[EL] ELB News and Commentary 10/1/15
Rick Hasen
rhasen at law.uci.edu
Thu Oct 1 07:53:16 PDT 2015
ernie Sanders Narrows Fund-Raising Gap With Hillary Clinton”
<http://electionlawblog.org/?p=76379>
Posted onOctober 1, 2015 7:52 am
<http://electionlawblog.org/?p=76379>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports.
<http://www.nytimes.com/2015/10/02/us/politics/bernie-sanders-narrows-fund-raising-gap-with-hillary-clinton.html?ref=politics>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“It’s bold, but legal: How campaigns and their super PAC backers
work together” <http://electionlawblog.org/?p=76377>
Posted onOctober 1, 2015 7:50 am
<http://electionlawblog.org/?p=76377>byRick Hasen
<http://electionlawblog.org/?author=3>
Matea
Gold<http://www.washingtonpost.com/politics/here-are-the-secret-ways-super-pacs-and-campaigns-can-work-together/2015/07/06/bda78210-1539-11e5-89f3-61410da94eb1_story.html>for
WaPo.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
The Next #SCOTUS Justice May Be Much Further to the Right
<http://electionlawblog.org/?p=76375>
Posted onOctober 1, 2015 7:47 am
<http://electionlawblog.org/?p=76375>byRick Hasen
<http://electionlawblog.org/?author=3>
Inmy recent TPM piece
<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause>,
I wrote:
In arecent article
<http://www.weeklystandard.com/articles/next-justices_1024728.html>in the/Weekly
Standard/, Professors Randy Barnett and Josh Blackman urge the next
Republican President to appoint Justices, like Thomas, who care
little about judicial restraint or respect for precedent. Senator
Ted Cruz, while running for president, hasseverely criticized Chief
Justice Roberts
<http://www.washingtonpost.com/news/post-politics/wp/2015/09/12/once-a-john-roberts-booster-ted-cruz-continues-to-turn-against-him/>as
insufficiently conservative, calling for the appointment of even
more extremely conservative judges.
Indeed, there is much further room to move to the right. Some strict
textualists do not agree with Justice Scalia’s exception for
interpretations of statutes which lead to absurd results. Let the
chips fall where they may, they say, and either Congress will fix
the problem with an apparently absurdly written statute or it won’t.
It’s not the Court’s problem.
And here’s Linda Greenhouse’sNYT column
<http://mobile.nytimes.com/2015/10/01/opinion/a-chief-justice-without-a-friend.html?_r=1&referer=http://feedly.com/index.html>today:
In a variation of that theme, the columnistGeorge Will
<http://topics.nytimes.com/top/reference/timestopics/people/w/george_f_will/index.html?inline=nyt-per>,in
a piece
<https://www.washingtonpost.com/opinions/110-years-and-still-going-strong/2015/07/10/f30bfe10-2662-11e5-aae2-6c4f59b050aa_story.html>that
went viral in the conservative blogosphere during midsummer,
castigated Chief Justice Roberts for, of all things, his dissenting
opinion in thesame-sex marriage
<http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html?inline=nyt-classifier>case.
It was not that Mr. Will, often a reliable barometer of
inside-the-Beltway conservative thought, had suddenly embraced
marriage equality. Rather, he objected to what it was the chief
justice was objecting to in Justice Kennedy’s majority opinion.
In his dissenting opinion, Chief Justice Roberts accused the
majority of reanimating the spirit of the long-discreditedLochner v.
New
York,<https://supreme.justia.com/cases/federal/us/198/45/case.html>a
1905 decision in which a conservativeSupreme Court
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org>invoked
a supposed “liberty of contract” to invalidate workplace
regulations. It was a later conservative court that was still under
Lochner’s sway when it struck down much New Deal legislation in the
early 1930s.
The case stands for “the unprincipled tradition of judicial policy
making,” Chief Justice Roberts said in his dissent; only when a
later court understood Lochner’s error did justices return to their
properly restrained role. “The majority today neglects that
restrained conception of the judicial role,” he wrote.
In his column, Mr. Will said the chief justice’s account of Lochner
contained “more animus than understanding.” Lochner should be
celebrated, he wrote. The 1905 decision “was not ‘unprincipled’
unless the natural rights tradition (including the Declaration of
Independence) and the Ninth Amendment (‘The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people’) involve no principles.”
The Ninth Amendment? The amendment that constitutional progressives
have viewed as the source of the “unenumerated rights” much
disparaged by conservatives? The Ninth Amendment that Robert Bork
likened to an ink blot on the Constitution? Indeed, Mr. Will wrote:
“The next Republican president should ask this of potential court
nominees: Do you agree that Lochner correctly reflected the U.S.
natural rights tradition and the Ninth and 14th amendments’
affirmation of unenumerated rights?”
Not very long ago, a potential nominee who was prepared to answer
“yes” to those questions wouldn’t have made it past the security
checkpoint of a Republican White House. The young John Roberts
worked in the modern era’s ur-Republican White House, Ronald
Reagan’s, when such an answer would have been apostasy. That was then.
I’m writing about such obscure subjects as Lochner and unenumerated
rights in full understanding that the new conservative memes may be
just so much window dressing on a more fundamental, less elevated
explanation for the conservative anger. I never thought I would be
quoting SenatorTed Cruz
<http://www.nytimes.com/interactive/2015/03/23/us/politics/ted-cruz-path-to-presidency.html?inline=nyt-per>with
anything close to appreciation, but here goes. Heaven knows there
wasn’t much honesty in the Republican debate, but the Texas senator
said something during his rant about Chief Justice Roberts that
might actually, even if inadvertently, have come close. “You know,”
Senator Cruz said, “we’re frustrated as conservatives. We keep
winning elections, and then we don’t get the outcome we want.”
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Sparta to use paper ballots in November election”
<http://electionlawblog.org/?p=76373>
Posted onOctober 1, 2015 7:45 am
<http://electionlawblog.org/?p=76373>byRick Hasen
<http://electionlawblog.org/?author=3>
News
<http://www.wgxa.tv/news/topstories/Sparta-to-use-paper-ballots-in-November-election-329609291.html>from
Ga:
The City of Sparta plans to use paper ballots instead of Hancock
County’s electronic voting machines in their November election.
This election will be the first time the City of Sparta has done an
election without the help of the Hancock County Board of Elections,
and this change leaves some residents scratching their heads.
“Some citizens who were actually in on the meeting had come to the
office and expressed that they maybe wanted to file a complaint
about the city actually using paper ballots,” said Hancock County
Elections Supervisor Tiffany Medlock.
The City of Sparta first approached the Hancock Board of Elections
with an agreement for the county to let them use their electronic
voting machines, but after the board revised the agreement and
agreed to lend them the machines, the city never answered back.
I’ve heard from one reader who expresses concern that the switch is
motivated by a corrupt city machine, and asks if it is possible to have
outside election monitors. I don’t know what the situation is in
Sparta, but this does seem strange.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Mitt Romney: ‘We’ve Gotta Rethink Campaign Finance'”
<http://electionlawblog.org/?p=76371>
Posted onOctober 1, 2015 7:43 am
<http://electionlawblog.org/?p=76371>byRick Hasen
<http://electionlawblog.org/?author=3>
HuffPo
<http://www.huffingtonpost.com/entry/mitt-romney-campaign-finance_560c0eade4b0768127001bd0>:
Former Republican presidential nominee Mitt Romney called for
campaign finance reform in the wake of the explosion of super PACs,
which can receive unlimited sums of money from corporations, unions
and individuals.
“We’ve really got a mess in the financial system with regard to
campaigns right now,” the 2012 nominee said Wednesday in an
interview at The Atlantic’s Washington Ideas Forum.
“We’ve gotta rethink campaign finance,” he added.
The former Massachusetts governor said it is a problem that shadowy
super PACs can take “unlimited amounts of money,” while candidates
themselves are “very strictly limited” in the amount of funding they
are able to raise.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“IRS Appears Headed Toward New Rules that Will Continue to License
Secret Contributions in Federal Elections”
<http://electionlawblog.org/?p=76369>
Posted onOctober 1, 2015 7:39 am
<http://electionlawblog.org/?p=76369>byRick Hasen
<http://electionlawblog.org/?author=3>
Fred Wertheimer
<http://www.huffingtonpost.com/fred-wertheimer/irs-appears-headed-toward_b_8223144.html>:
IRS Commissioner John Koskinen appears to be headed toward issuing
new IRS regulations that will continue to license section 501(c)(4)
groups to improperly launder massive amounts of secret contributions
into federal elections.
In testimony before the Senate Judiciary Committee, Commissioner
Koskinen reportedly stated that section 501(c)(4) groups can engage
in political intervention so long as that constitutes less than half
of their activities.
Koskinen reportedly said, “So if an organization wants to spend less
than half its money on politics, they can choose to become a
501(c)(4).” Koskinen also reportedly said the IRS is not trying to
significantly change the way nonprofits operate today.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Paul Davis files lawsuit against Kris Kobach over purging of
suspended voters list” <http://electionlawblog.org/?p=76367>
Posted onSeptember 30, 2015 3:37 pm
<http://electionlawblog.org/?p=76367>byRick Hasen
<http://electionlawblog.org/?author=3>
The Wichita Eagle reports.
<http://www.kansas.com/news/politics-government/article37126992.html>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
ELB Podcasts <http://electionlawblog.org/?p=76365>
Posted onSeptember 30, 2015 2:57 pm
<http://electionlawblog.org/?p=76365>byRick Hasen
<http://electionlawblog.org/?author=3>
I’ve just added a link to the ELB Podcasts on the ELB sidebar. Here’s
the information that is there so far.
*ELB Podcasts*
Subscribe atiTunes
<https://itunes.apple.com/us/podcast/elb-podcast/id1029317166?mt=2&ign-mpt=uo%3D4>
Listen atSoundCloud <https://soundcloud.com/rick-hasen>
Episodes
# 1 Ari Berman <http://electionlawblog.org/?p=75203>
# 2 Floyd Abrams <http://electionlawblog.org/?p=75625>
# 3 Larry Lessig <http://electionlawblog.org/?p=75706>
# 4 Bruce Cain and critics <http://electionlawblog.org/?p=75870>
# 5 Nina Perales <http://electionlawblog.org/?p=75973>
More episodes on the way!
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Posted inELB Podcast <http://electionlawblog.org/?cat=116>
“Big crowd expected for Citizens United argument”
<http://electionlawblog.org/?p=76363>
Posted onSeptember 30, 2015 2:44 pm
<http://electionlawblog.org/?p=76363>byRick Hasen
<http://electionlawblog.org/?author=3>
At the Lectern
<http://www.atthelectern.com/big-crowd-expected-for-citizens-united-argument/>:
There will likely be lots of people attendingnext week’s argument
<http://www.atthelectern.com/anti-citizens-united-initiative-case-to-be-argued-in-october/>of/Howard
Jarvis Taxpayers Association v. Padilla/
<http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2083887&doc_no=S220289>,
the case to decide whether the Legislature can ask the voters to
give their advisory opinion — through an initiative on the ballot —
whether the United States Constitution should be amended to overturn
the United States Supreme Court’s/Citizens United/decision. The
California Clean Money Action Fund isencouraging
<http://yesfairelections.ngpvanhost.com/ngpvanforms/708>its
supporters to attend a pre-argument rally outside the court and to
then “pack the hearing room” for the purpose of, as an email
announcement states, “show[ing] the justices how many Californians
demand our right to vote on Prop 49.”
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Interesting Turn in Kelly Horwitz Election Contest
<http://electionlawblog.org/?p=76361>
Posted onSeptember 30, 2015 2:32 pm
<http://electionlawblog.org/?p=76361>byRick Hasen
<http://electionlawblog.org/?author=3>
Back in 2013 <http://electionlawblog.org/?p=54937>I wrote about
disturbing allegations of vote buying involving sororities and
fraternities on the University of Alabama campus in connection with a
local board of education race. The candidate involved is Kelly Horwitz,
who is married to U of A law prof Paul Horwitz (who wrote a letter to
the Alabama faculty about the incident).
Kelly Horwitz lost her election contest at the trial court level, but
today theSupreme Court of Alabama
reversed<https://acis.alabama.gov/displaydocs.cfm?no=687314&event=4GI0WKBUO>and
sent the case back to the trial court for “Phase II” additional
factfinding for the election contest.
However, the state supreme court did not agree with Horwitz on the vote
buying and coercion allegations. Instead, it found that there were a
number of illegal votes cast by college students who had not properly
established residency due to their failure to show their intent to
remain in the area after graduation. This basis for the ruling prompted
a dissent from two Justices, who believe it is going to make it harder
for students to vote in Alabama generally.
So now we have what appears to be a good result (because of good
evidence of vote buying) but based upon troubling reasoning (about
college student residency) and an even longer wait for this case to be
resolved. We will see if this case gets resolved before the term at the
Tuscaloosa Board of Education comes to an end.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Voter ID and driver’s license office closures black-out Alabama’s
Black Belt” <http://electionlawblog.org/?p=76359>
Posted onSeptember 30, 2015 2:19 pm
<http://electionlawblog.org/?p=76359>byRick Hasen
<http://electionlawblog.org/?author=3>
Kyle Whitmore
<http://www.al.com/opinion/index.ssf/2015/09/voter_id_and_drivers_license_o.html>:
The Alabama Law Enforcement Agency’s website says their office at
the Clarke County Courthouse is still open, but soon a lot of others
nearby won’t be. On Wednesday, the agency announced that it would
close 31 offices throughout the state, leaving 29 counties without a
place where 16-year-olds can take a driver’s test, whether they pass
on the first try or not.
That’s an inconvenience.
But there’s something bigger happening here.
In 2011, Alabama lawmakers approved the state’s voter ID law, making
it illegal to vote in Alabama without a government-issued photo ID.
For most folks, that’s a driver’s license.
In those 29 counties you might be able to register at the
courthouse, but you won’t be able to cast a ballot there unless you
have that ID.
That’s not just an inconvenience. That’s a problem.
But it gets worse.
Look at the list of counties now where you can’t get a driver’s
license. There’s Choctaw, Sumter, Hale, Greene, Perry, Wilcox,
Lowndes, Butler, Crenshaw, Macon, Bullock …
If you had to memorize all the Alabama Counties in 9th grade, like I
did — and even if you forgot most of them, like I have — you can
probably guess where we’re going with this.
Depending on which counties you count as being in Alabama’s Black
Belt, either twelve or fifteen Black Belt counties soon won’t have a
place to get a driver’s license.
Counties where some of the state’s poorest live.
Counties that are majority African-American.
Combine that with the federally mandated Star ID taking effect next
year, and we’re looking at a nightmare.
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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>
“Watchdog: Top Secret Service official wanted information about
Chaffetz made public” <http://electionlawblog.org/?p=76357>
Posted onSeptember 30, 2015 2:17 pm
<http://electionlawblog.org/?p=76357>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/politics/watchdog-top-secret-service-official-wanted-information-about-chaffetz-made-public/2015/09/30/ff280378-67ae-11e5-9ef3-fde182507eac_story.html>:
The Secret Service’s assistant director urged that unflattering
information the agency had in its files about a congressman critical
of the service should be made public, according to a government
watchdog report released Wednesday.
“Some information that he might find embarrassing needs to get out,”
Assistant Director Edward Lowery wrote in an e-mail to a fellow
director on March 31, commenting on an internal file that was being
widely circulated inside the service. “Just to be fair.”
Two days later, a news Web site reported that Rep. Jason Chaffetz
(R-Utah), chairman of the House Oversight Committee, had applied to
be a Secret Service agent in 2003 and been rejected.
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Posted inchicanery <http://electionlawblog.org/?cat=12>
Quote of the Day, Super PAC Noncoordination Coordination Edition
<http://electionlawblog.org/?p=76355>
Posted onSeptember 30, 2015 12:21 pm
<http://electionlawblog.org/?p=76355>byRick Hasen
<http://electionlawblog.org/?author=3>
“Essentially, it inoculates a case of coordination by making it
public….As long as it’s not hidden in a ‘Where’s Waldo’ game and meets a
reasonable definition of being public, it is a way to avoid running
afoul of the coordination rules.”
–Attorney Ken Gross, quoted in NYT’s Carly Fiorina’s ‘Super PAC’ Aids
Her Campaign, in Plain Sight
<http://www.nytimes.com/2015/10/01/us/politics/as-carly-fiorina-surges-so-does-the-work-of-her-super-pac.html?ref=politics>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“It’s been 4 years since Stephen Colbert created a super PAC — where
did all that money go?” <http://electionlawblog.org/?p=76353>
Posted onSeptember 30, 2015 12:19 pm
<http://electionlawblog.org/?p=76353>byRick Hasen
<http://electionlawblog.org/?author=3>
Sunlight has some fun.
<http://sunlightfoundation.com/blog/2015/09/30/its-been-four-years-since-stephen-colbert-created-a-super-pac-where-did-all-that-money-go/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Corrupt Mr. Whitehouse” <http://electionlawblog.org/?p=76351>
Posted onSeptember 30, 2015 12:18 pm
<http://electionlawblog.org/?p=76351>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul
Jossey<http://dailycaller.com/2015/09/30/the-corrupt-mr-whitehouse/>in
the /Daily Caller/.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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