org/wp-content/uploads/072_order_granting_pi.pdf>, The
main problem with the equal protection theory and the VRA section 2
theory is the same: Ohio's law is not all that burdensome, and in fact
it provides many opportunities for voting (such as a still very long
early voting period of 28 days and no excuse absentee balloting for a
long period) which are not available in other states. If 28 days is
unconstitutional and a voting rights violation, what does this say about
places like New York, which offer no early voting? Although the judge
says he is not applying a "non-retrogression" standard such as that
which used to exist under section 5 of the VRA, that appears to be what
he is doing to at least some extent. The judge says the cutbacks are
relevant in a totality of the circumstances approach to section 2 VRA
applicability.
3. The response of the panel to the point about other states is that
what is burdensome in Ohio might not be burdensome elsewhere---one needs
to look at the totality of the circumstances. But there seemed scant
evidence in the record that this was a great burden, especially with the
availability of no-excuse absentee balloting. (I discuss whether that is
a good enough substitute in a new draft paper, When is Uniformity of
People, Not Counties, Appropriate in Election Administration? The Cases
of Early and Sunday Voting
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2497192>.)
4. On the retrogression point, the court says that retrogression is
relevant to a section 2 totality of the circumstances analysis. I think
this is right---it is one factor that can be considered. Where the
opinion is more controversial is on the question of what plaintiffs have
to show to show that minority voters have meaningfully less opportunity
than other voters to participate in the political process and to elect
representatives of their choice. . This is an issue which is dividing
the lower courts, from the capacious reading of section 2 in Frank v.
Walker <http://electionlawblog.org/?p=64270>, the federal case striking
down Wisconsin's voter id law, to the much narrower reading of section 2
in North Carolina Conference of the NAACP v. McCrory
<http://electionlawblog.org/?p=64152>, the federal case rejecting a
preliminary injunction for cutbacks in early voting and other changes in
North Carolina.
5. What happens next? There could be an attempt to go en banc in the 6th
Circuit for for Ohio to go directly to the Supreme Court. With the press
of time, it is not clear that Ohio is going to bother to try to change
this for this election. We will have to wait to hear what Ohio election
officials think. But if and when this case gets to the Supreme Court, I
expect 5 Justices could well adopt a much narrower definition of equal
protection and the Voting Rights Act than offered here.
[This post has been updated.]
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voting
<http://electionlawblog.org/?cat=31>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"An Overview of Political Advertising Rules: Candidate Ads vs.
Independent Expenditures vs. Electioneering Communications vs. Issue
Ads" <http://electionlawblog.org/?p=65851>
Posted onSeptember 24, 2014 11:29 am
<http://electionlawblog.org/?p=65851>byRick Hasen
<http://electionlawblog.org/?author=3>
CLC.
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2610:september-24-2014-an-overview-of-political-advertising-rules-candidate-ads-vs-independent-expenditures-vs-electioneering-communications-vs-issue-ads&catid=63:legal-center-press-releases&Itemid=61>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Californians Continue to Like Initiative Process, But to Worry About
"Special Interest" Influence <http://electionlawblog.org/?p=65849>
Posted onSeptember 24, 2014 11:28 am
<http://electionlawblog.org/?p=65849>byRick Hasen
<http://electionlawblog.org/?author=3>
See page 17 ofthe latest PPIC survey
<http://www.ppic.org/content/pubs/survey/S_914MBS.pdf>, finding 55% of
Californians believe the initiative process is controlled "a lot" by
special intereests.
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Posted indirect democracy <http://electionlawblog.org/?cat=62>
Today's Political Money Must-Read: NYT on Corporate Money to the RGA
<http://electionlawblog.org/?p=65847>
Posted onSeptember 24, 2014 11:23 am
<http://electionlawblog.org/?p=65847>byRick Hasen
<http://electionlawblog.org/?author=3>
Secret G.O.P. Records Reveal Corporate Donors Paying for Access to
Governors
<http://www.nytimes.com/2014/09/25/us/republicans-corporate-donors-governors.html?hp&action=click&pgtype=Homepage&version=HpSum&module=first-column-region®ion=top-news&WT.nav=top-news>"
The documents
<https://s3.amazonaws.com/s3.documentcloud.org/documents/1303363/r-g-a.pdf>,
many of which the Republican officials have since removed from their
website, showed that an A-to-Z of America's most prominent
companies, from Aetna to Walmart, had poured millions of dollars
into the campaigns of Republican governors since 2008. One document
listed 17 corporate "members" of the governors association's
secretive 501(c)(4), the Republican Governors Public Policy
Committee, which is allowed to shield its supporters from the
public.In a tit for tat, the Republican association unearthed
documents from the Democratic Governors Association that also name
corporate donors and the benefits: meetings with Democratic
governors
<http://graphics8.nytimes.com/packages/pdf/politics/20100225LOBBY/20100225LOBBY-DGA.pdf>,
"preferred seating" at policy discussions, and lavish receptions
<http://dga.3cdn.net/30582be8855da69ca9_szm6bhhpl.pdf>. But those
documents do not detail contribution levels, nor do they reveal the
corporate members of the Democratic association's own secretive
501(c)(4), the Center for Innovative Policy...
Among the R.G.A. documents is a 21-page schedule
<https://s3.amazonaws.com/s3.documentcloud.org/documents/1304679/rga-symposium-schedule-and-attendee-list.pdf> of
the policy committee's Carlsbad meeting last year that lists which
companies attended, who represented them and what they contributed.
The most elite group, known as the Statesmen, whose members donated
$250,000, included Aetna; Coca-Cola; Exxon Mobil; Koch Companies
Public Sector, the lobbying arm of the highly political Koch
Industries; Microsoft; Pfizer; UnitedHealth Group; and Walmart. The
$100,000 Cabinet level included Aflac, BlueCross BlueShield,
Comcast, Hewlett-Packard, Novartis, Shell Oil, Verizon
Communications and Walgreen.
Other documents detail, in part, what they got in return.
One 2009 document states the benefits of a Governors Board
membership
<https://s3.amazonaws.com/s3.documentcloud.org/documents/1304668/republican-governors-association-board-benefits.pdf>,
for a $50,000 annual contribution or a one-time donation of
$100,000, saying it "offers the ability to bring their particular
expertise to the political process while helping to support the
Republican agenda."
Board members
<https://s3.amazonaws.com/s3.documentcloud.org/documents/1304668/republican-governors-association-board-benefits.pdf>received
two tickets to "an exclusive breakfast with the Republican Governors
and members of their staff"; three tickets to the Governors Forums
Series, where "a group of 5-8 governors discuss the best policy
practices from around the country on a particular topic"; and a D.C.
Discussion Breakfast Series, among other events.
If they bump up to Cabinet Membership
<https://s3.amazonaws.com/s3.documentcloud.org/documents/1304669/republican-governors-association-cabinet-benefits.pdf> ---
$100,000 annually or a single payment of $200,000 --- contributors
also receive two invitations to "an exclusive Gubernatorial Dinner,"
an "intimate gathering with the Republican Governors and special
Republican V.I.P. guests" at the Willard InterContinental Hotel in
Washington.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
OH Supreme Court Says It is OK to Bar False Judicial Campaign
Speech, But Not Misleading Judicial Campaign Speech
<http://electionlawblog.org/?p=65845>
Posted onSeptember 24, 2014 9:28 am
<http://electionlawblog.org/?p=65845>byRick Hasen
<http://electionlawblog.org/?author=3>
Read the opinion
<http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-Ohio-4046.pdf>(via
CNO)
<http://www.courtnewsohio.gov/cases/2014/SCO/0924/121653.asp#.VCLv0CtdVmk>.
I think the part about the unconstitutionality of regulating truthful
but misleading speech is surely right. But this opinion is also
significant in saying it is constitutional to sanction a judicial
candidate for falsely claiming to be a judge. (For background on these
issues, see my/A Constitutional Right to Lie in Campaigns and
Elections?/ <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>)
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Posted incampaigns <http://electionlawblog.org/?cat=59>,judicial
elections <http://electionlawblog.org/?cat=19>
--
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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