[EL] ELB News and Commentary 2/4/16
Rick Hasen
rhasen at law.uci.edu
Thu Feb 4 08:08:02 PST 2016
Ted Cruz, a Public Firebrand on Social Issues, Is Cooler When Wooing
Donors” <http://electionlawblog.org/?p=79595>
Posted onFebruary 4, 2016 8:05 am
<http://electionlawblog.org/?p=79595>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports.
<http://www.nytimes.com/2016/02/04/us/politics/ted-cruz-a-public-firebrand-on-social-issues-is-cooler-when-wooing-donors.html?ref=politics>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The political wars damage public perception of Supreme Court, Chief
Justice Roberts says” <http://electionlawblog.org/?p=79593>
Posted onFebruary 4, 2016 8:03 am
<http://electionlawblog.org/?p=79593>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob Barnes
reports<https://www.washingtonpost.com/politics/courts_law/the-political-wars-damage-public-perception-of-supreme-court-chief-justice-roberts-says/2016/02/04/80e718b6-cb0c-11e5-a7b2-5a2f824b02c9_story.html>for
WaPo.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Clinton blasts Wall Street, but still draws millions in
contributions” <http://electionlawblog.org/?p=79591>
Posted onFebruary 4, 2016 8:01 am
<http://electionlawblog.org/?p=79591>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<https://www.washingtonpost.com/politics/clinton-blasts-wall-street-but-still-draws-millions-in-contributions/2016/02/04/05e1be00-c9c2-11e5-ae11-57b6aeab993f_story.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Does Big Money Still Matter? You Bet It Does”
<http://electionlawblog.org/?p=79589>
Posted onFebruary 4, 2016 7:58 am
<http://electionlawblog.org/?p=79589>byRick Hasen
<http://electionlawblog.org/?author=3>
Eliza Newlin Carney
<http://prospect.org/article/does-big-money-still-matter-you-bet-it-does>in
TAP:
Good-government advocates are “oblivious to the failure of ‘big
money’ to dictate the race,” wrote Bradley Smith, chairman of the
Center for Competitive Politics, in a/Wall Street Journal/commentary
<http://www.wsj.com/articles/thats-odd-big-money-isnt-buying-this-election-1454108285>headlined
“That’s Odd, ‘Big Money’ Isn’t Buying This Election.” One of the
contest’s “unexpected surprises,”wrote
<http://www.vox.com/polyarchy/2016/2/1/10887576/trump-sanders-campaign-finance>New
America senior fellow Lee Drutman, is how well Donald Trump and
Bernie Sanders have done with such little backing from wealthy donors.
It’s easy to see why billionaire donors don’t look so influential
anymore. Former Florida Governor Jeb Bush and his super PAC spent
$14.9 million on the Iowa caucuses, but won just 5,238 voters (a
mere 2.8 percent of the total GOP vote) and a single delegate. That
added up to $2,845 per vote—a dismal showing that/U.S. News & World
Report/dubbed
<http://www.usnews.com/news/blogs/data-mine/2016/02/02/bush-got-little-bang-for-his-buck-in-iowa>“by
far the worst bang-for-the-buck performance” of any GOP candidate.
But the failure of Bush or any other big spender to win an election
says little about the actual role that money plays in politics
and—perhaps more important—in policy-making. As a long list of
self-financed millionaire candidates can attest, having the biggest
wallet is no guarantee of success. And as election lawyer and author
of the recent book/Plutocrats United/Richard Hasenhas noted
<https://www.washingtonpost.com/opinions/money-cant-buy-jeb-bush-the-white-house-but-it-still-skews-politics/2016/01/14/7c920780-b554-11e5-9388-466021d971de_story.html>,
the real issue is not just how political money boosts candidates,
but how it helps big donors win the tax breaks, contracts, and
policies they seek.
Also overlooked in the argument that money doesn’t matter is the
ever-growing role that millionaire and billionaire donors are
playing in elections other than the race for the White House.Super
PACs, which may raise unlimited contributions if they don’t
coordinate with candidates, arewading aggressively
<http://prospect.org/article/super-pac-debate-spotlights-illegal-coordination>into
not just House and Senate contests, but into gubernatorial, state
legislative, mayoral, city council, and even school board races.
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Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>
“New Path for Masking Super PAC Donors; Funds from limited liability
companies grow, making it harder to know the name of the ultimate
donors” <http://electionlawblog.org/?p=79587>
Posted onFebruary 4, 2016 7:51 am
<http://electionlawblog.org/?p=79587>byRick Hasen
<http://electionlawblog.org/?author=3>
WSJ reports.
<http://www.wsj.com/articles/new-path-for-masking-super-pac-donors-1454546712>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Ryan backs voting rights bill — but tells black caucus it’s out of
his hands” <http://electionlawblog.org/?p=79585>
Posted onFebruary 4, 2016 7:51 am
<http://electionlawblog.org/?p=79585>byRick Hasen
<http://electionlawblog.org/?author=3>
Interesting
<http://thehill.com/homenews/house/268159-ryan-backs-voting-rights-bill-but-tells-black-caucus-its-out-of-his-hands>…
Speaker Paul Ryan (R-Wis.) told black lawmakers Wednesday that he
supports new voting rights protections they’ve championed, but said
he won’t bypass a committee chairman to move legislation, according
to a Democrat who attended the gathering.
“He said it right in front of everybody — he said he supports the
[Jim] Sensenbrenner bill,” Rep. Emanuel Cleaver (D-Mo.), former
chairman of the Congressional Black Caucus (CBC), said after Ryan
met with the group on Capitol Hill.
“So somebody was saying, ‘Well, why don’t you go tell your committee
chair to do it?’ ” Cleaver added. “And he said, … ‘Look, I can’t do
that.’
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>,VRAA
<http://electionlawblog.org/?cat=81>
“The Unenforceability of the Electoral Count Act’s Procedural
Provisions” <http://electionlawblog.org/?p=79583>
Posted onFebruary 4, 2016 7:45 am
<http://electionlawblog.org/?p=79583>byRick Hasen
<http://electionlawblog.org/?author=3>
Chris Land has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2721210>on SSRN.
Here is the abstract:
The Electoral Count Act governs the procedures used by Congress to
tabulate Presidential election results every four years. The Act
contains a number of provisions that purport to restrict debate,
points of order, and other parliamentary motions that can be offered
while certificates of vote are counted by the President of the
Senate. These restrictions likely are unenforceable based on the
Rules Clause of the Constitution and Supreme Court precedent
interpreting this provision. Part II of this Article seeks to answer
the threshold question of what institution counts our electoral
votes — a constitutionally unique ‘Joint Session’ or merely a
simultaneous meeting of the House and Senate. Part III analyzes the
1877 Electoral Commission and argues that this entity was a
permissible delegation of Congressional authority. Part IV discusses
the 2000 electoral count and contends that the provisions of the
Electoral Count Act cited by Vice President Al Gore are
unenforceable. Finally, Part V asserts that the enforceability of
the Electoral Count Act is justiciable and federal court resolution
would likely be a necessary last resort in the midst of a contested
election.
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Posted inelectoral college <http://electionlawblog.org/?cat=44>
“Alaska Speaks Up For Self-Government”
<http://electionlawblog.org/?p=79581>
Posted onFebruary 4, 2016 7:44 am
<http://electionlawblog.org/?p=79581>byRick Hasen
<http://electionlawblog.org/?author=3>
Free Speech for People
<http://freespeechforpeople.org/alaska-speaks-up-for-self-government/>:
On Monday, the State of Alaska filed an important legal brief
setting forth a bold argument for/self-government/as a theory for
limiting out-of-state money in local and state election campaigns.
The state’s lawyers discussed the case with Free Speech For People
while developing the brief, and we’d like to highlight this aspect
of the argument….his argument draws support from a little-reported
Supreme Court decision just two years after/Citizens United/. The
case of/Bluman v. FEC/involved a federallaw
<http://uscode.house.gov/view.xhtml?req=%28title:52%20section:30121%20edition:prelim%29>prohibiting
foreign nationals from contributing or spending money in federal,
state, or local elections. Two Canadians in the U.S. on temporary
visas challenged the prohibition—after all,/Citizens United/had just
a year before waxed poetic about how a ban on/corporate/political
spending violated the prohibition against “distinguishing among
different speakers, allowing speech by some but not others” and
thereby “deprive[d] the public of the right and privilege to
determine for itself what speech and speakers are worthy of
consideration.” If corporations can spend/unlimited/money in
elections, why couldn’t Mr. Bluman spend a few bucks to “print
flyers supporting President Obama’s reelection and to distribute
them in Central Park”?
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Strange Career of James Crow, Esquire”
<http://electionlawblog.org/?p=79579>
Posted onFebruary 4, 2016 7:42 am
<http://electionlawblog.org/?p=79579>byRick Hasen
<http://electionlawblog.org/?author=3>
William Barber and Jonathan Wilson-Hartgrove
<http://www.theatlantic.com/politics/archive/2016/02/jim-crows-new-legal-career/459879/>in
The Atlantic:
Throughout the/McCrory/trial, NAACP lawyers made a strong case that
the voter-ID component of this legislation places an unnecessary and
undue burden on voters—especially poor and African American voters.
A verdict is expected in a few weeks. But the case is really about
much more than defeating voter-ID laws. It is about a central
question of 21st-century American politics: Is a multiethnic
democracy possible?
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
“Bush super PAC the biggest loser in ad wars”
<http://electionlawblog.org/?p=79577>
Posted onFebruary 4, 2016 7:40 am
<http://electionlawblog.org/?p=79577>byRick Hasen
<http://electionlawblog.org/?author=3>
CPI video. <https://www.facebook.com/publici/videos/10153250484765723/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
EAC’s Brian Newby Defends His Actions Helping His Buddy Kobach
<http://electionlawblog.org/?p=79575>
Posted onFebruary 4, 2016 7:38 am
<http://electionlawblog.org/?p=79575>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read Zach
Roth<http://www.msnbc.com/msnbc/federal-agency-helps-red-states-make-voter-registration-harder>for
MSNBC:
Newby’s move sparked instant criticism. In astatement
<http://electionlawblog.org/?p=79529>posted online Tuesday, the
panel’s lone Democratic commissioner, Vice Chair Thomas Hicks, wrote
that Newby had acted “unilaterally,” and that his decision
“contradicts policy and precedent established by the Commission.”
Hicks noted that a2015 EAC statement
<http://www.eac.gov/assets/1/Documents/Organizational%20Management%20Policy%20Statement%20%28final%20adopted%202-24-15-cm%29.pdf%20%20%20%20>makes
clear that the executive director lacks the authority to set policy,
which must be done by the commissioners. Hicks said any change to
the federal voter registration form would need to be voted on by the
commissioners after a public comment period, neither of which
occurred in this case.
“This is a shocking departure from two previous rejections by the
EAC of requests to change the federal form along these lines, with
no explanation, and, what’s worse, with no opportunity for public
notice and comment,” said Dale Ho, the director of the ACLU’s voting
rights program, which is suing Kobach over the proof-of-citizenship
requirement, calling it “troubling on a number of levels.”…
In an interview with MSNBC, Newby conceded that he lacks the
authority to change EAC policy. But he argued that changing the
state-specific instructions that accompany the federal voter
registration form, unlike changing the form itself, constituted an
administrative matter, rather than a policy change— even though the
agency had twice rejected Kansas’ requests to change the
instructions. In fact, Newby said, he believes he’s/required/to
change the instructions if a state asks him to.
“If a state requests that we modify the state-specific instructions
based on their state law, yes, I believe that my role is to put
those [changes] in our state-specific instructions,” Newby said.
If there’s a meaningful distinction between the federal form and the
instructions that accompany the federal form, it was lost even on
Kobach. In his court filing this week seeking to have the lawsuit
against him dismissed, he referred to Newby’s decision thus: “On
January 29, 2015 (sic), the EAC granted Kansas’s request to modify
the Federal Form.”
William Lawrence, a Kansas lawyer who is challenging Kobach’s effort
to remove the roughly 30,000 would-be voters who didn’t provide
proof of citizenship, said the distinction Newby is seeking to draw
doesn’t hold water….
Newby admitted to MSNBC he’d been in contact with Kobach on the
issue, as well as with the secretaries of state of Alabama and
Georgia. He said there was nothing improper about doing so, or about
not including the the EAC’s commissioners in his conversations with
state officials.
“It wouldn’t have been proper to include the commissioners in any of
the discussions I had with the secretaries of state,” Newby said.
“It was really my jurisdiction, my process.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Greg Sargent on Clinton-Sanders Fight Over Clinton Wall St.
Donations <http://electionlawblog.org/?p=79573>
Posted onFebruary 4, 2016 7:34 am
<http://electionlawblog.org/?p=79573>byRick Hasen
<http://electionlawblog.org/?author=3>
Good point:
<https://www.washingtonpost.com/blogs/plum-line/wp/2016/02/04/this-one-moment-perfectly-captures-the-clinton-sanders-war-over-progressivism/>
In making this broad argument, Sanders is implicitly indicting not
just Clinton, but President Obama and many Democrats who voted for
Dodd-Frank financial reform. Indeed, that’s the essence of Sanders’
whole case: Obama achievements such as the Affordable Care Act and
Dodd-Frank, while laudable, still fall woefully short of addressing
the scale of our challenges and meeting the ideal of distributive
justice that Sanders is championing. This, Sanders says, is because
Obama failed to break the power of the oligarchy, both by failing to
rally a large enough grassroots movement against it and by
continuing to take money from it. On both fronts, Sanders will do
otherwise.
And yet, at bottom, Sanders is not quite willing to say/why/it is
that the acceptance of oligarchic money by specific individual
Democratic politicians, such as Clinton or Obama, leads them
directly to personally embrace policies that are insufficiently
ambitious to address the soaring inequality that poses a
quasi-extistential threat to the middle class and our political economy.
To be clear, as noted above, Sanders is also specifically
criticizing Clinton’s policies, which is fair game, and more
broadly, there’s nothing wrong with Sanders indicting the entire
Democratic establishment. We should be debating the question of how
big money paralyzes our system and skews Congressional policy-making
in both parties towards the interests of the wealthy. But there are
still fundamental unanswered questions at the heart of this
Clinton-Sanders argument, and both candidates should fill this void.
Clinton could do so by explaining why it is that accepting Wall
Street money/does not/constrain her in policy terms.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Sotomayor Tops Justices For Number of Public Appearances”
<http://electionlawblog.org/?p=79571>
Posted onFebruary 4, 2016 7:33 am
<http://electionlawblog.org/?p=79571>byRick Hasen
<http://electionlawblog.org/?author=3>
Tony Mauro
<http://www.nationallawjournal.com/supremecourtbrief/id=1202748764649/Sotomayor-Tops-Justices-For-Number-of-Public-Appearances?slreturn=20160104102247>for
NLJ:
Kwan acknowledges she’s “positive we have missed things,” estimating
that the site captures 80 percent of the justices’ appearances.
Hosting organizations and institutions sometimes do not publicize
visits at the request of justices or for other reasons. The court’s
public information office only occasionally alerts the news media
about upcoming justices’ off-the-bench talks.
The large total number of appearances—282 since July 2014—fits in
with the growing sense that, as individuals, justices have become
more visible in recent years.
*Stepping Out: Justices’ Public Appearances Since July 2014 *
*Sotomayor* 53
*Scalia* 51
*Ginsburg* 49
*Breyer* 42
*Alito* 27
*Kagan* 23
*Kennedy* 17
*Roberts* 11
*Thomas* 9
/Source: SCOTUS Map (scotusmap.com <http://scotusmap.com/>)/
“It is not your imagination. Supreme Court justices are in the news
more than ever,” University of California, Irvine School of law
professor Richard Hasen wrote in a_forthcoming article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611729>_. Using
data about justices’ appearances and press interviews since 1960,
Hasen created a “Celebrity Index” by dividing the number of
justices’ appearances by the number of years they served. Nine of
the top 10 justices in the index are currently on the court.
_Their increased visibility
<http://www.nytimes.com/2015/06/02/us/politics/justices-get-out-more-but-calendars-arent-open-to-just-anyone.html>_is
also a function of modern technology, Hasen cautioned. Decades ago,
justices could slip into town and even give a speech without being
noticed. But now, Hasen said, justices are learning what police
officers have come to know: “Once people have access to the Internet
and a smartphone, anything spoken publicly is capable of being
recorded … and eventually picked up by a wide audience.”
The frequency of justices’ public events and where they take place
provides “an interesting snapshot of where the justices’ like to
spend time,” Kwan said. Justice Ruth Bader Ginsburg favors
opera_festivals in the summertime
<https://glimmerglass.org/index.php/event/mainstage-guest-appearances/justice-ruth-bader-ginsburg/>_,
and Justice Stephen Breyer will attend “any event that will allow
him to speak French,” Kwan joked.
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Posted inCelebrity Justice <http://electionlawblog.org/?cat=109>,Supreme
Court <http://electionlawblog.org/?cat=29>
Robbin Stewart on Bob Bauer on Disclosure and Overreach
<http://electionlawblog.org/?p=79569>
Posted onFebruary 3, 2016 11:54 am
<http://electionlawblog.org/?p=79569>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://ballots.blogspot.com/2016/02/january-23rd-i-noted-that-ij-is.html>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Political Dynamism: A new approach to making government work again”
<http://electionlawblog.org/?p=79567>
Posted onFebruary 3, 2016 11:52 am
<http://electionlawblog.org/?p=79567>byRick Hasen
<http://electionlawblog.org/?author=3>
The New America Foundation
<https://www.newamerica.org/political-reform/political-dynamism/>will
hold this event on Feb. 16, in connection withthis new report
<https://static.newamerica.org/attachments/12404-political-dynamism-2/political_dynamism.c416ce23ca23482b8da8f0feaf14dbb3.pdf>by
Lee Drutman.
The answer, in short, is more politics: a political system that is
fluid and competitive; a system that leverages diversity and creates
opportunity for experimentation and change; a political system that
expands, not limits, the combinatorial possibilities of political
innovation and deal-making; a political system that helps citizens
to aggregate and realize their interests in the most efficacious
ways, rather than simultaneously expecting them to be super-engaged
and expert while giving them few meaningful choices.
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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>
“Donald Trump Becomes the GOP’s Newest Voter-Fraud Fraudster”
<http://electionlawblog.org/?p=79565>
Posted onFebruary 3, 2016 11:43 am
<http://electionlawblog.org/?p=79565>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman
<http://www.thenation.com/article/donald-trump-becomes-the-gops-newest-voter-fraud-fraudster/>writes
for The Nation.
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Posted inchicanery <http://electionlawblog.org/?cat=12>,fraudulent fraud
squad <http://electionlawblog.org/?cat=8>
Ohio Supreme Court Rejects Election Challenge Because of
Unreasonable Delay, In Part Because of UOCAVA Requirements
<http://electionlawblog.org/?p=79563>
Posted onFebruary 3, 2016 10:22 am
<http://electionlawblog.org/?p=79563>byRick Hasen
<http://electionlawblog.org/?author=3>
Decision
<http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-367.pdf>.
I’m a big believer in using laches (unreasonable delay) as a reason to
kick more election suits out where candidates and groups sit on their
rights.
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79563&title=Ohio%20Supreme%20Court%20Rejects%20Election%20Challenge%20Because%20of%20Unreasonable%20Delay%2C%20In%20Part%20Because%20of%20UOCAVA%20Requirements&description=>
Posted incampaigns <http://electionlawblog.org/?cat=59>
NYRB on Clinton Money Machine <http://electionlawblog.org/?p=79561>
Posted onFebruary 3, 2016 10:14 am
<http://electionlawblog.org/?p=79561>byRick Hasen
<http://electionlawblog.org/?author=3>
Missed this
<http://www.nybooks.com/daily/2016/01/30/clinton-system-donor-machine-2016-election/>from
last week.
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79561&title=NYRB%20on%20Clinton%20Money%20Machine&description=>
Posted inUncategorized <http://electionlawblog.org/?cat=1>
“The steady flow of money feeding the presidential race”
<http://electionlawblog.org/?p=79557>
Posted onFebruary 3, 2016 7:40 am
<http://electionlawblog.org/?p=79557>byRick Hasen
<http://electionlawblog.org/?author=3>
Scott Tong reports
<http://www.marketplace.org/2016/02/02/elections/steady-flow-money-feeding-presidential-race>for
Marketplace: “After all the caucusing in Iowa, a top tier of candidates
is emerging. Underneath it all is a steady flow of money — so-called
super PACs that are playing a larger role than ever before in the race
to become the next president.”
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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