[EL] Law-election Digest, Vol 68, Issue 5

Mon Dec 5 12:00:53 PST 2016

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On Mon, Dec 5, 2016 at 3:00 PM, <
law-election-request at department-lists.uci.edu> wrote:

> Send Law-election mailing list submissions to
>         law-election at department-lists.uci.edu
>
> To subscribe or unsubscribe via the World Wide Web, visit
>         http://department-lists.uci.edu/mailman/listinfo/law-election
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> When replying, please edit your Subject line so it is more specific
> than "Re: Contents of Law-election digest..."
>
>
> Today's Topics:
>
>    1. link to federal court order telling Michigan to start recount
>       immediately (Richard Winger)
>    2. Kansas law on special US House elections explicitly bars
>       minor or new parties (Richard Winger)
>    3. Re: Breadth of 'federal jurisdiction' over POTUS election
>       (Thomas J. Cares)
>    4. ELB News and Commentary 12/5/16 (Rick Hasen)
>    5. Update on Freedom Path challenge to IRS's "facts and
>       circumstances" test (BZall at aol.com)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Mon, 5 Dec 2016 07:06:20 +0000 (UTC)
> From: Richard Winger <richardwinger at yahoo.com>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] link to federal court order telling Michigan to start
>         recount immediately
> Message-ID: <509513532.8042153.1480921580513 at mail.yahoo.com>
> Content-Type: text/plain; charset="utf-8"
>
> http://ballot-access.org/wp-admin/post.php?post=54676&action=edit?Richard
> Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
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> ------------------------------
>
> Message: 2
> Date: Mon, 5 Dec 2016 07:11:50 +0000 (UTC)
> From: Richard Winger <richardwinger at yahoo.com>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] Kansas law on special US House elections explicitly bars
>         minor or new parties
> Message-ID: <2121276659.8016926.1480921910143 at mail.yahoo.com>
> Content-Type: text/plain; charset="utf-8"
>
> Kansas is about to have a special election for US House.? Section 25-3504
> deals with such special elections.? It says explicitly that the only
> parties that may nominate anyone in such elections are those that polled at
> least 5% of the vote for Governor at the last gubernatorial election.
> Kansas has 3 parties on the ballot, Dem, Rep and Libertarian.?
> Libertarians are on because they polled over 1% for a statewide race in
> 2014, but the Sec. of State has told the party it cannot run a candidate in
> the upcoming special election.
> It is clearly unconstitutional for a state to bar any type of qualified
> party, or a new party, from any particular type of partisan election.? All
> the precedents agree.? There are 4 reported decisions (Arkansas, Idaho,
> North Carolina, and Wyoming) and two unreported decisions (Connecticut,
> Missouri).
>
> If anyone on this list works in Kansas and is interested in helping the
> Libertarian Party with a lawsuit, please let me know.? Thank you.?Richard
> Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
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> ------------------------------
>
> Message: 3
> Date: Mon, 5 Dec 2016 06:49:53 -0800
> From: "Thomas J. Cares" <Tom at tomcares.com>
> To: Mark Scarberry <mark.scarberry at pepperdine.edu>
> Cc: Election Law <law-election at uci.edu>
> Subject: Re: [EL] Breadth of 'federal jurisdiction' over POTUS
>         election
> Message-ID:
>         <CADE9kw-wz_ccqy44NtE37+2TkPCDytF9i+4okkOHtYgPvgx9Ew@
> mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> You know, California's electorate does effectively function as a third
> house of the legislature. Voters can coalesce to introduce legislation
> through the initiative process and then vote to pass it. The legislature
> can't even amend the constitution without voter approval.
>
> So let me ask, why can't the initiative that does this, also just type out
> that California's registered voters are considered to make up a third house
> of the state legislature - or really the only house that matters, as it can
> referendum things passed by the other two, and amend the constitution
> without the other 2, yet the other two can't amend the constitution without
> it. It is the substantive legislature, and if we word it as such in our
> constitution, it should hold up. Do you really think these semantics are
> judiciously insurmountable?
>
> "Each state shall appoint, in such manner as the Legislature thereof may
> direct, a number of electors, "
> In good faith, could someone believe those words pass explicit judgment on
> voter initiatives which did not exist at the time they were written?
>
> Then 'directed manner' - I'm completely lost as to why this does not
> qualify as a 'directed manner'.
>
> *I am interested to hear more views on the legal obstacles to doing this
> though.*
>
> On Sat, Dec 3, 2016 at 9:49 AM, Mark Scarberry <
> mark.scarberry at pepperdine.edu> wrote:
>
> > Two quick comments; then I need to sign off to write exams.
> >
> > It seems unlikely that a state constitutional provision can limit a
> > legislature's choice of the manner by which electors are chosen.
> >
> > Use of national popular vote is not a manner by which a "state" chooses
> > its electors, as required by Art. II.
> >
> > Mark
> >
> > Mark S. Scarberry
> > Professor of Law
> > Pepperdine University
> >
> >
> >
> >
> > On Sat, Dec 3, 2016 at 3:11 AM -0800, "Thomas J. Cares" <
> Tom at tomcares.com>
> > wrote:
> >
> > Can anyone comment on the legal issues Paul Jacob raises in the attached
> >> brief dialogue? (Paul is a fairly influential activist in this arena. I
> >> believe he was a main leader for the initiative for California to place
> >> term limits on its congressional delegation, which courts struck down).
> >>
> >>
> >>
> >>
> >>
> >> --
> >>
> >>
> > _______________________________________________
> > Law-election mailing list
> > Law-election at department-lists.uci.edu
> > http://department-lists.uci.edu/mailman/listinfo/law-election
> >
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> ------------------------------
>
> Message: 4
> Date: Mon, 5 Dec 2016 16:22:49 +0000
> From: Rick Hasen <rhasen at law.uci.edu>
> To: Election Law Listserv <law-election at uci.edu>
> Subject: [EL] ELB News and Commentary 12/5/16
> Message-ID: <9BD7D51F-4BB6-4B39-8106-E27B1C2E9181 at law.uci.edu>
> Content-Type: text/plain; charset="utf-8"
>
> ?The Latest: Recount resumes in North Carolina governor race?<
> http://electionlawblog.org/?p=89714>
> Posted on December 5, 2016 8:19 am<http://electionlawblog.org/?p=89714>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> The end<http://www.newsobserver.com/news/politics-government/
> national-politics/article118930853.html> for Gov. McCrory?s challenge to
> the NC gubernatorial race may be near.
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89714&title=%E2%80%9CThe%
> 20Latest%3A%20Recount%20resumes%20in%20North%20Carolina%20governor%20race%
> E2%80%9D>
> Posted in election administration<http://electionlawblog.org/?cat=18>,
> recounts<http://electionlawblog.org/?cat=50>
>
>
> After Failing to Post $1 Million Bond Despite Raising Millions, Stein
> Files Late Federal Lawsuit to Force PA Recount<http://
> electionlawblog.org/?p=89711>
> Posted on December 5, 2016 8:13 am<http://electionlawblog.org/?p=89711>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> Why is this new federal suit<http://www.reuters.com/
> article/us-usa-trump-recount-idUSKBN13U0JT> not simply barred by laches?
> It?s not as if Stein or anyone who looked would not have seen the supposed
> problems with Pa?s voting machines either before the election or perhaps
> the day after election day.
>
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89711&title=After%20Failing%
> 20to%20Post%20%241%20Million%20Bond%20Despite%20Raising%
> 20Millions%2C%20Stein%20Files%20Late%20Federal%20Lawsuit%
> 20to%20Force%20PA%20Recount>
> Posted in election administration<http://electionlawblog.org/?cat=18>
>
>
> ?Judge orders immediate start of Michigan recount?<http://
> electionlawblog.org/?p=89709>
> Posted on December 5, 2016 8:11 am<http://electionlawblog.org/?p=89709>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> Detroit Free Press:<http://www.freep.com/story/news/politics/2016/12/
> 04/michigan-recount-decision-jill-stein-donald-trump/94952282/>
> A federal judge early Monday morning ordered a recount of Michigan?s
> presidential ballots to begin at noon on Monday, and for the state to
> ?assemble necessary staff to work sufficient hours? to complete the recount
> by a Dec. 13 federal deadline.
> Lawyers for Green Party candidate Jill Stein urged the action in an
> emergency request, and U.S. District Judge Mark Goldsmith held a rare
> Sunday hearing in federal court. It lasted three hours, and Goldsmith
> issued a written opinion just after midnight on Monday morning.
> Goldsmith said a state law requiring a two business day waiting period to
> start the recount likely violates voting rights. Stein has shown ?a
> credible threat that the recount, if delayed, would not be completed? by
> Dec. 13 ? the federal ?safe harbor? deadline to guarantee Michigan?s
> electoral votes are counted when the electoral college meets on Dec. 19.
> You can find the court?s opinion here <http://ballot-access.org/wp-
> content/uploads/2016/12/gov.uscourts.mied_.316145.16.0-2.pdf> (via Ballot
> Access News). I think the judge has it wrong on laches.
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89709&title=%E2%80%9CJudge%
> 20orders%20immediate%20start%20of%20Michigan%20recount%E2%80%9D>
> Posted in election administration<http://electionlawblog.org/?cat=18>
>
>
> ?Automatic Voter Registration a ?Success? in Oregon?<http://
> electionlawblog.org/?p=89707>
> Posted on December 5, 2016 8:07 am<http://electionlawblog.org/?p=89707>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> NYT reports.
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89707&title=%E2%80%9CAutomatic%20Voter%
> 20Registration%20a%20%E2%80%98Success%E2%80%99%20in%20Oregon%E2%80%9D>
> Posted in election administration<http://electionlawblog.org/?cat=18>
>
>
> ?John Roberts Gutted the Voting Rights Act. Jeff Sessions is Poised to
> Finish It Off?<http://electionlawblog.org/?p=89705>
> Posted on December 5, 2016 8:01 am<http://electionlawblog.org/?p=89705>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> AJ Vicens<http://www.motherjones.com/politics/2016/11/voting-
> rights-act-whats-to-come-jeff-sessions-trump> for Mother Jones.
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89705&title=%E2%80%9CJohn%
> 20Roberts%20Gutted%20the%20Voting%20Rights%20Act.%20Jeff%20Sessions%20is%
> 20Poised%20to%20Finish%20It%20Off%E2%80%9D>
> Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting
> Rights Act<http://electionlawblog.org/?cat=15>
>
>
> ?Supreme Court Gets Involved In Redistricting?<http://
> electionlawblog.org/?p=89703>
> Posted on December 5, 2016 7:57 am<http://electionlawblog.org/?p=89703>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> NPR talks<http://www.npr.org/2016/11/28/503558353/the-day-in-
> 1959-when-castro-took-questions-from-harvard-law-students> to Nick
> Stephanopoulos about gerrymandering.  Nick, a Chicago prof, is one of the
> key figures behind the Wisconsin partisan gerrymandering case (in additio<
> http://electionlawblog.org/?p=89260>n to becoming a new ELB contributor
> and casebook co-author).
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89703&title=%E2%80%
> 9CSupreme%20Court%20Gets%20Involved%20In%20Redistricting%E2%80%9D>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
>
>
> In 1959 Roy Schotland Questioned Fidel Castro About Voting in Cuba<
> http://electionlawblog.org/?p=89700>
> Posted on December 5, 2016 7:53 am<http://electionlawblog.org/?p=89700>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> This snippet<http://www.npr.org/2016/11/28/503558353/the-day-
> in-1959-when-castro-took-questions-from-harvard-law-students> from an NPR
> report on a Castro visit to Harvard in 1959 seems like vintage Roy for
> those of us who had the pleasure to know him:
> GARCIA-NAVARRO: A bit later, one of the Harvard law students ask Castro,
> himself a doctor of law, when democracy would come to Cuba.
> (SOUNDBITE OF ARCHIVED RECORDING)
> ROY SCHOTTLAND: Dr. Castro, Roy Schottland (ph). The postponing of
> elections in Cuba has been explained by the need for special powers to
> fulfill your revolutionary reforms. Don?t you feel you would have even
> greater powers if the people were allowed to speak through the polls?
> GARCIA-NAVARRO: Castro responded that the political climate needed for
> free and open elections did not yet exist. Castro went on to say that it
> would take time for political parties to develop and that he would wait a
> few years to hold elections. Castro claimed that he took no pleasure in
> holding power. He said leading Cuba was a duty, that it was work and that
> he did it out of love of country, not lust for power.
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89700&title=In%201959%20Roy%
> 20Schotland%20Questioned%20Fidel%20Castro%20About%20Voting%20in%20Cuba>
> Posted in election law biz<http://electionlawblog.org/?cat=51>
>
>
> ?The three fallacies of the popular vote?<http://electionlawblog.
> org/?p=89698>
> Posted on December 5, 2016 7:44 am<http://electionlawblog.org/?p=89698>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> Ed Zelinsky blogs.<http://blog.oup.com/2016/12/three-fallacies-
> popular-vote-electoral-college/>
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89698&title=%E2%80%9CThe%
> 20three%20fallacies%20of%20the%20popular%20vote%E2%80%9D>
> Posted in electoral college<http://electionlawblog.org/?cat=44>,
> Uncategorized<http://electionlawblog.org/?cat=1>
>
>
> House Democrats Holding Hearing with All Star Lineup on Reforming
> Electoral College<http://electionlawblog.org/?p=89695>
> Posted on December 5, 2016 7:39 am<http://electionlawblog.org/?p=89695>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> Release:<http://beverlytran.blogspot.com/2016/12/members-
> of-congress-to-hold-forum-on.html#axzz4RoT8DkTz>
>  Hillary Clinton has so far earned a historic 2.5 million more popular
> votes than Donald Trump, yet Mr. Trump won more Electoral College votes and
> the presidency.  According to press reports, several members of the
> Electoral College are trying to persuade their colleagues to vote for a
> candidate other than Mr. Trump when the College casts its votes on December
> 19th.
> On Tuesday, December 6th at 1 PM, House Judiciary Committee Ranking Member
> John Conyers, Jr. (D-MI) will host a forum with bipartisan experts and
> noted scholars to discuss proposed reforms of the current method of
> presidential selection, entitled ?The Electoral College and the Future of
> American Democracy.?
> WHO:             Members of Congress
> House Judiciary Committee Ranking Member John Conyers, Jr. (D-MI)
> Representative Gene Green (D-TX)
> Representative G.K. Butterfield (D-NC), Chair, Congressional Black Caucus
> Representative Ra?l Grijalva (D-AZ), Chair, Congressional Progressive
> Caucus
> Representative Judy Chu (D-CA), Chair, Congressional Asian Pacific
> American Caucus
> Representative Steve Cohen (D-TN)
> Representative Jerrold Nadler (D-NY)
> Representative Zoe Lofgren (D-CA)
> Representative Sheila Jackson Lee (D-TX)
> Representative Hakeem Jeffries (D-NY)
> Representative Henry C. ?Hank? Johnson, Jr. (D-GA)
> Additional Members of Congress
> Panelists
> Professor Jamie Raskin, American University Law School (and U.S.
> Representative-Elect)
> Professor Akhil Reed Amar, Yale Law School
> Professor Jack N. Rakove, Stanford Law School
> Professor Alexander Keyssar, Harvard University
> State Representative Bob Thorpe (R-AZ), National Popular Vote Inc.
> State Representative Chris Pearson (D-VT), National Popular Vote Inc.
> Thomas Neale, Congressional Research Service
>
> WHAT:        A panel discussion with bipartisan experts and noted scholars
> entitled ?The Electoral College and the Future of American Democracy?
> WHEN:        December 6, 2016
> 1:00 ? 3:00 p.m.
> WHERE:      2226 Rayburn House Office Building
> RSVP:          Media interested in attending should RSVP to
> Shadawn.reddick- smith at mail.house.gov<mailto:Sh
> adawn.reddick-%20smith at mail.house.gov>.
> Live Stream: The forum will also be streamed live on Rep. John Conyers?
> Facebook page<https://www.facebook.com/CongressmanConyers/>.
>
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89695&title=House%20Democrats%20Holding%
> 20Hearing%20with%20All%20Star%20Lineup%20on%20Reforming%
> 20Electoral%20College>
> Posted in electoral college<http://electionlawblog.org/?cat=44>
>
>
> ?Questions Of Race And Redistricting Return To The Supreme Court?<
> http://electionlawblog.org/?p=89693>
> Posted on December 5, 2016 7:34 am<http://electionlawblog.org/?p=89693>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> Nina Totenberg reports<http://www.npr.org/2016/12/05/504188630/
> questions-of-race-and-redistricting-return-to-the-
> supreme-court?utm_campaign=storyshare&utm_source=twitter.
> com&utm_medium=social> for NPR on today?s racial gerrymandering cases
> being argued today at SCOTUS.
> For my views on these cases generally, see my Racial Gerrymandering?s
> Questionable Revival<http://papers.ssrn.com/sol3/papers.cfm?abstract_
> id=2601459>, 67 Alabama Law Review 365 (2015).
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89693&title=%E2%80%
> 9CQuestions%20Of%20Race%20And%20Redistricting%20Return%20To%
> 20The%20Supreme%20Court%E2%80%9D>
> Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<
> http://electionlawblog.org/?cat=29>
>
>
> ?In an anti-recount filing, Trump?s lawyers say the election was ?not
> tainted by fraud or mistake??<http://electionlawblog.org/?p=89690>
> Posted on December 5, 2016 7:29 am<http://electionlawblog.org/?p=89690>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> The Fix:<https://www.washingtonpost.com/news/the-
> fix/wp/2016/12/05/in-an-anti-recount-filing-trumps-lawyers-
> say-the-election-was-not-tainted-by-fraud-or-mistake/?
> utm_term=.b03e0b7850ac>
> ?On what basis does Stein seek to disenfranchise Michigan citizens? None
> really, save for speculation,? it reads. ?All available evidence suggests
> that the 2016 general election was not tainted by fraud or mistake.? The
> filing notes that both Michigan?s Republican governor and the White House
> articulated confidence in the results of the election. The former refers
> solely to Michigan, of course, but the latter citation by Trump?s lawyers
> argues<http://www.politico.com/story/2016/11/white-house-
> hackers-election-recount-231849> that there was no evidence of Russian
> interference at the national level.
> Why is Stein conducting a recount, the lawyers ask? ?Stein aims to sow
> doubts regarding the legitimacy of the presidential election.?
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89690&title=%E2%80%9CIn%
> 20an%20anti-recount%20filing%2C%20Trump%E2%80%99s%20lawyers%20say%20the%
> 20election%20was%20%E2%80%98not%20tainted%20by%20fraud%
> 20or%20mistake%E2%80%99%E2%80%9D>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
>
>
> Paul Ryan Doesn?t Know?and Says He Doesn?t Care?If Millions Voted
> Illegally<http://electionlawblog.org/?p=89688>
> Posted on December 5, 2016 7:27 am<http://electionlawblog.org/?p=89688>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> Greg Sargent:<https://www.washingtonpost.com/blogs/plum-
> line/wp/2016/12/05/republicans-are-actively-helping-trump-weaken-our-
> democracy-with-his-lies/?utm_term=.5f96d890fc47>
> Republicans have spent years pushing lies about voter fraud in order to
> justify vote suppression measures. But Donald Trump took these lies to
> another level entirely. He not only claimed <https://www.washingtonpost.
> com/blogs/plum-line/wp/2016/08/29/trump-is-already-trying-
> to-delegitimize-a-clinton-victory-historians-say-that-
> might-be-unprecedented/> in advance of the election that its outcome
> would be illegitimate if he lost. After winning the electoral college, he
> then falsely <https://www.washingtonpost.com/blogs/plum-line/wp/2016/
> 11/28/this-trump-tweet-signals-a-major-assault-on-
> voting-heres-what-it-might-look-like/> claimed that ?millions? had voted
> illegally and that he?d actually won the popular vote, to dramatically
> inflate impressions of his popular support and mandate and, worse,
> apparently to continue eroding public confidence in our elections and
> democratic institutions.
> Now two top Republicans have been given the opportunity to set the record
> straight about Trump?s claim that ?millions? voted illegally. Both declined
> ? making them complicit in Trump?s efforts to undermine that public
> confidence and, by extension, weaken our democracy.
> Here?s Paul Ryan, on CBS?s 60 Minutes<http://www.cbsnews.
> com/videos/paul-ryan-weighs-in-on-trumps-voting-fraud-tweet/>:
> QUESTION: Trump tweeted in the last week or so that he had actually won
> the popular vote, if you deduct the millions who voted illegally. Do you
> believe that?
> RYAN: I don?t know. I?m not really focused on these things.
> QUESTION: Wait a minute. You have an opinion on whether millions of
> Americans voted illegally.
> RYAN: I have no way of backing that up. I have no knowledge of such
> things. But it doesn?t matter to me. He won the election.
> Meanwhile, RNC chair Reince Priebus was asked on Face the Nation to
> account for Trump?s claim<http://www.cbsnews.com/news/face-the-nation-
> transcript-december-4-2016-priebus-gingrich-pelosi-panetta/>. ?I don?t
> know if that?s not true,? Priebus insisted. Pressed further, he actually
> said: ?It?s possible.?
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89688&title=Paul%20Ryan%
> 20Doesn%E2%80%99t%20Know%E2%80%93and%20Says%20He%20Doesn%
> E2%80%99t%20Care%E2%80%93If%20Millions%20Voted%20Illegally>
> Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud
> squad<http://electionlawblog.org/?cat=8>
>
>
> A Big Thank You to Dan Tokaji?and a Reminder<http://
> electionlawblog.org/?p=89686>
> Posted on December 5, 2016 7:24 am<http://electionlawblog.org/?p=89686>
> by Rick Hasen<http://electionlawblog.org/?author=3>
> Thanks so much to Dan Tokaji for filling in for me during the last week
> when I was off the grid.  When I asked Dan to do this a while back, I was
> expecting it to be a relatively quiet week in the world of election law.
> Readers know it obviously was not. So thanks for the extra, unanticipated
> work Dan.
> And a reminder that?despite all the election law stuff churning right
> now?I?m trying to keep my blogging and commentary light <
> http://electionlawblog.org/?p=89262> for the next few months, as I try to
> make headway on a book project and other pressing writing commitments.
> Thanks as always for reading ELB!
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89686&title=A%20Big%20Thank%
> 20You%20to%20Dan%20Tokaji%E2%80%94and%20a%20Reminder>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
>
>
> ?Anthony Weiner Fined $65,000 for Campaign Finance Violations?<http://
> electionlawblog.org/?p=89683>
> Posted on December 4, 2016 8:50 am<http://electionlawblog.org/?p=89683>
> by Dan Tokaji<http://electionlawblog.org/?author=5>
> Missed this one <http://www.nytimes.com/2016/
> 12/01/nyregion/anthony-weiner-fined-65000-for-campaign-
> finance-violations.html> on the NYC Campaign Finance Board?s imposition
> of fines Thursday for, among other things, ?using campaign funds to pay for
> two cellphones, including the personal phone used by Mr. Weiner from May to
> September 2013 ?.?
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89683&title=%E2%80%
> 9CAnthony%20Weiner%20Fined%20%2465%2C000%20for%20Campaign%
> 20Finance%20Violations%E2%80%9D>
> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>
>
> ?Three Men in a Room: The D.C. Edition?<http://
> electionlawblog.org/?p=89681>
> Posted on December 4, 2016 8:40 am<http://electionlawblog.org/?p=89681>
> by Dan Tokaji<http://electionlawblog.org/?author=5>
> Torres-Spelliscy at Brennan<http://www.brennancenter.org/blog/three-
> men-room-dc-edition>.
> [hare]<https://www.addtoany.com/share#url=http%3A%2F%
> 2Felectionlawblog.org%2F%3Fp%3D89681&title=%E2%80%9CThree%
> 20Men%20in%20a%20Room%3A%20The%20D.C.%20Edition%E2%80%9D>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
>
>
> --
> 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
> rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org<http://electionlawblog.org/>
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> ------------------------------
>
> Message: 5
> Date: Mon, 5 Dec 2016 13:57:48 -0500
> From: BZall at aol.com
> To: law-election at uci.edu
> Subject: [EL] Update on Freedom Path challenge to IRS's "facts and
>         circumstances" test
> Message-ID: <d58a37.2d54d6dc.457712ac at aol.com>
> Content-Type: text/plain; charset="us-ascii"
>
> Here's a quick update on a pending case that's gone mostly under the radar,
>  but has the potential to be an earthquake in the ability of the IRS to
> regulate  political speech and association. Freedom Path v. Lois Lerner,
> No.
> 3:14-CV-1537-D (N.D.Tx). Note: I'm not part of the case, but I've been
> following it.
>
> In 2011, Freedom Path applied for tax-exemption as a 501(c)(4)
> organization, and was immediately ensnared in the IRS scandal. It filed
> suit in
> federal court in Dallas, and having survived motions to dismiss for
> mootness and
> standing, has now moved for partial summary judgment on its challenge to
> the
>  IRS's use of a "facts and circumstances" methodology to determine whether
> it is  engaged in political campaign intervention or, as Freedom Path
> claims, issue  advocacy. A copy of the Motion is attached.
>
> The IRS's "facts and circumstances" test has been applied for decades, and
> is basically a "know it when you see it" test that permits an individual
> IRS  employee to determine, based on all the facts and circumstances of a
> situation,  whether an organization is engaged in political or
> non-political
> activity (the  test is also used in a variety of other situations, usually
> not
> involving core  First Amendment rights). The IRS has never been able to
> articulate a simple  compliance test, and usually ends up offering multiple
> "examples" and repeating  the facts and circumstances test. In my training
> and
> classes, I suggest a "Three  T's" test: the IRS decision between political
> and issue advocacy depends on  a shifting set of three factors: Timing,
> Targeting and Text. How close to an  election? Was the advocacy directed
> to an
> electorate? Did the text deal with an  issue or with an individual,
> particularly an individual's character or fitness  for office? But there's
> always the
> facts and circumstances test under which  the IRS can make any choice it
> pleases, no matter the argument made by the  taxpayers. In other words,
> there's
> never any certainty about what the IRS will  do.
>
> The facts and circumstances test has been roundly criticized, including by
> the Bright Lines Project, which proposed replacing the test (except for
> about  ten percent of organizations) with "bright line" rules supposedly
> more
> easily  understood. After the IRS scandal, the IRS proposed new regulations
> defining  campaign-related political activity in ways similar to the Bright
> Lines  proposal, but after receiving hundreds of thousands of opposing
> public
> comments,  withdrew the proposal, and Congress has since barred the
> Treasury from  re-issuing the proposal. During the course of the IRS
> scandal and
> after,  Congress, outside groups, and the IRS and Treasury themselves
> repeatedly  described the facts and circumstances test as ambiguous,
> confusing and
> impossible for lay persons to understand and comply with. See, e.g.,
> then-IRS  Commissioner Danny Werfel's Charting a Path Forward At The IRS,
> June  24,
> 2013, P. 28.
>
> This case is the other shoe dropping.
>
> The legal theory behind the challenge, articulated, inter alia, by  Chris
> Gober of the Gober Group and Jason Torchinsky of Holtzman Vogel  Josefiak
> Torchinsky, is pretty simple: if the IRS itself has declared its own  rules
> ambiguous and too confusing for compliance, aren't those rules
> unconstitutional under the First Amendment's rights of speech and
> association?  After all,
> the Supreme Court laid down some clear and straightforward rules in  FEC v.
> Wisconsin Right to Life, 551 U.S. 449 (2007), essentially all of  which are
> violated by the facts and circumstances test, and the IRS's rules  violate
> the Supreme Court's ruling against the FEC's "two-part, twelve factor"
> test
> for issue advocacy in Citizens United v. FEC, 558 U.S. 310 (2010).
>
> The traditional IRS defense is that the IRS is entitled to ignore the First
>  Amendment because it administers a "tax subsidy" and the Treasury must
> stand  apart from subsidizing political speech. Regan v. Taxation With
> Representation of Washington, 461 U.S. 540 (1983). But in recent years that
> defense has broken down, most famously in Z Street v. Koskinen, 791  F.3d
> 24 (D.C.
> Cir. 2015), where the IRS was accused of treating pro-Israel  groups
> differently. And in Agency for Int'l Development v. Alliance for Open
> Society
> Int'l, 113 S.Ct. 2321, 2328 (2013), the Court limited the subsidy
> argument to
> specific activities being paid for by government funds, and blocked  the
> argument for penalties against the entire organization. After all,
> political
> speech by exempt organizations is not subsidized, since it is taxed at the
> highest corporate rates under IRC section 527, meaning that 501(c)(4)s are
> the  worst examples of penalties against the entire organization for
> non-subsidized  speech. Moreover, with the relentless publicity about (and
> decisions
> against) the IRS targeting scandal, the IRS's claim of being a neutral
> broker of  tax rules has taken a beating.
>
> Even Paul Streckfus, editor of EO Tax Journal and famously  supportive of
> aggressive IRS enforcement of rules against political  intervention, wrote
> in
> today's EOTR: Freedom Path "may be right." I  would not want to be the
> IRS's defense counsel in the next four years.
>
> Barnaby  Zall
> Law Office of Barnaby Zall
> 685 Spring St. #314
> Friday Harbor WA  98250
> 360-378-6600
> bzall at aol.com
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