[EL] ELB News and Commentary 12/9/16

Thu Dec 8 19:42:05 PST 2016

“Democracy vouchers coming to Seattle mailboxes soon”<http://electionlawblog.org/?p=89812>
Posted on December 8, 2016 7:31 pm<http://electionlawblog.org/?p=89812> by Rick Hasen<http://electionlawblog.org/?author=3>
King5:<http://www.king5.com/news/politics/seattle-democracy-vouchers-coming-to-mailboxes-jan-3/365496363>
Democracy vouchers will soon be in the mail to registered voters in the city of Seattle, as part of a first of its kind campaign finance initiative launching next year.
“I made a lot of calls when I first started to other jurisdictions that had similar things, and there’s just nothing like this out there, so it’s actually been kind of exciting,” said René LeBeau, Seattle’s new democracy voucher program manager.
LeBeau, who works under the Seattle Ethics and Elections Commission (SEEC), has been working on implementation for the past year, ever since Honest Elections I-122<http://honestelectionsseattle.org/what-is-initiative-122/>was passed overwhelmingly by Seattle voters in 2015.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Could campaign finance overhaul help solve congressional gridlock?”<http://electionlawblog.org/?p=89810>
Posted on December 8, 2016 7:27 pm<http://electionlawblog.org/?p=89810> by Rick Hasen<http://electionlawblog.org/?author=3>
Open Secrets reports<https://www.opensecrets.org/news/2016/12/could-campaign-finance-overhaul-solve-gridlock/> on today’s Excellent Sidley forum at NYU in DC:
Should we restrict political contributions? How have weakened political parties impacted this election? Can public financing work? President-elect Donald Trump pledged to “drain the swamp,” yet has not proposed changes to the campaign finance system. So experts in the field with various viewpoints ran through scenarios at a forum organized by New York University and law firm Sidley Austin<https://www.opensecrets.org/orgs/summary.php?id=D000022249> on Thursday.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>

“A Post-Election Legal Challenge to the Electoral College”<http://electionlawblog.org/?p=89808>
Posted on December 8, 2016 7:15 pm<http://electionlawblog.org/?p=89808> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ law blog.<http://blogs.wsj.com/law/2016/12/08/a-post-election-legal-challenge-to-the-electoral-college/>
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Posted in electoral college<http://electionlawblog.org/?cat=44>

“Koch brothers announce layoffs; The billionaire brothers, who sparred with Donald Trump, are reorganizing their advocacy network.”<http://electionlawblog.org/?p=89805>
Posted on December 8, 2016 5:26 pm<http://electionlawblog.org/?p=89805> by Rick Hasen<http://electionlawblog.org/?author=3>
Ken Vogel<http://www.politico.com/story/2016/12/koch-brothers-announce-layoffs-232341> for Politico.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, tax law and election law<http://electionlawblog.org/?cat=22>

“Flagler Circuit Judge Scott DuPont Faces Charges of ‘Recklessly’ Spreading Baseless Claims About Opponent”<http://electionlawblog.org/?p=89803>
Posted on December 8, 2016 5:06 pm<http://electionlawblog.org/?p=89803> by Rick Hasen<http://electionlawblog.org/?author=3>
FlaglerLive.com:<https://flaglerlive.com/102363/scott-dupont-charges/>
The Florida Judicial Qualifications Commission<http://www.floridajqc.com/>, the investigative arm of the Florida judicial system, last week filed a notice of formal charges against Flagler County Circuit Judge Scott DuPont stemming from allegations that he may have acted unethically and “recklessly” during his just-ended re-election campaign against challenger Malcolm Anthony.
In a series of five charges<https://flaglerlive.com/wp-content/uploads/jqc-v-scott-dupont.pdf>, the commission found that DuPont spread” scandalous information” about Anthony without substantiating it, that he implied Anthony had been jailed and that his wife and daughter had been arrested two dozen times between them, that Anthony had cheated in a straw poll, though DuPont had no documentation substantiating the allegation, and that, aside from his claims about Anthony, that DuPont himself had flatly declared in a forum that he has and would as a judge continue to refuse to find any statute unconstitutional—itself a violation of his oath to uphold the Constitution.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, judicial elections<http://electionlawblog.org/?cat=19>

“Trying to Push Garland Through Could Kill the Filibuster”<http://electionlawblog.org/?p=89801>
Posted on December 8, 2016 4:56 pm<http://electionlawblog.org/?p=89801> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ve written this piece<https://politicalwire.com/2016/12/08/trying-push-garland-kill-filibuster/> for Political Wire (behind the paywall—and you really should pay to support Taegan’s great site).  It begins:
David Waldman has raised hopes<http://www.dailykos.com/story/2016/12/06/1606610/-With-Biden-in-the-chair-on-Jan-3-the-Senate-can-confirm-a-renominated-Merrick-Garland-Here-s-how> for a West Wing/House of Cards-style parliamentary maneuver to get the Senate to approve Merrick Garland for the United States Supreme Court before President-elect Trump will have a chance to fill the seat left open in February by the death of Justice Antonin Scalia. I’m no expert on the Senate’s parliamentary rules, but I know enough to know that Waldman relies upon some controversial assumptions<http://thefederalist.com/2016/12/07/no-senate-democrats-cant-use-nuclear-option-confirm-merrick-garland/> to say that Senate Democrats could act in the narrow window when the Senate comes together just before new Senators are sworn in. At that magic moment, if Obama has renominated Judge Garland for Scalia’s seat (the current nomination dies with the end of the current session), the Democrats could then confirm him and deprive Republicans of the chance to fill the seat…..

It concludes:
That filibuster would give Democrats substantial leverage over much of Trump’s agenda, from repealing Obamacare, to loosening or killing banking regulation and consumer protection, to passing laws that might impose restrictions on abortion or create a national voter identification law.
In short, the only check Democrats have now is the legislative filibuster in the Senate, and there’s no surer path to killing that than Waldman’s plan.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Female Candidates Have Greatest Success in Open Seat Elections But Poorly Funded by PACs, Donors, and Major Parties”<http://electionlawblog.org/?p=89799>
Posted on December 8, 2016 4:51 pm<http://electionlawblog.org/?p=89799> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.commoncause.org/press/press-releases/female-candidates-have-greatest-success-in-open-seat-elections-but-poorly-funded-by-PACs-Donors-Major-Parties.html>
Representation2020, Common Cause and the Center for Responsive Politics have released a new repor<http://www.commoncause.org/research-reports/individual-and-pac-giving-to-women-candidates.html>t revealing the systemic disparity in funding for female candidates running for open seats by PACs, individual donors and major parties. Women are more likely to win open seat races than women challenging an incumbent. In addition, Republican women are likely to face additional barriers and increased opposition funding.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Fiduciary Voters?”<http://electionlawblog.org/?p=89797>
Posted on December 8, 2016 4:48 pm<http://electionlawblog.org/?p=89797> by Rick Hasen<http://electionlawblog.org/?author=3>
Teddy Rave has posted this draft<http://department-lists.uci.edu/mailman/listinfo/law-election> on SSRN (Duke Law Journal).  Here is the abstract:
What does the majority owe the minority when issues are put to a vote? This question is central to direct democracy, where voters bypass the legislature and enact law directly. Some scholars have argued that voters in direct democracy bear fiduciary-like duties because they act as representatives when casting their ballots. The Supreme Court, by contrast, has suggested that voters are not agents of the people and thus have no fiduciary obligation. By focusing on whether direct-democracy voters are representatives who bear duties, both sides have framed the issue incorrectly. They have imported a legal tool — fiduciary duty — from private law designed to combat a governance problem absent from direct democracy: a principal–agent problem. The real governance problem in direct democracy is the tyranny of the majority. Once we focus on the right problem, private law — specifically corporate law — provides useful insights. Corporate law imposes duties — sometimes confusingly also called “fiduciary” — on shareholder majorities to consider minority interests when voting. Although these duties do not require the majority to subordinate its own interests like a true duty of loyalty, courts recognize the need to police for opportunism when the minority is vulnerable to exploitation. Looking to these private-law voter duties can help explain a puzzling line of Supreme Court cases reviewing the constitutionality of ballot initiatives that rolled back legislation benefiting minority groups. In direct democracy, where structural protections for the minority are lacking, courts may be playing a familiar institutional role from corporate law: keeping the majority from exploiting the minority.

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Posted in campaigns<http://electionlawblog.org/?cat=59>

--
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<http://electionlawblog.org/>
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