“Overview of First Amendment Issues in Initiative Proponent Disclosure Case “

The following is a guest post by Emily Hogin. Hogin is a second-year law student at Harvard Law School, where she is an editor on the Harvard Law Review.

On December 16, the en banc Ninth Circuit will hear oral arguments in Chula Vista Citizens for Jobs and Fair Competition v. Norris. The panel had struck down California’s law requiring initiative proponents to identify themselves on official petitions. The case presents new and thorny First Amendment questions about the right to anonymous speech on the one hand and the value of government transparency on the other — and it might be headed to the Supreme Court. See below for an overview of the legal issues involved.

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True the Vote Fundraising Appeal Predicts Noncitizen Voting, Citizens Turned into “Subjects”

Sigh (and the reference to “ammunition” is particularly disturbing):

Congress can talk of repeal, the states can talk of lawsuits; but while all the political sabers rattle in stereo, our attention is being diverted from the process failure that will skew American elections for generations to come.
We already know federal government databases are unstable. Now, millions of new names will soon be flooding into them. Our states are not prepared to deal with the coming influx of illegal aliens wanting social service programs including Medicaid, food stamps, welfare, taxpayer-funded credits and, of course, drivers’ licenses.  These programs are run independently and have few, if any, firewalls to ensure that noncitizens don’t end up as registered voters.
The co-mingling of citizens and noncitizens into databases with limited capacity for secure segmentation will result in noncitizens voting. Count on it. 
The 2014 election cycle showed us clear, repeated evidences of state limitations in segmenting data pools – case in point, North Carolina, where noncitizens were registered to vote while receiving drivers’ licenses.
Our country can handle just about anything.  But, when the votes of citizens can be diluted or negated by the fraudulent votes of noncitizens numbering in the millions, it is entirely possible that in the course of one election cycle we could find ourselves fundamentally transformed from citizens to subjects. 
True the Vote offers one of the few remaining ways that the voice of the American citizen voter can be both protected and strengthened.  Our biggest challenge is funding.  The courtroom battles and technology build-outs of 2014 prepared us to advance election integrity programs in ways never before seen.  So now, with your support, it’s time to take those technologies and messages on the road.  To states and counties, to local communities, to our fellow citizens.  We want to lay a clear course for citizen-led action – to equip you to protect the sanctity of your vote on all fronts, from neighborhood events to legislative sessions.
I don’t think I’ve ever asked for your help as emphatically as I am right now.  We are fighting on the front lines, but we are running out of ammunition at the worst possible time.
Words can never express how thankful we are for your past support.  Now, we are asking you to invest again in True the Vote and the work we do.  Please, click here and donate. Then, forward this message to your friends and ask them to donate, too.
If our elections aren’t truly fair, we aren’t truly free. Please contribute to the cause of freedom. If we don’t work together to protect our vote…who will? It’s up to us, working together.  And together, we really can True the Vote.
Thank you, again and as always, for your unwavering support.
Onward -
Catherine Engelbrecht

Race and Party, Cont’d

Political Polarization as a Social Movement Outcome

1960s Klan Activism and Its Enduring Impact on Political Realignment in Southern Counties, 1960 to 2000

  1. Rory McVeigha
  2. David Cunninghamb
  3. Justin Farrellc

  1. aUniversity of Notre Dame

  2. bBrandeis University

  3. cYale University
  1. Rory McVeigh, 810 Flanner Hall, Department of Sociology, University of Notre Dame, Notre Dame, IN 46556 E-mail: rmcveigh@nd.edu


Radical social movements can exacerbate tensions in local settings while drawing attention to how movement goals align with political party agendas. Short-term movement influence on voting outcomes can endure when orientations toward the movement disrupt social ties, embedding individuals within new discussion networks that reinforce new partisan loyalties. To demonstrate this dynamic, we employ longitudinal data to show that increases in Republican voting, across several different time intervals, were most pronounced in southern counties where the Ku Klux Klan had been active in the 1960s. In an individual-level analysis of voting intent, we show that decades after the Klan declined, racial attitudes map onto party voting among southern voters, but only in counties where the Klan had been active.


“Senate Rules Panel Fails to Vote on EAC; Long-Pending Nominees Remain in Limbo”

Bloomberg BNA:

 The Senate Rules and Administration Committee called off Nov. 20 a vote on long-awaited nominees to the U.S. Election Assistance Commission, a small federal agency providing help to state and local voting officials that has had no commissioners serving since 2011.

A committee meeting set to be held in an ornate room off the Senate floor was canceled after aides waited about 20 minutes for a quorum of at least 10 Rules Committee members to assemble….

The Rules Committee already has approved two Democratic EAC nominees, Thomas Hicks and Myrna Perez. However, Perez’s nomination was withdrawn Nov. 19 and a new Democratic nominee, Matthew Butler, was announced.
That development could further complicate Senate confirmation of all the EAC nominees, as the Rules Committee has just begun to examine Butler’s qualifications for the commission post, according to committee staffers.

“Koch-linked organization uses ‘dark money’ to fight political disclosure”


As the Internal Revenue Service contemplates new rules to illuminate “dark money” in politics, a little-known nonprofit group is fighting back using money traceable to billionaire brothers Charles and David Koch, drug makers and the cable television industry.

The group, American Commitment, received 87 percent of its $13 million in funding between 2011 and 2013 from three Koch-connected nonprofits: the Freedom Partners Chamber of Commerce, the Center to Protect Patient Rights and Free Enterprise America, according to tax filings reviewed by the Center for Public Integrity.


More on Butler/EAC

In an earlier post, I wrote of my concern that given Mr. Butler’s background at Media Matters, etc. there is a risk he would be quite partisan in his position at the EAC.  Justin pushed me a bit on this point and he’s right—I don’t know how at all Mr. Butler will be in this position if he is confirmed.  So what’s my real beef?

To begin with, there is already a tremendous amount of mistrust on the Republican side about the EAC, with many claiming the agency should be disbanded. (The House voted to do so already, and it is kind of shocking Republicans might allow a vote on commissioners).  Choosing someone who has worked for Media Matters and who apparently has no election administration experience to speak of is (deliberately?) provocative of the Republican side. The overheated reaction of Michael Thielen at the RNLA is entirely to be expected: http://thereplawyer.blogspot.com/2014/11/victory-and-defeat-for-open-fair-and.html. I expect many more level headed Republicans to have their doubts as well.

I am not saying that Mr. Butler could not be a fair commissioner who could make decisions that he sees to be in the best interest of the country and in a non-partisan way. But he will start out at an already troubled agency without any goodwill and with lots of mistrust.

Compare that situation to the Democrats nominating someone (who is a lifelong Democrat) who has extensive experience actually administering elections, or at least being somewhat involved in the world of election administration.  That would be a way to try to build some good will, bring competence and confidence to the agency, without sticking a finger in someone’s eye.

I don’t know anything about the Republican-nominated commissioners, and whether they are any better on this score than Butler. But, as indicated in my blog post (and my book), I have written off the EAC as the site for trans-partisan important work.


“The Solid South Will Rise Again”

Important and concerning Charles Blow NYT column. A snippet:

I’m reminded of the story that one of my brothers told about being transferred along with a white co-worker to Mississippi. He and the co-worker were shopping for homes at the same time. The co-worker was aghast at what he saw as redlining on the part of the real estate agent, who never explicitly mentioned race. When the coworker had inquired about a neighborhood that included black homeowners, the agent responded, “You don’t want to live there. That’s where the Democrats live.” The co-worker was convinced that “Democrats” was code for “black.”

He may well have been right. Mississippi is among the most racially bifurcated states politically, with one of the highest percentage of black voters in the country. In 2012, 96 percent of blacks voted for the Democratic presidential ticket, according to exit polling data, while 89 percent of whites voted for the Republican ticket.


“Michael Sona, convicted in robocalls scandal, gets 9 months in jail”

Canadian Press: 

He’s the first person convicted of wilfully preventing or endeavouring to prevent an elector from voting under the Canada Elections Act, said Hearn, who called his task “a difficult and troublesome sentencing.”

Hearn said he believes Sona did not act alone in the scheme, in which some 6,700 automated phone calls were placed on the morning of the 2011 federal election with misleading information on how to vote.


Myrna Perez Withdraws from EAC Consideration; President Nominates Matthew Butler

The rumors turned out to be true. The Brennan Center’s Myrna Perez has withdrawn her nomination and one of the Democratic-appointed EAC commissiners. In her place, Matthew Butler.

Butler’s current twitter bio makes it sounds like he could be quite partisan in this position: “Political & Non-Profit Management Consultant. Current interim ED @FilmAid. Fmr. CEO @MMFA. Opinions my own and probably not popular with many fans of Fox News.” [UPDATE: In retrospect, this way of phrasing my problem with Butler is off the mark.  I don’t know how partisan he’d actually be in the job.  See my follow up post here.]

As I explain in The Voting Wars, there was a time when a few courageous EAC commissioners could have made the Commission something to get above the partisan sniping. But they were shut down and that moment regrettably has passed.


“Things Aren’t Going That Well Over There Either: Party Polarization and Election Law in Comparative Perspective”

David Schleicher has posted this draft of SSRN (forthcoming, University of Chicago Legal Forum).  Here is the abstract:

One of, if not the, most important change in American political life over the last 30 or so years has been the rise of extreme party polarization. Our two major parties are increasingly ideological distinct and distant from one another, and increasingly willing to abandon long-standing institutional norms and short-term policy compromise in the name of achieving long-run party goals. Efforts to understand why the parties have changed largely have been parochial, largely looking for explanations in American politics, history, media and institutional arrangements. This focus has a logic to it. Politics in most other advanced democracies does not feature the same type of polarization between parties, and therefore the answers for why American politics has gone in this direction seem to lie inward rather than abroad.

But it is still a mistake. This short essay argues that a common shift in voter preferences towards more radical and fundamentalist opinion among even a small slice of the electorate can explain polarization in the United States and changes in politics abroad. In many European countries with proportional representation (PR), we have seen the rise of parties so radical that established parties refuse to form coalitions with them. In “Westminster” systems, which due to their use of first-past-the-post vote counting and single-member districts are supposed to tend towards having two parties, we have seen the rise in third-and fourth party voting. Notably, in most Westminster systems, there is little intra-party democracy, leading groups of voters with more radical opinions without the ability to influence mainstream parties, which makes those with radical opinions more willing to waste votes. A plausible story about American political development is that the same voters and interest groups who would form radical parties in PR systems and support spoilers in Westminster systems use intraparty democracy to influence our two-party system and create polarization. Election laws and institutional design shape the way radicalism influences politics.

If this is right, several lessons follow. Any effort to understand why American parties have changed must look at factors that are common across many western democracies. Further, the rise of radical parties in PR systems and spoilers in Westminster systems have created governance problems that are of a type with the problems created by our extreme polarization. We should thus be skeptical that there are institutional design reforms that can make American governance work easily in the face of polarization.

It was a great presentation at the Forum and I look forward to reading the paper.



“Why Voter ID Laws Don’t Swing Many Elections”

Nate Cohn for NYT’s The UpShot.  He concludes: “Voter disenfranchisement is anti-democratic, regardless of whether it swings elections. But voter ID laws haven’t been swinging elections.”

As I told the NY Times in a different article running today:

“Wholly apart from the question whether there’s going to be any demonstrable effect on turnout or election outcomes, there’s a real harm here,” said Richard L. Hasen, an election law expert at the University of California, Irvine. “Nobody should be denied the right to vote who’s eligible, absent good reason.”


Get Your Election Results Poster Here

Watch tomorrow’s hard copy Washington Post or see this flyer  from Election Data Services. According to Kim Brace of EDS, “We did several new things this year that should be of interest to Election Law readers: 1) county results from a number of different referendum issues, including a section on Voting Rights, and 2) a new map showing which party controls the highest State Election Office in each state (ie, Secretary of State, State Election Board, etc.) and how they are appointed or elected.”


“With Midterms Over, Voter ID Law Effects Get Close Look”

Trip Gabriel and Manny Fernandez write for the NYT. A snippet:

Voting rights advocates raised eyebrows about the role of voting restrictions in races that were narrowly decided. Wendy Weiser, director of the democracy program at the Brennan Center for Justice, which has challenged voting restrictions in court, said that in some key races, Republicans won tight victories that were close to what she called the “margin of disenfranchisement.”

In North Carolina, Ms. Weiser noted, 200,000 voters cast ballots over seven days of early voting in 2010 – a window used especially by African-Americans – that was eliminated this year. Thom Tillis, a Republican, defeated Senator Kay Hagen by just 48,000 votes.

Similarly, Ms. Weiser pointed to Kansas, where Gov. Sam Brownback, a Republican, was re-elected by fewer than 33,000 votes, or 2.8 percent. At the same time, 22,000 would-be voters, whose registrations were suspended for lack of a document to prove their citizenship, did not get to cast a ballot. Kansas also has a strict voter ID law, which a federal government study this year said suppressed turnout by about 2 percent. It had a greater impact on young and black voters.

“These laws should give us pause,” Ms. Weiser said. “They’re creating disenfranchisement. We have enough information to gauge what the order of magnitude is, and it’s close to the order of magnitude of the margins of victory.”

But Kansas’s secretary of state, Kris W. Kobach, who wrote the law requiring proof of citizenship to register and a photo ID to vote, dismissed the suggestion that it played a role in suppressing turnout. “Voter turnout in the November 2014 election was 50 percent, exactly what it was in the November 2010 election before we adopted our photo ID law — also 50 percent,” he said.

Ms. Weiser said she was not implying that any of last week’s victories were illegitimate, but other commentators, especially on the left, have not been so restrained, implying that voter requirement laws are already deciding elections.

But there are problems in leaping to such conclusions, voting experts said. In North Carolina, despite the elimination of seven days of early voting, overall early voting was up by 35 percent compared with 2010, according to the United States Election Project at the University of Florida.