[EL] Holmes v. FEC Opinion

Allen Dickerson adickerson at campaignfreedom.org
Tue Apr 26 12:48:22 PDT 2016 

My apologies to the group, but a quick correction:

I meant to say that the per-election limit applies even where a contributor gives to a candidate unopposed in the PRIMARY, not the general election.

Here is the corrected description:

[I]f an individual contributes to a candidate in the primary, she may then contribute again in the general election, providing a combined $5,400 to that candidate ($2,700 for the primary and $2,700 for the general). This is true even if that candidate was unopposed in the primary. But if she contributes nothing in the primary, she may only give that candidate a total of $2,700 (for the general).

Allen Dickerson
Legal Director | Center for Competitive Politics
124 S. West Street | Suite 201 | Alexandria, VA 22314
O: 703.894.6800 | F: 703.894.6811
adickerson at campaignfreedom.org<mailto:adickerson at campaignfreedom.org>


From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Allen Dickerson
Sent: Tuesday, April 26, 2016 1:41 PM
To: Rick Hasen <rhasen at law.uci.edu>; law-election at UCI.edu
Subject: Re: [EL] Holmes v. FEC Opinion

For those interested in reading for themselves the DC Circuit opinion Rick references, it is a digestible 13 pages available here: http://www.campaignfreedom.org/wp-content/uploads/2014/07/Holmes-Opinion_4.26.16_DC-circuit.pdf

Rick is, of course, technically correct that had Chief Judge Garland participated, he may have dissented. He may also have joined the majority opinion. In my personal view, having argued the case, I suspect the latter course. While Judge Garland (and Judge Randolph, for that matter) were skeptical of our clients’ Fifth Amendment claim, which was rejected, there was no pushback on the successful First Amendment claim. Furthermore, while Judge Garland did not join the opinion, there are no grounds for believing he voted for a different result. Certainly, Rick provides no reason for believing so.

As to the merits, I have no idea why this is not “good news,” or why the en banc court would “do the right thing” by ruling against us, because Rick doesn’t explain his position or even describe the case.

The claim is this: if an individual contributes to a candidate in the primary, she may then contribute again in the general election, providing a combined $5,400 to that candidate ($2,700 for the primary and $2,700 for the general). This is true even if that candidate was unopposed in the general. But if she contributes nothing in the primary, she may only give that candidate a total of $2,700 (for the general). There may be reasons of administrative efficiency for this outcome, but the FEC has never demonstrated how or why this state of affairs prevents corruption. And, as the Court quite rightly explains, the claim has never been litigated (or even seriously discussed).

The case would not increase the amount of money any individual may give to any candidate, only the timing of that contribution. We feel confident that the en banc court will consider this narrow claim carefully, without resort to hyperbole, and correctly decide that all individuals should be able to contribute the same amount, over time, to general election candidates.

Allen Dickerson
Legal Director | Center for Competitive Politics
124 S. West Street | Suite 201 | Alexandria, VA 22314
O: 703.894.6800 | F: 703.894.6811
adickerson at campaignfreedom.org<mailto:adickerson at campaignfreedom.org>


From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, April 26, 2016 1:16 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] ELB News and Commentary 4/26/16

DC Circuit Panel, with Garland Recused, Queues Up New Campaign Finance Challenge for En Banc Review<http://electionlawblog.org/?p=82268>
Posted on April 26, 2016 10:13 am<http://electionlawblog.org/?p=82268> by Rick Hasen<http://electionlawblog.org/?author=3>

Today Judges Randolph and Henderson, with Garland not participating, held <https://www.cadc.uscourts.gov/internet/opinions.nsf/0/0D89A9AA72B91D8085257FA1004EF79A/$file/15-5120-1610421.pdf> that a trial court erred in refusing to certify for en banc DC Circuit review a challenge to federal election law’s limits on how much an individual may contribute “per election.” The case has an interesting discussion of what would be so frivolous as to not require en banc certification of a challenge under the FECA, and says if there is a non-frivolous argument to overturn even Supreme Court precedent that’s good enough.

This is not good news, but I am pretty confident the en banc court will do the right thing and uphold the per election limit when the case gets reviewed there.

Had Judge Garland participated, he could well have dissented.


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82268&title=DC%20Circuit%20Panel%2C%20with%20Garland%20Recused%2C%20Queues%20Up%20New%20Campaign%20Finance%20Challenge%20for%20En%20Banc%20Review&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Billionaire Environmentalist to Spend $25 Million to Turn Out Young Voters”<http://electionlawblog.org/?p=82266>
Posted on April 26, 2016 10:07 am<http://electionlawblog.org/?p=82266> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<http://www.nytimes.com/2016/04/26/us/politics/thomas-steyer-nextgen-climate-change-voters.html?ref=politics>:

The billionaire environmentalist Thomas F. Steyer and his political advocacy group, NextGen Climate, will spend at least $25 million on a get-out-the-vote campaign targeting young voters this year in seven mostly battleground states, the group announced on Monday.

Mr. Steyer, the single biggest political donor of the 2014 midterm election cycle, said the campaign would target at least 203 college and university campuses. He called it the largest youth voter outreach program ever undertaken by a candidate or political campaign.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82266&title=%26%238220%3BBillionaire%20Environmentalist%20to%20Spend%20%2425%20Million%20to%20Turn%20Out%20Young%20Voters%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Selfies in the Voting Booth? Snapchat Fights for the Right.”<http://electionlawblog.org/?p=82264>
Posted on April 26, 2016 10:05 am<http://electionlawblog.org/?p=82264> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<http://www.nytimes.com/2016/04/27/us/politics/voting-booth-snapchat-selfies.html?ref=politics>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82264&title=%26%238220%3BSelfies%20in%20the%20Voting%20Booth%3F%20Snapchat%20Fights%20for%20the%20Right.%26%238221%3B&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>
“Hans von Spakovsky and friends are at it again”<http://electionlawblog.org/?p=82262>
Posted on April 26, 2016 9:56 am<http://electionlawblog.org/?p=82262> by Rick Hasen<http://electionlawblog.org/?author=3>

Ah<http://bluevirginia.us/2016/04/hans-von-spakovsky-friends>, Fraudulent Fraud Squad Classic.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82262&title=%26%238220%3BHans%20von%20Spakovsky%20and%20friends%20are%20at%20it%20again%26%238221%3B&description=>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>
“Tim Robbins Mocked for Blaming Bernie Sanders Losses on ‘Voter Fraud’”<http://electionlawblog.org/?p=82260>
Posted on April 26, 2016 9:55 am<http://electionlawblog.org/?p=82260> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fraudulent Fraud Squad<https://www.thewrap.com/tim-robbins-mocked-for-blaming-bernie-sanders-losses-on-voter-fraud/> comes to the Left.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82260&title=%26%238220%3BTim%20Robbins%20Mocked%20for%20Blaming%20Bernie%20Sanders%20Losses%20on%20%E2%80%98Voter%20Fraud%E2%80%99%26%238221%3B&description=>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>
“Federal judge upholds controversial North Carolina voting law”<http://electionlawblog.org/?p=82258>
Posted on April 26, 2016 9:54 am<http://electionlawblog.org/?p=82258> by Rick Hasen<http://electionlawblog.org/?author=3>

Sari Horwitz reports<https://www.washingtonpost.com/world/national-security/federal-judge-upholds-controversial-north-carolina-voting-law/2016/04/25/97757236-0b4d-11e6-a6b6-2e6de3695b0e_story.html> for WaPo.

Last night I wrote:Breaking and Analysis: Federal District Court Upholds Restrictive NC Voting Law in 485-Page Opinion<http://electionlawblog.org/?p=82224>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82258&title=%26%238220%3BFederal%20judge%20upholds%20controversial%20North%20Carolina%20voting%20law%26%238221%3B&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>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“States seek to stop voters from posting ballot selfies”<http://electionlawblog.org/?p=82256>
Posted on April 26, 2016 9:48 am<http://electionlawblog.org/?p=82256> by Rick Hasen<http://electionlawblog.org/?author=3>

David Hudson writes <http://www.abajournal.com/magazine/article/states_seek_to_stop_voters_from_posting_ballot_selfies> for the ABA Journal.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Ex-Politico CEO Courts Silicon Valley With Bizarre ‘Third Party’ Op-Ed”<http://electionlawblog.org/?p=82254>
Posted on April 26, 2016 9:45 am<http://electionlawblog.org/?p=82254> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM<http://talkingpointsmemo.com/livewire/jim-vandehei-bizarre-third-party-op-ed>:

In a Monday newspaper column that borrows heavily from the language of Silicon Valley disruptors, former Politico CEO Jim VandeHei laid out a barely cogent “template” for usurping the order of “Establishment America.”

Among VandeHei’s suggestions in The Wall Street Journal<http://www.wsj.com/articles/bring-on-a-third-party-candidate-1461624062> were to demolish the “bubble” of Washington, D.C. by hosting meetings of Congress at different locales around “Normal America” and recruiting a political outsider who’s more palatable than Donald Trump or Sen. Bernie Sanders (I-VT) to run as a third-party presidential candidate.

The Politico co-founder, who recently departed<http://talkingpointsmemo.com/livewire/jim-vandehei-leaving-politico-mike-allen> that company to start a new media venture, also bafflingly suggested an outsider candidate “exploit the fear factor.”

“People are scared. Terrorism is today’s World War and Americans want a theory for dealing with it,” VandeHei wrote.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82254&title=%26%238220%3BEx-Politico%20CEO%20Courts%20Silicon%20Valley%20With%20Bizarre%20%26%238216%3BThird%20Party%26%238217%3B%20Op-Ed%26%238221%3B&description=>
Posted in third parties<http://electionlawblog.org/?cat=47>
“As McDonnell awaits Supreme Court, another governor watches from prison”<http://electionlawblog.org/?p=82252>
Posted on April 26, 2016 9:36 am<http://electionlawblog.org/?p=82252> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Barnes<https://www.washingtonpost.com/politics/courts_law/as-mcdonnell-awaits-supreme-court-another-governor-watches-from-prison/2016/04/25/c8fa5828-097a-11e6-b283-e79d81c63c1b_story.html?tid=sm_tw> for WaPo:

Along with the state officials and law professors who are happy that the Supreme Court this week is reviewing the corruption conviction of former Virginia governor Robert F. McDonnell, add inmate No. 24775-001 at the federal prison in Oakdale, La.

He is otherwise known as Don E. Siegelman, the former governor of Alabama, whom many of those same people supported when the justices decided — twice — that his conviction did not warrant an extended review.

“I’m not the slightest bit bitter about that at all,” Siegelman said last week in a telephone interview from prison. “I’m delighted that the court has taken the McDonnell case, and I’m hopeful the court will clarify what constitutes political quid pro quo bribery.”
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82252&title=%26%238220%3BAs%20McDonnell%20awaits%20Supreme%20Court%2C%20another%20governor%20watches%20from%20prison%26%238221%3B&description=>
Posted in bribery<http://electionlawblog.org/?cat=54>, chicanery<http://electionlawblog.org/?cat=12>, Supreme Court<http://electionlawblog.org/?cat=29>
“Two Years Later, McCutcheon Fuels Huge Checks to Politicians”<http://electionlawblog.org/?p=82250>
Posted on April 26, 2016 9:34 am<http://electionlawblog.org/?p=82250> by Rick Hasen<http://electionlawblog.org/?author=3>

Ian Vandewalker<http://billmoyers.com/story/two-years-later-mccutcheon-fuels-huge-checks-to-politicians/> at Moyers & Co.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82250&title=%26%238220%3BTwo%20Years%20Later%2C%20McCutcheon%20Fuels%20Huge%20Checks%20to%20Politicians%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Dark Money Group Tells the Government it Won’t Spend on Elections While Bragging to Donors it Will ‘Win Senate Seats’ with ‘No Donor Disclosure'”<http://electionlawblog.org/?p=82248>
Posted on April 26, 2016 9:31 am<http://electionlawblog.org/?p=82248> by Rick Hasen<http://electionlawblog.org/?author=3>

Brendan Fischer<http://www.campaignlegalcenter.org/news/blog/dark-money-group-tells-government-it-won-t-spend-elections-while-bragging-donors-it-will> for CLC.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82248&title=%26%238220%3BDark%20Money%20Group%20Tells%20the%20Government%20it%20Won%E2%80%99t%20Spend%20on%20Elections%20While%20Bragging%20to%20Donors%20it%20Will%20%26%238216%3BWin%20Senate%20Seats%26%238217%3B%20with%20%26%238216%3BNo%20Donor%20Disclosure%27%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
“Money Trouble; What does Bernie’s attitude toward campaign finance mean for Hillary?”<http://electionlawblog.org/?p=82246>
Posted on April 26, 2016 9:31 am<http://electionlawblog.org/?p=82246> by Rick Hasen<http://electionlawblog.org/?author=3>

Amy Davidson<http://www.newyorker.com/magazine/2016/05/02/clinton-sanders-and-the-money-question> for The New Yorker.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Will Citizens United Save Bob McDonnell From Prison?”<http://electionlawblog.org/?p=82244>
Posted on April 26, 2016 9:27 am<http://electionlawblog.org/?p=82244> by Rick Hasen<http://electionlawblog.org/?author=3>

Stephanie Mencimer<http://www.motherjones.com/politics/2016/04/will-citizens-united-save-former-virginia-governor-bob-mcdonnell> for Mother Jones.
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Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Breaking and Analysis: Federal District Court Upholds Restrictive NC Voting Law in 485-Page Opinion<http://electionlawblog.org/?p=82224>
Posted on April 25, 2016 6:16 pm<http://electionlawblog.org/?p=82224> by Rick Hasen<http://electionlawblog.org/?author=3>

Federal district court judge Thomas Schroeder has issued this 485-page opinion<http://electionlawblog.org/wp-content/uploads/nc-voting.pdf> considering constitutional and Voting Rights Act challenges to North Carolina’s 2013 restrictive voting law (which I have discussed in a number of places including this Harvard Law Review forum piece, Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>). This is a careful, erudite, yet controversial opinion which will almost certainly be appealed to the United States Court of Appeals for the 4th Circuit, which could well reverse parts of it, and then potentially to the United States Supreme Court, where the Court could well deadlock 4-4 (leaving any 4th Circuit ruling in place). And all of these appeals will have to happen in short order for it to affect how the 2016 elections take place under the Purcell principle. <http://ssrn.com/abstract=2545676>

Here is my overall impression having read/skimmed the 485 pages: the judge does a very thorough job going through the evidence of the law’s burdens on voters and the state’s interest in passing the law. The judge goes into the evidence in great detail, but the opinion reads like someone who is very, very skeptical of the plaintiffs’ arguments, and very forgiving in terms of the state’s interests. The aspect of the opinion I found particularly weak is his discussion of whether the state had good reasons for the voting cutbacks, which are the greatest set of election rollbacks in a single bill that i know of at least since the passage of the 1965 Voting Rights Act. It is pretty clear that the North Carolina voting law was partisan legislation enacted to help Republicans; but the judge barely discusses the role of partisanship, except to note (on page 468) partisan by Democrats in an earlier bill to allow out-of-precinct voting. And part of this is exacerbated by the “race or party” question. The judge has to look at this through the lens of race, at least for Voting Rights Act purposes.  A better approach would be to say (as I argue in the Harvard piece and elsewhere), that when a state makes it harder for voters to vote, the question should be whether the state has a good reason for burdening voters. And that’s where the tenuousness of many of the state’s arguments come in.

The chances on appeal may well depend upon the 4th Circuit panel draw. Republicans and Democrats tend to view these facts through different lenses, and judges are no different—not because they want to vote to help “their party,” but because they are predisposed to see facts in different ways.  Nonetheless, even with a Democratic-leaning draw, the judge made a number of factual findings adverse to the plaintiffs which are supposed to get great deference by the appellate courts.

If the case gets to the Supreme Court, we could well see the same dynamics in play.

The court’s key conclusion about the nature of the claims comes near the end of the case:

In short, North Carolina has provided legitimate State interests for its voter-ID requirement and electoral system that provides registration all year long up to twenty-five days before an election, absentee voting for up to sixty days before an election, ten days of early voting at extended hours convenient for workers that includes one Sunday and two Saturdays, and Election Day voting. Plaintiffs oppose this system because they preferred one that they say was even more convenient – which they used disproportionately during certain elections – and point to some fraction of voters who did not vote or register. Plaintiffs’ contention that such voters did not do so because of vestiges of historical official discrimination is rebutted by the facts. There is strong evidence that some other reason is at play for the failure of these persons to register and/or vote. The unprecedented gains by African Americans in registration and turnout, both during and even in 2014 after SL 2013-381, bolster this conclusion. While the consideration is clearly local and practical in nature, based on North Carolina’s unique facts, it would no doubt bear relevance if North Carolina were seeking to return to an electoral system that was not in the mainstream of other States. It is not.

For all these reasons, Plaintiffs have failed to demonstrate that Defendants have violated § 2 of the VRA or the Fourteenth, Fifteenth, or Twenty-Sixth Amendments to the United States Constitution.

Here are some additional thoughts about the judge’s opinion.
1.      The judge engaged in extensive fact finding about the extent of the burden of the voter identification law, especially as it has been “softened” by the “reasonable impediment” exemption from the law. The court spends dozens of pages discussing the efforts the state has made to roll out and educate about the voter identification law, as well as how the reasonable impediment law would allow certain voters to vote without providing voter identification. The judge concludes that although some voters faced burdens getting identification under the state’s rules, not that many voters would face these burdens (and many fewer people lack the id than the plaintiffs claimed), and many of the burdens that such voters face would be alleviated by being able to vote under the reasonable impediment exemption. These factual findings increase greatly the chances of the voter identification aspect of the law being upheld on appeal, and certainly they would alleviate the concerns of the four more conservative Supreme Court justices. It turns out that on the ground the reasonable impediment exemptions and similar exemptions have not worked as well and as evenly as supporters of the laws say. See my Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available<http://electionlawblog.org/?p=80636>). It is not clear to me if the case would allow for a follow up suit based on how the reasonable impediment exemption is applying in practice.
2.      The judge also looked at evidence of North Carolina’s other rollbacks, such as the cutback in early voting, finding it did not decrease turnout, either generally or among racial minorities. (“In sum, the court has evaluated all of the evidence surrounding the impact resulting from the change in the early-voting schedule. In light of the same-hours requirement, the evidence does not demonstrate that the new early-voting schedule results in a reduced opportunity to vote or imposes a burden on voters.  Nor does the evidence show that the new schedule disparately and negatively impacts the political participation of African Americans, Hispanics, or young voters.”) Findings like this are subject to deference on appeal. (The judge makes similar findings about the effects of the elimination of same day registration, though concedes there may be a weak effect. He made a more complex finding as to the elimination of pre-registration for 16 and 17 year olds: “In sum, the evidence shows that pre-registration increases youth turnout. However, although African Americans used pre-registration disproportionately compared to whites in North Carolina, the evidence also establishes that pre-registration does not disproportionately benefit one race over the other. (Pl. Ex. 235 at 24.) In addition, while the evidence explains why pre-registration increases turnout, it does not explain why African Americans are more likely to pre-register or why the other means of registration are less available to African Americans than other groups.”)
3.      After a few hundred pages of detailed factual findings, many of which dispute the evidentiary findings and tests performed by plaintiffs’ experts Charles Stewart, Paul Gronke, and Barry Burden, the court turned to the legal issues. The court said it was applying the 4th Circuit’s test for Voting Rights Act section 2 vote denial cases, and under that test found that the totality of the circumstances did not lead the court to conclude that protected minority voters have less opportunity than others to participate in the political process and to elect representatives of their choice.  This is the finding which would be most vulnerable to being overruled by the 4th circuit on appeal. However, given the detailed negative factual findings of the trial court, this may be a difficult task. (Here is a key conclusion of the court: “In sum, when increased minority participation correlates with the availability of so-called convenience voting procedures,134 it is some evidence that they are fostering the increased participation. But when minority participation increases despite the unavailability of such mechanisms, the causal inference is rebutted, especially where Plaintiffs have failed to show what turnout and registration rates would have been in 2014 had the conveniences been available. Such is the case here.”)
4.      On the question of North Carolina’s history of racial discrimination, the court concludes: “There is significant, shameful past discrimination. In North Carolina’s recent history, however, certainly for the last quarter century, there is little official discrimination to consider.” And this finding, which will be hotly debated: “Therefore, Plaintiffs have demonstrated that African Americans and Hispanics in North Carolina are disproportionately likely to move, be poor, less educated, have less access to transportation, and experience poor health. There was no showing that Hispanics suffer these as a result of historical discrimination. However, there was a showing that the socioeconomic disparities experienced by African Americans can be linked to the State’s disgraceful history of discrimination.” And: “In sum, Plaintiffs established that some segment of the State’s African Americans endure socioeconomic disparities that can be linked to State discrimination and this may make it more difficult for them generally to participate in any electoral system. Plaintiffs, however, failed to show that such disparities will have materially adverse effects on the ability of minority voters to cast a ballot and effectively exercise the electoral franchise after SL 2013-381 within the multitude of voting and registration options available in the State, especially given that the 2014 turnout data show increased participation among African Americans under SL 2013-381.”
5.      On the need for the voter id law to prevent voter fraud, the court says first that it is hard to find impersonation fraud without an id requirement, but more importantly the Supreme Court in the Crawford case said there need not be evidence of impersonation fraud to justify the law. So while the plaintiffs have to present tons of evidence of burden, the state can get by with no evidence of a need.  (This seems perverse to me.)
6.      The court also finds that the state did not act with discriminatory intent, citing (without an appreciation for irony) at p. 387 the testimony of Hans von Spakovsky to the legislature on the need for this restrictive law. Whether or not his testimony was true, the court says, the legislature could have believed it true, thereby negating possibility of discriminatory intent.
7.      The court, in much shorter sections of the opinion, rejects a number of constitutional claims, including equal protection and violation of the 26th amendment (claiming discrimination against young voters). The equal protection analysis mostly tracks the VRA analysis.

[This post has been updated.]
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Internet Voting? Really?”<http://electionlawblog.org/?p=82222>
Posted on April 25, 2016 3:40 pm<http://electionlawblog.org/?p=82222> by Rick Hasen<http://electionlawblog.org/?author=3>

Andrew Appel Tedx talk.<https://www.youtube.com/watch?v=abQCqIbBBeM>
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Posted in election administration<http://electionlawblog.org/?cat=18>, internet voting<http://electionlawblog.org/?cat=49>
“Election Dates May or May Not Matter”<http://electionlawblog.org/?p=82220>
Posted on April 25, 2016 3:39 pm<http://electionlawblog.org/?p=82220> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s the lead story in NCSL’s The Canvass.<http://www.ncsl.org/research/elections-and-campaigns/the-canvass-april-2016.aspx>
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Posted in election administration<http://electionlawblog.org/?cat=18>
“CFI Announces Web Tool for Tracking Outside Spending in Congressional Primaries”<http://electionlawblog.org/?p=82218>
Posted on April 25, 2016 11:33 am<http://electionlawblog.org/?p=82218> by Rick Hasen<http://electionlawblog.org/?author=3>

Release.<http://www.cfinst.org/Press/PReleases/16-04-25/CFI_Announces_Web_Tool_for_Tracking_Outside_Spending_in_Congressional_Primaries.aspx>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82218&title=%26%238220%3BCFI%20Announces%20Web%20Tool%20for%20Tracking%20Outside%20Spending%20in%20Congressional%20Primaries%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“U.S. District Court Upholds California Law that Won’t Let Candidates Show a Party Label on Ballot if the Party is Not Qualified”<http://electionlawblog.org/?p=82216>
Posted on April 25, 2016 10:55 am<http://electionlawblog.org/?p=82216> by Rick Hasen<http://electionlawblog.org/?author=3>

Ballot Access News reports.<http://ballot-access.org/2016/04/25/u-s-district-court-upholds-california-law-that-wont-let-candidates-show-a-party-label-on-ballot-if-the-party-is-not-qualified/>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82216&title=%26%238220%3BU.S.%20District%20Court%20Upholds%20California%20Law%20that%20Won%E2%80%99t%20Let%20Candidates%20Show%20a%20Party%20Label%20on%20Ballot%20if%20the%20Party%20is%20Not%20Qualified%26%238221%3B&description=>
Posted in ballot access<http://electionlawblog.org/?cat=46>, primaries<http://electionlawblog.org/?cat=32>
“Ballot Access Blues: California GOP Shuts Independents Out of Presidential Primary”<http://electionlawblog.org/?p=82214>
Posted on April 25, 2016 9:42 am<http://electionlawblog.org/?p=82214> by Rick Hasen<http://electionlawblog.org/?author=3>

William Welch <http://billmoyers.com/story/ballot-access-blues-california-gop-shuts-independents-out-of-presidential-primary/> for Moyers & Co.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>
“Should Felons Ever Be Allowed to Vote?”<http://electionlawblog.org/?p=82212>
Posted on April 25, 2016 9:21 am<http://electionlawblog.org/?p=82212> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT Room for Debate.<http://www.nytimes.com/roomfordebate/2016/04/22/should-felons-ever-be-allowed-to-vote?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region>
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Posted in felon voting<http://electionlawblog.org/?cat=66>
“Should Everybody Vote?”<http://electionlawblog.org/?p=82210>
Posted on April 25, 2016 9:20 am<http://electionlawblog.org/?p=82210> by Rick Hasen<http://electionlawblog.org/?author=3>

Gary Gutting<http://www.nytimes.com/2016/04/25/opinion/should-everybody-vote.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region&region=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region&_r=0> for The Stone.
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Posted in voting<http://electionlawblog.org/?cat=31>
“Stop the Delay on IRS Political Activity Rules”<http://electionlawblog.org/?p=82208>
Posted on April 25, 2016 9:09 am<http://electionlawblog.org/?p=82208> by Rick Hasen<http://electionlawblog.org/?author=3>

See this statement <http://www.citizen.org/documents/BLP%202016%20Rider%20Statement%20-%20FINAL.pdf> from the Bright Lines project.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
“How California’s U.S. Senate ballot could cause problems for the June 7 primary”<http://electionlawblog.org/?p=82205>
Posted on April 25, 2016 8:47 am<http://electionlawblog.org/?p=82205> by Rick Hasen<http://electionlawblog.org/?author=3>

LAT<http://www.latimes.com/politics/la-pol-ca-california-senate-primary-ballot-confusion-20160425-story.html>:

In some ways, the Senate election is so far beyond the capacity of the system that it’s requiring a unique set of solutions. “You’re not just trying to fit a square peg in a round hole, you’re trying to fit a skyscraper in a round hole,” said Orange County Registrar of Voters Neal Kelley.

In most races, with a handful of candidates, names appear in a single column on one page of the voting booklet, a clear sign to voters that they should only pick one. But with 34 candidates, the geography of ballot templates tends to favor listing the names in two, side-by-side columns, on facing pages of the voting booklet.

That’s where the trouble lies for the Senate race, as voters could mistake the two columns as two distinct races and choose one name from each list. That would result in an “overvote,” a ballot cast for two or more candidates, which is thus disqualified.

The two-column layout gained notoriety in the 2000 presidential race with the so-called “butterfly ballot” design in Palm Beach County, Fla. Already, some have similar fears about what could happen in California.
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Posted in election administration<http://electionlawblog.org/?cat=18>
“Four Ways To Fight For Democracy”<http://electionlawblog.org/?p=82203>
Posted on April 25, 2016 8:44 am<http://electionlawblog.org/?p=82203> by Rick Hasen<http://electionlawblog.org/?author=3>

Gerry Hebert and Paul Ryan<http://billmoyers.com/story/four-ways-to-fight-for-democracy/> for Moyers & Co.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Trump Ally Roger Stone Says Trump Lost Wisconsin Because of Voter Fraud<http://electionlawblog.org/?p=82201>
Posted on April 25, 2016 8:42 am<http://electionlawblog.org/?p=82201> by Rick Hasen<http://electionlawblog.org/?author=3>

Sigh<http://www.politico.com/story/2016/04/transcript-off-message-roger-stone-222375#ixzz46pseVnLD>:

GLENN THRUSH: Well, I remember talking to you pre-Wisconsin and you were very clear about you thought Wisconsin was going to be a watershed.

ROGER STONE: Yes.

GLENN THRUSH: … in terms of, talk about that. You realized he did not have an infrastructure in a state where you needed one, right?

ROGER STONE: Yeah. Wisconsin was probably the worst state for him in the lineup in the sense that the Walker/Ryan machine had proved its efficiency not only in two elections, but in two recalls, the recall of — the failed recall of Walker and the failed recall of the Republican majority in the state Senate. So, these guys have a well-oiled machine.

I also have done a — I read a terrific study by Richard Charnin, who is a mathematician, a liberal Democrat, an eccentric but brilliant guy, who concludes on the basis of the exit polls and the actual vote on a precinct-by-precinct basis that the swing cannot be that wide without widespread voter fraud. It’s just mathematically impossible.

So, I suspect that the system there — he’s been making this case through several cycles in Wisconsin, focusing only on that state …

GLENN THRUSH: That there’s voter fraud.

ROGER STONE: That there’s extensive voter fraud, which I presume is executed through the electronic machines.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82201&title=Trump%20Ally%20Roger%20Stone%20Says%20Trump%20Lost%20Wisconsin%20Because%20of%20Voter%20Fraud&description=>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>
New Jersey Electoral Law Enforcement Commission Loses Bid to Stay Decisions Until It Has a Quorum of Members<http://electionlawblog.org/?p=82198>
Posted on April 25, 2016 8:38 am<http://electionlawblog.org/?p=82198> by Rick Hasen<http://electionlawblog.org/?author=3>

Appellate division ruling.<http://electionlawblog.org/wp-content/uploads/elec.pdf>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82198&title=New%20Jersey%20Electoral%20Law%20Enforcement%20Commission%20Loses%20Bid%20to%20Stay%20Decisions%20Until%20It%20Has%20a%20Quorum%20of%20Members&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Campaign Legal Center and Democracy 21 Sue the Federal Election Commission for Failure to Enforce the Law and Protect the Integrity of Our Democracy”<http://electionlawblog.org/?p=82196>
Posted on April 25, 2016 8:21 am<http://electionlawblog.org/?p=82196> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://www.campaignlegalcenter.org/news/press-releases/campaign-legal-center-and-democracy-21-sue-federal-election-commission-failure>:

The Campaign Legal Center and Democracy 21 filed a lawsuit<http://www.campaignlegalcenter.org/sites/default/files/CLC%20v%20%20FEC_LLC%20Complaint_Final%204.22.2016.pdf> Friday night in the United States District Court for the District of Columbia against the Federal Election Commission for dismissing five complaints that CLC and D21 filed with the agency. The dismissed complaints called for FEC investigation into donors who broke disclosure laws by hiding behind personal Limited Liability Companies (LLC) to anonymously make contributions to super PACs.

CLC and D21, over the course of several years, filed complaints with the FEC against these donors for violating the “straw donor” provision of Federal Election Campaign Act (FECA). These donors’ anonymous contributions ranged from $857,000 to over $12 million, and several of the donors openly admitted in the media that they had used their personal company for the purpose of hiding their identities from the public. Still, the FEC dismissed all five complaints, after the three Republican commissioners voted not to investigate and sanction these donors.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82196&title=%26%238220%3BCampaign%20Legal%20Center%20and%20Democracy%2021%20Sue%20the%20Federal%20Election%20Commission%20for%20Failure%20to%20Enforce%20the%20Law%20and%20Protect%20the%20Integrity%20of%20Our%20Democracy%26%238221%3B&description=>
Posted in campaign 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<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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