Two from The Hill

The newspaper offers 527 Reform Stripped Out, indicating that the 527 legislation apparently won't be part of a lobbying reform measure to be passed in the House, and FEC's coordination ruling could shake up the midterms.

"The Republican Flip-Flop on Campaign-Finance Reform"

Bryon York has this piece in National Review. It ends: "These days, however, Republicans seem more than willing to shut down the 527s. In the end, it is impossible to say whether 527 regulation would hurt or benefit either Democrats or Republicans. But it is possible to say that it would be yet another step in the wrong direction for political speech. 'We are on the road to serfdom in American politics with campaign-finance reform,' says Mike Pence. 'We are eventually going to end up on the doorstep of George Soros's house, telling him what he can and cannot say.' And not just Soros: T. Boone Pickens and Bob Perry, too. Republicans and Democrats alike."

"Panel sinks out-of-state vote bill"

The Times-Picayune offers this report, which begins: "A bill to let displaced Louisiana voters cast ballots in out-of-state centers failed by one vote Wednesday in a Senate committee."

California Appellate Court Decides Case Clarifying Rules for Disclosure of Expenditures Related to Ballot Measure Campaigns

See here.

"The Watchdog Awakes"

The NY Times offers this editorial on the FEC internet rulemaking. One part that makes me wonder if the editorial writer understood the scope of protection offered to bloggers: "To the contrary, bloggers have now been assured of the same wide latitude to opine free of government control as newspapers enjoy, so long as they are not paid by a political campaign." I think that under the rules bloggers can receive all kinds of political payments (such as for "consulting") from campaigns (which need not be disclosed on the blog) so long as the resulting blog posts don't constitute "paid advertising" from the campaign.

"Judge Grants Partial Motion for Summary Judgment in Shays II Case"

So explains the Campaign Legal Center:

On March 29, 2006, a U.S. District Court Judge issued a 34 page opinion granting in part plaintiffs' motion for summary judgment in Shays and Meehan v. FEC (D.D.C.). This case was brought in 2004 challenging the FEC's failure to regulate 527 groups. The found that the FEC had "failed to present a reasoned explanation for its decision that 527 organizations will be more effectively regulated through case-by-case adjudication rather than general rule." The court also said, "Indeed, judging from the FEC's track record in the 2004 election, case-by-case adjudication appears to have been a total failure." The court remanded the case to give the FEC another opportunity to either issue a rule governing 527 organizations or to provide adequate justification and explanation for its failure to issue a rule.

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The opinion is here.
It is not clear to me how significant this is. I believe the FEC is already working on 527 rules. And the court did not require the the FEC actually promulgate such rules:

Plaintiffs seek an order directing the FEC to promulgate a rule defining the term "political committee" and when a 527 group must register as a political committee. This remedy, however, is reserved for "only the rarest and most compelling of circumstances." See American Horse Protection Association v. Lyng, 812 F.2d 1, 7 (D.C. Cir. 1987) (quoting WWHT, 656 F.2d at 818). Such circumstances are not present here. Rather, the more appropriate remedy is to remand the case to the agency to explain its decision or institute a new rulemaking. Id.

See also this report in the NY Sun, and these thoughts from Bob Bauer.

Who is Publius? The Answer Might Surprise You

On October 12, 2005, I had this roundup of reprints on election law articles received in the mail. Among the items I noted was this:

I also received the first anonymous election law article that I can remember: Publius, Securing the Integrity of American Elections: The Need for Change, 9 Texas Review of Law and Politics 277 (2005). I am not sure why this piece is anonymous (the author's footnote describes the author as "an attorney who specializes in election issues" and the postmark on the envelope I received was from Washington D.C.---obviously no return address). The article makes what I consider to be the standard Republican arguments for greater ballot "integrity" and against the Democratic view on things like provisional voting and voter i.d. requirements. There is much in here that I disagree with, but nothing to be embarassed about (unless, I suppose, one is a lawyer for the Democrats!). Could this have been written by the anonymous Lonely Centrist?

I had not thought much about this article since then, until tonight, when I was perusing the FEC's website. So on Commissioner von Spakovsky's page, there is this link to articles, and the second article listed is indeed a pdf of the Publius article. The author's footnote reads in full: "Publius is an attorney who specializes in election issues. The opinions expressed here are the attorney's own and not that of the attorney's employer."

Who was that employer in 2005? The United States Department of Justice. From the commissioner's biography: "Commissioner Hans A. von Spakovsky was nominated to the Federal Election Commission by President George W. Bush on December 15, 2005 and was appointed on January 4, 2006. Prior to his appointment, Commissioner von Spakovsky served as Counsel to the Assistant Attorney General for Civil Rights in the U.S. Department of Justice, where he provided expertise and advice on voting and election issues, including of the Help America Vote Act of 2002."

I wonder why he has now decided to reveal his identity as the author of this article.

Monterey Initiative Proponents Seek Emergency Relief in Ninth Circuit on Padilla Issue

Following up on this post, I have learned that the supporters of the Monterey general plan initiative have filed this emergency motion seeking a stay of the district court's order removing a measure from the June ballot on grounds that the failure to circulate initiative petitions in Spanish violates the Voting Rights Act. The effect of the stay would be to place the measure on the ballot.

I hope this motion will interest the 9th circuit in this issue, perhaps getting them to grant en banc review in the Padilla case and issuing an order in the interim allowing pending ballot measures to go forward. Without such an order soon, it is no exaggeration to say that the California initiative process could be thrown into chaos.

Sequoia Responds

Yesterday I linked to an oped by Richard Brand in the Miami Herald, "Forget Dubai -- worry about Smartmatic instead." In response, Michelle Shafer, Vice President of Communications and External Affairs for Sequoia Voting Systems, writes:

Yesterday you posted a link to an op-ed that was published in the Miami Herald about Sequoia's parent company Smartmatic Corporation - http://electionlawblog.org/archives/005283.html.

I wanted to forward along some information to you about Sequoia's ownership just as an FYI as there have been many inaccuracies reported about this:

Sequoia Voting Systems is an American company, based in Oakland, California with a 100-year history of providing accurate, reliable, state-of-the-art voting solutions dating back to the nation's first lever-based mechanical voting equipment in the 1890s. Sequoia provides election services and support to state and local government including precinct-based optical scan ballot readers, high-speed central count optical scan ballot readers, ballot layout and printing services, and full-face and paginating electronic voting equipment with optional printers that produce voter verifiable paper records.

Prior to its combination with Smartmatic in 2005, Sequoia was owned by a British company, which had purchased it from another European company. Today Sequoia Voting Systems is owned by Smartmatic Corporation, a U.S. company. Smartmatic Corporation is owned by a Dutch holding company, which also owns all of the other companies in which Smartmatic currently conducts business. Smartmatic is privately held. A controlling interest is held by its founder and CEO, Antonio Mugica, who holds dual Spanish and Venezuelan citizenship. No shares in Smartmatic have ever been held by any foreign government. Smartmatic is a multinational company with a significant presence in the U.S. and in Latin America, and is dedicated to bringing the world's most secure and transparent electoral solutions to the U.S. and world markets.

UPDATE: Richard Brand, author of the oped, responds:

Sequoia's spokeswoman says that there "have been many inaccuracties reported about this." I don't think she identified a single inaccuracy in my story. I think readers should parse what she wrote and compare it to what I wrote. Until Smartmatic purchased Sequoia, its only election experience was in Venezuela and that was a pretty sorry experience. Trying to cast Mugica as a dual Spanish-Venezuelan citizen to make him more credible is eye-popping. I'd be curious to know when he obtained his Spanish citizenship, although ultimately it is irrelevant. As for Smartmatic International's ownership and that Dutch holding company, here are links to those Curacao trusts that control the Dutch holding company. Let's see how long before Smartmatic's lawyers change the ownership structure to make it even more obscure. These links won't be good for long!
here, here, and here.
Richard Brand

"FEC/Congress Update: H.R. 1606 Put In Storage"

Adam Bonin has the details. House Majority Leader John Boehner's statement is here.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org