[EL] ELB News and Commentary 12/22/15
Rick Hasen
rhasen at law.uci.edu
Mon Dec 21 08:28:46 PST 2015
“Clinton campaign sweats out data breach damage”
<http://electionlawblog.org/?p=78520>
Posted onDecember 21, 2015 8:25 am
<http://electionlawblog.org/?p=78520>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico:
<http://www.politico.com/story/2015/12/hillary-clinton-bernie-sanders-data-breach-217019>
Accusing your opponent of committing evil and unpardonable crimes is
basic presidential campaign jujitsu. But Hillary’s Clinton’s team is
genuinely jittery about the sneak peek taken by Bernie Sanders
staffers into their secret voter file.
The unauthorized fishing expedition into the database housing the
names and demographic information of voters Clinton plans to target
– which led to the sacking of a top Sanders staffer and the
suspension of two more — has embittered the campaigns against one
another, even if the two principals made nice on the debate stage
Saturday night.
And it’s a source of real and deepening concern for Clinton’s data
and voter targeting teams in Iowa – where Clinton leads by single
digits — and New Hampshire, where she trails neighboring-state Sen.
Sanders by a similar spread.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“How to Block Minority Representation, Yesterday and Today”
<http://electionlawblog.org/?p=78518>
Posted onDecember 21, 2015 8:19 am
<http://electionlawblog.org/?p=78518>byRick Hasen
<http://electionlawblog.org/?author=3>
David Graham
<http://www.theatlantic.com/notes/2015/12/blocking-minority-representation-yesterday-and-today/421407/>at
The Atlantic.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Voting only by mail can decrease turnout. Or increase it. Wait,
what?” <http://electionlawblog.org/?p=78516>
Posted onDecember 21, 2015 8:17 am
<http://electionlawblog.org/?p=78516>byRick Hasen
<http://electionlawblog.org/?author=3>
Elizabeth Bergman
<https://www.washingtonpost.com/news/monkey-cage/wp/2015/12/21/voting-only-by-mail-can-decrease-or-increase-turnout-wait-what/>at
The Monkey Cage.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,election
administration <http://electionlawblog.org/?cat=18>,voting
<http://electionlawblog.org/?cat=31>
“White House surrenders on ‘dark money’ regulation”
<http://electionlawblog.org/?p=78514>
Posted onDecember 21, 2015 8:08 am
<http://electionlawblog.org/?p=78514>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico reports.
<http://www.politico.com/story/2015/12/white-house-dark-money-216956>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Q & A with Anthony Johnstone on Litigating Campaign Finance Cases in
Montana <http://electionlawblog.org/?p=78512>
Posted onDecember 21, 2015 8:03 am
<http://electionlawblog.org/?p=78512>byRick Hasen
<http://electionlawblog.org/?author=3>
Read.
<https://view.publitas.com/umontanalaw/montana-barrister-magazine-fall-2015/page/24-25>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election
law biz <http://electionlawblog.org/?cat=51>
Must Read: Richard Re on “The New Holy Trinity”
<http://electionlawblog.org/?p=78510>
Posted onDecember 21, 2015 8:01 am
<http://electionlawblog.org/?p=78510>byRick Hasen
<http://electionlawblog.org/?author=3>
Back in SeptemberI flagged <http://electionlawblog.org/?p=75752>a
forthcoming article by Richard Re, in The Green Bag. The piece isnow out
<http://www.greenbag.org/v18n4/v18n4_articles_re.pdf>, and it is
brilliant. This is one of those things that you read and you say, “Damn,
why didn’t I think to write that?” If you want to understand the state
of the textualism-purposivism debate over statutory interpretation at
the Supreme Court, this is the place to start.
I used an excerpt of Richard’s piece for a reflection question on my
recent Legislation exam. Here’s the excerpt:
There’s a familiar story about statutory interpretation in the
Supreme Court. Once upon a time, the Court cared primarily about
legislative purpose, even if it defied clear statutory text. But
then Antonin Scalia came to town, became a justice, and laid down a
new law: textualism. Legislative purpose is largely a fiction,
Scalia argued, and even if it were real, text would be the only a
reliable evidence of its content. The era of “New Textualism” had
dawned.
Central to Scalia’s success was his association of purposivism with
a century-old precedent called/Holy Trinity/. Not only did/Holy
Trinity/expressly elevate purpose over text, but it also rested its
purposive reasoning on an objectionable view of law and religion,
noting for instance that “this is a Christian nation.” So if/Holy
Trinity/was right, then a lot of people would rather be wrong. Or so
went the prevailing view. It didn’t happen in a day or a year, but
eventually/Holy Trinity/was overthrown.
Recently, however, [in cases like/King v. Burwell/] purposivism
seems to have evolved and, as a result, to have gotten the upper
hand. Instead of adhering to the New Textualism, the Roberts Court
has repeatedly and visibly embraced what might be called “The New
Holy Trinity.” This approach calls for consideration of non-textual
factors when determining how much clarity is required for a text to
be clear….It rests on attention to three considerations: text,
pragmatism, and purpose.
To some extent, the New Holy Trinity is an extension of previous
doctrinal trends. In the last few years [in cases like/NAMUDNO/],
the Roberts Court has made creative use of the avoidance canon,
which calls for the Court to interpret statutes to avoid asserted
constitutional problems. I myself have written on that trend, as
have others. But we commentators just report the game. We don’t call
the plays. So it should be no surprise that the Roberts Court has
kept ahead of the law reviews. Now, instead of limiting itself to
avoidance, the Court avoids undesirable textual results without
invoking the Constitution at all. Indeed, the Court sometimes seems
to go out of its way to avoid using avoidance in statutory cases.
This apparent methodological shift merits attention….
Interpreters must decide how much textual clarity is necessary to
make a text clear. The New Textualism meets that need through a
rule: legal ambiguity must be discoverable in text alone. By
contrast, the New Holy Trinity would embrace a standard: legal
ambiguity can spring from a mix of text, purpose, and pragmatism.
These two approaches usually arrive at the same place. Most
textualist readings don’t threaten shocking effects or disruptive
consequences.
The text is therefore honored as the best evidence of legislative
goals, even if the result seems unprincipled or unwise. In those
banal cases, a banal textualism reigns supreme. But when a statute’s
central objective is at risk or an otherwise plausible reading leads
to alarming results, believers in the New Holy Trinity hold the text
to a higher-than-normal standard. In those unusual but pivotal
cases, banal textualism stands aside, and a more dynamic mode of
interpretation takes command.
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Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Sanders’s Campaign Says It’s Outpacing Obama’s Record for
Donations” <http://electionlawblog.org/?p=78508>
Posted onDecember 20, 2015 7:24 pm
<http://electionlawblog.org/?p=78508>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/politics/first-draft/2015/12/20/sanderss-campaign-says-its-outpacing-obamas-record-for-donations/>:
Shortly after theDemocratic presidential primary debate
<http://www.nytimes.com/2015/12/20/us/politics/democratic-debate.html>on
Saturday night, Senator Bernie Sanders’s campaign announced that he
had outpaced Barack Obama’s record for the number of contributions
in a presidential race, with more than 2.2 million donations.
Mr. Obama’s record was 2,209,636 donations, according to a release
from Mr. Sanders. Aides to the senator and Democratic presidential
candidate suggested that it happened during the debate Saturday, and
that the average donation during that period was $25 or less.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Hospitality and Gambling Interests Delay Closing of Billion-Dollar
Tax Loophole” <http://electionlawblog.org/?p=78506>
Posted onDecember 20, 2015 5:25 pm
<http://electionlawblog.org/?p=78506>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2015/12/21/us/politics/hospitality-and-gambling-interests-delay-closing-of-dollar1-billion-tax-loophole.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news>:
In the span of a mere 11 days this month, $1 billion in future
federal tax payments vanished.
As congressional leaders were hastily braiding together a tax and
spending bill of more than 2,000 pages, lobbyists swooped in to add
54 words that temporarily preserved a loophole sought by the hotel,
restaurant and gambling industries, along with billionaire Wall
Street investors, that allowed them to put real estate in trusts and
avoid taxes.
They won key support from the top Senate Democrat,Harry Reid
<http://topics.nytimes.com/top/reference/timestopics/people/r/harry_reid/index.html?inline=nyt-per>of
Nevada, who responded to appeals from executives from casino
companies, politically powerful players and huge employers in his
state. And the lobbyists even helped draft the crucial language.
The small changes, and the enormous windfall they generated, show
the power of connected corporate lobbyists to alter a huge bill that
is being put together with little time for lawmakers to consider.
Throughout the legislation, there werethousands of other add-ons
<https://www.documentcloud.org/documents/2649579-Candy-Canes-for-Contractors-in-FY16-Taxibus-1.html>and
hard to decipher tax changes.
Some executives at companies with the most at stake are also big
campaign donors. For example, the family ofDavid Bonderman
<http://topics.nytimes.com/top/reference/timestopics/people/b/david_bonderman/index.html?inline=nyt-per>,
a co-founder of TPG Capital, hasdonated $1.2 million
<https://www.documentcloud.org/documents/2649591-Bonderman-Family-Donations-Pulled-One.html>since
2014 to the Senate Majority PAC, a campaign fund with close ties to
Mr. Reid and other Senate Democrats. TPG Capital has large holdings
inCaesars
<http://www.prnewswire.com/news-releases/caesars-entertainment-operating-co-announces-steps-in-restructuring-300156414.html>Entertainment
<http://www.prnewswire.com/news-releases/caesars-entertainment-operating-co-announces-steps-in-restructuring-300156414.html>and
helps run a Texas-based energy company, both of which stand to
benefit from the last-minute change.
This illustrates a key point about the role of money in politics, and
the role that lobbying plays in that influence especially under
conditions of low salience, which I make in Plutocrats United.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,lobbying
<http://electionlawblog.org/?cat=28>,Plutocrats United
<http://electionlawblog.org/?cat=104>
“Editorial: Poll Workers Needed” <http://electionlawblog.org/?p=78503>
Posted onDecember 20, 2015 2:07 pm
<http://electionlawblog.org/?p=78503>byRick Hasen
<http://electionlawblog.org/?author=3>
Cincinnati Enquirer:
<http://www.cincinnati.com/story/opinion/editorials/2015/12/19/editorial-elections-need-tech-savvy-help/77569568/>
That’s the obvious takeaway from the county Board of Elections’
recentpost-mortem
<http://boe.hamilton-co.org/files/files/Review%20of%20the%20November%203%202015%20General%20Election.pdf>of
the snafu-filled Nov. 3 election.
The board found that 84 percent of its polling stations had problems
on Election Day. Among other issues, many poll workers struggled
with the setup for electronic poll site equipment. Some local high
school seniors assisting at the polls played hero by adroitly
dealing with electronic issues.
Clearly, Hamilton County needs more poll workers comfortable with
troubleshooting a wi-fi router connection. It takes about 2,600
workers to operate the county’s polls on Election Day, and while the
Board of Election has done well making sure polling locations are
staffed, it needs workers who are fluent in using technology.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Donald Trump’s mixing of business and politics makes for an
unorthodox bid for the White House”
<http://electionlawblog.org/?p=78501>
Posted onDecember 20, 2015 2:01 pm
<http://electionlawblog.org/?p=78501>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://www.startribune.com/trump-s-mix-of-business-politics-makes-for-unorthodox-bid/363062761/>:
It can be hard to see where Donald Trump the business ends and
Donald Trump the presidential candidate begins.
When Trump is confronted by his political rivals, the Republican
front-runner’s company attorney threatens lawsuits on corporate
letterhead.
When Trump’s campaign needs event space, private businesses
sometimes provide it free.
The political novice’s use of corporate resources — his own and
others — is just one more campaign tool. But it has drawn the
attention of federal regulators, as well as campaign-law experts who
say some of what he’s doing could be illegal.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Federal Court Decisions Could Impact Wisconsin Voters In 2016, Law
Professor Says” <http://electionlawblog.org/?p=78499>
Posted onDecember 20, 2015 12:46 pm
<http://electionlawblog.org/?p=78499>byRick Hasen
<http://electionlawblog.org/?author=3>
Listen
<http://www.wpr.org/federal-court-decisions-could-impact-wisconsin-voters-2016-law-professor-says>to
my interview on Wisconsin Public Radio’s Central Time.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
DNC Restores Sanders Campaign Access to Data File
<http://electionlawblog.org/?p=78496>
Posted onDecember 18, 2015 9:47 pm
<http://electionlawblog.org/?p=78496>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico
<http://www.politico.com/story/2015/12/sanders-campaign-threatens-to-sue-dnc-216942>:
Late Friday, after discussions with the DNC and a federal judge,
Sanders’ campaign will regain access to the national voter file, a
person close to the situation told POLITICO. The decision came after
hours of negotiations, and it means the campaign will be able to
resume its field organization after hours in limbo. However, the
person added, the Sanders camp would not be dropping its lawsuit
against the DNC because of the resolution.
The discussion with the federal judge is interesting because no TRO
motion was docketed in the electronic system.
This whole episode looks like a miscalculation by someone at the DNC.
Seems like a pretty quick cave afterthe lawsuit
<http://electionlawblog.org/?p=78472>was filed.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
--
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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