[EL] ELB News and Commentary 8/21/15
Rick Hasen
rhasen at law.uci.edu
Fri Aug 21 08:11:35 PDT 2015
“We used to count black Americans as 3/5 of a person. For
reparations, give them 5/3 of a vote.”
<http://electionlawblog.org/?p=75501>
Posted onAugust 21, 2015 8:09 am
<http://electionlawblog.org/?p=75501>byRick Hasen
<http://electionlawblog.org/?author=3>
Theodore
Johnson<https://www.washingtonpost.com/posteverything/wp/2015/08/21/we-used-to-count-black-americans-as-35-of-a-person-instead-of-reparations-give-them-53-of-a-vote/?postshare=6031440153371840>WaPo
oped.
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Posted invoting <http://electionlawblog.org/?cat=31>
Why is Deez Nuts Surging? <http://electionlawblog.org/?p=75499>
Posted onAugust 21, 2015 8:08 am
<http://electionlawblog.org/?p=75499>byRick Hasen
<http://electionlawblog.org/?author=3>
FunTrip Gabriel piece:
<http://www.nytimes.com/politics/first-draft/2015/08/20/deez-nuts-for-president-why-not-says-iowa-farm-boy/>
Supporters who picked up the Deez Nuts meme tweeted to Public Policy
Polling, a nonscientific polling operation, asking it to add him to
its surveys, and it did. In head-to-head matchups with Donald J.
Trump and Hillary Rodham Clinton, Deez Nuts drew 8 percent in
Minnesota and 7 percent in Iowa.
Tom Jensen, the director of Public Policy Polling, said he added
Deez Nuts to statewide survey three weeks ago because “the name
makes people laugh, and it’s a long presidential election.’’
But Mr. Jensen also drew a serious conclusion from the Deez Nuts surge.
“I would say Mr. Nuts is the most ludicrous and unqualified
third-party candidate you could have, but he’s still polling at 7,
8, 9 percent,’’ Mr. Jensen said. “Right now the voters don’t like
either of the people leading in the two main parties, and that
creates an appetite for a third-party candidate.’’
After the North Carolina results, which were picked up by television
news broadcast, Mr. Jensen thought the joke had run its course. But
now that Deez Nuts is receiving a wave of publicity, the pollster is
curious to see if the Deez Nuts candidacy can be lifted higher. Mr.
Jensen plans to include the independent in polls in New Hampshire
this weekend and in a national survey next week.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Election Law: Redistricting, Gerrymandering, and Civil Rights”
<http://electionlawblog.org/?p=75497>
Posted onAugust 21, 2015 8:04 am
<http://electionlawblog.org/?p=75497>byRick Hasen
<http://electionlawblog.org/?author=3>
Legal Talk Network
<http://legaltalknetwork.com/podcasts/special-reports/2015/08/election-law-redistricting-gerrymandering-civil-rights/>:
Legal Talk Network producer Laurence Colletti interviews Benjamin
Griffith, Robert Heath, Nancy Abudu, Tanya Clay House, and Nicole
Austin-Hillery about election law at the 2015 American Bar
Association Annual Meeting. The guests explain the history of
election law and why redistricting is necessary, gerrymandering or
packing similar voters into a district, and how legal cases often
involve racial discrimination. This very complicated and important
area of the law involves the disciplines of demography and political
science, and directly affects the way the United States’ democratic
system works.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights
Act <http://electionlawblog.org/?cat=15>
“New election rules protect overseas voters”
<http://electionlawblog.org/?p=75495>
Posted onAugust 21, 2015 8:01 am
<http://electionlawblog.org/?p=75495>byRick Hasen
<http://electionlawblog.org/?author=3>
Colorado SOS Wayne Williams
<http://coloradostatesman.com/content/996039-williams-new-election-rules-protect-overseas-voters>:
Earlier this month I adopted several amendments to the Secretary of
State elections rules. In large part, these amendments are “cleanup”
in nature; that is, they reword certain rules for grammar and
clarity, they repeal some unnecessary or overly burdensome rules,
and they reflect recent legislative changes in election law.
In addition to those more-technical amendments, I adopted a rule
that clarifies the General Assembly’s mandate to permit electronic
transmission of ballots to and from military and overseas citizens.
Unfortunately, there are some who do not want members of the
military, their family members, military contractors, missionaries,
and other Coloradans abroad to have the same ability to vote that
you and I have. Those of us in Colorado have the ability to study
the issues and candidates and then turn in our ballots after
reviewing what’s on them for several weeks. That way, we can make
informed choices.
To permit these military and overseas voters the same rights, the
General Assembly adopted a law in 2006 permitting electronic ballot
transmission for this limited number of voters and then readopted it
in 2011. Let me be clear: My rule puts some previously nonexistent
guardrails on the legislature’s electronic transmission policy. The
General Assembly adopted the law, not me. And I’m required to
construe the law so that every eligible voter may vote — in fact,
that’s a specific requirement of Colorado law.
Not surprisingly, a handful of elections activists used this
most-recent rulemaking to rail against what they term “Internet
voting.” But what does surprise me is seeing members of the General
Assembly, past and present, make misinformed statements and greatly
exaggerate the purpose and effect of the new rule. Despite the fact
that my rule actually narrows the application of electronic
transmission, the naysayers continue to falsely claim that I’m
expanding Internet voting and that I’m ignoring the advice of
experts in the field. I have two responses.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,internet voting
<http://electionlawblog.org/?cat=49>,military voting
<http://electionlawblog.org/?cat=48>
“Legislature at impasse over how to draw Florida’s congressional
districts” <http://electionlawblog.org/?p=75493>
Posted onAugust 21, 2015 7:54 am
<http://electionlawblog.org/?p=75493>byRick Hasen
<http://electionlawblog.org/?author=3>
Tampa Bay Times
<http://www.tampabay.com/news/politics/stateroundup/legislature-at-impasse-over-how-to-draw-floridas-congressional-districts/2242151>:
A divide over how to shape Tampa Bay’s congressional districts is
creating uncertainty over whether the Legislature will be able to
finish its job in a court-ordered special session on time.
While a legislative impasse is hardly new in the recent political
dynamics of the House and the Senate, the latest breakdown is
complicated by the fact that they are under a Florida Supreme Court
order to draw new districts because the last two attempts failed to
produce a constitutionally sound map.
What happens if they don’t hit their noon Friday deadline to pass
identical redistricting maps? Even legislative leaders are uncertain
about the next step.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Documents reveal secret Florida Senate process to draw district
maps” <http://electionlawblog.org/?p=75491>
Posted onAugust 21, 2015 7:51 am
<http://electionlawblog.org/?p=75491>byRick Hasen
<http://electionlawblog.org/?author=3>
Tampa Bay Times
<http://www.tampabay.com/news/politics/stateroundup/documents-reveal-secret-florida-senate-process-to-draw-district-maps/2242077>:
The shadow redistricting process that brought down the congressional
map also was in full swing in the state Senate’s efforts to redraw
its own districts in 2011 and 2012, depositions and email documents
submitted as part of a court case revealed.
The documents, filed Wednesday in Leon County Circuit Court as part
of a lawsuit over the Senate map, show that Republican operatives
faked “public” submissions, possessed draft Senate maps more than a
month before senators and submitted Republican-leaning maps that
matched pieces that became the foundation of the adopted Senate
redistricting plan.
The same tactics emerged in the congressional redistricting trial
that led to the Florida Supreme Court ordering the maps be redrawn
in a special session that ends this week.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Maybe This Time Really Is Different”
<http://electionlawblog.org/?p=75489>
Posted onAugust 21, 2015 7:47 am
<http://electionlawblog.org/?p=75489>byRick Hasen
<http://electionlawblog.org/?author=3>
Norm Ornstein
<http://www.theatlantic.com/politics/archive/2015/08/maybe-this-time-really-is-different/401900/>:
So is anything really different this time? I think so. First,
because of the amplification of rage against the machine by social
media, and the fact that Barack Obama has grown stronger and more
assertive in his second term while Republican congressional leaders
have become more impotent. The unhappiness with the establishment
and the desire to stiff them is much stronger. Second, the views of
rank-and-file Republicans on defining issues like immigration have
become more consistently extreme—a majority now agree with virtually
every element of Trump’s program, including expelling all illegal
immigrants.
Third, unlike in 2012, when Mitt Romney was the clear frontrunner
and the only serious establishment presidential candidate, and all
the pretenders were focused on destroying each other to emerge as
his sole rival, this time there are multiple establishment
candidates with no frontrunner, including Jeb Bush, Scott Walker,
Marco Rubio, John Kasich, and Chris Christie. And each has
independent financing, with enough backing from wealthy patrons to
stay in the race for a long time, splitting the
establishment-oriented vote. The financing, of course, raises point
four: We are in a brave new world of campaign finance, where no one
candidate can swamp the others by dominating the money race. When
establishment nemesis Ted Cruz announced his campaign, he had $38
million in “independent” funds within a week, $36 million of it from
four donors. There is likely more where that came from. Some
candidates may not find any sugar daddies, or may find that their
billionaires are fickle at the first sign of weakness. But far more
candidates than usual will have the financial wherewithal to stick
around—and the more candidates stick around, the less likely that
any single one will pull into a commanding lead or sweep a series of
primaries, and thus the more reason to stick around.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Another Way to Mask Super Rich Donors”
<http://electionlawblog.org/?p=75487>
Posted onAugust 21, 2015 7:43 am
<http://electionlawblog.org/?p=75487>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg
<http://www.bloomberg.com/politics/articles/2015-08-21/another-way-to-mask-super-rich-donors?cmpid=BBD082115_POL>:
In January, Ted Cruz’s quest for the presidency got help from a
limited liability company called V3 231. The LLC was listed as the
source of a $250,000 donation to a super PAC supporting the
conservative Republican senator from Texas. For anyone wondering
what V3 231 is, or who controls it, there were few clues. A lawsuit
filed in federal court mentions the company once owned a hotel in
Brooklyn, N.Y. A search on the Internet reveals the name of the
hotel’s now defunct developer. One of the developer’s former
executives, reached on his mobile phone, says another man controls
the LLC. That guy’s name, the former executive says, is Ben Nash.
Nash was a 17-year-old yeshiva student from Brooklyn when he
discovered a knack for selling cell phones. He dropped out of school
and eventually made a fortune reselling used or surplus phones. His
company, PCS Wireless, is targeting $1 billion in sales this year,
according to Business Insider. Now 32, Nash has grown wealthy enough
to dabble in Brooklyn real estate and philanthropy. He picks up the
phone right away when reached at his headquarters in suburban New
Jersey. He allows that he had dinner with Cruz a few months back,
but he says he doesn’t think he gave the candidate as much as
$250,000. “We give to a lot of charity over here,” he says. He ends
the call promising to investigate. “I do want to check, for my own
personal interest.”
The next day, Nash’s spokesman, Robert Barletta, confirms that Nash
was behind the $250,000 donation. In an e-mail, Barletta calls the
donation “transparent and fully within federal campaign finance
laws” and motivated by Cruz’s support for Israel.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Audit finds no major problems with Wisconsin elections board”
<http://electionlawblog.org/?p=75485>
Posted onAugust 21, 2015 7:37 am
<http://electionlawblog.org/?p=75485>byRick Hasen
<http://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel
<http://www.jsonline.com/news/statepolitics/audit-finds-no-major-problems-with-wisconsin-elections-board-b99560936z1-322409241.html>:
An audit released Thursday looking into how Wisconsin’s nonpartisan
elections and ethics board handles complaints found no major
problems, leading the panel’s director to say it should put to rest
concerns about its operations even as Republicans andGov. Scott
Walker
<http://www.jsonline.com/news/statepolitics/scott-walker-290106981.html>plan
major overhauls.
The nonpartisan Legislative Audit Bureau report was limited to
previously confidential records related to nearly 1,900 complaints
filed with the Government Accountability Board between 2010 and 2013.
The audit had two recommendations: that the board consistently
resolve complaints in a timely manner and that staff consistently
provide the board with the names of three people who can be hired to
work as special investigators.
Board director Kevin Kennedy, under fire by Republican lawmakers,
said the recommendations were minor and consistent with the agency’s
existing practices.
The report shows that the six retired judges on the board are
engaged as they review material presented by staff, Kennedy said in
a written statement.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election
administration <http://electionlawblog.org/?cat=18>
“Lawrence Lessig: Running on Empty Campaign Finance Reform”
<http://electionlawblog.org/?p=75483>
Posted onAugust 21, 2015 7:26 am
<http://electionlawblog.org/?p=75483>byRick Hasen
<http://electionlawblog.org/?author=3>
Steve Klein blog
<https://www.pillaroflaw.org/index.php/blog/entry/lawrence-lessig-running-on-empty-campaign-finance-reform>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Correcting E.J. Dionne’s Legal Mistake
<http://electionlawblog.org/?p=75481>
Posted onAugust 20, 2015 1:53 pm
<http://electionlawblog.org/?p=75481>byRichard Pildes
<http://electionlawblog.org/?author=7>
As I assume many readers of this blog noticed right away, E.J. Dionne
wrongly described part of the 5th Circuit’s decision on Texas’ voter ID
law in his recent piece,here
<https://www.washingtonpost.com/opinions/no-retreat-on-voting-rights/2015/08/19/f0339280-46a0-11e5-846d-02792f854297_story.html>,
on voting rights. While correctly noting that the Court found the law
to violate Section 2 of the VRA, he also wrote that the Court had found
the law to be a poll tax as well. This turns the Court’s holding inside
out: while the District Court did find the law to be a poll tax, the
5th Circuit specifically reversed that conclusion and held that the law
was/not/a poll tax. This is of some importance, beyond the importance of
reporting the law correctly, because one of the arguments that has
frequently been made about voter ID laws, by both litigants and among
academics, at least by Bruce Ackerman, is that these kind of laws are
unconstitutional poll taxes. Particularly in light of the fact that the
5th Circuit was nonetheless receptive to the plaintiffs’ claim under
Section 2, I expect this decision will lead to the poll tax arguments
playing a much more minor role, if they are pressed at all, in other
cases going forward.
I had assumed someone else would have pointed out this mistake by now,
but there is no correction in the Washington Post online version of the
story, and I would not want other journalists or anyone else to repeat
Dionne’s mistake, so I thought I would flag it here in hopes the story
will be corrected.
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Posted invoter id <http://electionlawblog.org/?cat=9>
“End Citizens United PAC wants to make its name a reality”
<http://electionlawblog.org/?p=75478>
Posted onAugust 20, 2015 1:02 pm
<http://electionlawblog.org/?p=75478>byRick Hasen
<http://electionlawblog.org/?author=3>
MSNBC:
<http://www.msnbc.com/msnbc/end-citizens-united-pac-wants-make-its-name-reality>
The group plans on setting up an independent expenditure arm
sometime early next year to financially back the candidates through
initiatives including television ads, direct mailers and polling.
While End Citizens United also hopes to help enact campaign finance
reforms on the local and state level, its main objective of passing
a constitutional amendment to overturn the 2010 Supreme Court
decision is being met with some skepticism by campaign finance
experts. A constitutional amendment, after all, must win consent
from two-thirds of the Senate and the House, in addition to being
ratified by three-fourths of states.
“It’s a really high bar to for a constitutional amendment,” said
John Wonderlich, policy director at the Sunlight Foundation, a
non-partisan group that advocates for government transparency. “It’s
an uphill battle for people who choose that path.”
That’s putting it mildly. America hasn’t passed a single
Constitutional amendment since 1992. And Washington has gotten
exponentially more partisan since.
Rick Hasen, a campaign finance regulation expert and professor of
law and political science at UC-Irvine School of Law, put it in more
stark terms. “Let’s say the group raised $100 million — the chances
that even that amount of money to get a constitutional amendment
passed by electing some sympathetic members of Congress is a pipe
dream.” He said a greater likelihood of getting the law changed is
confirming a new Supreme Court justice — when the time comes — who
could shift the balance of the court.
But, Hasen argued, groups like End Citizens United do serve a
purpose in “continuing with the public awareness of the Supreme
Court’s decision and it keeps political pressure on both the Supreme
Court and other political actors to not make things worse.”
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Odd Claim that Effort to Amend Constitution to Eliminate Birthright
Citizenship Would Be Unconstitutional
<http://electionlawblog.org/?p=75473>
Posted onAugust 20, 2015 12:39 pm
<http://electionlawblog.org/?p=75473>byRick Hasen
<http://electionlawblog.org/?author=3>
Cristian Farias
<http://www.huffingtonpost.com/entry/republicans-birthright-citizenship_55d4934be4b07addcb44c96a>for
HuffPo:
It turns out that an amendment aiming to change the Constitution to
end birthright citizenship for the children of immigrants — a move
that squarely targets Latinos — could theoretically be found
unconstitutional long before it could make it into the document in
the first place. The same would be true for aRepublican-backed bill
<https://www.congress.gov/bill/114th-congress/house-bill/140/cosponsors> with
a similar goal that’s pending in Congress.
The reason these proposals could be found unconstitutional is rooted
in the very thing Republicans are attacking: the 14th Amendment of
the U.S. Constitution.
Because for all theprovisions and principles
<https://www.law.cornell.edu/anncon/html/amdt14toc_user.html>that
the 14th Amendment stands for — and birthright citizenship is only
one of them — one of the amendment’s cornerstones is its promise of
equal treatment for everyone.
There’s an update/correction to the piece which reads as follows:
/Language has been changed to reflect that an effort to change the
Constitution to revoke birthright citizenship could in theory be
found unconstitutional before any proposed legislation became an
official part of the document./
[The original language said: “It turns out that the very idea of
amending the Constitution to end birthright citizenship for the
children of immigrants — a move that squarely targets Latinos
—*would probably*be found unconstitutional” [my emphasis).]
I don’t understand this at all. Although there is some literature
suggesting that in theory there could be “unconstitutional
constitutional amendments,” what Farias seems to be suggesting is that
if someone in Congress proposed a constitutional amendment to overturn
the birthright citizenship provision of the 14th Amendment, that someone
could go to court and stop that proposed amendment from being circulated
on grounds it would be rooted in animus and a violation of the 14th
Amendment.
I find this quite hard to imagine. First, there would be great
justiciability questions to such a claim before it even passed. Who
would have standing to challenge? Is the claim ripe?
And on the merits, I cannot believe that if this country actually passed
such a constitutional amendment (which thankfully would not happen in
any case), that the Supreme Court would say it is invalid because it
goes against the very amendment that the amendment overturned. As Derek
Muller tweeted today, it is like saying the amendment overruling
prohibition would be unconstitutional because of an existing amendment
allowing prohibition. And I don’t think eliminating birthright
citizenship would be such a profound change to the constitutional
structure so as to be seen as an improper amendment to the Constitution.
Anyway, it was an odd story with a correction which seems to weaken the
case.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Bob McDonnell Files #SCOTUS Emergency Application to Stay
Mandate/Release on Bail Pending Cert”
<http://electionlawblog.org/?p=75471>
Posted onAugust 20, 2015 12:32 pm
<http://electionlawblog.org/?p=75471>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Blackman reports
<http://joshblackman.com/blog/2015/08/20/bob-mcdonnell-files-scotus-emergency-application-to-stay-mandaterelease-on-bail-pending-cert/>onthis
emergency application
<https://www.scribd.com/doc/275357151/McDonnell-Stay-Petition>.
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Posted inbribery <http://electionlawblog.org/?cat=54>
Movement to Ease California Top Two?
<http://electionlawblog.org/?p=75469>
Posted onAugust 20, 2015 12:30 pm
<http://electionlawblog.org/?p=75469>byRick Hasen
<http://electionlawblog.org/?author=3>
Richard Winger
<http://ballot-access.org/2015/08/20/independent-voters-network-and-california-forward-host-all-day-meeting-in-california-top-two/>reporting
from an event on top-two that I unfortunately had to miss because of
teaching obligations:
During the question period, Paula Lee, an activist in Californians
for Electoral Reform, which advocates alternate voting systems such
as proportional representation, suggested an end to single-member
districts. Former State Senator Steve Peace then appeared at the
podium and said he now supports converting the California system to
a top-three system in which Instant Runoff Voting would be used in
the general election. This is a significant development, because
Peace is influential and has been one of the founders of the top-two
system in California.
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Posted inalternative voting systems
<http://electionlawblog.org/?cat=63>,political parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>
“Google could ‘rig the 2016 election,’ researcher says”
<http://electionlawblog.org/?p=75467>
Posted onAugust 20, 2015 10:17 am
<http://electionlawblog.org/?p=75467>byRick Hasen
<http://electionlawblog.org/?author=3>
CNN
<http://money.cnn.com/2015/08/20/technology/google-2016-election/index.html?category=home>:
The world’s most-used search engine is so powerful and
nationalelections are so tight
<http://money.cnn.com/2015/08/06/news/economy/2016-democratic-victory-moodys-analystics/index.html?iid=EL>,
that even a tiny tweak in Google’s (GOOGL
<http://money.cnn.com/quote/quote.html?symb=GOOGL&source=story_quote_link>,Tech30
<http://money.cnn.com/technology/tech30/index.html?iid=EL>) secret
algorithm could swing the 2016 presidential election, according to
Robert Epstein, senior research psychologist at the American
Institute for Behavioral Research and Technology.In anop-ed on
Politico.com
<http://www.politico.com/magazine/story/2015/08/how-google-could-rig-the-2016-election-121548.html>,
Epstein said that he and a team of researchers studied behavior in
undecided voters who had been exposed to rigged search results. By
displaying results that shone a more favorable light on a particular
candidate the researchers could shift opinion towards that favored
candidate.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“OIG report recommends USPS develop VBM strategy”
<http://electionlawblog.org/?p=75465>
Posted onAugust 20, 2015 10:15 am
<http://electionlawblog.org/?p=75465>byRick Hasen
<http://electionlawblog.org/?author=3>
That’s the lead story
<http://www.electionline.org/index.php/electionline-weekly>in this
week’s Electionline Weekly.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,election
administration <http://electionlawblog.org/?cat=18>
--
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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