Updated Analysis: Grimes Campaign Suing over McConnell “Election Violations” Mailer

So reports The Daily Beast. UPDATE: TPM has the complaint. It alleges a violation of KRS 119.155, which makes it a crime to, among other things “intimidate[] or attempts to intimidate any voter so as to prevent him from casting his ballot.” That’s what the Grimes campaign alleges the flyer does.

I don’t buy it. Some people might be confused by the flyer and maybe even think they are accused of some kind of elections code violation. But anyone who reads it will see it is clearly a nasty attack ad aimed at Grimes.

Voters are not stupid nor so easily intimidated.

Let me be clearer about the Grimes suit. I see it as a publicity device to accuse McConnell of being a vote suppressor.

The real evil of the ad is that it is misleading. But it is hard enough to regulate false campaign speech—there are very serious First Amendment problems trying to regulate misleading campaign speech. See my A Constitutional Right to Lie in Campaigns and Elections?

Yes we are knee deep in the silly season.

[This post has been updated.]


“Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation”

Roseann Romano, adding to a growing list of important student notes on bail-in, for the Iowa Law Review:

In response to the Supreme Court’s decision in Shelby County v. Holder, which dismantled the modern voting rights enforcement regime by declaring section 4(b) of the Voting Rights Act (“VRA”) unconstitutional, plaintiffs in voting rights lawsuits have sought protection from a little-used provision of the VRA: section 3(c). Section 3(c) allows courts to require jurisdictions whose voting practices violate the Fourteenth or Fifteenth Amendment to submit future voting changes to a preclearance process. However, in light of little legislative history and only one instance of judicial interpretation of the provision, courts face a challenge in determining when a jurisdiction’s behavior triggers the section 3(c) remedy. Accordingly, this Note examines section 3(c) and the legal standards applied to find Fourteenth or Fifteenth Amendment violations in voting rights cases. This Note then proposes an invidious discrimination standard for determining when a jurisdiction’s voting practices trigger section 3(c). By applying this standard to two ongoing voting rights cases, this Note argues that a less burdensome standard than the intentional discrimination standard does not dramatically depart from past voting rights jurisprudence and is necessary to strengthen the voting rights enforcement regime.


“Lousy Judgment: This year’s scary election ads will destroy any lingering confidence in the judicial branch.”

Dahlia Lithwick and I have written this piece for Slate. It begins:

If you really think about it, who among us hasn’t been accused on television of coddling child molesters?

A few years ago, in the spirit of Halloween, we created an “Evil Men in Black Robes” Halloween Spooktackular, pulling together some of the worst in scary judicial election attack ads. Well, they’re baaaaack, and some of them are worse than ever. This time it’s not just the judicial candidates literally inhabiting the pockets of special interests (although we do have a creepy pocket judge again), but also sitting judges accused of coddling child molesters, rapists, and more.

In 39 states, some or all judges must face some kind of election—often a partisan one. These races used to be about as interesting to watch as Bingo night. But now, it’s all Law and Order, and all the time. The ads are scarier than the shows they interrupt.


“New Hampshire Law Banning Ballots on Facebook Draws a Legal Challenge”

WSJ: “A New Hampshire legislator has sued the state, arguing that a new law banning voters from displaying their marked ballots violates the First Amendment’s guarantees on free speech.”

I’m going to disagree with my friends at the ACLU on this one: this is justified by the government’s compelling interest in preventing vote buying.



How to Use Negative Ads to Preserve the Status Quo

Another Rick Berman nugget: “You get in people’s minds a tie. They don’t know who is right. And you [, the energy industry, win] all ties because the tie basically insures the status quo.”

As a reader wrote: “Or in the case of donations to the Humane Society, the mental paralysis leads to people not getting out their checkbooks and indirectly funding the opposition to factory farming, etc.”


“Court won’t block campaign laws before election”

AP: “A federal appeals court on Thursday rejected a request that would have allowed certain tax-exempt groups to release campaign-related ads in Montana before Tuesday’s election without disclosing their donors or spending. Without comment, a two-judge panel from the 9th U.S. Circuit Court of Appeals denied Montanans for Community Development’s emergency motion for an injunction.”


SCOTUS Adds Argument Time in Alabama Redistricting Case for Federal Government

See this Order. As I explained in my SCOTUSBlog preview posted yesterday, Argument preview: Racial gerrymandering, partisan politics, and the future of the Voting Rights Act, the government filed a brief supporting neither side in this case:

Beneath the surface of the briefing in the case, and perhaps explaining the reason for the federal government and Lawyers’ Committee amicus briefs urging a remand in the case for further analysis of the predominant motive of the Alabama legislature in drawing particular Alabama districts, is a fear that the Court could (1) adopt Alabama’s understanding of the Voting Rights Act as mandating the creation of these packed majority-minority districts and then (2) strike the Act itself as an unconstitutional race-based statute in violation of the Equal Protection Clause. It seems unlikely that the Court would use this case as the vehicle to reach that result, but the potential for the same Court which decided Shelby County to declare more of the Voting Rights Act unconstitutional lurks in the case’s background and appears to be making voting rights advocates nervous.


“Surge of Last Minute Outside Spending Hits State Supreme Court Races”

Brennan Center:

With less than a week until Election Day, special interest groups have dramatically increased TV ad spending to influence state Supreme Court races in Illinois, Michigan, Montana, North Carolina, and Ohio. Outside groups have spent nearly $2.1 million on TV ad buys in these states for the November general election, with nearly $1 million spent over the last week, according to FCC filings, campaign financial disclosures, and estimates from Kantar Media/CMAG analyzed by the Brennan Center for Justice and Justice at Stake.



Two on Nasty Judicial Election in Ohio

Columbus Dispatch: “An Ohio State Bar Association committee claims Democrat John P. O’Donnell has crossed the line with a TV commercial attack on his opponent, Republican Justice Judith L. French. O’Donnell’s first TV ad attempts to link French’s acceptance of campaign donations from American Electric Power executives with her decision in favor of the utility in a rate case. The TV commercial French pops out of the pockets of utility executives accompanied by wads of cash.”

Another from the Dispatch: “An Ohio Supreme Court justice says she was talking judicial philosophy — not politics — when she addressed a Republican crowd about the court serving as a ‘backstop’ for decisions made by GOP officeholders….At a Saturday event at which she introduced Republican Gov. John Kasich, French said, ‘I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative,’ French said.”


“Undercover conservative filmmaker James O’Keefe releases video in NC”

News and Observer:

With a close election, it was inevitable that conservative filmmaker James O’Keefe would bring his hidden cameras and actors to North Carolina.

His goal here: Prove that political campaigns are OK with non-citizens voting in the election. In his new video, a woman poses as a Brazilian-born immigrant who asks campaign volunteers outside early voting sites if she can vote.

She admits to being in the country illegally but says she has a voter registration card. O’Keefe’s premise is riffing off a State Board of Elections audit that found 1,425 registered voters who are likely non-citizens.

O’Keefe didn’t get anyone with major campaigns to take the bait, nor does the video show any poll workers allowing noncitizens to vote. He also doesn’t show anyone in the Triangle, although the video does show O’Keefe entering a Durham County early voting site.

 MORE from WRAL, ABC11.

New Voting Lawsuit in Ohio

Release [corrected]: “– Today, the Northeast Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, and Ohio Democratic Party—successful plaintiffs in previous complaints to protect Ohioans’ voting rights—filed a proposed Second Supplemental Complaint against Ohio Secretary of State Jon Husted and Ohio Attorney General Mike DeWine asking U.S. District Judge Algenon Marbley of the Southern District of Ohio to declare portions of Ohio Substitute Senate Bills 205 (S.B. 205) and 216 (S.B. 216) invalid for violating the federal Voting Rights Act and the Constitution, risking the disenfranchisement of thousands of Ohio voters who may cast absentee or provisional ballots, and intentionally making it more difficult for many African-American, Latino, and Democractic-Party-member Ohioans to vote.”


“Against Residency Districts”

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

This article argues against laws which mandate that candidates and elected officials reside in a particular geographic area as a condition of election or office-holding (i.e., residency requirements). The article considers various rationales for residency requirements — some of which have been endorsed by federal and state courts — and concludes that those rationales by-and-large do not hold up under scrutiny. The article also considers the costs of residency requirements and concludes that the costs of such requirements outweigh any purported benefits. The article then ponders why residency requirements have continued to exist despite weak justifications for their use, and concludes that residency requirements likely persist because they insulate incumbent partisans from electoral competition. As such, a politics as markets approach might suggest the elimination of residency requirements.

Looking forward to reading this!  This has been my position, but obviously not (from me) based in a politics as markets approach.


“They’re Not Allowed to Talk. But Candidates and PACs Are Brazenly Communicating All the Time.”

Key National Journal piece:

The Tillis memo shows just how brazen politicians and their allies have become. What started as vaguely outlining ad buys through the media and posting minutes-long “B-roll” footage of a candidate on their website has entered a new phase in which campaigns and parties offer insight into their needs as if they were sitting in a boardroom personally explaining it to the men and women who run outside groups.

“Because we cannot coordinate, our campaign is often in the position of reacting to things our allies do after they have done them,” Shaw wrote, without irony, in the memo. His solution: opening up his own political playbook and trying to indirectly call the plays for his allies.



“North Carolina Campaigns Prepare for Potential Recount”

Roll Call:

The competitive North Carolina Senate race will cost more than $100 million by Election Day, and that price tag could climb further as both parties prepare to spend even more if the race becomes too close to call.

The campaigns for both Sen. Kay Hagan, D-N.C., and Republican state Speaker Thom Tillis confirmed to CQ Roll Call they are making preparations in case of a recount in one of the country’s most competitive races. Recent polls show a tied race, and this week the Rothenberg Political Report/Roll Call moved the race to Tossup this week from Tilts Democratic.

“It’d be kind of silly for us not to [prepare],” said Todd Poole, the executive director of the North Carolina Republican Party.


Must-Read Quote of the Day: Dark Money Edition

““People always ask me one question all the time: ‘How do I know that I won’t be found out as a supporter of what you’re doing?’…We run all of this stuff through nonprofit organizations that are insulated from having to disclose donors. There is total anonymity. People don’t know who supports us.”

Lobbyist Richard Berman, secretly recorded giving advice to oil and gas industry executives on demonizing their opponents, as provided to Eric Lipton of the NYT.


“Messing With Texas Again: Putting It Back Under Federal Supervision”

I have written this piece for TPM Cafe. It begins:

Readers of the entire 147-page opinion issued earlier this month by a federal district court striking down Texas’s strict voter identification law as unconstitutional and a violation of the Voting Rights Act might have been too exhausted to realize that the opinion’s very last sentence may be its most important. The court ended its opinion with a dry statement promising a future hearing on “plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act.” That hearing, however, has the potential to require Texas to get federal approval for any future voting changes for up to the next decade, and to make it much more difficult for the state to pass more restrictive voting rules. It may be much more important than the ruling on the voter ID law itself.