[EL] ELB News and Commentary 2/4/15
Rick Hasen
rhasen at law.uci.edu
Wed Feb 4 07:45:19 PST 2015
er Charlotte Mayor Cannon indicted for illegally voting”
<http://electionlawblog.org/?p=70103>
Posted onFebruary 4, 2015 7:43 am
<http://electionlawblog.org/?p=70103>byRick Hasen
<http://electionlawblog.org/?author=3>
WSOC
<http://www.wsoctv.com/news/news/local/former-charlotte-mayor-cannon-indicted-illegally-v/nj3rX/>:
Less than three months after reporting to a federal prison to serve
time on a public corruption charge, former Charlotte Mayor Patrick
Cannon has been indicted for voter fraud.
The new state charge stems from Election Day in November, when
Cannon admits he cast a vote even though his federal bribery
conviction made him ineligible to vote
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Posted inchicanery <http://electionlawblog.org/?cat=12>
“Bayit Yehudi ordered to stop giving out fruit for Tu B’Shvat”
<http://electionlawblog.org/?p=70101>
Posted onFebruary 4, 2015 7:38 am
<http://electionlawblog.org/?p=70101>byRick Hasen
<http://electionlawblog.org/?author=3>
Carob for votes
<http://www.jpost.com/Israel-Elections/Bayit-Yehudi-ordered-to-stop-giving-out-fruit-for-Tu-BShvat-389946>?
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Posted invote buying <http://electionlawblog.org/?cat=43>
“Bundling Campaign Contributions Is Legal, but Carries Risks | A
Question of Ethics” <http://electionlawblog.org/?p=70099>
Posted onFebruary 4, 2015 7:28 am
<http://electionlawblog.org/?p=70099>byRick Hasen
<http://electionlawblog.org/?author=3>
Roll Call reports.
<http://blogs.rollcall.com/beltway-insiders/harvey-whittemore-bundling-campaign-contributions/?dcz=>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Democrats Learn to Love the Filibuster”
<http://electionlawblog.org/?p=70097>
Posted onFebruary 4, 2015 7:26 am
<http://electionlawblog.org/?p=70097>byRick Hasen
<http://electionlawblog.org/?author=3>
The more things change
<http://www.politico.com/story/2015/02/senate-democrats-filibuster-114888.html?hp=lc1_4>….
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Posted inlegislation and legislatures
<http://electionlawblog.org/?cat=27>,political polarization
<http://electionlawblog.org/?cat=68>
“Scott Walker works to harness national donor network for White
House run” <http://electionlawblog.org/?p=70095>
Posted onFebruary 4, 2015 7:25 am
<http://electionlawblog.org/?p=70095>byRick Hasen
<http://electionlawblog.org/?author=3>
Interesting Matea Gold report
<http://www.washingtonpost.com/politics/scott-walker-works-to-harness-national-donor-network-for-white-house-run/2015/02/04/44c0ee96-ab5c-11e4-abe8-e1ef60ca26de_story.html>for
WaPo.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“These 5 states could be next to pass voter ID”
<http://electionlawblog.org/?p=70093>
Posted onFebruary 4, 2015 7:23 am
<http://electionlawblog.org/?p=70093>byRick Hasen
<http://electionlawblog.org/?author=3>
Zack Roth reports
<http://www.msnbc.com/msnbc/states-could-be-next-pass-voter-id>for
MSNBC.Chapin comments
<http://blog.lib.umn.edu/cspg/electionacademy/2015/02/msnbcs_quick_5-state_voter_id.php>.
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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>
“Lou Correa asks for recount after losing by 43 votes to Andrew Do
in county Board of Supervisors election”
<http://electionlawblog.org/?p=70091>
Posted onFebruary 4, 2015 7:20 am
<http://electionlawblog.org/?p=70091>byRick Hasen
<http://electionlawblog.org/?author=3>
OC Register
<http://www.ocregister.com/articles/recount-650001-reports-seeks.html>:
During the observation of provisional ballots last week, Correa said
that his lawyers found several questionable occurrences, including
“provisional ballots being counted even though they were not signed
by the voter; ballots cast by voters who appeared to have attempted
to vote more than once; and voters who claimed to have moved into
the First Supervisorial District just prior to the election without
actually re-registering at their supposed new address.”
Correa added that a “recount will allow us to investigate and
determine the scope of these and any other irregularities, to
analyze whether they might have affected the outcome of the
election, and to decide whether further action is warranted, either
in the form of a judicial action or the District Attorney’s
investigation.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,recounts
<http://electionlawblog.org/?cat=50>
You Won’t Want to Miss This Event on Corruption at Fordham—Preet
Bharara Is the Keynote <http://electionlawblog.org/?p=70089>
Posted onFebruary 3, 2015 5:43 pm
<http://electionlawblog.org/?p=70089>byRick Hasen
<http://electionlawblog.org/?author=3>
This was set
up<http://fordhamlawreview.org/articles/strong-fighting-corruption-in-america-and-abroad-em-fordham-law-review-em-symposium-2015-strong>before
the Silver indictment, but wow great timing. Looking forward to
participating.
*Fighting Corruption in America and Abroad*
Friday, March 6, 2015
Fordham University School of law
Skadden Conference Center
150 West 62nd Street
9:00 a.m.—4:30 p.m.
*For full schedule and registration:*
law.fordham.edu/corruption <http://law.fordham.edu/corruption>
This full-day symposium will focus on defining corruption and
initiatives to regulate it within the United States, internationally,
and in foreign countries. The symposium will include a keynote address
delivered by Preet Bharara, U.S. Attorney for the Southern District of
New York, and four panel discussions among legal academics, prosecutors,
defense lawyers, economists, and political philosophers.
/Keynote address:/
*Preet Bharara*, U.S. Attorney for the Southern District of New York
/Panels and confirmed participants:/
*What is corruption?—How Should We Define It, and Why Is It Bad? *
*Richard L. Hasen*, Chancellor’s Professor of Law and Political Science,
University of California Irvine School of Law
*M. Todd Henderson*, Micheal J. Marks Professor of Law and Aaron
Director Teaching Scholar, University of Chicago Law School
*Lawrence Lessig*, Roy L. Furman Professor of Law, Faculty Director,
Edmond J. Safra Center for Ethics, Harvard University
*Zephyr Teachout*, Associate Professor of Law, Fordham University School
of Law
*Landmark Domestic Bribery Prosecutions*
*Albert Alschuler*, Professor of Law, Northwestern University; Julius
Kreeger Professor Emeritus of Law and Criminology, University of Chicago
*Joon Kim*, Director, Criminal Division, U.S. Attorney’s Office,
Southern District of New York
*Susan Lerner*, Executive Director, Common Cause New York
*Corruption Regulation in Practice via the Foreign Corrupt Practices Act*
*Lanny Breuer*, Partner, Covington & Burling LLP
*Jay Holtmeier*, Partner, Wilmer Cutler Pickering Hale and Dorr LLP
*Mike Koehler*, Assistant Professor of Law, Southern Illinois University
School of Law
*Lucinda Low*, Partner, Steptoe & Johnson LLP
*The Political Economy of Global Corruption Regulation*
*Thomas Lee*, Leitner Family Professor of International Law and Director
of Graduate and International Studies, Fordham University School of Law
*Jeffrey Sachs*, Director of The Earth Institute, Quetelet Professor of
Sustainable Development, and Professor of Health Policy and Management
at Columbia University
*Laura Underkuffler*, Associate Dean for Academic Affairs and J. DuPratt
White Professor of Law, Cornell University Law School
*This program is free and open to the public.*
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Posted inbribery <http://electionlawblog.org/?cat=54>,campaign finance
<http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,chicanery
<http://electionlawblog.org/?cat=12>,conflict of interest laws
<http://electionlawblog.org/?cat=20>
“Say no to look-the-other-way election, ethics board”
<http://electionlawblog.org/?p=70087>
Posted onFebruary 3, 2015 11:38 am
<http://electionlawblog.org/?p=70087>byRick Hasen
<http://electionlawblog.org/?author=3>
Editorial
<http://www.beloitdailynews.com/opinion/say-no-to-look-the-other-way-election-ethics-board/article_394dd630-a8fc-11e4-8bc4-0fa1e7584d47.html>from
the Beloit Daily News (WI).
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,ethics
investigations <http://electionlawblog.org/?cat=42>
“IRS Chief: I Don’t Want to Be Seen As Influencing 2016″
<http://electionlawblog.org/?p=70085>
Posted onFebruary 3, 2015 11:35 am
<http://electionlawblog.org/?p=70085>byRick Hasen
<http://electionlawblog.org/?author=3>
More Dark Money Cometh.
<http://www.bloomberg.com/politics/articles/2015-02-03/irs-chief-i-don-t-want-to-be-seen-as-influencing-2016>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Democrats open new front in voting wars in Oregon”
<http://electionlawblog.org/?p=70083>
Posted onFebruary 3, 2015 11:32 am
<http://electionlawblog.org/?p=70083>byRick Hasen
<http://electionlawblog.org/?author=3>
Reid Wilson
<http://www.washingtonpost.com/blogs/govbeat/wp/2015/02/03/democrats-open-new-front-in-voting-wars-in-oregon/>for
WaPo.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
NYT Study in Contrasts: #SCOTUS Criticism of Unpublished Appellate
Decisions vs. The Supreme Court’s “Shadow Docket”
<http://electionlawblog.org/?p=70078>
Posted onFebruary 3, 2015 8:07 am
<http://electionlawblog.org/?p=70078>byRick Hasen
<http://electionlawblog.org/?author=3>
Today’s NY Times brought us bothAdam Liptak’s Sidebar colum
<http://www.nytimes.com/2015/02/03/us/justice-clarence-thomas-court-decisions-that-set-no-precedent.html?ref=politics>n
in which Supreme Court Justices have been criticizing lower federal
appellate courts for issuing “unpublished” opinions which lack the force
of precedent in the jurisdiction, andWill Baude’s oped
<http://www.nytimes.com/2015/02/03/opinion/the-supreme-courts-secret-decisions.html?_r=0> on
the Supreme Court’s “shadow docket” in which it decides cases without
issuing opinions (Will graciously discusses my “Purcell Principl
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>e” paper in
his piece, commenting that “Richard L. Hasen, an authority on election
law, has argued
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>that there
is a common legal thread in these decisions, but the court could have
explained its own reasoning rather than leaving it to him to surmise
what it did.”).
There is a common thread in both of these practices: fear that issuing a
precedential decision (rather than a bare order, or non-precedential
decision) will cause more harm than it benefits all of us to learn the
courts’ reasoning. Here’s Judge Kozinski of the 9th Circuit explaining
the practice of issuing unpublished decisions:
“We simply do not have the time to shape and edit unpublished
dispositions to make them safe as precedent,” Judge Alex Kozinski of
the Ninth Circuit explained
<http://www.nonpublication.com/kozinskiletter.pdf>in 2004. “In other
words, we can make sure that a disposition reaches the correct
result and adequately explains to the parties why they won or lost,
but we don’t have the time to consider how the language of the
disposition might be construed (or misconstrued) when applied to
future cases.”
I think given the workload of the lower courts this is a defensible
position to take. But the Court’s docket is much smaller. And in the
Purcell principle paper I urge the Court to issue opinions in its
emergency election law cases (and other emergency cases) later, when the
Court has more time to work through its decisions. It could even order
supplemental briefing. The stakes at the Supreme Court are higher, and
the guidance more sorely needed on a national basis.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
New Appeal in Texas Redistricting Case
<http://electionlawblog.org/?p=70074>
Posted onFebruary 3, 2015 7:56 am
<http://electionlawblog.org/?p=70074>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release via email:
Yesterday, on behalf of two Texas voters, the Project on Fair
Representationfiled a jurisdictional statement
<http://electionlawblog.org/wp-content/uploads/POFR-Evenwel-Evenwel-Jurisdictional-StatementFeb22015.pdf>with
the U. S. Supreme Court in/Evenwel v. Abbott/, a voting rights case.
At issue is the constitutionality of the Texas Senate redistricting
plan which created thirty-one Texas Senate districts with roughly
equal total population but with huge disparities in eligible voters.
The plaintiffs, both of whom reside in districts significantly
overpopulated with eligible voters as compared to other districts in
the same plan, brought this action alleging that the plan violated
the one-person, one-vote principle of the Fourteenth Amendment
under/Reynolds v. Sims/. Because of the overpopulation of eligible
voters in the plaintiff’s districts, the weight of their vote is
worth significantly less than those voters who reside in districts
that are under-populated with eligible voters. The petition notes
that the deviation between eligible voters in some Texas Senate
districts approaches 50 percent.
The plan was challenged in 2014. Today’s filing is a direct appeal
from a three-judge district court’s decision that held that the
plaintiff’s constitutional challenge is a judicially unreviewable
political question.
Edward Blum, president of the Project on Fair Representation, a
not-for-profit legal defense foundation that provided counsel to the
voters, said, “This case presents the Supreme Court with the
opportunity to clarify whether a jurisdiction can create voting
districts that result in the underrepresentation of eligible voters
and the overrepresentation of non-eligible voters.”
The petition highlights the undisputed fact that that based on
Texas’s own data, the state could have created districts equalizing
total population/and/voter population to a significant degree.
Blum continued, “For the constitutional doctrine of ‘one person, one
vote’ to have any meaning, some metric of voters rather than
non-voters must be the basis for creating legislative districts when
conditions like those in Texas exist.”
Founded in 2005, the Project on Fair Representation has provided
counsel in a number of cases heard by the U.S. Supreme Court
including/Shelby Co. Ala. v. Holder/and/Abigail Fisher v. Univ. of
Texas/.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Sheldon Silver and the Lawyers of New York”
<http://electionlawblog.org/?p=70072>
Posted onFebruary 3, 2015 7:53 am
<http://electionlawblog.org/?p=70072>byRick Hasen
<http://electionlawblog.org/?author=3>
Read Jeff Toobin.
<http://www.newyorker.com/news/daily-comment/sheldon-silver-lawyers-new-york?mbid=social_twitter>
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Posted inbribery <http://electionlawblog.org/?cat=54>,chicanery
<http://electionlawblog.org/?cat=12>
“Dire predictions about Citizens United prove false”
<http://electionlawblog.org/?p=70070>
Posted onFebruary 3, 2015 7:51 am
<http://electionlawblog.org/?p=70070>byRick Hasen
<http://electionlawblog.org/?author=3>
Scott
Blackburn<http://www.washingtontimes.com/news/2015/jan/29/scott-blackburn-dire-predictions-about-citizens-un/>Washington
Times oped.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“The Fall and Rise of Specialized Federal Constitutional Courts”
<http://electionlawblog.org/?p=70068>
Posted onFebruary 3, 2015 7:29 am
<http://electionlawblog.org/?p=70068>byRick Hasen
<http://electionlawblog.org/?author=3>
The final version of Michael Solimine’svery important article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2272627>(/University
of Pennsylvania Journal of Constitutional Law). /Here is the abstract:
Most constitutional challenges in federal court to federal statutes
are litigated in the familiar pattern of a decision by a single U.S.
District judge, followed by an appeal to a three-judge panel of one
of the U.S. Court of Appeals, followed by the filing of a writ of
certiorari in the U.S. Supreme Court, which has discretion to grant
or deny the writ. Sometimes, however, Congress requires a separate
path for constitutional challenges to particular federal statutes,
with the frequent challenges to provisions of the Bipartisan
Campaign Reform Act, such as in Citizens United v. FEC (2010), being
a notable example. These provisions often provide for the convening
of a three-judge district court, usually in the District of
Columbia, followed by an ostensibly mandatory appeal to the Supreme
Court. They often also permit members of Congress to bring or
intervene in such actions, and mandate that the federal courts
decide the cases in an expeditious manner. All of these
characteristics are absent from the typical challenge to federal
statutes.
These atypical jurisdictional provisions in effect establish
specialized if temporary federal courts to rule on constitutional
issues. The causes and consequences of specialized federal
constitutional courts are an understudied phenomenon in the
scholarly literature, a gap filled by this article. The article
first summarizes the history of the three-judge district court,
founded to consider all constitutional challenges to federal
statutes, from its establishment in 1937 to its repeal in 1976. It
next documents the instances when Congress has subsequently created
such courts on a statute-specific basis, and addresses the
rationales advanced in the legislative history, namely, uncertainty
over a statute’s constitutionality, and the asserted need to
promptly resolve that issue. The article then subjects the partial
revival of such courts to critical examination. It argues that a
complex and sometimes inconsistent set of reasons, including but not
limited to Congressional abdication of constitutional deliberation
to the judicial branch, explains the ad hoc adoption of these
statutes. The article argues that other provisions of these laws,
such as mandating venue in the District of Columbia or expeditious
treatment, are unnecessary. Finally, it contends that cases
litigated before these courts have a possibly deleterious impact on
the quality of decisions in the Supreme Court. The article concludes
that Congress should not pass these statutes and rather permit all
constitutional litigation to proceed in a uniform manner.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Wisocnsin Right to Life: Lauds federal court decision on free
speech” <http://electionlawblog.org/?p=70066>
Posted onFebruary 3, 2015 7:26 am
<http://electionlawblog.org/?p=70066>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release. <http://wispolitics.com/index.iml?Article=341139>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Of Constituents and Contributors” <http://electionlawblog.org/?p=70064>
Posted onFebruary 3, 2015 7:23 am
<http://electionlawblog.org/?p=70064>byRick Hasen
<http://electionlawblog.org/?author=3>
Richard Briffault has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2553456>on SSRN
(forthcoming, /University of Chicago Legal Forum/). Here is the abstract:
In the stirring conclusion to his opinion in McCutcheon v. FEC,
Chief Justice Roberts pointed to the close connection between
campaign contributions and what he called the “political
responsiveness at the heart of the democratic process.” Invoking
Edmund Burke, the Chief Justice eloquently declaimed that
“[c]onstituents have the right to support candidates who share their
views and concerns. Representatives…can be expected to be cognizant
of and responsive to those concerns. Such responsiveness is key to
the concept of self-governance.”
The Chief Justice’s emphasis on the representative-constituent
relationship jarring, however, as McCutcheon addressed the effort of
an individual to contribute to candidates in multiple states and
congressional districts in which he was not a constituent. Shaun
McCutcheon had made substantial contributions to out-of-state Senate
candidates in two states and House candidates in thirteen different
districts. He wanted to make additional large contributions in two
more Senate races and in House contests in seven states –
contributions barred by the federal aggregate contribution limit he
then challenged. His victory promises to facilitate out-of-district
and out-of-state donations. In practice, a donor could not reach the
aggregate cap on candidate donations without giving to candidates
outside the donor’s own constituency. By striking down the aggregate
limits, McCutcheon directly promotes contributions by non-constituents.
The Chief Justice is surely right that campaign contributions are a
way to make officeholders “responsive.” But as Shaun McCutcheon’s
donations and intended donations demonstrate, constituents and
contributors are not the same people. Making elected representatives
more responsive to contributors will not make them more responsive
to their constituents.
This article explores some aspects of the constituent-contributor
relationship. It finds that non-constituents provide the bulk of
itemized individual contributions in contemporary congressional
races and play a large part in financing many state and local
elections, too. In effect, contributors, including outsiders, have
become another constituency for our elected representatives. This
creates important tensions for the American system of
territorially-based representation based on residents voting in
state, local and district elections, as contributors and
constituents can have very different interests and concerns. To be
sure, with the growing nationalization and partisanship of
elections, outsiders may have a strong subjective interest in a
state or local race in a distant jurisdiction even if, objectively,
they are not governed by the results. But outsider financing
inevitably complicates the responsiveness of elected representatives
to the electoral constituents they are supposed to represent.
A few jurisdictions have tried to reduce the role of outside money
in state and local elections. State limits on outsider contributions
have been generally, albeit not uniformly, struck down and are
almost certainly unconstitutional. However, state and local public
financing systems that make candidate eligibility for public funds
contingent on raising small donations from constituents are a
constitutional means of ameliorating the impact of outside money.
The Chief Justice’s peroration is striking in going beyond the free
speech argument – the McCutcheon’s right to use money to speak to
candidates – which has been central to the current Supreme Court’s
critique of campaign finance restrictions and makes the case for
relaxing contribution limits in terms of the responsiveness of
elected officials to donors. The argument that contributions affect
the responsiveness of elected officials is more commonly a position
taken by critics of the role of large campaign contributions in our
system not supporters. Not only does the Chief Justice’s contention
that striking down the aggregate limits will promote accountability
to a representative’s constituency fail to persuade, it actually
underscores exactly what many people find troubling about our
campaign finance system. To the extent large donations make
representatives more attentive to their donors, they undermine the
very responsiveness to the electoral constituency which the Chief
Justice celebrates as “key to the concept of self-governance.” The
Chief Justice tried to add self-government to free speech in making
the case against campaign finance regulation, but an examination of
the constituency-contribution relationship to which his rhetoric
calls attention actually demonstrates the tension between the
Court’s program of campaign finance deregulation and democratic
self-government.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Oregon Moving Toward ‘Automatic’ Voter Registration”
<http://electionlawblog.org/?p=70062>
Posted onFebruary 3, 2015 7:16 am
<http://electionlawblog.org/?p=70062>byRick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog.
<http://blog.lib.umn.edu/cspg/electionacademy/2015/02/oregon_moving_toward_automatic.php>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voter registration
<http://electionlawblog.org/?cat=37>
--
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
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http://electionlawblog.org
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