[EL] ELB News and Commentary 10/8/19
Rick Hasen
rhasen at law.uci.edu
Tue Oct 8 08:55:56 PDT 2019
Richard J. Childress Memorial Lecture: American Election Law in a Post-Truth World”<https://electionlawblog.org/?p=107402>
Posted on October 8, 2019 8:49 am<https://electionlawblog.org/?p=107402> by Rick Hasen<https://electionlawblog.org/?author=3>
[Bumping to the top as the event nears.]
I’m looking forward to giving this lecture<https://www.slu.edu/calendar/index.php?eID=8225> and participating in a broader election law symposium on St. Louis University on October 11:
Richard J. Childress Memorial Lecture: American Election Law in a Post-Truth World
Scott Hall
100 N. Tucker Blvd.
St. Louis , MO 63101
Friday, 11 October, 2019
09:00 am – 02:30 pm
Registration 8 to 9 a.m. | Program starts at 9 a.m.
4.8 MO CLE credits available
American Election Law in a Post-Truth World
Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed and “coarsened” social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance.
This conference considers how this challenging information environment will affect election law in areas such as campaigns, campaign finance, and voting rights, and what election law might be able to do about it. The keynote speaker is Richard L. Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine.
RSVP here.<https://docs.google.com/forms/d/e/1FAIpQLSf7gfHN22FmFaxmV0vQJMCIEr-SYexZUE2-r4W37e56Cw3MIQ/viewform>
Box lunches are available for pre-order from Chris’ @ the Docket<https://www.chrisatthedocket.com/>. Please call (314) 977-4615 to place your order, EXCEPT during the hours of 11 a.m. to 1 p.m. Box lunches are $10 and include a sandwich, chips, cookie, and fountain drink or iced tea.
——————————————————-
Keynote Speaker: “American Election Law in a Post-Truth World”
———————————————————-
The annual Richard J. Childress Memorial Lecture and Symposium will be held Friday, Oct. 11, in Scott Hall’s John K. Pruellage Courtroom. The annual lecture is hosted by the Saint Louis University Law Journal<http://www.slu.edu/law/law-journal>.
Registration begins at 8 a.m., and the program begins at 9 a.m. 4.8 MO CLE credits available.
The Richard J. Childress Memorial Lecture<https://www.slu.edu/law/law-journal/programs/childress-lecture.php>, named in honor of former Dean Richard J. Childress (1969-1976), is a premier academic event highlighting a provocative and timely area of law. The lecture commemorates the contributions Dean Childress made academically, ethically, and socially to benefit Saint Louis University School of Law.
Schedule
Friday, Oct. 11
8-9 a.m.: Registration
9-10 a.m.: American Election Law in a Post-Truth World: Keynote speech with Rick Hasen
10-10:15 a.m.: Break
10:15-11:15 a.m.: Just The “Facts?” Reflections on Keynote: Panel One with Justin Levitt, Daniel Tokaji, and Guy-Uriel Charles
11:15-11:30 a.m.: Break
11:30 a.m.-12:30 p.m.: The Emerging Election Law Landscape: Panel Two with Derek Muller, Franita Tolson, and Yasmin Dawood
12:30-1:30 p.m.: Break
1:30-2:30 p.m.: Election Law on the Ground: Challenges in Missouri: Panel Three with Denise Leiberman, Jessie Steffan, Kenneth Warren
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>
“Florida’s Amendment 4 legislation is a mess, felons and county officials testify”<https://electionlawblog.org/?p=107626>
Posted on October 8, 2019 8:45 am<https://electionlawblog.org/?p=107626> by Rick Hasen<https://electionlawblog.org/?author=3>
Miami Herald<https://www.miamiherald.com/news/state/florida/article235895767.html>:
The Florida Legislature’s bill cracking down on Amendment 4 has created a mess, with felons uncertain whether they can vote, clerks of court unable to confirm whether felons are eligible to vote and election supervisors using voter registration forms<https://www.miamiherald.com/news/politics-government/state-politics/article235664777.html> that are different from those used by the secretary of state.
That’s the conclusion after the first day of arguments in a federal hearing challenging a bill adopted by the Legislature this year curtailing Amendment 4, which was supposed to restore the right to vote to more than a million felons.
The bill required felons to pay back<https://www.miamiherald.com/news/politics-government/state-politics/naked-politics/article233254066.html> all court fines, fees and restitution before being eligible to vote, conditions that critics have called a “poll tax.”
Various groups led by the American Civil Liberties Union are challenging the bill. They’re asking U.S. District Judge Robert Hinkle to temporarily stop the bill until the case can be resolved. Closing arguments are expected in court in Tallahassee Tuesday, with a ruling expected later.
Hinkle gave little indication on Monday how he’d rule on the ACLU’s request. But he expressed deep skepticism about one change lawmakers made: to the state’s voter registration form<https://dos.myflorida.com/media/693757/dsde39.pdf>.
The change was one of several that lawmakers made this year to Amendment 4, the historic legislation that restored the right to vote to nearly all felons who completed “all terms of sentence.”
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Posted in felon voting<https://electionlawblog.org/?cat=66>
“Can a 501c3 Advocate for Impeachment of a Federal Office Holder?”<https://electionlawblog.org/?p=107624>
Posted on October 8, 2019 8:40 am<https://electionlawblog.org/?p=107624> by Rick Hasen<https://electionlawblog.org/?author=3>
Timely exploration<https://nonprofitquarterly.org/can-a-501c3-advocate-for-impeachment-of-a-federal-office-holder/> by Tim Mooney at NPQ.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, lobbying<https://electionlawblog.org/?cat=28>, tax law and election law<https://electionlawblog.org/?cat=22>
“Trump’s 2016 campaign was run on a shoestring. His reelection machine is huge — and armed with consultants.”<https://electionlawblog.org/?p=107622>
Posted on October 8, 2019 8:37 am<https://electionlawblog.org/?p=107622> by Rick Hasen<https://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/nation/2019/10/08/trumps-campaign-was-run-shoestring-his-reelection-machine-is-huge-armed-with-consultants/?arc404=true>
Donald Trump’s presidential campaign in 2015 had no pollster, rapid-response team or fundraiser. A bare-bones staff fueled by pizza and energy drinks toiled in a makeshift office at Trump Tower. His opponents vastly outspent him — and lost.
But as president, Trump’s campaign machine has dramatically escalated, powered by a historically large war chest<https://www.washingtonpost.com/politics/trump-and-rnc-report-raising-record-105-million-in-second-quarter-of-2019/2019/07/02/5c9ded46-9cd6-11e9-9ed4-c9089972ad5a_story.html> of donations large and small that has given him a head start over the eventual Democratic nominee.
At this point in the last election, Trump’s campaign employed 19 consultants. Now, there are more than 200. When Trump had all but locked up the nomination by May 2016, he had spent $63 million. Thus far, pro-Trump committees have spent $531 million.
Trump’s overflowing coffers have allowed him to spend lavishly early in the race. For instance, the committees recently launched $10 million ad offense targeting Democrats, including former vice president Joe Biden.
The spending has also created a financial boon for a political-consulting class he once shunned.
Since 2017, nearly $92 million has flowed to dozens of firms providing political consulting services to Trump’s 2020 reelection machine, according to an analysis of campaign spending by The Washington Post.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>
Read Steven Rosenfeld on the New (and Somewhat Surprising) Battle over Ballot Marking Devices (BMDs)<https://electionlawblog.org/?p=107620>
Posted on October 8, 2019 8:24 am<https://electionlawblog.org/?p=107620> by Rick Hasen<https://electionlawblog.org/?author=3>
This is a good introduction<https://www.salon.com/2019/10/08/why-over-130000-new-voting-machines-could-lead-to-more-distrust-in-u-s-elections_partner/> to the issue, which has divided some voting rights and voting integrity folks.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>
California Governor Signs into Law New Ban on Certain Political “Deep Fakes”; I Expect a Serious First Amendment Challenge<https://electionlawblog.org/?p=107618>
Posted on October 7, 2019 3:32 pm<https://electionlawblog.org/?p=107618> by Rick Hasen<https://electionlawblog.org/?author=3>
Yahoo:<https://www.yahoo.com/news/california-governor-passes-two-bills-protect-residents-political-153402137.html>
With deepfake technology producing realistically modified digital content at a steeply increasing rate, California’s governor Gavin Newsom is taking a series of legal steps to avoid such technology from damaging the state’s political integrity and protect residents from having their faces placed on pornographic content.
Newsom passed two bills late last week protecting the state’s residents from potential dangers resulting from deep fake technology. The first<https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB730> one would prohibit people from “distributing with actual malice materially deceptive audio or visual media of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate,” unless it’s been specifically stated that the content is manipulated. This would reduce the distribution of misinformation about individuals running for office.
I believe there are serious constitutional questions with the new law, and I contrast it with my own proposal for regulating certain deep fakes in my upcoming Childress Lecture<https://www.slu.edu/calendar/index.php?eID=8225> (being delivered Friday), “Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth Worl<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3418427>d.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>
Top Recent Downloads in Election Law on SSRN<https://electionlawblog.org/?p=107615>
Posted on October 7, 2019 2:49 pm<https://electionlawblog.org/?p=107615> by Rick Hasen<https://electionlawblog.org/?author=3>
Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:
Top Downloads For:
LSN: Election Law & Voting Rights (Topic)
As of: 08 Aug 2019 – 07 Oct 2019
Rank
Paper
Downloads
1.
Was the Democratic Nomination Rigged? A Reexamination of the Clinton-Sanders Presidential Race<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3443916>
Anthony J. Gaughan<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1697565>
Drake University – Law SchoolDate Posted: 19 Sep 2019
Last Revised: 19 Sep 2019
378
2.
Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3446021>
Edward B. Foley<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=33055>
Ohio State University (OSU) – Michael E. Moritz College of LawDate Posted: 03 Sep 2019
Last Revised: 04 Sep 2019
111
3.
Deregulating Corruption<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3429993>
Ciara Torres-Spelliscy<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=584767>
Stetson University College of LawDate Posted: 05 Aug 2019
Last Revised: 05 Aug 2019
109
4.
Inversions in US Presidential Elections: 1836-2016<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3450568>
Michael Geruso<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=515584>, Dean Spears<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1294031> and Ishaana Talesara<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3694901>
University of Texas at Austin, University of Texas at Austin and University of Texas at AustinDate Posted: 16 Sep 2019
Last Revised: 16 Sep 2019
107
5.
Youth Voting Rights and the Unfulfilled Promise of the Twenty-Sixth Amendment<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3442198>
Yael Bromberg<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3635984>
Georgetown University Law Center – Civil Rights Clinic, Voting Rights InstituteDate Posted: 24 Aug 2019
Last Revised: 24 Aug 2019
70
6.
Weaponizing the Ballot<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3450649>
Derek T. Muller<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=464341>
Pepperdine University – School of LawDate Posted: 10 Sep 2019
Last Revised: 17 Sep 2019
67
7.
Where’s the Money?: Paths and Pathologies of the Law of Party Funding<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3435754>
Aradhya Sethia<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1989501>
Yale University, Law School, StudentsDate Posted: 16 Aug 2019
Last Revised: 07 Oct 2019
43
8.
Americans, Almost and Forgotten<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3454210>
Tom C. W. Lin<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1573690>
Temple University – James E. Beasley School of LawDate Posted: 24 Sep 2019
Last Revised: 24 Sep 2019
43
9.
Electoral Cyber Interference, Self-Determination and the Principle of Non-Intervention in Cyberspace<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3438567>
Nicholas Tsagourias<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1666183>
University of Sheffield – Faculty of LawDate Posted: 20 Aug 2019
Last Revised: 03 Sep 2019
38
10.
The Influence of Technology on Presidential Primary Campaigns<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3443086>
Anthony J. Gaughan<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1697565>
Drake University – Law SchoolDate Posted: 30 Aug 2019
Last Revised: 30 Aug 2019
Recent Top Papers (60 days)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Candidates are hoping you’ll buy their rhetoric — as well as their merchandise”<https://electionlawblog.org/?p=107613>
Posted on October 7, 2019 2:44 pm<https://electionlawblog.org/?p=107613> by Rick Hasen<https://electionlawblog.org/?author=3>
Marketplace:<https://www.marketplace.org/2019/10/07/candidates-are-hoping-youll-buy-their-rhetoric-as-well-as-their-merchandise/>
Most of us can identify a standard commercial and we usually know someone is trying to sell us something. But what happens when the “product” is a political candidate and the “ad” is a tweet, or Facebook post?
In her new book “Political Brands,” Stetson University law professor and campaign finance expert Ciara Torres-Spelliscy says that candidates are increasingly using commercial techniques like repetition and micro-targeting in order to sell themselves and their policy positions.
Torres-Spelliscy says President Trump used political branding successfully during the 2016 presidential campaign.
“One of the ways that he was able to raise an enormous amount of money was by selling his red “Make America Great Again” hats,” she said.
The 2020 Democratic candidates are getting in on the action. Elizabeth Warren has “Warren Has a Plan For That” merchandise, Julián Castro’s merch store features “Adiós Trump” apparel, Pete Buttigieg’s “Pete for America” campaign site showcases totes and hoodies with the phonetic spelling of his name, “Boot Edge Edge” while Andrew Yang is selling hats that read “MATH,” which stands for “Make America Think Harder.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>
Faithless Elector Lawsuit Arrives at SCOTUS<https://electionlawblog.org/?p=107609>
Posted on October 7, 2019 2:34 pm<https://electionlawblog.org/?p=107609> by Rick Hasen<https://electionlawblog.org/?author=3>
Here<http://cdn.cnn.com/cnn/2019/images/10/07/19-_petitionforawritofcertiorari.pdf> is the cert petition (via Ariane de Vogue<https://www.cnn.com/2019/10/07/politics/faithless-electors-supreme-court/index.html>):
This petition presents a clear split in authority between state and federal courts on a critically important question of federal constitutional law: whether, after appointment, a state may by law direct how presidential electors cast their votes for President and Vice President, and enforce that direction through legal penalties. This petition presents this unresolved question cleanly and in a context where resolution of the question would not directly affect the outcome of presidential election.
The Washington Supreme Court held that states have the power to direct how electors perform their duties after appointment, and that the State may enforce that power through a fine. Petitioners believe that the fines in this case are the very first imposed on any presidential elector in the history of the Republic.
Yet Petitioners are not the first electors to cast their ballots independently. Indeed, from the birth of the Republic, electors have cast their ballots contrary to legislative direction or expectation without penalty or legal consequence.
Just two months after the Washington Supreme Court’s decision, the Tenth Circuit reached the exact opposite conclusion in another case involving 2016 presidential electors. Contrary to the Washington Supreme Court’s decision below, the Tenth Circuit held that “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion.” Baca v. Colorado Dep’t of State, 935 F.3d 887, 955 (10th Cir. 2019). Unlike the Washington Supreme Court, which authorized a state’s unprecedented restriction of elector freedom, the Tenth Circuit found unconstitutional Colorado’s attempt to control the vote of its electors.
This Court should resolve this conflict now, before it arises within the context of a contested election. In the most recent presidential election, ten of the 538 presidential electors either cast presidential votes for candidates other than the nominees of their party,1 or attempted to do so and were replaced with other electors on the day of voting.2 A swing by that same number of electors would have changed the results in five of fifty-eight prior presidential elections. And as the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this Court to resolve the question of electoral freedom within the context of an ongoing contest.
The Supreme Court should avoid that dangerous possibility. This case gives the Court the rare opportunity to decide a constitutional question relate to presidential selection in a non-emergency setting. In contrast to this Court’s most recent encounters with the law of presidential electors, such as Ray v. Blair, 343 U.S. 230 (1952), and Bush v. Gore, 531 U.S. 98 (2000)—both of which were decided in mere days, by necessity—this appeal would give the Court ample time to consider important evidence from the Founding and across the Nation’s history. And this case permits the Court to issue a decision outside of the white-hot scrutiny of a contested presidential election.
There is no reason to allow this direct split to linger. No other court could resolve this question before the next election. This Court would therefore gain nothing from waiting to grant a case on this issue and letting the split stand—but the consequences of delay could be severe.
I wrote about these cases last month at Slate, The Coming Reckoning Over the Electoral College: A ploy to bring the issue to the Supreme Court could backfire.<https://slate.com/news-and-politics/2019/09/electoral-college-supreme-court-lessig-faithless-electors.html>
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Posted in electoral college<https://electionlawblog.org/?cat=44>
“Restoring felon voting rights a ‘mess’ in battleground Florida”<https://electionlawblog.org/?p=107607>
Posted on October 7, 2019 2:28 pm<https://electionlawblog.org/?p=107607> by Rick Hasen<https://electionlawblog.org/?author=3>
Reuters<https://www.reuters.com/article/us-usa-election-florida-felons-insight/restoring-felon-voting-rights-a-mess-in-battleground-florida-idUSKBN1WM0YV?utm_medium=Social&utm_source=twitter>:
Clifford Tyson wants to help choose America’s next president. But the Florida resident fears his vote might return him to jail.
Tyson, 63, owes court-ordered fines and fees for three felony convictions, one for robbery, two for theft, all decades old. Under a Florida law that went into effect July 1, he must pay those penalties before casting a ballot or risk being prosecuted for voter fraud.
Tyson searched court records, first on his own, then with the help of a nonprofit legal advocacy group. They say that because Florida has no comprehensive system for tracking such fines, the documents don’t make clear what he owes. The records, viewed by Reuters, show potential sums ranging from $846 to a couple thousand dollars related to crimes he committed in the late 1970s and 1990s. Tyson says he won’t risk voting until Florida authorities can tell him for sure.
“Until there is clarity, as much as I want to vote, I won’t do it,” Tyson said.
The Tampa pastor is now a plaintiff in a lawsuit challenging the payments law, which was crafted by Florida’s Republican-controlled legislature and signed by Governor Ron DeSantis, also a Republican. The law came just months after Floridians approved a ballot initiative restoring voting rights to more than 1 million felons who have completed their sentences; that change to the state’s Constitution created a potentially huge new crop of voters in a critical battleground state ahead of the 2020 presidential election.
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Posted in felon voting<https://electionlawblog.org/?cat=66>
Levitt: “Nonsensus: Pretext and the Decennial Enumeration”<https://electionlawblog.org/?p=107605>
Posted on October 7, 2019 9:55 am<https://electionlawblog.org/?p=107605> by Rick Hasen<https://electionlawblog.org/?author=3>
Justin Levitt deftly explains<https://www.acslaw.org/analysis/acs-supreme-court-review/nonsensus-pretext-and-the-decennial-enumeration/> the importance of last term’s census case in the ACS Supreme Court Review.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>
Charles and Fuentes-Rohwer: “Dirty Thinking About Law and Democracy in Rucho v. Common Cause”<https://electionlawblog.org/?p=107602>
Posted on October 7, 2019 9:50 am<https://electionlawblog.org/?p=107602> by Rick Hasen<https://electionlawblog.org/?author=3>
The New Guy Charles and Luis Fuentes-Rohwer piece<https://www.acslaw.org/analysis/acs-supreme-court-review/dirty-thinking-about-law-and-democracy-in-rucho-v-common-cause/> in the ACS Supreme Court Review pulls no punches.:
Rucho is not an easy case to take seriously as doctrine. Chief Justice Roberts’s opinion is more redolent of a debater’s brief than a judicial opinion. Rucho deploys a series of arguments against the justiciability of political-gerrymandering claims, relying on no single argument and committed to nothing but the conclusion of non-justiciability. Critically, the opinion is an amalgam of misdirections, distortions, and less-than-pellucid thinking about the constitutionalization of political-gerrymandering claims. This is what the Court’s inexorable fealty to non-justiciability gets us.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>
--
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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