“Dear Bernie Sanders: Don’t follow in Obama’s footsteps on campaign finance reform”

Larry Lessig WaPo oped:

But on the same day that Sanders declared that campaign finance reform must come first, his campaign released a statement completely negating the significance of that promise. Responding to a crowdsourced question on change.org’s new politics platform, Sanders again promised to “commit to making reforms that change the way campaigns are funded a primary objective” of his administration. But when he listed what he would actually do in his “first 100 days in office,” his list included three minor changes related to transparency in political spending. As to the only change that could make his platform credible — revamping the way congressional elections are funded by adopting a system of small-dollar, citizen-funded campaigns, such as the one Rep. John Sarbanes (D-Md.) has proposed — Sanders indicated this was something to “move toward” “over the long term.”

“Over the long term”? What exactly does Sanders expect to accomplish in the short term, before this change is enacted? As Sen. Elizabeth Warren (D-Mass.) said in a speech on the floor of the Senate on the anniversary of the Supreme Court’s Citizens United decision, this is not a fight for the long term. This is the fight to be having right now. The only way real change will happen in the United States is if Congress is set free from its corrupting dependence on interested money. Yet, bizarrely, Sanders doesn’t commit to promoting this essential change in Congress as a priority of his administration.


“From Selma to Ferguson: The Voting Rights Act as a Blueprint for Police Reform”

Jason Mazzone and Stephen Rushin have posted this draft on SSRN.  Here is the abstract:

The Voting Rights Act of 1965 revolutionized access to the voting booth. Rather than responding to claims of voter suppression through litigation against individual states or counties, the Voting Rights Act introduced a coverage formula that preemptively regulated a large number of localities across the country. In doing so, the Voting Rights Act replaced reactive, piecemeal litigation with a proactive structure of continual federal oversight. As the most successful civil rights law in the nation’s history, the Voting Rights Act provides a blueprint for responding to one of the most pressing civil rights problems the country faces today: police misconduct. As with voter suppression in the mid-twentieth century, abusive police conduct against minority citizens is a national problem perpetrated by thousands of localities. Federal efforts to cure the problem through litigation against individual police departments have failed to produce widespread reform. This Article applies the lessons of the Voting Rights Act in proposing the use of a coverage formula to identify and regulate local police departments engaged in a pattern of unconstitutional misconduct. While this proposal would significantly enhance federal power over police departments, such a change is both necessary to curb police misconduct and constitutionally permissible.


“Groundbreaking Maryland Legislation Seeks to End Congressional Gerrymandering with Fair Representation”


Sen. Raskin, a Democrat in a Democratically-controlled legislature, has long suggested the best way to hold congressional elections is with fair representation voting. His new legislation presents a creative way to end the national standoff. He has proposed entering in an interstate compact (a contract among states, for example the Port Authority of New York and New Jersey or the National Popular Vote plan for president) that would first involve negotiation with the state of Virginia (hence the name “Potomac Compact”).

Senator Raskin’s proposed compact would end having ugly districts, but more importantly end ugly representation and lack of competition: it allows Maryland, Virginia and other states to escape the single-winner district gerrymandering system altogether. It proposes that Maryland and any other participating states — starting with negotiations with Virginia — form independent redistricting commissions that are empowered to create congressional districts in which multiple candidates are elected, rather than a single candidate per district, as is currently the case. By allowing more than one voice to represent a district, the new plan would break up the monopoly that one party or another has on representation in an area. It still would need congressional consent to go into place, but it would be Congress consenting to plans agreed to by the participating states.


“FEC OKs DePauw stipend for Clinton intern”


An Indiana college student convinced an often-deadlocked Federal Election Commission on Thursday that allowing DePauw University to pay her a stipend for interning on Hillary Clinton’s presidential campaign is not an illegal campaign contribution.

One Democrat joined the three Republican members of the commission in agreeing that the $3,000 grant DePauw offered to Victoria Houghtalen last year was for a “bona fide” educational experience and not direct compensation for campaign work.

The two commissioners who disagreed argued that the decision will allow unidentified donors to fund college internship programs to benefit certain campaigns.

“It’s quite clear that corporate contributions are not appropriate,” said Commissioner Ann Ravel, a Democrat. “I am too concerned about the potential ramifications about this, given the clear law that we have.”

Democratic Commissioner Ellen Weintraub on Twitter: “Big decision today allows college internship stipends for campaign volunteers: My take:

Trying to think of the last significant Weintraub-Ravel split…


Top Recent Downloads in Election Law on SSRN



RECENT TOP PAPERS for all papers first announced in the last 60 days
13 Dec 2015 through 11 Feb 2016

Rank Downloads Paper Title
1 1,100 The Original Meaning of ‘Natural Born’
Michael D. Ramsey
University of San Diego School of Law
Date posted to database: 9 Jan 2016
Last Revised: 9 Jan 2016
2 90 Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional
Gary Michael Parsons
Date posted to database: 4 Dec 2015
Last Revised: 8 Jan 2016
3 65 Donald Trump, Hillary Clinton, Joe Biden, and a Disrupted Electoral College: High Unfavorable Ratings, Multi-Candidate General Election Ballots, and Pursuing the ‘Art of the Deal’ with Free-Agent Electors in December 2016
Victor Williams
Catholic University of America (CUA) – Columbus School of Law
Date posted to database: 4 Dec 2015
Last Revised: 9 Dec 2015
4 63 Speech-Facilitating Conduct
Wesley J. Campbell
Stanford Law School
Date posted to database: 1 Feb 2016
Last Revised: 1 Feb 2016
5 53 The Constitutionality of State Law Triggering Political Committee(-Like) Burdens and the Current Circuit Splits
Randy Elf
Date posted to database: 11 Jan 2016
Last Revised: 9 Feb 2016
6 45 The Amendment Diversion: How Clinton, the Democrats, and Even Sanders Distract Attention from Effective Strategies for Too Much Money in Politics by Promoting Futile Remedies — Book I: Hillary Clinton and the Dark Money Disclosure ‘Pillar’
Rob Hager
Date posted to database: 1 Feb 2016
Last Revised: 4 Feb 2016
7 44 A New Threat to the Viability of Contribution Limits
Brent Ferguson
New York University (NYU) – Brennan Center for Justice
Date posted to database: 20 Jan 2016
Last Revised: 20 Jan 2016
8 43 Assessing the Potential Impact of Evenwel v. Abbott
Carl Eoin Klarner
Date posted to database: 7 Dec 2015
Last Revised: 7 Dec 2015
9 40 The New Federal Analogy: Evenwel v. Abbott and the History of Congressional Apportionment
Thomas Berry
Stanford University, School of Law, Students
Date posted to database: 13 Dec 2015
Last Revised: 15 Dec 2015
10 29 Redistricting and Polarization
Micah Altman and Michael P. McDonald
Massachusetts Institute of Technology (MIT) Libraries and University of Florida
Date posted to database: 5 Jan 2016
Last Revised: 5 Jan 2016

“Karl Rove’s Crossroads GPS manages to make it even harder to find the dark money in U.S. politics”

I have written this oped for the LA Times.  It begins:

If you know nothing else about a candidate except that he or she is backed by the Koch brothers or George Soros, it’s often enough to help you make an informed decision about how you want to vote. Unfortunately, this week it became clear that finding out which plutocrats, corporations and interest groups are bankrolling American elections is only going to get harder.

The blog at the indispensable website OpenSecrets.org, of the Center for Responsive Politics, reported Tuesday that the IRS had quietly granted 501(c)(4) nonprofit status to Karl Rove’s political group Crossroads GPS. That implicitly gives a green light to “social welfare groups” to spend enormous sums on political ads, all without disclosing where these groups get their money.

It’s a decision that will hurt our democracy. And it might never have happened if the IRS hadn’t hamhandedly singled out tea party groups for investigation a few years earlier.



35 Groups Write Letter to EAC Director Newby to Withdraw Recent Letters Making It Harder to Register to Vote

Here’s the letter:

The undersigned are a collection of good-government, disability rights, civil rights, and voting rights groups that work to protect the right of every eligible American to vote. We
write now urging you to immediately withdraw your letters addressed to the chief elections officers in Kansas, Georgia, and Alabama permitting changes to the federal voter registration
form and to ensure that the instructions on the form reflect governing law and policy prohibiting the requirement of documentary proof-of-citizenship with the form.
Such changes – which unlawfully permit a handful of states to require documentary proof of citizenship in addition to the sworn attestation under penalty of perjury – run afoul of
present Election Assistance Commission (EAC) policy and procedure and are inconsistent with recent court cases. The EAC has previously addressed this very matter and declined to
make the change on documentary proof that you recently authorized. EAC Vice-Chair Thomas Hicks, one of the Commissioners to whom you report, has deemed your recent
communication a “unilateral” move amounting to a “material” change.i Any material change must be adopted by a quorum of the Commissioners after notice and public comment, as
required by the Administrative Procedures Act, the Help America Vote Act, and the National Voter Registration Act. That has not occurred here.


“The new frontier of voter tracking”


The New Hampshire presidential primary may be over, but there are many primaries coming up in other states around the country and voters will likely turn out in droves to cast their ballots.

One company is tracking voter characteristics through some likely sources — their phones. Dstillery is a big data intelligence company that sells targeted advertising information about consumers to big companies like Microsoft and Comcast.

But in the Iowa primary, the company tried its hand at compiling voter traits.

“We watched each of the caucus locations for each party and we collected mobile device ID’s,” Dstillery CEO Tom Phillips said. “It’s a combination of data from the phone and data from other digital devices.”


6th Circuit Rejects Challenge to Ohio Law Keeping Partisan Information of Judicial Candidates Off Ballot


Ohio elects its state judges through a hybrid process. Judicial candidates are first selected through partisan primary elections. On the general-election ballot, however, their names show no partisan affiliation, even though judicial candidates may affiliate with political parties throughout the entirety of their campaigns. The plaintiffs—the Ohio Democratic Party, three individuals who were candidates for state-court judgeships in the 2010 election, and a statewide labor organization—brought suit below challenging the constitutionality of the Ohio law that precludes the inclusion of judicial candidate party affiliations on the general-election ballot. While the plaintiffs argue that Ohio’s electoral system burdens their First and Fourteenth Amendment rights, the burden is minimal and is outweighed by Ohio’s interest in minimizing partisanship in judicial elections. Consequently, the district court correctly granted the Ohio Attorney General’s motion for summary judgment.


“Sanders’s claim that he ‘does not have a super PAC’”

WaPo Fact Checker:

Sanders has not exploited the Supreme Court’s Citizens United decision, but is still reaping its benefits. There’s not much Sanders could do to stop outside groups, but he hasn’t actively denounced their help, either. He would be much more precise if he said: “I do not have a super PAC allied with me.”

As currently framed, however, Sanders’s statement does not quite qualify for a Geppetto Checkmark. We would give half a Pinocchio if we could, but we do not use half-Pinocchios. So Sanders earns One Pinocchio.


“‘Big Money’ Fails to Buy Iowa and New Hampshire Voters”


 The Center for Competitive Politics (CCP), America’s largest nonprofit working to promote and defend First Amendment rights to free political speech, assembly, and petition, today released an issue brief showing that money spent by candidates and super PACs was negatively correlated with the votes they received in Iowa and New Hampshire.

My view on this question is in WaPo: Money Can’t Buy You Jeb But It Still Skews Politics.


Talk is Cheap Dep’t: President Obama Remarks on Election Reform

From yesterday’s Illinois speech:

But I do want to offer some steps that we can take that I believe would help reform our institutions and move our system in a way that helps reflect our better selves.  And these aren’t particularly original, but I just want to go ahead and mention them.

First is to take, or at least reduce, some of the corrosive influence of money in our politics.  (Applause.)

Now, this year, just over 150 families — 150 families — have spent as much on the presidential race as the rest of America combined.  Today, a couple of billionaires in one state can push their agenda, dump dark money into every state — nobody knows where it’s coming from — mostly used on these dark ads, everybody is kind of dark and the worst picture possible.  (Laughter.)  And there’s some ominous voice talking about how they’re destroying the country.

And they spend this money based on some ideological preference that really is disconnected to the realities of how people live.  They’re not that concerned about the particulars of what’s happening in a union hall in Galesburg, and what folks are going through trying to find a job.  They’re not particularly familiar with what’s happening at a VFW post.  (Phone rings.)  Somebody’s phone is on.  (Laughter.)  In Carbondale.  They haven’t heard personally from farmers outside of the Quads and what they’re going through.  Those are the voices that should be outweighing a handful of folks with a lot of money.  I’m not saying the folks with a lot of money should have no voice; I’m saying they shouldn’t be able to drown out everybody else’s.

And that’s why I disagree with the Supreme Court’s Citizens United decision.  (Applause.)  I don’t believe that money is speech, or that political spending should have no limits, or that it shouldn’t be disclosed.  I still support a constitutional amendment to set reasonable limits on financial influence in America’s elections.

But amending the Constitution is an extremely challenging and time-consuming process — as it should be.  So we’re going to have to come up with more immediate ways to reduce the influence of money in politics.  There are a lot of good proposals out there, and we have to work to find ones that can gain some bipartisan support — because a handful of families and hidden interests shouldn’t be able to bankroll elections in the greatest democracy on Earth.

The second step towards a better politics is rethinking the way that we draw our congressional districts.  (Applause.)  Now, let me point this out — I want to point this out, because this is another case of cherry-picking here.  (Laughter.)  This tends to be popular in states where Democrats have been drawing the lines among Republicans, and less popular among Republicans where they control drawing the lines.  (Applause.)  So let’s be very clear here — nobody has got clean hands on this thing.  Nobody has got clean hands on this thing.

The fact is, today technology allows parties in power to precision-draw constituencies so that the opposition’s supporters are packed into as few districts as possible.  That’s why our districts are shaped like earmuffs or spaghetti.  (Laughter.)  It’s also how one party can get more seats even when it gets fewer votes.

And while this gerrymandering may insulate some incumbents from a serious challenge from the other party, it also means that the main thing those incumbents are worried about are challengers from the most extreme voices in their own party.  That’s what’s happened in Congress.  You wonder why Congress doesn’t work?  The House of Representatives there, there may be a handful — less than 10 percent — of districts that are even competitive at this point.  So if you’re a Republican, all you’re worried about is what somebody to your right is saying about you, because you know you’re not going to lose a general election.  Same is true for a lot of Democrats.  So our debates move away from the middle, where most Americans are, towards the far ends of the spectrum.  And that polarizes us further.

Now, this is something we have the power to fix.  And once the next census rolls around and we have the most up-to-date picture of America’s population, we should change the way our districts are drawn.  In America, politicians should not pick their voters; voters should pick their politicians.  (Applause.) And this needs to be done across the nation, not just in a select few states.  It should be done everywhere.  (Applause.)

Now, the more Americans use their voice and participate, the less captive our politics will be to narrow constituencies.  No matter how much undisclosed money is spent, no matter how many negative ads are run, no matter how unrepresentative a district is drawn, if everybody voted, if a far larger number of people voted, that would overcome in many ways some of these other institutional barriers.  It would make our politics better.

And that’s why a third step towards a better politics is making voting easier, not harder; and modernizing it for the way that we live now.  (Applause.)

Now, this shouldn’t be controversial, guys.  You liked the redistricting thing, but not letting people vote.  I should get some applause on that, too.  (Applause.)



“She’s 86. She can’t get a photo ID. Look at the voter fraud we’ve prevented”

Peter St. Onge, in Charlotte Observer:

Reba Bowser seems like the kind of person North Carolina Republicans might want on their side this November.

She’s 86 years old. She’s a staunch Republican. She’s been a faithful voter since the Eisenhower administration, missing only the most recent election after moving from New Hampshire to western North Carolina to be close to her son’s family.

“Both my parents, they voted in every election,” that son, Ed Bowser, says. “My grandparents did, too. They took this seriously.”

So this month, with the North Carolina primary approaching, Reba wanted to make sure she could vote again. She needed to register, and she needed a valid photo ID, because beginning this year, North Carolina is requiring one to vote.


“How Bernie built a fundraising juggernaut”


Indeed, Sanders’ campaign has melded its fundraising into its core mission in a way that is without precedent in American political history. It’s more than a means to an end. It is the purpose of his campaign ― the vehicle for regular people to buy into the idea that they can fight back against a moneyed elite that has tilted the scales against them.


“Obama Urges Action on Democracy Reform”

Brennan Center:

During remarks to the Illinois General Assembly today, President Obama called for broad democracy reform, including reducing barriers to voting, implementing automatic voter registration, changing the way our districts are drawn, and seeking reasonable limits on the influence of “dark money” and big donors on America’s elections.
“We have to build a better politics,” the president said. “We can’t move forward if all we do is tear each other down.”
In its Democracy Agenda, released last week, the Brennan Center for Justice outlined concrete steps our next president, Congress, and states can take to boost voter participation and build the better democracy President Obama envisioned in his speech.

Breaking: CJ Roberts Asks for Response in NC Redistricting Case

The response is due Tuesday.

UPDATE: More from Lyle.

Tuesday seems like a long time to wait, given that there’s uncertainty as absentee ballots are out and are being voted.  In the meantime, the Legislature has to consider drafting an alternative redistricting plan, or leaving that to the three-judge court, at least for temporary maps.

More on the timing and order from Mike Gordon of the Charlotte Observer.


“Will Supreme Court Make America(n Samoa) Great Again?”

Kimberly Robinson for BNA:

Thanks to Ted Cruz, natural-born citizenship is now in the lamestream media(Oh, sorry, channeling my inner Sarah Palin). And now it’s at the U.S. Supreme Court.

Not Ted Cruz’s citizenship specifically. Or even really natural-born citizenship. But birthright citizenship, okay?

In Tuaua v. United States, No. 15-981, a group of American Samoans claim they are being denied birthright citizenship guaranteed by the 14th Amendment.


Subjecting Plutocrats United to the “Page 99 Test”

What can you learn about a book from turning to page 99 in it?

I explore this as to Plutocrats United at the Page 99 Test blog:

He applied the “Page 99 Test” to his new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, and reported the following:

The Page 99 test works well for my book, because this page tells the story of one of our new Plutocrats, created by the United States Supreme Court. He’s Shaun McCutcheon, a businessman who sued for a right to give $1,776 to every single of the hundreds of Republican candidates running for Congress. The Supreme Court eventually agreed with him, in a case known asMcCutcheon v. FEC, holding that the government violates the First Amendment by limiting the overall amount contributions a person can give to federal candidates in a single election. Chief Justice Roberts wrote the opinion for the Court’s five conservatives, and celebrated elected officials being responsive to the interests of donors, an argument I find quite troubling.

In Plutocrats United, I argue instead for the constitutionality and desirability of caps on campaign spending. I also want to give every voter $100 in campaign finance vouchers to contribute in elections.

Here is the excerpt from page 99:

“Though rich,” Collins and Skover tell us, “McCutcheon cannot be counted among the super-rich.” They quote McCutcheon as saying, “I do not come from a rich family.”

Not “super-rich”? Anyone who can spend $384,000 in campaign contri­butions and have enough left over to finance a lawsuit is plenty rich, even if not at Sheldon Adelson’s or George Soros’s levels. In 2011 the amount Mc­Cutcheon spent on federal elections was more than seven times the annual median U.S. household income. It was just shy of the amount of annual income it took to fall in the top one percent of wage earners. But $384,000 was not McCutcheon’s income; it was the amount he could spare that year for political activities (and only those that were related to federal elections and were reported).

Shaun McCutcheon asserts a right to maximize his influence over elec­tions and policy by spending as much as he can afford on political activities. Millions of other Americans feel just as passionately about politics and pol­icy but lack McCutcheon’s means. As Professor John Shockley wrote of theBuckley decision, “In thus striking down limits on expenditures the Court freed the wealthy to engage in significant use of the most effective modes of communication. But what are the Justices saying about the great majority of the American people who cannot spend more than $1,000 on candidates they support? By the Court’s own words, a majority of the American people are excluded from effective communication.”

Spending limits stop wealthy people such as McCutcheon from spend­ing unlimited sums in political campaigns, but their purpose is to promote political equality and deter corruption. A $25,000 contribution limit per election per candidate (actually $50,000 each for a primary and a general elec­tion) is quite generous for a system also committed to political equality. The same can be said of an upper limit of $500,000 on all federal elections in a two-year period, aimed at stopping the richest of the rich from having totally outsized influence over federal elections, but generous to be sure.

Many readers may find these limits too generous.

If you too are troubled by Shaun McCutcheon’s argument, you might find the rest of the book of interest. 


“Funny or Die Made a Trump Biopic, Starring Johnny Depp”


The humor website Funny or Die on Wednesday began streaming a 50-minute comedy that finds Mr. Depp portraying the businessman turned politician, full-blown comb-over and all. Kept a secret for months — no small task in Hollywood — “Funny or Die Presents Donald Trump’s The Art of the Deal: The Movie” was released to coincide with Mr. Trump’s victory on Tuesday in the New Hampshire Republican presidential primary.

This season’s “Hillary: The Movie?”


“Beyond Campaign Finance Reform”

Tatatha Abu el-Haj has posted this draft on SSRN.  Here is the abstract:

The average American voter is apathetic, ignorant and polarized, or so we are told. Except, it turns out, with respect to her views on the outsized political influence of the super wealthy: poll after poll reveals a bipartisan consensus that wealthy interests exert too much political influence and there is good evidence to support these concerns. While the public blames the Supreme Court’s decision in Citizens United v. FEC for this situation, experts in the field know that the constitutional constraints on our ability to limit the political influence of moneyed elites long-predate Citizens United and pose a formidable barrier to effective campaign finance reform. Nevertheless, the most consistent calls in legal circles are for just that, more campaign finance reform.

This Article argues that it is time for those serious about curtailing the influence of money on politics to recognize that the struggle for effective campaign finance reforms has run its course. Renewed democratic accountability will require an organized, informed and representative electorate. Election lawyers should, therefore, begin the process of reimagining their roles. It is time for the field to come to grips with the evidence that our apparent crisis of representation arises out of profound social and political changes since the 1970s, foremost among them, the transformation of civic associations. More specifically, it is time to wrestle with the evidence that this transformation resulted from legal choices and changes.

Our focus needs to shift to the ways that law might encourage civic reorganization and facilitate representative turnout – just getting voters out on election days is too little too late. Enhanced democratic accountability will require both an organized and informed electorate and a broad and representative one, especially in during party primaries. Increasing the representativeness of the electorate that turns out to vote, therefore, must remain a key priority for the field of election law.

In making this argument, the Article defends two controversial claims: First, the First Amendment tradition poses a formidable barrier to curtailing the influence of moneyed interests regardless of the composition of the Court. Second, the widespread skepticism in the field that the electorate can be a source of democratic accountability is overdrawn: The fact that voters, as individuals, are incapable of monitoring elected officials does not foreclose the possibility that voters, as groups, could demand democratic responsiveness. In fact, the historical record reveals that ordinary citizens can exercise influence over the officials elected to represent them when they are well organized and vote.

Looking forward to reading this, and to being on a panel with Tabatha and others at Penn next Thursday.


Caution on the Hajnal Voter ID Paper

This paper differs from others in finding great partisan and racial effects of voter id laws. It has been getting a lot of attention from the left, as proof that these laws have a big suppressive effect.

The study may well pan out. I think Hajnal is a very good and careful scholar. But it is still a working paper that has not yet gone through peer review, and it is at odds with other studies, which find modest effects or no effects.

That’s how social science is.  There’s generally not one big study which solves all of life’s mysteries. It is a slow accretion of knowledge.

Many will want this paper’s conclusions to be validated, because it is in line with our world view. It is like the paper from last year which purportedly found noncitizen voting likely affecting the outcome of elections.  After further scrutiny many believe the paper’s methodology is not sound.

So take a breath.


“The great money-in-politics myth”

Dylan Matthews for Vox.

Sanders is the most vocal exponent of this critique currently, but he’s hardly the only one. At least since the progressive movement of the early 1900s, a prominent strain of American liberalism has identified the undue influence of moneyed interests, primarily through campaign donations and lobbying, as the fundamental problem in American politics, the one issue that needs to be fixed before the political system is capable of fixing anything else.

Sanders’s version is actually more plausible than the one others have articulated. He ties it to a broader call for working-class unity and revolution. More typical is the less comprehensive version Harvard law professor Lawrence Lessig expressed during hisshort-lived presidential bid, which holds that if Congress were to simply pass some good government reforms — in particular campaign finance reform — legislation that liberals have been pushing for generations would suddenly be possible, even easy, to pass.

Matthews has apologized to Lessig for this aspect of his column.


“Trump, Sanders Wins Not Seen as Clearing Way for Third-Party Run”

Bloomberg (!):

I’s not clear whether the climate of anger would be favorable to a third-party bid being considered by former New York Mayor Michael Bloomberg, who told the Financial Times on the eve of the New Hampshire vote that he was “looking at all options.”

“I find the level of discourse and discussion distressingly banal and an outrage and an insult to the voters,” said Bloomberg, the founder and majority owner of Bloomberg News parent Bloomberg LP. He told the newspaper that the U.S. public deserved “a lot better” and that if he decided to go ahead with such a bid, he’d need to start in March to put his name on ballots across the nation.

Last week, a person familiar with his plans who was not authorized to speak on the record told Bloomberg News that Bloomberg’s decision would depend in part on whether the more ideological candidates won the major parties’ primaries. Marc La Vorgna, a spokesman for Michael Bloomberg, declined to comment on the Financial Times story and said there would be no comment on last night’s New Hampshire vote, “regardless of outcome.”


“Virginia Asks Court To Ignore Pre-1965 Discrimination In Voting Rights Case”

Tierney Sneed for TPM:

Virginia’s State Board of Elections is asking the court weighing a voting rights case being brought in the state to exclude any evidence of the state’s history of racial discrimination.

The board filed a motion Monday to “exclude expert testimony and other evidence of Virginia’s history of racial discrimination,” particularly anything that happened before 1965, when the federal Voting Rights Act was passed….

“Recent Supreme Court decisions warn against reliance upon non-contemporaneous history, on the grounds that such history is not probative in a challenge to a more recent legislative action,” the motion said.

However, according to UC-Irvine School of Law professor Rick Hasen, who runs Election Law blog, the Shelby County did not rule out the consideration of a state’s discriminatory history outright.

“Shelby County tells us obviously you can’t make decisions just based on the past, but it doesn’t make it irrelevant for the purpose of figuring things out,” Hasen told TPM.

Indeed, when Congress amended Section 2 of the Voting Rights Act in 1982, the Senate Committee on the Judiciary issued a report with it outlining the factors that should be taken into account when assessing possible violations, including “the history of official voting-related discrimination in the state or political subdivision.”