[EL] ELB News and Commentary 9/29/14
Rick Hasen
rhasen at law.uci.edu
Mon Sep 29 07:53:44 PDT 2014
"The Voting Wars Heat Up: Will the Supreme Court allow states to
restrict voting for partisan advantage?"
<http://electionlawblog.org/?p=66020>
Posted onSeptember 29, 2014 7:52 am
<http://electionlawblog.org/?p=66020>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis new
piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>for
/Slate/. It begins:
The fights in our states over how hard or easy it is to vote have
been filling the courts and are headed toward the Supreme Court. The
cases range from voter ID laws to early voting rules and beyond.
Already there is a case from Ohio
<http://electionlawblog.org/?p=65883>, with ones from Wisconsin
<http://electionlawblog.org/?p=65892>, North Carolina
<http://electionlawblog.org/?p=65906>, and Texas
<http://electionlawblog.org/?p=65734> potentially on the way in a
matter of days or weeks. The stakes are high, not only for the lazy
2014 midterm elections but also for the 2016 presidential election
and for the protection of voting rights in the next decade.
The fact that the cases are making it to the Supreme Court at about
the same time is no surprise. Over the past decade, in the period I
have called "the voting wars
<http://www.amazon.com/The-Voting-Wars-Election-Meltdown/dp/0300182031>,"
we have seen both an increase in restrictive voting rights
legislation passed by Republican legislatures, such as voter ID
laws, and litigation from both Democrats and Republicans to
manipulate the election system to their advantage. In 2008, the
Supreme Court rejected
<http://www.supremecourt.gov/opinions/07pdf/07-21.pdf> a
constitutional challenge to Indiana's voter identification law, and
in 2013, the Supreme Court in the /Shelby County /case
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> struck
down a key portion of the Voting Rights Act providing that states
with a history of racial discrimination in voting get approval
before making changes to their voting rules and procedures.
Freed by these rulings, Republican legislatures have imposed tougher
voter ID laws, cutbacks in early voting, limitations on voter
registration, and other rules that make it harder to cast a valid
ballot, such as North Carolina's rule
<http://www.thenation.com/blog/175441/north-carolina-passes-countrys-worst-voter-suppression-law> saying
that if a voter casts a ballot at the wrong precinct, it cannot be
counted for /any /races, even those for which the voter is eligible
to vote.
Voting rights advocates have sued to block all or parts of these laws...
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Torts
<http://electionlawblog.org/?cat=35>,voter id
<http://electionlawblog.org/?cat=9>,voting
<http://electionlawblog.org/?cat=31>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
The Election Law Litigation Week Ahead
<http://electionlawblog.org/?p=66018>
Posted onSeptember 29, 2014 7:48 am
<http://electionlawblog.org/?p=66018>byRick Hasen
<http://electionlawblog.org/?author=3>
There's a lot coming up this week.
*As soon as today: *The Supreme Court could rule
<http://www.scotusblog.com/2014/09/court-urged-to-let-ohioans-vote-early/>in
the Ohio early voting suit and challengers to the Wisconsin voter id law
could seek emergency relief in the Supreme Court after the 7th Circuit
sitting en banc divided 5-5 over stoppingearly rollout
<http://electionlawblog.org/?p=65892>of the law
*Today: *A three judge court consider
<http://electionlawblog.org/wp-content/uploads/2014CV958CaseManagementOrder.pdf>s
whether Democrats need to name a replacement candidate for Chad Taylor
on the ballot for the #KSSEN United States Senate race in Kansas.
*Tomorrow*: The DC Circuit sitting en bancconsiders
<http://electionlawblog.org/?p=65995>the constitutionality of the ban on
campaign contributions by federal contractors
*Thursday: *The MS Supreme Court
considers<http://electionlawblog.org/?p=65989>whether a lower court was
right to throw out Chris McDaniel's election challenge against Thad
Cochran in the #MSSEN Republican primary as untimely.
*Coming this week?*A ruling from the4th Circuit
appeal<http://www.newsobserver.com/2014/09/25/4180005_appeals-court-hears-nc-voter-suppression.html?sp=/99/102/&rh=1>in
the North Carolina voting case and a ruling on theTexas voter id law
<http://www.mystatesman.com/news/news/is-the-texas-voter-id-case-on-a-fast-track-to-the-/nhSKY/#1b9e6199.3461639.735498>?
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Lawsuit could scramble Kansas Senate race _ again"
<http://electionlawblog.org/?p=66016>
Posted onSeptember 29, 2014 7:29 am
<http://electionlawblog.org/?p=66016>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://wtop.com/289/3711683/Lawsuit-could-scramble-Kansas-Senate-race-again>:
"A key contest in the fight for control of the Senate could turn on the
outcome of an arcane legal argument Monday over whether Democrats must
field a candidate against struggling Kansas Republican Sen. Pat Roberts."
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Big State, BIG Job: New California SoS to Face Numerous Challenges"
<http://electionlawblog.org/?p=66014>
Posted onSeptember 29, 2014 7:17 am
<http://electionlawblog.org/?p=66014>byRick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog.
<http://blog.lib.umn.edu/cspg/electionacademy/2014/09/big_state_big_job_new_californ.php>
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Posted inelection administration <http://electionlawblog.org/?cat=18>
"Eskridge, Gluck, and Nourse's Statutes, Regulation, and
Interpretation: Legislation and Administration in the Republic of
Statutes" <http://electionlawblog.org/?p=66012>
Posted onSeptember 29, 2014 7:16 am
<http://electionlawblog.org/?p=66012>byRick Hasen
<http://electionlawblog.org/?author=3>
This looks to be avery important Leg/Reg book
<http://www.westacademic.com/Professors/ProductDetails.aspx?NSIID=2821>(available
for Spring 2015 classes) which will partially compete with Eskridge's
own excellent co-authoredLegislation casebook.
<http://www.westacademic.com/Professors/ProductDetails.aspx?NSIID=532>
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Posted inpedagogy <http://electionlawblog.org/?cat=23>
Eric Wemple Explores Potential Harvard Safra Center/MayDay Conflicts
of Interest <http://electionlawblog.org/?p=66010>
Posted onSeptember 29, 2014 7:11 am
<http://electionlawblog.org/?p=66010>byRick Hasen
<http://electionlawblog.org/?author=3>
Interesting.
<http://www.washingtonpost.com/blogs/erik-wemple/wp/2014/09/24/harvard-creates-conflict-of-interest-shield-for-fellows-will-launch-center-for-public-narrative/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Wachob Replies to Miller on Wachob on AZ Public Financing
<http://electionlawblog.org/?p=66008>
Posted onSeptember 29, 2014 7:08 am
<http://electionlawblog.org/?p=66008>byRick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.campaignfreedom.org/2014/09/26/a-response-to-michael-g-miller/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Justice Stevens and His 'Oops'" <http://electionlawblog.org/?p=66005>
Posted onSeptember 29, 2014 7:05 am
<http://electionlawblog.org/?p=66005>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs
<http://www.moresoftmoneyhardlaw.com/2014/09/justice-stevens-oops/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
"Why the Supreme Court Shouldn't Intervene in Ohio"
<http://electionlawblog.org/?p=66001>
Posted onSeptember 28, 2014 9:27 pm
<http://electionlawblog.org/?p=66001>byDan Tokaji
<http://electionlawblog.org/?author=5>
I've posted some additional thoughts, including a reply to my friend and
colleague Ned Foley,here
<http://moritzlaw.osu.edu/election-law/article/?article=12929>.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,voter
registration <http://electionlawblog.org/?cat=37>
"Campaign Finance, Federalism, and the Case of the Long-Armed Donor"
<http://electionlawblog.org/?p=65999>
Posted onSeptember 28, 2014 8:27 pm
<http://electionlawblog.org/?p=65999>byRick Hasen
<http://electionlawblog.org/?author=3>
Todd Pettys has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2502671>on SSRN
(forthcoming, /University of Chicago Law Review Dialogue/). Here is the
abstract:
In its ruling last Term in McCutcheon v. FEC, the Court struck down
federal campaign-finance laws that limited the aggregate amount of
money that Shaun McCutcheon and other would-be campaign donors could
give to a variety of political committees and to individuals running
for Congress in states and districts other than their own. Chief
Justice Roberts began his opinion for the plurality by declaring
that "[t]here is no right more basic in our democracy than the right
to participate in electing our political leaders." Retired justice
John Paul Stevens has argued that the Court's ruling in McCutcheon
is "a grossly incorrect decision" because (among other things) the
case was about "picking other people's congressmen, not your own."
In this essay for the University of Chicago Law Review Dialogue, I
argue two things. First, I contend that Stevens's criticism of
McCutcheon's opening line is at odds with the understanding of
American federalism that Stevens championed while on the Court and
is far more compatible with a conception of federalism that he
explicitly rejected. Second, even looking at matters through the
federalism lens that Stevens now endorses, such that one regards
McCutcheon as trying to influence the selection of other people's
representatives, I argue that any effort to restrict McCutcheon's
and other long-armed donors' campaign spending on those grounds
would face an uphill First Amendment climb.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
"Mostly Black Cities, Mostly White City Halls"
<http://electionlawblog.org/?p=65997>
Posted onSeptember 28, 2014 8:12 pm
<http://electionlawblog.org/?p=65997>byRick Hasen
<http://electionlawblog.org/?author=3>
Important NYT report.
<http://www.nytimes.com/2014/09/29/us/mostly-black-cities-mostly-white-city-halls.html?ref=politics>
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Posted invoting <http://electionlawblog.org/?cat=31>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Court to Weigh Political-Contribution Ban for Government
Contractors; Challengers Say Restriction Is Too Broad, Preventing
Donations to Independent Political Committees"
<http://electionlawblog.org/?p=65995>
Posted onSeptember 28, 2014 8:07 pm
<http://electionlawblog.org/?p=65995>byRick Hasen
<http://electionlawblog.org/?author=3>
WSJ reports
<http://online.wsj.com/articles/court-to-weigh-political-contribution-ban-for-government-contractors-1411940934>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Justice Ginsburg Reflects on Bush v. Gore, Citizens United and
Shelby County <http://electionlawblog.org/?p=65993>
Posted onSeptember 28, 2014 8:04 pm
<http://electionlawblog.org/?p=65993>byRick Hasen
<http://electionlawblog.org/?author=3>
TNR
interview<http://www.newrepublic.com/article/119578/ruth-bader-ginsburg-interview-retirement-feminists-jazzercise>of
the Justice by Jeff Rosen:
JR: And you've discouraged separate concurrences.
RBG: Yes.
JR: Why is that?
RBG: The experience I don't want to see repeated occurred in /Bush
/v. /Gore/. The Court divided five to four. There were four
separate dissents, and that confused the press. In fact, some of the
reporters announced that the decision was seven-two. There was no
time to get together. That case was accepted by the Court on
Saturday, briefed on Sunday, oral argument on Monday, decisions on
Tuesday. If we had time, the four of us would have gotten together,
and there might have been one dissent instead of filling far too
many pages in the U.S. Reports6
<http://www.newrepublic.com/article/119578/ruth-bader-ginsburg-interview-retirement-feminists-jazzercise#footnote-6> with
our separate dissents.
JR: Generally, you've been more reluctant to compromise than some of
your colleagues. Is that a conscious decision?
RBG: That was so in /Bush/ v. /Gore/. It was also true more recently
in the/Hobby Lobby/ case, where Justices Breyer and Kagan said we'd
rather not take a position on a for-profit corporation's
free-exercise rights.
...
JR: What's the worst ruling the current Court has produced?
RBG: If there was one decision I would overrule, it would be
/Citizens United/. I think the notion that we have all the
democracy that money can buy strays so far from what our democracy
is supposed to be. So that's number one on my list. Number two would
be the part of the health care decision that concerns the commerce
clause. Since 1937, the Court has allowed Congress a very free hand
in enacting social and economic legislation.8
<http://www.newrepublic.com/article/119578/ruth-bader-ginsburg-interview-retirement-feminists-jazzercise#footnote-8> I
thought that the attempt of the Court to intrude on
Congress's domain in that area had stopped by the end of the 1930s.
Of course health care involves commerce. Perhaps number three would
be /Shelby County/, involving essentially the destruction of the
Voting Rights Act. That act had a voluminous legislative history.
The bill extending the Voting Rights Act was passed overwhelmingly
by both houses, Republicans and Democrats, everyone was on
board. The Court's interference with that decision of the political
branches seemed to me out of order. The Court should have respected
the legislative judgment. Legislators know much more about
elections than the Court does. And the same was true of /Citizens
United/. I think members of the legislature, people who have to run
for office, know the connection between money and influence on what
laws get passed.
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Posted inBush v. Gore reflections
<http://electionlawblog.org/?cat=5>,campaign finance
<http://electionlawblog.org/?cat=10>,Supreme Court
<http://electionlawblog.org/?cat=29>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"U.S. Supreme Court justice could get advice from OSU experts on
early voting dispute" <http://electionlawblog.org/?p=65991>
Posted onSeptember 28, 2014 8:02 pm
<http://electionlawblog.org/?p=65991>byRick Hasen
<http://electionlawblog.org/?author=3>
Columbus Dispatch:
<http://www.dispatch.com/content/blogs/the-daily-briefing/2014/09/28092014---moritz-profs-analyze-election-rulings.html>
If Justice Elena Kagan wants help in figuring out whether the U.S.
Supreme Court should uphold lower court rulings that allows Ohioans
to begin early voting on Tuesday, she can take advice from a pair of
elections experts from Ohio State University's law school who have
blogged on the dispute.
Unfortunately, they come to pretty much opposite conclusions in the
controversy over whether the state legislature, under a bill signed
by Gov. John Kasich, and a directive from Secretary of State Jon
Husted violated the constitutional rights of minority and poor
voters by reducing early voting periods those groups prefer.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
In #MSSEN, MS Supeme Court Oral Argument Oct 2
<http://electionlawblog.org/?p=65989>
Posted onSeptember 28, 2014 4:21 pm
<http://electionlawblog.org/?p=65989>byRick Hasen
<http://electionlawblog.org/?author=3>
Docket
<http://courts.ms.gov/appellate_courts/sc/docketcalendar/scs52014.pdf>.
Oral argument will be broadcast at 10 am.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"True The Vote Proves What's Wrong With Its Voter ID Obsession"
<http://electionlawblog.org/?p=65987>
Posted onSeptember 28, 2014 3:59 pm
<http://electionlawblog.org/?p=65987>byRick Hasen
<http://electionlawblog.org/?author=3>
Miranda Blue blogs
<http://www.rightwingwatch.org/content/true-vote-proves-what-s-wrong-its-voter-id-obsession>.
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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>
"Early-voting sites increase; but hours, days drop"
<http://electionlawblog.org/?p=65985>
Posted onSeptember 28, 2014 3:46 pm
<http://electionlawblog.org/?p=65985>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Orlando Sentinel /reports.
<http://www.orlandosentinel.com/news/politics/os-early-voting-reforms-20140928-story.html>
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Posted inelection administration <http://electionlawblog.org/?cat=18>
"Ohio Early Voting in the Supreme Court"
<http://electionlawblog.org/?p=65983>
Posted onSeptember 28, 2014 3:44 pm
<http://electionlawblog.org/?p=65983>byRick Hasen
<http://electionlawblog.org/?author=3>
Important Ned Foley analysis.
<http://moritzlaw.osu.edu/election-law/article/?article=12927> Two snippets:
Plaintiffs complain that only one Sunday of early voting is
available, and that the only evening hours available are on Election
Day itself. As a matter of policy, I concur with their complaint. If
it were up to me, I'd provide two weeks of early voting, including
two Sundays (as well as two Saturdays) and ample evening hours
throughout the fortnight. But I'm not Election Czar of Ohio, or
anywhere else, and can I really say that the amount of early voting
that Ohio provides is constitutionally inadequate to redress the
disenfranchising effect of overcrowding at the polls on Election
Day, as occurred in 2004? I think not. As it stands, all Ohio voters
have the option of voting on a Sunday, or voting in the evening on
Election Day, or voting on either of two Saturdays, or voting on a
weekday during regular business hours throughout the four weeks of
early voting, or voting by mail during that same four-week period.
It's not the optimal schedule in my view, but it's hard to see how
any Ohio voter is disenfranchised by this particular menu of voting
options.
AND
My colleague Dan Tokaji sees
<http://moritzlaw.osu.edu/election-law/article/?article=12915>Ohio's
current early voting schedule as not a product of bipartisanship,
but instead one party's imposition of its own preferences through
its control of the state's legislature (and secretary of state's
office). But I think that analysis gives insufficient attention
that the role that the bipartisan Ohio Association of Election
Officials (OAEO) played in the development of Ohio's current early
voting schedule. Like Dan, I deplore manipulation of voting rules by
a political party in power in an effort to perpetuate that power
against the wishes of the electorate. But unless and until we adopt
institutional reforms that remove the power to adopt voting rules
from partisan legislatures and administrators and instead place that
power in nonpartisan bodies (as I've discussed elsewhere
<http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1006&context=mlr&sei-redir=1&referer=http%3A%2F%2Fwww.bing.com%2Fsearch%3Fq%3Dfoley%2520separation%2520of%2520electoral%2520powers%26FORM%3DDLCBLB%26PC%3DMDDC%26QS%3Dn#search=%22foley%20separation%20electoral%20powers%22>),
then federal constitutional law will need to be sensitive about when
conventional partisan legislatures and administrators have crossed
the line into excessive partisan manipulation of voting rules. Over
the last decade, Ohio's legislature and secretary of state
undoubtedly have crossed that line on other occasions. But given
OAEO's role in the development of Ohio's current early voting
schedule, I have a hard time seeing that Ohio crossed that line of
excessive partisanship in this particular context.
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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>
"Jerry Brown signs initiative and student suspension bills; vetoes
money for UC, CSU" <http://electionlawblog.org/?p=65981>
Posted onSeptember 28, 2014 3:40 pm
<http://electionlawblog.org/?p=65981>byRick Hasen
<http://electionlawblog.org/?author=3>
SacBee
<http://www.sacbee.com/2014/09/27/6741606/jerry-brown-signs-initiative-and.html>:
"Gov. Jerry Brown <http://topics.sacbee.com/Jerry+Brown/> signed
legislation Saturday giving the proponents of California ballot
initiatives more time to collect signatures and allowing them to
withdraw their initiatives or add amendments."
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65981&title=%E2%80%9CJerry%20Brown%20signs%20initiative%20and%20student%20suspension%20bills%3B%20vetoes%20money%20for%20UC%2C%20CSU%E2%80%9D&description=>
Posted indirect democracy <http://electionlawblog.org/?cat=62>
"What is a 'Burden' on Voters? Reflections on Ohio's Early Voting
Litigation" <http://electionlawblog.org/?p=65979>
Posted onSeptember 28, 2014 3:37 pm
<http://electionlawblog.org/?p=65979>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Douglas writes
<http://www.kentuckylawjournal.org/what-is-a-burden-on-voters-reflections-on-ohios-early-voting-litigation/>for
the /Kentucky Law Journal./
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<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65979&title=%E2%80%9CWhat%20is%20a%20%E2%80%98Burden%E2%80%99%20on%20Voters%3F%20Reflections%20on%20Ohio%E2%80%99s%20Early%20Voting%20Litigation%E2%80%9D&description=>
Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
Ohio Files #SCOTUS Reply Brief in Early Voting Case
<http://electionlawblog.org/?p=65977>
Posted onSeptember 28, 2014 3:36 pm
<http://electionlawblog.org/?p=65977>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read ithere
<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/14A336-reply-brief-9-28-14.pdf>(viaSCOTUSBlog
<http://www.scotusblog.com/2014/09/court-urged-to-let-ohioans-vote-early/>).
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voting
<http://electionlawblog.org/?cat=31>
--
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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