[EL] ELB News and Commentary 5/5/16
Rick Hasen
rhasen at law.uci.edu
Wed May 4 19:12:07 PDT 2016
“Petition urges investigation into US election agency led by former
Kobach appointee” <http://electionlawblog.org/?p=82538>
Posted onMay 4, 2016 7:07 pm <http://electionlawblog.org/?p=82538>byRick
Hasen <http://electionlawblog.org/?author=3>
AP:
<http://www2.ljworld.com/news/2016/may/04/petition-urges-investigation-us-election-agency-le/?platform=hootsuite>
More than 116,000 people have signed an online petition urging the
inspector general to investigate what it calls voter suppression at
a federal government agency entrusted with making voting more
accessible.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>
“The Distillery: Resurrecting Political Equality”
<http://electionlawblog.org/?p=82536>
Posted onMay 4, 2016 7:01 pm <http://electionlawblog.org/?p=82536>byRick
Hasen <http://electionlawblog.org/?author=3>
Johanna Kalb
<https://www.brennancenter.org/blog/distillery-resurrecting-political-equality>at
the Brennan Center:
In May, theUniversity of Pennsylvania Law Review Online
<https://www.pennlawreview.com/online/>will publish a series of
essays examining the role that political equality could play in the
Supreme Court’s campaign finance jurisprudence. The authors in this
collection are helping to relaunch a conversation that has been
stagnant for forty years.
Today’s constitutional framework for money in politics dates back to
the Supreme Court’s decision in/Buckley v. Valeo/
<http://www.fec.gov/law/litigation/Buckley.pdf>. The/Buckley/Court
was asked to evaluate the constitutionality of the Federal Election
Campaign Act of 1974, an extensive package of reforms including
limits on contributions and independent spending, disclosure
requirements for political spending, and the creation of a system of
public funding for presidential campaigns. Defenders of the law
argued that regulating political spending was necessary to prevent
corruption and promote voter confidence, as well as to equalize the
ability of interested citizens to influence electoral choices and
run for office. The/Buckley/Court agreed that preventing corruption
or its appearance was a compelling government interest, which
justified an incursion on First Amendment rights. However, the
Court flatly rejected any government interest in promoting political
equality, stating that “the concept that government may restrict the
speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment. .
. .”
/Buckley/’s rejection of the equality interest was immediately and
widelycriticized
<http://www.jstor.org/stable/1122194?seq=1#page_scan_tab_contents>.
As time passed, however, attention in political equality arguments
quite understandably receded. Instead reformers (and scholars)
focused their energies on arguing for a broad understanding of the
government’s interest in preventing corruption. In the 1990s and
early 2000s, this seemed like a winning strategy. The Court upheld
a variety of contribution limits,often
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2662283>describing
the government’s corruption interest broadly in terms of the dangers
that wealth could pose to the integrity of the democratic process.
Then Roberts and Alito replaced O’Connor and Rehnquist, and the
newly constituted Court began aconcerted effort
<https://www.brennancenter.org/publication/five-four>to dismantle
the system of campaign finance regulation by narrowing the
government’s interest in preventing corruption to the/quid pro
quo/exchange of cash for votes.
The Roberts Court’s aggressive attack on campaign finance regulation
and the recent death of Justice Scalia have created an opening for
rethinking the constitutional framework for money in politics.
Political equality is back on the table, bolstered in part by
success of the Sanders presidential campaign and its focus on the
relationship between economic and political inequality in America.
More than enthusiasm is needed, however, to move equality theory
from the sidelines to the center of the constitutional doctrine. As
Rick Hasen has been saying foryears
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2220851>(and
most recently in his book,/Plutocrats United/
<http://yalebooks.com/book/9780300212457/plutocrats-united>),
equality theory is replete with questions that have gone mostly
unaddressed by scholars of campaign finance law. We need to
understand which form(s) of political equality justify regulation;
equality of “inputs” into the political process – or equality of the
“outputs” that process creates? We need to have some way of
thinking about how much equality is enough, in order to guide the
Court in balancing the equality and liberty concerns raised by
campaign finance regulation. And, we need to have some idea of how
the corporate media operates in this framework.
These kinds of questions (and others) will need to be persuasively
answered if political equality is to regain a place in the Court’s
campaign finance jurisprudence. The forthcoming collection in the
University of Pennsylvania Law Review Online will open a dialogue
about the hard questions of equality theory; the contributions include:
* */First Amendment Freeze Play:/**Bennett/’s Strategy for
Entrenching Inequality/*, in which Frank Pasquale looks at the
impact on equality theory of the Roberts Court’s decision
in/Arizona v. Bennett/;
* */A Theory That Fits the Facts/*, in which Daniel Tokaji and
Renata Strause consider ways to build an empirical record that
would support regulation to promote equality, with a focus on
developing a greater understanding of how lobbying intersects
with campaign funding;
* */The Federalism Implications of Campaign Finance Regulation/*,
in which Franita Tolson, explores arguments based on the
Guarantee Clause and the Tenth Amendment for giving the states
more leeway to adopt campaign regulations to promote political
equality; and
* */Campaign Finance and the Media Exemption Problem/*, in which
Sonja West argues that exempting media corporations from
generally applicable limits on political spending is both
constitutionally justified and practically possible.
These essays are still only a beginning. While the last forty years
have given scholars of election law every reason to succumb to
“corruption temptation
<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5759&context=faculty_scholarship>,”
changes both on the ground and in the Court have created a rare
moment in which a fundamental rethinking of the rules of our
democracy is possible. Now we need to do the work to make it happen.
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Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>
“Judge challenges attorneys as campaign finance trial wraps up”
<http://electionlawblog.org/?p=82534>
Posted onMay 4, 2016 6:58 pm <http://electionlawblog.org/?p=82534>byRick
Hasen <http://electionlawblog.org/?author=3>
Alaska Dispatch News
<https://www.adn.com/article/20160503/judge-challenges-attorneys-campaign-finance-trial-wraps>:
A weeklong trial in a lawsuit challenging the state’s campaign
contribution limits came to a close Tuesday, with U.S. District
Judge Timothy Burgess asking probing questions of attorneys
defending the state’s limits on nonresident contributions and
expressing some concern limits set at least a decade ago haven’t
risen with inflation.
Kevin Clarkson, attorney for the plaintiffs who say their
free-speech rights are hurt by the donation caps, said in his
closing arguments the state never overcame a fundamental hurdle,
proving the $500 maximum a person can give to a candidate per year
is the proper amount to prevent corruption or the appearance of
corruption, as the law intends.
Proving why that number is correct is the state’s “first step,” but
the state never met that obligation, he assert
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Wichita man pleads guilty in Kansas voter fraud case”
<http://electionlawblog.org/?p=82532>
Posted onMay 4, 2016 6:54 pm <http://electionlawblog.org/?p=82532>byRick
Hasen <http://electionlawblog.org/?author=3>
Wichita Eagle <http://www.kansas.com/news/local/crime/article75545277.html>:
The Wichita man accused of voting twice in the 2012 and 2014
elections pleaded guilty Wednesday to three misdemeanors.
Ron Weems, 77, won’t face jail time or probation, his attorney Jim
McIntyre said, but agreed to pay a $5,500 fine to resolve the case.
Weems, who was registered to vote in both Wichita and Teller County,
Colo., according to records, is among the first Kansans prosecuted
by Secretary of State Kris Kobach’s office after the Legislature
last July gave it the authority to criminally prosecute alleged
election crimes.
The case is the fourth prosecuted by Kobach’s office that has
resulted in convictions.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“The South Florida voter-fraud case that went nowhere”
<http://electionlawblog.org/?p=82529>
Posted onMay 4, 2016 6:52 pm <http://electionlawblog.org/?p=82529>byRick
Hasen <http://electionlawblog.org/?author=3>
Miami Herald
<http://www.miamiherald.com/news/politics-government/article75565152.html>:
It seemed like the rare, slam-dunk case of voter fraud.
Two menstood accused
<http://www.miamiherald.com/news/local/community/miami-dade/homestead/article2642488.html>of
unlawfully handling four other people’s mail-in ballots in the 2013
Homestead mayoral election, filling at least one of them for
precisely the candidatesthe voter didn’t want to vote for
<http://www.miamiherald.com/news/politics-government/article1956459.html>.
Miami-Dade County investigators had a palm print and fingerprints,
phone records, and suspicious stories from the defendants.
What they didn’t count on: lack of cooperation from the voters who
were victims of the purported fraud — even though the voters
themselves were the ones who initially alerted authorities they had
been duped.
At the first trial, the witnesses changed their original testimony.
At the second, one of the witnesses testified she didn’t remember
the day the incident took place altogether.
And so, James Brady and Samuel Jean, the two campaign workers
charged with voter fraud in 2014, didn’t go to jail.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,chicanery
<http://electionlawblog.org/?cat=12>,election administration
<http://electionlawblog.org/?cat=18>
“Donald Trump Won’t Self-Fund General-Election Campaign”
<http://electionlawblog.org/?p=82527>
Posted onMay 4, 2016 6:40 pm <http://electionlawblog.org/?p=82527>byRick
Hasen <http://electionlawblog.org/?author=3>
WSJ:
<http://www.wsj.com/articles/donald-trump-wont-self-fund-general-election-campaign-1462399502?mod=djemalertNEWS>
Donald Trump <http://topics.wsj.com/person/T/Donald-Trump/159>won’t
self-fund his general-election campaign, and will instead create a
“world-class finance organization,”the presumptive Republican
nominee
<http://www.wsj.com/articles/how-trump-wonand-how-the-gop-let-him-1462390833>said
in an interview on Wednesday.
For a campaign expected to cost more than $1 billion, “I’ll be
putting up money, but won’t be completely self-funding, as I did
during the primaries,” Mr. Trump said on Wednesday. The New York
businessman, who did receive some mostly small unsolicited
donations, lent his campaign $36 million of the $47 million he spent
through March.
That plan represents a shift for Mr. Trump, who has for months
portrayed his Republican opponents as “puppets” for relying on super
PACs and taking contributions from wealthy donors that he said came
with strings attached.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“How Few Votes It Takes to Become a Presumptive Nominee”
<http://electionlawblog.org/?p=82525>
Posted onMay 4, 2016 6:38 pm <http://electionlawblog.org/?p=82525>byRick
Hasen <http://electionlawblog.org/?author=3>
Rob
Richie<http://www.fairvote.org/how_few_votes_it_takes_to_become_a_presumptive_nominee>at
FairVote.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“A Program in Legislation” <http://electionlawblog.org/?p=82523>
Posted onMay 4, 2016 2:38 pm <http://electionlawblog.org/?p=82523>byRick
Hasen <http://electionlawblog.org/?author=3>
Russell, Walker, and Tokaji
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2509477>in JLE:
This Essay urges that Legislation be conceived of not just as a
single course, but as a set of curricular and extracurricular
offerings that collectively constitute an integrated program of
instruction. The three of us teach at The Ohio State University’s
Moritz College of Law, which may serve as a model of such a program.
Since 1995, Moritz has required Legislation as a part of the
first-year curriculum. We also have a variety of upper-level
offerings and extracurricular activities that help students develop
a practical understanding of the legislative process. This Essay
makes the case for an integrated program of instruction, including
both an introductory course in the first year and experiential
learning opportunities in the second and third years.
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Posted inpedagogy <http://electionlawblog.org/?cat=23>
“The man billed as the first atheist who could be bound for Congress
isn’t actually an atheist at all” <http://electionlawblog.org/?p=82521>
Posted onMay 4, 2016 2:31 pm <http://electionlawblog.org/?p=82521>byRick
Hasen <http://electionlawblog.org/?author=3>
WaPo
<https://www.washingtonpost.com/news/acts-of-faith/wp/2016/05/04/the-man-billed-as-the-first-atheist-bound-for-congress-isnt-actually-an-atheist-at-all/?hpid=hp_local-news_athiest-8am%3Ahomepage%2Fstory>on
election law prof (and congressional candidate) Jamie Raskin.
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Posted inelection law biz <http://electionlawblog.org/?cat=51>
“Legislation and Regulation in the Core Curriculum: A Virtue or a
Necessity?” <http://electionlawblog.org/?p=82519>
Posted onMay 4, 2016 2:29 pm <http://electionlawblog.org/?p=82519>byRick
Hasen <http://electionlawblog.org/?author=3>
Jim Brudney
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2764997>has posted
this draft on SSRN (forthcoming, /Journal of Legal Education/). Here is
the abstract:
The first-year curriculum at American law schools has been
remarkably stable for more than 100 years. Many would say ossified.
At Harvard, the First-Year Course of Instruction in 1879-80
consisted of Real Property, Contracts, Torts, Criminal Law and
Criminal Procedure, and Civil Procedure. These five courses-focused
heavily on judge-made common law-dominated Harvard’s IL curriculum
from the law school’s founding into the 21st century. The same five
subjects have long commanded the primary attention of first-year
students at Fordham, founded in 1905, and at virtually every other
U.S. law school throughout the 20th century.
Starting in the 1990s, however, a growing number of schools have
required a IL course examining different aspects of statutes and
regulations. In previous decades, a handful of law schools offered
upper-level elective courses in Legislation, including statutory
interpretation, to a mixed reception. Administrative Law has been a
more regular elective subject, although enrollments by school
reflect an uneven proportion of upper-level students. What is new is
the array of law schools deciding that a course in Legislation
(“Leg”), or Legislation and Regulation (“Leg-Reg”), should be
mandatory for first-year students.
There are at least 27 schools that require a first-year course in
Leg-Reg, generally for either three or four credits. An additional
group of schools require 1Ls to take Leg, a course that often
includes greater focus on topics related to the legislative process
but does not encompass regulations or the regulatory process as a
major component. Overall, nearly 40 law schools currently require
some kind of Leg-Reg or Leg course, almost all of them as part of
the first-year curriculum. The number of schools requiring such a
course represents a sharp increase within the past decade alone.
This article focuses on the importance for legal education of
mandating such a course. Part One addresses three distinct
justifications for inserting Leg-Reg into the first year of law
school. From a pragmatic standpoint, lawyers since the New Deal have
devoted ever-increasing time and energy to understanding, applying,
interpreting, litigating, and counseling about statutes and the
regulations or agency judgments that flow from those statutes. Legal
education must catch up. Immersing first-year law students in a
systematic approach to the methodology of statutes and regulations
is at least as important to their future legal practice as immersing
them in the methodology of the common law.
In addition, an early exposure to what it means to “think like a
lawyer” outside the courtroom setting can illuminate and deepen
appreciation for our three-branch system of government. Courts are
the exclusive arbiters of what the common law means, and federal
courts have become the primary arbiters of what the Constitution
means as well. For statutes, however, the setting is more complex,
reflecting a dynamic conversation among all three branches. By
requiring first-year students to engage this conversation, law
schools generate a more balanced set of insights about how our laws
are made and applied. This, in turn, can help to minimize simplistic
dichotomies between principled and political decision-making, and
encourage students to recognize legislative virtues like consensus
building and democratic responsiveness as comparable to the
adversarial legalism of the courtroom.
Finally, statutory and regulatory subjects dominate the upper-level
curriculum. Accordingly, it makes sense in foundational terms to
require that students approach these subjects with an understanding
of how laws and rules are shaped and informed by legislative and
regulatory processes. A sophisticated methodological background
should enable students to focus in more rigorous and also nuanced
ways when they grapple with finer points of securities law,
environmental law, or the law of telecommunications or civil rights.
Having taught both a required Leg course and a required Leg-Reg
course, I believe there are solid arguments for each option. My
current thinking is that Leg-Reg presents the stronger claim, but I
will briefly address certain separate strengths of a Leg course as
well. Whichever option one may consider, a case can be made that it
borders on educational malpractice not to include either Leg-Reg or
Leg as a mandatory element of the IL curriculum.
The fact that a Leg-Reg or Leg course should be required does not
mean that implementing such a course is straightforward. Part Two
discusses some challenges that accompany the development of a
mandatory Leg-Reg course. These include deciding what topics should
be covered and how to calibrate the emphasis between legislation and
regulation; determining how Leg-Reg topics may be harmonized with
existing subjects, notably Constitutional Law and Administrative Law
but also Legal Writing and upper-level electives in Legislation; and
reviewing certain institutional obstacles related to staffing a IL
course as well as to persuading colleagues with long-standing,
sincere investments in their common law subjects to yield some space
for a newcomer.
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Posted inpedagogy <http://electionlawblog.org/?cat=23>
“Election 2016 Newsletter: Voting Law Challenges Head to Court”
<http://electionlawblog.org/?p=82517>
Posted onMay 4, 2016 2:26 pm <http://electionlawblog.org/?p=82517>byRick
Hasen <http://electionlawblog.org/?author=3>
Brennan Center roundup.
<https://www.brennancenter.org/newsletter/election-2016-newsletter-voting-law-challenges-head-court-2016>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Federal lawsuit: Louisiana voter registration requirement
discriminates against naturalized citizens”
<http://electionlawblog.org/?p=82515>
Posted onMay 4, 2016 2:24 pm <http://electionlawblog.org/?p=82515>byRick
Hasen <http://electionlawblog.org/?author=3>
Release
<http://fairelectionsnetwork.com/press/federal-lawsuit-louisiana-voter-registration-requirement-discriminates-against-naturalized-citizens/>:
Louisiana is discriminating against naturalized citizens by
requiring them to provide citizenship documents when registering to
vote – a requirement that is not asked of other potential voters who
must simply swear they are U.S. citizens, according to a federal
lawsuit filed today by two civil rights groups.
The lawsuit by the Fair Elections Legal Network and the Southern
Poverty Law Center (SPLC) was filed on behalf of three naturalized
citizens who must meet the requirement, which dates back to 1874.
VAYLA New Orleans, a nonprofit organization that has attempted to
register voters, is also a plaintiff.
The complaint, filed in the U.S. District Court for the Middle
District of Louisiana, can be viewedhere
<http://fairelectionsnetwork.com/wp-content/uploads/Doc.-1-Complaint.pdf>.
The groups also filed a motion for a preliminary injunction to put
this requirement on hold as the case proceeds.
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Posted inNVRA (motor voter) <http://electionlawblog.org/?cat=33>
“Secretary of State to Bucher: ‘No need’ for election to replace
judge” <http://electionlawblog.org/?p=82513>
Posted onMay 4, 2016 2:16 pm <http://electionlawblog.org/?p=82513>byRick
Hasen <http://electionlawblog.org/?author=3>
Palm Beach Post:
<http://www.mypalmbeachpost.com/news/news/state-regional-govt-politics/secretary-of-state-to-bucher-no-need-for-election-/nrGDX/>
The stage was set Monday for a bruising legal battle over
theselection of a Palm Beach County judge
<http://www.mypalmbeachpost.com/news/news/state-regional-govt-politics/scott-plan-to-replace-judge-with-appointment-decri/nrDbq/>when
Florida Secretary of State Ken Detzner made it clear that Gov. Rick
Scott, not voters, should pick the jurist.
In a2½-page letter
<http://www.mypalmbeachpost.com/documents/2016/may/02/read-ken-detzners-letter-susan-bucher/>,
Detzner told Palm Beach County Supervisor of Elections Susan Bucher
to back off plans to let lawyers file papers to run for the county
court seat that Judge Laura Johnson is leaving so she can run for
circuit judge. The letter arrived hours after the start of the
weeklong period for judicial candidates to qualify for the Aug. 30
election.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,judicial elections
<http://electionlawblog.org/?cat=19>
“The Supreme Court Gets Ready to Legalize Corruption”
<http://electionlawblog.org/?p=82511>
Posted onMay 4, 2016 2:04 pm <http://electionlawblog.org/?p=82511>byRick
Hasen <http://electionlawblog.org/?author=3>
Jeffrey
Toobin<http://www.newyorker.com/news/daily-comment/the-supreme-court-gets-ready-to-legalize-corruption>in
The New Yorker.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Trump May Welcome Super PAC Money <http://electionlawblog.org/?p=82509>
Posted onMay 4, 2016 10:04 am
<http://electionlawblog.org/?p=82509>byRick Hasen
<http://electionlawblog.org/?author=3>
Greg Sargent
<https://www.washingtonpost.com/blogs/plum-line/wp/2016/05/04/the-gop-awakens-to-a-trump-nightmare-come-true/>:
*TRUMP FACES BIG DECISION ON SUPER PACs:*On Morning Joe today, Trump
was asked whether he would “welcome the support of Super PACs in the
general election.” He replied:
“I’m going to be making a decision over the next week. I do love
self funding…but we do need money for the party. The party will come
together….Do I want to sell a couple of buildings and self-fund? I
don’t know that I want to do that, necessarily. But I really won’t
be asking for money for myself. I’ll be asking for money for the party.”
That sounds like he’s already rehearsing his justification for
embracing Super PAC spending on his behalf, which couldundercut one
of his key arguments against Clinton as a creature of the
establishment
<https://www.washingtonpost.com/blogs/plum-line/wp/2016/04/28/trump-presents-himself-as-a-scourge-of-the-elites-that-wont-last/>.
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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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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