[EL] ELB News and Commentary 9/24/14
Rick Hasen
rhasen at law.uci.edu
Thu Sep 25 14:09:44 PDT 2014
Breaking: Ohio Seeks #SCOTUS Emergency Stay in Early Voting Case
<http://electionlawblog.org/?p=65883>
Posted onSeptember 25, 2014 2:07 pm
<http://electionlawblog.org/?p=65883>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the petitionat this link.
<http://electionlawblog.org/wp-content/uploads/Ohio-election-stay-application-9-25-14.pdf> Given
thecontroversial and expansive nature
<http://electionlawblog.org/?p=65853>of the Sixth Circuit'sruling,
<http://electionlawblog.org/wp-content/uploads/6th-early.pdf>a stay from
the Supreme Court is certainly possible but not guaranteed. Thelast
time
<http://www.slate.com/articles/news_and_politics/politics/2012/10/campaign_2012_will_obama_win_ohio_thanks_to_bush_v_gore.html>one
of the emergency petitions went up on Ohio's early voting rules, in
2012, the Supreme Court stayed out.
<http://www.slate.com/articles/news_and_politics/politics/2012/10/if_the_supreme_court_cuts_early_voting_in_ohio_it_could_swing_the_state.html>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Ohio Files Petition for En Banc Review in Early Voting Case
<http://electionlawblog.org/?p=65881>
Posted onSeptember 25, 2014 11:52 am
<http://electionlawblog.org/?p=65881>byDan Tokaji
<http://electionlawblog.org/?author=5>
The petition
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EmergencyAppealEnBanc.pdf>challengesyesterday's
Sixth Circuit ruling
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Opinion092414.pdf>and
seeks and immediate stay of the court's order regarding the period for
same day registration and early voting, which is scheduled to begin on
Tuesday of next week.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,voter
registration <http://electionlawblog.org/?cat=37>
Nudging in the Right Direction: A Response to Bob Bauer
<http://electionlawblog.org/?p=65878>
Posted onSeptember 25, 2014 10:52 am
<http://electionlawblog.org/?p=65878>byHeather Gerken
<http://electionlawblog.org/?author=6>
/Authored by Heather Gerken, Wade Gibson, and Webb Lyons/
Bob Bauer'srecent post
<http://www.moresoftmoneyhardlaw.com/2014/09/nudge-theory-gerken-disclosure-proposal/>on
our"nondisclosure disclosure" proposal
<http://electionlawblog.org/?p=60198>offers yet-another reminder why he
was treated as an honorary member of the academic tribe long before he
started teaching at Yale and NYU. It's not just because Bauer's
argument was smart and incisive. It's because his post embodies the
best of scholarly values: Bauer offers the most generous account of our
proposal before criticizing it. It seems almost churlish to respond
given that Bauer was kind enough to suggest we're taking
campaign-finance reform in a new direction. But his argument so cleanly
and clearly sets up the central question about "soft law" reform like
our own that we thought we'd offer our own take on the answer.
For those late to the conversation,in an editorial in the Washington
Post
<http://www.washingtonpost.com/opinions/rerouting-the-flow-of-dark-money-into-political-campaigns/2014/04/03/1517ac6e-b906-11e3-9a05-c739f29ccb08_story.html>,
we suggest that any advertisement funded directly or indirectly by an
organization that does not disclose its donors must acknowledge that
fact with a simple and truthful disclaimer: "This ad was paid for by
'X,' which does not disclose the identity of its donors." As Bob
notes, because our proposal regulates the ad, not the organization, it
helps solves what we called the "whack-a-mole" program -- the dilemma
Congress and the FEC face in keeping up with the emergence of new
institutional players in each election cycle.
Bauer worries that that the government may be "effectively weighing in
on the credibility of a political message." He asks whether there is "a
material difference between the government mandating disclosure of
facts, and the government inviting inferences in the absence of facts,
in the First Amendment realm---particularly where the government is
doing indirectly what it could, if it chose to do so, accomplish more
directly by legislative mandate?"
We take Bauer's concerns seriously and agree with him that it's not
enough for a state-mandated disclosure to be truthful for it to
withstand scrutiny. There's a great example from a voting-rights case
decided during the 1960s. TheCourt invalidated
<http://scholar.google.com/scholar_case?case=7236892496537838281&hl=en&as_sdt=6&as_vis=1&oi=scholarr>a
Louisiana law requiring that the photos of candidates appear on the
ballot, recognizing it as a patent effort to invite voters to
discriminate on the basis of race. We're especially grateful that Bauer
has pushed on this point rather than let us simply invoke truth as a
constitutional shield. His prodding has made us think harder and frame
our constitutional argument more precisely.
We still disagree with Bauer as to whether our proposal raises the First
Amendment concerns he suggests, and here we think the doctrine is
emphatically on our side. The Court has made clear that
transparency/is/an issue on which the government may provide voters
information. /Citizens United/
<http://www2.bloomberglaw.com/public/desktop/document/Citizens_United_v_Federal_Election_Commission_130_S_Ct_876_175_L_>,
for instance, offered a ringing endorsement of transparency rules
precisely because voters can and should find them useful. If the
government can mandate disclosure for these entities, then surely it can
require entities to disclose the truthful fact of nondisclosure. If the
government can mandate disclaimers and "stand by your ad" rules, surely
it can require entities to acknowledge when its donors aren't standing
by their ads. Indeed, the fact that the government can mandate
regulation in the first place is premised on the idea that it's
acceptable for citizens to have a view on transparency. In light of
that constitutional backdrop, we see little difference between this rule
and other truthful nudges, like states' routine practice of identifying
which candidates are Democrats and Republicans on the ballot.
Bauer rightly notes that a lot depends on the background "architecture."
Many of the"Nudge"
<http://books.google.com/books/about/Nudge.html?id=mzZV9jFLltwC>proposals,
for instance, are enacted against a backdrop of pervasive government
regulation, where the government must choose one default or another and
the only real question is which is the right default. It's worth
remembering, however, that our "nudge" would also be enacted against a
backdrop of pervasive government regulation. It's a regime in which the
government requires the vast majority of entities running political ads
to disclose their donors. When a voter watches an ad, in other words,
he has had good reason to assume it's been funded by transparent
sources. Our proposal simply alerts voters that this is not the case
for ads being funded by dark money. The government, then, is helping
ensure that citizens don't make a mistake. You might even imagine an
FDA analogy. When consumers take a drug off the shelf, they assume that
the drug has met FDA standards because the FDA pervasively subjects
drugs to testing. If the FDA were to exempt certain drugs from that
regime, surely it would be constitutional for the FDA to require the
manufacturers at least to acknowledge that fact.
Bauer worries about the government being "an active participant in
political debates," and rightly so. But the government is no more or
less an active participant in this debate here than it is when it
mandates disclosures and disclaimers generally. In each of these
instances, as with our proposal, the government isn't telling voters
what to think. It's simply giving voters the tool to make up their own
minds. That's precisely why the Supreme Court, which is deeply
skeptical of government involvement in this arena, ruled 8 to 1 in favor
of allowing government to provide citizens this important information.
If our proposal works, then, it won't be because the government is
drawing an inference; it's because voters are drawing one.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election
law and constitutional law
<http://electionlawblog.org/?cat=55>,Uncategorized
<http://electionlawblog.org/?cat=1>
"Wisconsin's new voter ID law could keep me from voting at age 87?
<http://electionlawblog.org/?p=65874>
Posted onSeptember 24, 2014 3:56 pm
<http://electionlawblog.org/?p=65874>byRick Hasen
<http://electionlawblog.org/?author=3>
Ruthelle Frank Guardian oped
<http://www.theguardian.com/commentisfree/2014/sep/24/wisconsin-new-voter-id-law-woman-denied-right-87?CMP=twt_gu>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Kobach seeks to intervene in Kansas Senate dispute"
<http://electionlawblog.org/?p=65872>
Posted onSeptember 24, 2014 3:54 pm
<http://electionlawblog.org/?p=65872>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports.
<http://www.kansas.com/news/politics-government/election/article2232722.html>
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Posted inballot access <http://electionlawblog.org/?cat=46>
"This Candidate Will Pay For Your Gas to Smash a Toy Train"
<http://electionlawblog.org/?p=65870>
Posted onSeptember 24, 2014 3:36 pm
<http://electionlawblog.org/?p=65870>byRick Hasen
<http://electionlawblog.org/?author=3>
TIME reports.
<http://time.com/3425598/california-kashkari-crazy-train-gas-card/>
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Posted invoting <http://electionlawblog.org/?cat=31>
"Sixth Circuit finds Ohio has held illegal elections for over 200
years" <http://electionlawblog.org/?p=65868>
Posted onSeptember 24, 2014 3:31 pm
<http://electionlawblog.org/?p=65868>byRick Hasen
<http://electionlawblog.org/?author=3>
Important postfrom Derek the Muller.
<http://excessofdemocracy.com/blog/2014/9/sixth-circuit-finds-ohio-has-held-illegal-elections-for-over-200-years>
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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>
--
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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