[EL] ELB News and Commentary 10/21/15
Rick Hasen
rhasen at law.uci.edu
Wed Oct 21 07:42:16 PDT 2015
“Fayette County, NAACP Enter Mediation In Voting Rights Suit”
<http://electionlawblog.org/?p=76905>
Posted onOctober 21, 2015 7:41 am
<http://electionlawblog.org/?p=76905>byRick Hasen
<http://electionlawblog.org/?author=3>
NPR reports
<http://news.wabe.org/post/fayette-county-naacp-enter-mediation-voting-rights-suit>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Lessig learned. Now let him debate.”
<http://electionlawblog.org/?p=76903>
Posted onOctober 21, 2015 7:39 am
<http://electionlawblog.org/?p=76903>byRick Hasen
<http://electionlawblog.org/?author=3>
Jonathan Capehart
<http://www.washingtonpost.com/blogs/post-partisan/wp/2015/10/21/lessig-learned-now-let-him-debate/>in
WaPo:
But I’m not here to stomp on Webb’s political grave. No, my purpose
is to talk up Larry Lessig. The Democratic Party should make sure
he’s at the next debate.
Yeah, yeah, I know what I said last week. That no one should support
his Democratic presidential bid because he promised to resign after
passing a much-needed campaign finance reform package. That such a
pledge neutered his ability to be an effective chief executive and
would make his vice presidential choice a powerful president-in-waiting.
Everything changed last Friday when he was asked about his
resignation pledge during an appearance on “Real Time With Bill
Maher” on HBO. “Yeah, that was stupid,”Lessig said to laughter
<https://docs.google.com/document/d/1wbbySlYcGY1p51pp_2PbydrLhqVXu8mihGVR4MjkefY/edit?usp=sharing>.
“That was totally stupid.” And then the Harvard law professor
explained why he backed off.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Assembly poised to pass election bills, but Senate’s OK uncertain”
<http://electionlawblog.org/?p=76901>
Posted onOctober 21, 2015 7:33 am
<http://electionlawblog.org/?p=76901>byRick Hasen
<http://electionlawblog.org/?author=3>
The
latest<http://www.jsonline.com/news/statepolitics/assembly-poised-to-pass-election-bills-but-senates-ok-uncertain-b99600410z1-335002271.html>from
Wisconsin:
Assembly Republicans on Wednesday plan to pass bills overhauling
campaign finance laws and the state elections agency, but those
proposals face an uncertain future in the GOP Senate.
The overhaul of the Government Accountability Board, the state
elections and ethics agency, doesn’t yet have the votes to pass the
Senate, according to multiple Republicans in that house. On the
rewrite of campaign finance laws, Senate Majority Leader Scott
Fitzgerald (R-Juneau) said he expects changes to the proposal before
it passes his house….
Vukmir’s proposal would eliminate the accountability board, which
consists of six former judges and is responsible for administering
election, campaign finance, lobbying and ethics laws. It would
replace it with two commissions made up equally of Republicans and
Democrats.
But Olsen said he had concerns about eliminating the judges and
about putting equal numbers of appointees from both parties on the
new commissions. In controversial cases, the two boards could
deadlock and end up doing nothing, he said.
“If it’s set up so they never agree on anything, then nothing gets
investigated,” Olsen said.
Olsen said he would prefer to see the judges remain part of the
system and then add partisan appointees to supplement them.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election
administration <http://electionlawblog.org/?cat=18>
Mike Murphy on Life Running a So-Called Independent Super PAC
<http://electionlawblog.org/?p=76899>
Posted onOctober 21, 2015 7:28 am
<http://electionlawblog.org/?p=76899>byRick Hasen
<http://electionlawblog.org/?author=3>
He complains
<http://www.bloomberg.com/politics/features/2015-10-21/mike-murphy-rubio-s-campaign-is-cynical-kasich-s-plays-close-to-the-line>to
Sasha Issenberg:
*But when they start to worry, you can’t put them on the phone with
the candidate to assuage or motivate them, right?*
Yeah, well I can’t say, “Hold for Jeb.” Sometimes we’ll do a
briefing and then we all leave the room and he can go talk a little
bit about what’s going on in the campaign, but that’s all. There are
a lot of lawyers around to make sure it’s all done properly. We’re
so lawyered up I feel like a Clinton….
*How is the experience of setting up a super-PAC, just getting it
off the ground, different than it would be if it were a candidate
campaign?*
I’ve set up a lot of campaigns and it’s not that dissimilar. The
nice thing about a super-PAC is you can specialize on what you can
do—because what you can’t do is some of the things that are
completely candidate-specific. So we’re really a messaging
organization, messaging and research here. We care a lot about
digital messaging, we care a lot about digital data, we care a lot
about traditional advertising, radio, television, mail. And we care
a lot about monitoring the information flow of the campaign and then
keeping an eye on what the campaign is doing. We try to be very
sensitive to what they’re trying to do on messaging while still
supporting it, because we can’t really coordinate.
So we don’t try to ape what they do but we kind of keep an eye on it
and that’s just part of our function here, All super-PACs do that,
but there are huge differences in how people are interpreting the
law. We’re far more conservative than the Kasich people; they’re
doing stuff our lawyers would never allow, so but it’s open to
interpretation.
*Such as?*
I don’t want to get in too much details but the advertising that
they’re running is extremely overt for super-PAC advertising as far
as Kasich participating and talking to a camera. That is a very
aggressive interpretation. We shut our communication down before the
wall went down, we had a buffer period, they shut theirs down
30 seconds before. So we’ll see who’s right in the end but we’re
pretty conscious about all that stuff.
We’re in a luckier position than the other super-PACs, I think,
because I have a long association with Jeb, we go back to the ’97
campaign, ’98 and Sally,^1
<http://www.bloomberg.com/politics/#footnote-1445420738989> who’s
the top person down there, she goes back to ’94. So he was rare in
that he had two kind of long-term political advisers who had worked
very well together, so we had kind of… I think if I were some of
these other guys where I’m turning over a bunch of super-PAC
responsibilities to somebody I met three months ago I’d be nervous.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Second place got you a Greyhound ticket to Palookaville”
<http://electionlawblog.org/?p=76897>
Posted onOctober 21, 2015 7:22 am
<http://electionlawblog.org/?p=76897>byRick Hasen
<http://electionlawblog.org/?author=3>
FHQ
<http://frontloading.blogspot.com/2015/10/second-place-got-you-greyhound-ticket.html>:
Look, FHQ has followed Republican strategist, Mike Murphy, since
before the time that there was an FHQ. And while he gave Sasha
Issenberg a fantastic inside look at some of the thinking from
within the super PAC that has aligned itself with Jeb Bush, the true
nature of rules changes — with respect to the delegate allocation
process in the Republican Party — really got lost in translation.
Murphy had this to say in response to Issenberg’s question about
when the consolidation/winnowing of candidates might begin in
earnest in this 2016 cycle:
/Well, that’s what the primaries are for, but the calendar’s changed
a little bit. We only have 10 pure winner-take-all states now. The
Republican Party, we used to be the Social Darwinists: second place
got you a Greyhound ticket to Palookaville. Now we’re proportional,
mostly by congressional district. From Feb. 1 to March 15, we have a
bunch of big states; Ohio, Florida, Illinois, North Carolina
probably. [Looks at primary calendar/map on wall of office.] I think
my map’s out of date now, I’m not sure we got North Carolina moved.
So you’ve got this 45-day blitz of a tremendous amount of number of
delegates being chosen, mostly—not all, as Florida’s
winner-take-all—but mostly in a heavily proportional system./
First of all, there’s no need to print up an outdated primary
calendar and map and put it on the wall.*You can always find one
right here
<http://frontloading.blogspot.com/p/2016-presidential-primary-calendar.html>*.
FHQ’s been updating that one since January 2012.
More importantly, let’s dive down into this winner-take-all and
proportional stuff. Yes, the Republican National Committee has a set
of rules that require states with primaries and caucuses in the
March 1-14 window to allocate their delegates proportionally. But
that is not a new thing. The proportionality requirement was*added
for the 2012 cycle
<http://frontloading.blogspot.com/2011/02/update-on-2012-republican-delegate.html>*and/covered
the entire month of March/.^1 The RNC did*tighten its definition
<http://frontloading.blogspot.com/2015/04/republican-proportionality-rules.html>*of
what constitutes proportionality for the 2016 cycle, but the amount
of delegates available in the respective windows is still about the
same.
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Posted inprimaries <http://electionlawblog.org/?cat=32>
“New ties emerge between Trump operation and super PAC”
<http://electionlawblog.org/?p=76895>
Posted onOctober 21, 2015 7:19 am
<http://electionlawblog.org/?p=76895>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<https://www.washingtonpost.com/politics/new-ties-emerge-between-trump-operation-and-super-pac/2015/10/20/80e7450a-7753-11e5-bc80-9091021aeb69_story.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“At Many Carly Fiorina Events, Her ‘Super PAC’ Covers the Costs”
<http://electionlawblog.org/?p=76893>
Posted onOctober 21, 2015 7:18 am
<http://electionlawblog.org/?p=76893>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/politics/first-draft/2015/10/21/at-many-carly-fiorina-events-her-super-pac-covers-the-costs/?_r=0> reports.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“What Campaign Donations Can’t Buy”
<http://electionlawblog.org/?p=76891>
Posted onOctober 21, 2015 7:17 am
<http://electionlawblog.org/?p=76891>byRick Hasen
<http://electionlawblog.org/?author=3>
Megan McArdle
<http://www.bloombergview.com/articles/2015-10-20/big-donations-to-campaigns-can-t-buy-a-victory>for
Bloomberg View.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Brave New World of Party Campaign Finance Law”
<http://electionlawblog.org/?p=76889>
Posted onOctober 21, 2015 7:16 am
<http://electionlawblog.org/?p=76889>byRick Hasen
<http://electionlawblog.org/?author=3>
Michael Kang has postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2674406>on
SSRN. Here is the abstract:
The Article challenges urgent calls for the de-regulation of party
campaign finance as part of the ongoing transformation of federal
campaign finance law under the Roberts Court. First, on the legal
front, the Article presents a new constitutional approach to
campaign finance corruption that builds on the basic premise that
what can be plausibly exchanged between an individual contributor
and individual officeholder, can similarly be exchanged between a
contributor and a group of officeholders, who agree to coordinate.
This intuition about collective quid pro quo corruption stays
faithful to the basic conception of the quid pro quo exchange as its
defining harm, just as the Roberts Court insists, but allows for
pragmatic sensibilities about a campaign finance system in which
officeholders and candidates are thoroughly interconnected in both
campaign finance and lawmaking by their party ties. Second, on the
policy front, the Article engages normative appeals to de-regulate
party campaign finance and centralize campaign finance in the
parties as a response to the rise of Super PACs and other outside
groups. I skeptically assess the consequences of de-regulating party
campaign finance and argue that campaign finance law should
re-discover central concerns about distributional representation,
rather than focusing too narrowly on the balance of power among
party elites.
This looks to be a very important paper.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,political
parties <http://electionlawblog.org/?cat=25>,political polarization
<http://electionlawblog.org/?cat=68>
Sam Issacharoff: Judges Dominating Politics: The International View
<http://electionlawblog.org/?p=76882>
Posted onOctober 20, 2015 7:58 pm
<http://electionlawblog.org/?p=76882>byRick Hasen
<http://electionlawblog.org/?author=3>
The following is the first of three guest posts by NYU’sSam Issacharoff
<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=23845>about
his new book,Fragile Democracies
<http://www.cambridge.org/us/academic/subjects/law/comparative-law/fragile-democracies-contested-power-era-constitutional-courts>:
fragile <http://electionlawblog.org/wp-content/uploads/fragile.png>
I appreciate Rick’s invitation to say a few words about my book that
came out over the summer,Fragile Democracies: Contested Power in the Era
of Constitutional Courts
<http://www.amazon.com/Fragile-Democracies-Contested-Constitutional-Cambridge/dp/1107654548/ref=sr_1_2?ie=UTF8&qid=1425585057&sr=8-2&keywords=issacharoff>(Cambridge
University Press, 2015).
The basic thesis is that the late 20^th century witnessed a shift in how
to address the characteristic disabilities of democracies, particularly
at their founding. The key shift was toward a firmer form of
constitutional constraint on political power, and the enabling of strong
constitutional courts with ample power of judicial oversight of
politics. The introductory chapter isavailable on SSRN
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2618771>. This
format allows me to say a few words about the background themes.
The first characteristic disability comes with the lack of an organic
polity in most new democracies. Political thought of the 19th century,
notably with Toqueville and Mill, assumed that democracy could only
survive from a sense of shared enterprise among a people that spoke the
same language, worshipped the same god, and accepted a commonly bound
history. The post-colonial emergence of nation states in the early and
mid-parts of the 20^th century violated each of these principles, as did
the third wave following the collapse of the Soviet Union.
Second any democracy is porous to its internal enemies, parties that
seek to exploit the electoral forum to mobilize for the destruction of
democracy itself. The post-Nazi commitment to “militant democracy” able
to protect itself against extreme challenge itself poses a threat that
every dissident voice will be seen as an existential affront.
Third, it is all well and good to set out a blueprint for a functioning
democracy, complete with rival political parties and institutional
separation of powers. Decreeing it does not make it so. Almost
invariably a centralizing power emerges, usually in the form of a
hypertrophic executive through whom authority and lucre may be realized.
Electoral competition is stifled, clientelism and corruption emerge, and
the promise of democracy fails. This is all the more menacing when the
emergent power has the authority of a historic transition to draw upon,
as with the PRI in Mexico or the ANC in South Africa.
The main argument of the book is that by the end of the 20^th century,
court-enforced constitutionalism had emerged as the critical response to
each of the three disabilities. The earlier enthusiasm for formal power
sharing under consociational arrangements had waned amid the civil wars
that ravaged Cyprus, Ivory Coast, Sri Lanka, and others. Strong
constitutionalism was an alternative source of limitations on dominant
group power in areas as diverse as lustration campaigns, language
requirements for political participation, removal of institutional
checks on executive unilateralism, and a host of related mechanisms that
entrenched officeholders at the expense of competitive accountability.
Examples are drawn not only from the newly created democracies of Europe
and Asia, but from the experiences of India, Turkey, South Africa,
Mexico, Israel, and contested democracies around the world.
In the next posts, I will address how constitutionalism can function
under court-oversight, and what are its prospects for stabilizing
democracy in fractured societies
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Posted incomparative election law <http://electionlawblog.org/?cat=107>
Godwin’s Law Comes to WI “John Doe” Debate
<http://electionlawblog.org/?p=76880>
Posted onOctober 20, 2015 7:42 pm
<http://electionlawblog.org/?p=76880>byRick Hasen
<http://electionlawblog.org/?author=3>
Milwaukee Journal Sentinel
<http://www.jsonline.com/news/statepolitics/bill-would-end-secret-john-doe-probes-of-political-crimes-b99599259z1-334704651.html>:
Rep. David Craig (R-Big Bend) said the bill he co-sponsored
overhauling the John Doe law would protect civil liberties for state
residents.
“Today’s a win for the First Amendment,” he said.
Debate over the issue was often heated. Rep. Joe Sanfelippo (R-New
Berlin) compared law enforcement raids on the homes of Walker’s
allies to the way Germans behaved in World War II.
“We’re talking about terrorizing people in their homes,” he said.
Democrats called the comparison of sheriff’s deputies to Nazis
offensive.
“Our Wisconsin law enforcement are not Nazis,” said Rep. Jonathan
Brostoff (D-Milwaukee). “I really hope if you had family who was
genocided and murdered, I would hope no one else would ever speak
about your family that way.”
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Posted inchicanery <http://electionlawblog.org/?cat=12>
“Blue States Make Voting Easier, As Red States Add Restrictions”
<http://electionlawblog.org/?p=76878>
Posted onOctober 20, 2015 7:35 pm
<http://electionlawblog.org/?p=76878>byRick Hasen
<http://electionlawblog.org/?author=3>
Alex Altman and Maya Rhodan report forTIME
<http://time.com/4080238/voting-rights-red-blue-states-2016/>.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Political nonprofit spent nearly 100 percent of funds to elect
Tillis in ’14” <http://electionlawblog.org/?p=76876>
Posted onOctober 20, 2015 4:32 pm
<http://electionlawblog.org/?p=76876>byRick Hasen
<http://electionlawblog.org/?author=3>
Robert Maguire
<http://www.opensecrets.org/news/2015/10/political-nonprofit-spent-nearly-100-percent-of-funds-to-elect-tillis-in-14/?utm_content=buffer1f3ab&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer>for
the Center for Responsive Politics:
A social welfare group called Carolina Rising spent 97 percent of
the money it raised in the 2014 midterm elections — nearly $5
million — running ads that helped Sen. Thom Tillis (R-N.C.) defeat
the incumbent Democrat that cycle.
The group, formed by political operative Dallas Woodhouse in late
March 2014, did virtually nothing else. Its firsttax filing
<https://www.documentcloud.org/documents/2456438-carolina-rising-2014.html>,
obtained by the Center for Responsive Politics, shows that the
organization raised nearly $4.9 million in its first year — $4.8
million of it from a single donor; nearly all of that went out the
door to a prominent political media firm in Virginia for ads
mentioning Tillis, while the rest was spent on payments to an LLC
started by Woodhouse only months earlier.
The stark set of facts raises questions not only about whether the
group spent the majority of its funds on political activity —
verboten for nonprofits claiming 501(c)(4) status under the tax code
— but about whether Carolina Rising was devoted to helping a single
individual. That would violate an IRS rule barring social welfare
organizations from benefiting one person — the so-called “private
benefit” prohibition.
As/OpenSecrets Blog/prepared to publish this post, the group
Citizens for Responsibility and Ethics in Washington (with which
this blog has no affiliation)filed complaints
<http://www.citizensforethics.org/blog/entry/tillis-supporting-c4-with-large-diverse-donor-body-got-99-from-1-donor>with
the IRS accusing Carolina Rising and a 501(c)(4) group working to
help elect GOP presidential candidate Marco Rubio of spending the
vast majority of their money on behalf of a single candidate, in
violation of the agencie’s rules.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Federal court hearing focuses on Native Hawaiian election”
<http://electionlawblog.org/?p=76874>
Posted onOctober 20, 2015 4:10 pm
<http://electionlawblog.org/?p=76874>byRick Hasen
<http://electionlawblog.org/?author=3>
AP:
<http://wncn.com/ap/federal-court-hearing-focuses-on-native-hawaiian-election/>
A federal court hearing is set over a lawsuit by people who want to
put a stop to an election process that’s under way for Native Hawaiians
The lawsuit, filed in August, says it’s unconstitutional for the
state to be involved in a race-based election. The state argues in
court documents that while it had a role in compiling a roll of
Native Hawaiians eligible to participate, it’s not involved in next
month’s vote to elect delegates for a convention to determine
self-governance for Native Hawaiians.
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Posted invoting <http://electionlawblog.org/?cat=31>
“Congressman Presses Challenge to Political Speech Rules in D.C.
Circuit” <http://electionlawblog.org/?p=76872>
Posted onOctober 20, 2015 4:07 pm
<http://electionlawblog.org/?p=76872>byRick Hasen
<http://electionlawblog.org/?author=3>
BLT:
<http://www.nationallawjournal.com/legaltimes/id=1202740254553/Congressman-Presses-Challenge-to-Political-Speech-Rules-in-DC-Circuit>
Van Hollen’s lawyer, Catherine Carroll of Wilmer Cutler Pickering
Hale and Dorr, told the D.C. Circuit that the “for the purpose of”
language provided a “clear road map” for donors to avoid public
disclosure—when they give money, do it silently.
Carroll bore the brunt of questioning on Tuesday. Judge A. Raymond
Randolph pressed Carroll about whether there was any evidence that
similar “for the purpose of” language had led to “mass evasion” of
reporting requirements for donations for other types of political
speech. Carroll said concerns had been raised about the issue over
the years.
Randolph was also concerned about what would happen to anonymous
donations if the narrower “purpose” language was removed. Would
anonymous speech be prohibited, he asked Carroll. Carroll said she
wasn’t sure that was the case.
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<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D76872&title=%26%238220%3BCongressman%20Presses%20Challenge%20to%20Political%20Speech%20Rules%20in%20D.C.%20Circuit%26%238221%3B&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Transparency Advocates At Odds With Wisconsin GOP Over Election Law
Changes” <http://electionlawblog.org/?p=76852>
Posted onOctober 20, 2015 4:06 pm
<http://electionlawblog.org/?p=76852>byRick Hasen
<http://electionlawblog.org/?author=3>
Wisconsin Public Radio
<http://www.wpr.org/transparency-advocates-odds-wisconsin-gop-over-election-law-changes>:
Watchdog groups say Republican bills to dismantle Wisconsin’s
elections agency and rewrite state campaign finance laws will lead
to corruption and scandal in government.
In addition to ending Wisconsin’s nonpartisan Government
Accountability Board, the bill up for a vote this week would end
independent funding for investigations of the state’s ethics and
election laws. At the same time, Republicans will rewrite
Wisconsin’s campaign finance laws to clear the way for unlimited
donations to state political parties and coordination with third
party groups that keep their donors secret.
Jay Heck has run Common Cause of Wisconsin for 20 years and worked
in the state legislature and Congress before that.
“I’ve never seen as I see this week a package of legislation that
does so much damage to the underpinnings of democracy,” said Heck.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election
administration <http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
--
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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