[EL] Bernie Sanders complaint/more news
Rick Hasen
rhasen at law.uci.edu
Fri Dec 18 14:59:46 PST 2015
Thoughts on Bernie Sanders Complaint Against DNC on Data Access
<http://electionlawblog.org/?p=78472>
Posted onDecember 18, 2015 2:25 pm
<http://electionlawblog.org/?p=78472>byRick Hasen
<http://electionlawblog.org/?author=3>
I haveposted here the
complaint<http://electionlawblog.org/wp-content/uploads/bernie-complaint.pdf>in
Bernie 2016 v. DNC Services Corporation. Here isExhibit A
<http://electionlawblog.org/wp-content/uploads/exhibit-a.pdf>, the
agreement.
The complaint and exhibit basically make the following argument:
The agreement between the DNC and the Sanders campaign required the DNC
to provide professional services and did not require the campaign to
maintain the confidentiality of data. The DNC is the one who revealed
the confidential data.
Even if the Sanders campaign’s access to confidential material could be
considered a breach of contract, the contract does not allow the DNC to
suspend its performance immediately. Instead the contract requires that
the DNC give written notice of the Sanders breach, which hasn’t been
given, and give 10 days to try to cure the breach.
DNC’s cutting off access to the data is causing irreparable harm to the
campaign, which cannot conduct its voter outreach and fundraising during
a crucial time. Given this potential for irreparable harm, the Sanders
campaign will seek an emergency injunction (a temporary restraining
order, or TRO) to require the DNC to restore access. This would be an
argument for specific performance of the contract.
A few very preliminary thoughts on this argument:
1. It is always perilous to figure out how strong a case is from seeing
just one side’s pleadings. We may not have all the relevant
documents, or access to all the relevant information, to make a
determination as to who is right or wrong. For example, Exhibit A-1,
which is part of an agreement with the Iowa Democratic Party,
appears to allow for immediate suspension of the agreement and
injunctive relief under certain circumstances. It is not clear how
this fits into general agreement.
2. Despite caveat 1, on its face the Sanders complaint seems plausible.
It does look like in the original complaint that the DNC would have
to give written notice of a breach and give 10 days before treating
the contract as terminated. Further, the Sanders side has a very
good argument for irreparable harm, especially at this point in the
campaign. If it has a good legal argument, it has a compelling
argument for quick action.
3. There may be a good argument on the DNC’s side that they had the
right (perhaps under the Exhibit A-1 provisions on injunctions and
irreparable harm) to SUSPEND the Sanders’ campaign access if the
Sanders’ campaign’s access constituted a substantial breach of the
contract. The DNC could face irreparable harm, for example, if the
Sanders’ campaign’s access to confidential materials would cause the
DNC to be breaching its obligations to other campaigns. Accessing
confidential data by Sanders campaign could violate the parties
implied covenant of good faith and fair dealing.
4. The bottom line: this looks to be a serious claim from the Sanders
campaign, but it is hard for me to say whether or not it is a winner
until we see more briefing and further factual development.
[This post has been updated, and I may update more as I have the chance
to read through the complaint and documents more closely.]
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Posted incampaigns <http://electionlawblog.org/?cat=59>
Quote of the Day: Dysfunctional FEC edition
<http://electionlawblog.org/?p=78470>
Posted onDecember 18, 2015 12:46 pm
<http://electionlawblog.org/?p=78470>byRick Hasen
<http://electionlawblog.org/?author=3>
“The laws of reason have been suspended at the FEC, where corporations
are people, commissioners are not, and now Mitt Romney gets to be two
/different/people.”
—FEC Commissioners Ravel and Weintraub
<http://www.jsonline.com/news/statepolitics/chisholm-two-other-das-seek-to-move-john-doe-to-us-supreme-court-b99636792z1-362956011.html>,
complaining about slap on the wrist to pro-Romney Super PAC, Restore Our
Future, for blatant violation of federal campaign finance laws.
(h/tKen Doyle <https://twitter.com/KenDoyle16/status/677951179477934080>)
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
WI John Doe Case May Get Appealed to #SCOTUS
<http://electionlawblog.org/?p=78468>
Posted onDecember 18, 2015 11:56 am
<http://electionlawblog.org/?p=78468>byRick Hasen
<http://electionlawblog.org/?author=3>
Milwaukee Journal Sentinel:
<http://www.jsonline.com/news/statepolitics/chisholm-two-other-das-seek-to-move-john-doe-to-us-supreme-court-b99636792z1-362956011.html>
Three district attorneys have moved to intervene in the state’s
now-stalled John Doe investigation into Gov. Scott Walker’s campaign
and conservative groups, a move aimed at bringing the case before
the U.S. Supreme Court.
The motion was filed by Milwaukee County District Attorney John
Chisholm Friday.
It is currently under seal.
The move comes after the Wisconsin Supreme Court declined to
reconsider its decision to end the probe.
Special prosecutor Francis Schmitz had made that request earlier
this year.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
Native Hawaiian Voting Case to Live On?
<http://electionlawblog.org/?p=78466>
Posted onDecember 18, 2015 11:24 am
<http://electionlawblog.org/?p=78466>byRick Hasen
<http://electionlawblog.org/?author=3>
Lyle Denniston
<http://www.scotusblog.com/2015/12/a-new-test-on-hawaiis-future/>:
Lawyers for a group of Hawaiian residents challenging a move to
create a new nation of native Hawaiians within the state havetold a
lower court
<http://www.scotusblog.com/wp-content/uploads/2015/12/15-17134-motion-to-extend.pdf>that
they may make a return trip to the Supreme Court to deal with a
major shift in the other side’s tactics. An election interrupted by
the Supreme Court early this month has now been cancelled, and plans
are moving ahead for a constitutional convention in February….
Meanwhile, the validity of the election has continued, at least
nominally, as a live dispute in the U.S. Coourt of Appeals for the
Ninth Circuit, with the challengers’ opening brief scheduled to be
filed on December 23. Citing the cancellation of the election by
Na’i Aupuni, the challengers have now asked for a two-week
postponement of the due date for their brief.
At a minimum, their lawyers said, the shift in tactics will require
changes in that brief and, they added, “may change the litigation in
ways more fundamental than alteration of briefs.” One of the
possible responses, the lawyers said, will be to ask the Supreme
Court to take new action to stop the process. They also said they
would consider the option of dismissing the pending appeal in the
Ninth Circuit. They did not indicate what might follow such a
dismissal.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
“States Pass Washington in Policing Political Nonprofits”
<http://electionlawblog.org/?p=78464>
Posted onDecember 18, 2015 9:43 am
<http://electionlawblog.org/?p=78464>byRick Hasen
<http://electionlawblog.org/?author=3>
Important Tax Notes story
<http://www.taxnotes.com/tax-notes-today/exempt-organizations/states-pass-washington-policing-political-nonprofits/2015/12/17/18128426>behind
paywall:
Advocates of campaign finance reform finally see some slivers of
light in their battle against “dark money,” the contributions from
undisclosed donors that fuel politically orientedsection
501(c)(4)organizations.
But the light comes not from Washington but from selected states
that have put nonprofits on notice: If they spend more than a
minimal amount trying to influence state elections, they will
be treated as political committees, requiring disclosure of their
donors, regardless of their tax-exempt status with the IRS.
Over the last two years, such policies have been put in place
through laws or regulations in California, Utah, Montana, New York,
and Maryland. In November 2014, Tallahassee, Florida, became one of
the first cities to adopt an anti-dark money law. And the group
Represent.Us, made up of grassroots activists and academics, is
lobbying for similar statutes in other cities around the country.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
Top Recent Downloads in Election Law on SSRN
<http://electionlawblog.org/?p=78462>
Posted onDecember 18, 2015 9:25 am
<http://electionlawblog.org/?p=78462>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:
*RECENT TOP PAPERS*for all papers first announced in the last 60
days<http://papers.ssrn.com/publicRss/rssManagerInc.cfm?journalId=991929>
/19 Oct 2015 through 18 Dec 2015/
Rank Downloads Paper Title
1 720 *A Three-Prong Standard for Practical Evaluation of Partisan
Gerrymandering* <http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2671607>
Samuel S.-H. Wang
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2459280>
Princeton University
/Date posted to database: /10 Oct 2015
/Last Revised: /7 Dec 2015
2 245 *Corporate Power Ratchet: The Courts’ Role in Eroding ‘We the
People’s’ Ability to Constrain Our Corporate Creations*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2680294>
Leo E. Strine
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=328830>
Government of the State of Delaware – Supreme Court of Delaware
/Date posted to database: /27 Oct 2015
/Last Revised: /1 Nov 2015
3 159 *Civil Rights in a Desegregating America*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2673026>
Nicholas Stephanopoulos
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=636048>
University of Chicago Law School
/Date posted to database: /14 Oct 2015
/Last Revised: /21 Oct 2015
4 138 *Prisoners’ Voting and Judges’ Powers*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2687247>
John Finnis <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=431242>
University of Oxford – Faculty of Law
/Date posted to database: /8 Nov 2015
/Last Revised: /8 Nov 2015
5 89 *Perpetuating ‘One Person, One Vote’ Errors*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2697719>
Derek T. Muller
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=464341>
Pepperdine University – School of Law
/Date posted to database: /2 Dec 2015
/Last Revised: /10 Dec 2015
6 79 *The Brave New World of Party Campaign Finance Law*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2674406>
Michael S. Kang
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=535746>
Emory University School of Law
/Date posted to database: /16 Oct 2015
/Last Revised: /21 Oct 2015
7 45 *Realizing the Right to Vote: The Story of Thornburg v. Gingles*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2697007>
Daniel P. Tokaji
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=359247>
Ohio State University (OSU) – Michael E. Moritz College of Law
/Date posted to database: /1 Dec 2015
/Last Revised: /7 Dec 2015
8 31 *True Threats: Voter Intimidation and the Constitution*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2697048>
Daniel P. Tokaji
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=359247>
Ohio State University (OSU) – Michael E. Moritz College of Law
/Date posted to database: /1 Dec 2015
/Last Revised: /1 Dec 2015
9 29 *Assessing the Potential Impact of Evenwel v. Abbott*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2699850>
Carl Eoin Klarner
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2486722>
Independent
/Date posted to database: /7 Dec 2015
/Last Revised: /7 Dec 2015
10 27 *Caste Politics in Indian Politics*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2674178>
Devare Suresh
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2450204>
Kopargaon Taluka Education Society
/Date posted to database: /14 Oct 2015
/Last Revised: /28 Oct 2015
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Posted inpedagogy <http://electionlawblog.org/?cat=23>
Divided NC Supreme Court, on Remand from SCOTUS, Again Rejects
Racial Gerrymandering Claims to NC Redistricting
<http://electionlawblog.org/?p=78460>
Posted onDecember 18, 2015 9:21 am
<http://electionlawblog.org/?p=78460>byRick Hasen
<http://electionlawblog.org/?author=3>
You can find 129 pages of opinionshere
<https://appellate.nccourts.org/opinions/?c=1&pdf=33808>. I expect a
cert. petition.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“As Trump Surges, Adelson Says He Might Sit Out Some Primaries”
<http://electionlawblog.org/?p=78458>
Posted onDecember 18, 2015 9:11 am
<http://electionlawblog.org/?p=78458>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg reports.
<http://www.bloomberg.com/news/articles/2015-12-18/as-trump-surges-adelson-says-he-might-sit-out-some-primaries?cmpid=BBD121815_POL>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Legacy of the IRS Scandal” <http://electionlawblog.org/?p=78456>
Posted onDecember 18, 2015 9:08 am
<http://electionlawblog.org/?p=78456>byRick Hasen
<http://electionlawblog.org/?author=3>
Lloyd Mayer
<http://lawprofessors.typepad.com/nonprofit/2015/12/the-legacy-of-the-irs-scandal.html>:
*Bottom Line.*The IRS continues to pay the price for the scandal in
the form of congressional micromanagement and less funding. Any
hopes of significant IRS enforcement relating to tax-exempt
organizations and political activity are therefore unlikely to come
to fruition in the foreseeable future.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
--
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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