[EL] Jon Stewart & Secret Coordination? :-)

Thu Jul 30 09:59:41 PDT 2015

Undisclosed coordination and unlimited media corporate money? Should disclosure be mandated, or coordination be banned?(Tongue only partly in cheek, given revolving door between presidential political operations and news organizations.) Perhaps this wasn't election-related, and he did form a separate (?) super-PAC, right?

In a more serious vein (given that politics is a blood sport), should corporate media get a (press) pass? Is the Austin media distinction (rejected in Citizens United) justifiable under the First Amendment?

http://thehill.com/blogs/blog-briefing-room/249768-jon-stewart-opens-up-on-secret-white-house-visits

http://www.politico.com/agenda/story/2015/07/jon-stewarts-secret-white-house-visits-000178

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Jul 30, 2015, at 7:26 AM, "Rick Hasen" <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:

“Federal voting rights trial expected to end today”<http://electionlawblog.org/?p=74710>
Posted on July 30, 2015 7:19 am<http://electionlawblog.org/?p=74710> by Rick Hasen<http://electionlawblog.org/?author=3>

Winston-Salem Journal<http://www.journalnow.com/news/federal-voting-rights-trial-expected-to-end-today/article_4aa3da94-36c1-11e5-a591-13c3cb1f8eaf.html> (which commendably has been covering every day of the trial):

After nearly three weeks, a federal trial on North Carolina’s election law is wrapping up, with closing arguments to begin either late this morning or early afternoon.

The trial has been closely watched in North Carolina and nationally. Critics have described House Bill 589 as the most sweeping change in election laws since the U.S. Supreme Court in June 2013 invalidated Section 5 of the Voting Rights Act of 1965. Section 5 required 40 counties in North Carolina and several other states to seek federal approval for election law changes. House Bill 589 was signed into law a little more than a month after the U.S. Supreme Court ruling.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74710&title=%E2%80%9CFederal%20voting%20rights%20trial%20expected%20to%20end%20today%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Symposium: Misguided hysteria over Evenwel v. Abbott”<http://electionlawblog.org/?p=74708>
Posted on July 30, 2015 7:17 am<http://electionlawblog.org/?p=74708> by Rick Hasen<http://electionlawblog.org/?author=3>

Rick Pildes <http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott/> on Evenwel at SCOTUSBlog.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74708&title=%E2%80%9CSymposium%3A%20Misguided%20hysteria%20over%20Evenwel%20v.%20Abbott%E2%80%9D&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>, voting<http://electionlawblog.org/?cat=31>
Justice Ginsburg Speaks on Citizens United, Arizona Redistricting<http://electionlawblog.org/?p=74706>
Posted on July 30, 2015 7:15 am<http://electionlawblog.org/?p=74706> by Rick Hasen<http://electionlawblog.org/?author=3>

The Justice spoke at Duke. She said this about Citizens United (via Adam Liptak<http://www.nytimes.com/politics/first-draft/2015/07/30/today-in-politics-polls-keep-bolstering-a-trump-seemingly-impervious-to-scrubbing/?_r=0#post-mb-5>):

The court’s worst blunder, she said, was its 2010 decision in Citizens United “because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

And she said this about the recent Arizona redistricting decision (via HuffPo<http://www.huffingtonpost.com/entry/ruth-bader-ginsburg-tk_55b97c68e4b0b8499b18536b>):

The words in the Arizona case were “the legislature thereof.” What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, “No, the only way you could make law that counts for this purpose is by the legislature thereof.” We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, “That’s lawmaking.” What we had in mind is who makes the law for the state. Otherwise you’d freeze things as they existed, it would allow no room for affirmative development, no room for the voice of the people, which is what the initiative did.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74706&title=Justice%20Ginsburg%20Speaks%20on%20Citizens%20United%2C%20Arizona%20Redistricting&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Elections Clause<http://electionlawblog.org/?cat=70>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Maryland Democratic Senate Primary Erupts Over Citizens United”<http://electionlawblog.org/?p=74704>
Posted on July 30, 2015 7:08 am<http://electionlawblog.org/?p=74704> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Blumenthal reports<http://www.huffingtonpost.com/entry/maryland-senate-campaign-finance_55b812eae4b0074ba5a6b83e> for HuffPo.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74704&title=%E2%80%9CMaryland%20Democratic%20Senate%20Primary%20Erupts%20Over%20Citizens%20United%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“‘Dark money': ALEC wants image makeover”<http://electionlawblog.org/?p=74702>
Posted on July 30, 2015 7:07 am<http://electionlawblog.org/?p=74702> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico reports.<http://www.politico.com/story/2015/07/alec-koch-brothers-dark-money-anonymous-donation-120784.html>

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74702&title=%E2%80%9C%E2%80%98Dark%20money%27%3A%20ALEC%20wants%20image%20makeover%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“FVAP Releases 2014 Post-Election Report To Congress”<http://electionlawblog.org/?p=74700>
Posted on July 30, 2015 7:02 am<http://electionlawblog.org/?p=74700> by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog.<http://editions.lib.umn.edu/electionacademy/2015/07/30/fvap-releases-2014-post-election-report-to-congress/>

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74700&title=%E2%80%9CFVAP%20Releases%202014%20Post-Election%20Report%20To%20Congress%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, military voting<http://electionlawblog.org/?cat=48>
“Billionaire Donors Bypass K Street”<http://electionlawblog.org/?p=74698>
Posted on July 29, 2015 4:46 pm<http://electionlawblog.org/?p=74698> by Rick Hasen<http://electionlawblog.org/?author=3>

Roll Call reports.<http://www.rollcall.com/news/billionaire_donors_bypass_k_street-243086-1.html>

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74698&title=%E2%80%9CBillionaire%20Donors%20Bypass%20K%20Street%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, lobbying<http://electionlawblog.org/?cat=28>
“Judge threatens IRS chief with contempt”<http://electionlawblog.org/?p=74696>
Posted on July 29, 2015 4:39 pm<http://electionlawblog.org/?p=74696> by Rick Hasen<http://electionlawblog.org/?author=3>

McClatchy<http://www.mcclatchydc.com/news/nation-world/national/article29422690.html>:

A federal judge has threatened to hold the commissioner of the Internal Revenue Service in contempt of court.

The threat came Wednesday from U.S. District Court Judge Emmet Sullivan, who has been presiding over a lawsuit by the conservative group Judicial Watch and its request that the Internal Revenue Service release the emails of Lois Lerner. She headed the IRS’s Exempt Organizations division.

Sullivan ordered a status hearing Wednesday after Judicial Watch complained his earlier orders were not being followed by the Justice Department, which is defending the IRS.

Read more here: http://www.mcclatchydc.com/news/nation-world/national/article29422690.html#storylink=cpy
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
“Fattah Buttonholed Obama Directly, According to Indictment”<http://electionlawblog.org/?p=74694>
Posted on July 29, 2015 4:19 pm<http://electionlawblog.org/?p=74694> by Rick Hasen<http://electionlawblog.org/?author=3>

Roll Call:<http://blogs.rollcall.com/white-house/chaka-fattah-case-connects-to-white-house/>

The Department of Justice’s indictment of Rep. Chaka Fattah<http://www.rollcall.com/members/409.html> alleges Fattah’s quid-pro-quo scheme included an in-person effort to get President Barack Obama to give a lobbyist an ambassadorship.

Fattah, a powerful Pennsylvania Democrat, is a longtime ally of the president’s and a frequent visitor to the White House.

But according to the indictment, Fattah abused his relationship with the president and his staff and tried to get the lobbyist a nomination, first as an ambassador and later as a member of “a federal trade commission.”

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74694&title=%E2%80%9CFattah%20Buttonholed%20Obama%20Directly%2C%20According%20to%20Indictment%E2%80%9D&description=>
Posted in bribery<http://electionlawblog.org/?cat=54>, chicanery<http://electionlawblog.org/?cat=12>
ABA Law Blawg 100 Nominations Now Open<http://electionlawblog.org/?p=74692>
Posted on July 29, 2015 3:54 pm<http://electionlawblog.org/?p=74692> by Rick Hasen<http://electionlawblog.org/?author=3>

Nominate your favorite law blog at this link.<http://www.abajournal.com/blawgs/blawg100_submit/>

(Aug. 16 deadline.)

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74692&title=ABA%20Law%20Blawg%20100%20Nominations%20Now%20Open&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“The Fight for American Voting Rights: Inside Ari Berman’s New Book”<http://electionlawblog.org/?p=74690>
Posted on July 29, 2015 3:41 pm<http://electionlawblog.org/?p=74690> by Rick Hasen<http://electionlawblog.org/?author=3>

Rolling Stone interview.<http://www.rollingstone.com/politics/news/the-fight-for-american-voting-rights-inside-ari-bermans-new-book-20150729>

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74690&title=%E2%80%9CThe%20Fight%20for%20American%20Voting%20Rights%3A%20Inside%20Ari%20Berman%E2%80%99s%20New%20Book%E2%80%9D&description=>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“State elections director: 31 cases of alleged voter fraud referred to county prosecutors”<http://electionlawblog.org/?p=74688>
Posted on July 29, 2015 1:00 pm<http://electionlawblog.org/?p=74688> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<http://www.journalnow.com/news/local/state-elections-director-cases-of-alleged-voter-fraud-referred-to/article_e55e598e-361b-11e5-8184-e3f7df261e9d.html> from the NC voting trial.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74688&title=%E2%80%9CState%20elections%20director%3A%2031%20cases%20of%20alleged%20voter%20fraud%20referred%20to%20county%20prosecutors%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
“Inside the Koch network’s plan to create a permanent ground force”<http://electionlawblog.org/?p=74686>
Posted on July 29, 2015 12:57 pm<http://electionlawblog.org/?p=74686> by Rick Hasen<http://electionlawblog.org/?author=3>

Matea Gold<http://www.washingtonpost.com/politics/inside-the-koch-networks-plan-to-create-a-permanent-ground-force/2015/07/29/712eb650-35ec-11e5-b673-1df005a0fb28_story.html?postshare=8551438198971703> for WaPo.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74686&title=%E2%80%9CInside%20the%20Koch%20network%E2%80%99s%20plan%20to%20create%20a%20permanent%20ground%20force%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
An Academic Elegy<http://electionlawblog.org/?p=74682>
Posted on July 29, 2015 10:53 am<http://electionlawblog.org/?p=74682> by Heather Gerken<http://electionlawblog.org/?author=6>

Guy-Urïel Charles and Luis Fuentes-Rohwer, have a new piece<http://ilr.law.uiowa.edu/files/ilr.law.uiowa.edu/files/Gerken.pdf> in the Iowa Law Review. I offered a commentary, here<http://ilr.law.uiowa.edu/files/ilr.law.uiowa.edu/files/Gerken.pdf>. Just to give you a flavor for the piece is, here’s a brief excerpt from my introduction, which offers a rough summary of their argument:

It feels like a moment. I know I’m supposed to analyze this piece from a purely academic perspective, but first I want to mark the occasion. Guy-Urïel Charles and Luis Fuentes-Rohwer, two of the most astute commentators on the intersection of election law and civil rights, think it’s time to give up on Section 5 of the Voting Rights Act (“VRA”), perhaps it’s even time to give up on the civil-rights paradigm altogether. When I assigned this paper to my class, one of the students said that she realized it’s time for her to start mourning the Voting Rights Act because it’s never coming back.

For me<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/supreme_court_and_the_voting_rights_act_goodbye_to_section_5.html>, the mourning process began when Shelby County v. Holder came down. But until I’d read “The Voting Rights Act in Winter: The Death of a Superstatute,” I’d been a naïve cynic (or a cynical naïf). I’d hoped that I wasn’t being hopeful enough. But when the always-wise and ever-optimistic Guy Charles—the academic who insisted<http://electionlawblog.org/archives/005622.html> in 2006 that the civil-rights community should reject the renewal act and try for better—tells us that something’s over, it’s probably over. When the duo that valiantly tried to lay the groundwork for rebuilding Section 5 tells you it’s time to chart a different course, it’s probably time to chart a different course.

None of this will be easy to hear if you still subscribe to the political consensus that animated the Voting Rights Act, if you believe that Section 5 was the crown jewel of the VRA, if you think that we still need an administrative alternative to costly litigation for race-based voting claims. Now feels like an especially hard time to hear that we must set aside the race-discrimination model given how large Ferguson and Garner loom. Which is why it takes a certain kind of courage to write what Charles and Fuentes-Rohwer have written here. If you think it’s hard to hear these things, just imagine how hard it is to write them, at least for people who haven’t spent their careers playing the studied contrarian.

Academic pieces are strange creatures, and they aren’t well suited for elegies. Yet this feels like one to me. Academics are strange creatures themselves. Perhaps, then, it’s not surprising that an elegy by two scholars would come in the form this one does: the systematic, clear-eyed, and relentless documenting of the death of a superstatute. It feels like the scholarly equivalent of a doctor calling it when the patient’s heart has stopped.

Perhaps because this is an elegy wrapped in a piece of scholarship, some readers will offer the conventional academic critique and say that there are really two articles here. The first half of the Article charts the death of a superstatute, and the second imagines a new future for voting rights.

At first glance, the two subjects seem unrelated. The first half enters into a conversation (carried on mostly by my colleagues at Yale) about what Ernie Young has called “the constitution outside the Constitution” — those sturdy, stable programs and principles that constitute our society even if they are not enshrined in our Constitution’s text. The death of a superstatute is an understudied topic precisely because superstatutes aren’t supposed to die. The second half of the Article, meanwhile, continues a conversation that the field of election law had been having ever since the oral argument in Northwest Austin Municipal District No. 1 v. Holder (“NAMUDNO”), one that is more pragmatically focused on identifying a framework for resolving elections claims. That conversation is not nearly as wide-ranging or theoretically oriented as the one on superstatutes. Election law scholars, after all, are trying to come up with a regulatory scheme at the intersection of what Congress can pass and what the Court can accept, and it may well be a null set. These are different conversations, and it’s no wonder that the two halves of the Article read so differently.

While I have something to say about each part of the Article, I think the two pieces are much more closely related than that. To be sure, the effort to chart the death of a superstatute is interesting standing alone and generates its own cache of insights, as I note below. But this argument serves a larger purpose here: It reminds you how much work it takes to maintain a superstatute in the first place. Those who resist the premise of the second half of the Article—that it’s time to chart a new course—must first grapple with the truths in the first half of the Article. As the authors show, it was a huge lift to get three branches of government to work in conjunction with one another to support Section 5. For those who think that all we need is a fifth vote on the Supreme Court to restore Section 5 to her old glory, Charles and Fuentes-Rohwer remind us just how many times the Court and Congress and the Executive Branch had to bend over backwards not just to keep the old girl alive, but to maintain Section 5 as a vibrant regulatory framework. This analysis will be sobering to those who want to cast Shelby County simply as a 5–4 ruling rather than part of a political sea change. Indeed, the first half of the Article makes clear just how far these tides have receded. While the two halves of the Article are quite different, then, they plainly work in tandem and deepen the authors’ argument along almost every dimension.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74682&title=An%20Academic%20Elegy&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, election law and constitutional law<http://electionlawblog.org/?cat=55>, guest blogging election law scholarship<http://electionlawblog.org/?cat=64>, Uncategorized<http://electionlawblog.org/?cat=1>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Tagged Section 5<http://electionlawblog.org/?tag=section-5>, super statute<http://electionlawblog.org/?tag=super-statute>, Voting Rights Act<http://electionlawblog.org/?tag=voting-rights-act>
“Internet Voting: Creeping Our Way?”<http://electionlawblog.org/?p=74680>
Posted on July 29, 2015 8:17 am<http://electionlawblog.org/?p=74680> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s the lead story in the latest NCSL’s The Canvass.<http://www.ncsl.org/research/elections-and-campaigns/states-and-election-reform-the-canvass-july-2015.aspx>

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Posted in election administration<http://electionlawblog.org/?cat=18>, internet voting<http://electionlawblog.org/?cat=49>
“The Perversion of the American Presidency”<http://electionlawblog.org/?p=74678>
Posted on July 29, 2015 8:15 am<http://electionlawblog.org/?p=74678> by Rick Hasen<http://electionlawblog.org/?author=3>

Fred Wertheimer writes<http://www.huffingtonpost.com/fred-wertheimer/the-perversion-of-the-ame_b_7890330.html>.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74678&title=%E2%80%9CThe%20Perversion%20of%20the%20American%20Presidency%E2%80%9D&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Va. Republicans reject McAuliffe’s request for redistricting meeting”<http://electionlawblog.org/?p=74676>
Posted on July 29, 2015 8:15 am<http://electionlawblog.org/?p=74676> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo<http://www.washingtonpost.com/local/virginia-politics/va-republicans-reject-mcauliffes-request-for-redistricting-meeting/2015/07/28/d7bec32c-3571-11e5-8e66-07b4603ec92a_story.html?postshare=131438182684126>:

Republican leaders of Virginia General Assembly on Tuesday rebuffed an effort by Gov. Terry McAuliffe to strike a deal on the state’s congressional elections map before a court-imposed deadline.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74676&title=%E2%80%9CVa.%20Republicans%20reject%20McAuliffe%E2%80%99s%20request%20for%20redistricting%20meeting%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>

--
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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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