Back in 2012, I first noted this resource under development. This database at the Federal Judicial Center has now grown to over 340 cases, and is a treasure trove of data. For some of the cases, it gives some information not available elsewhere, such as a judge’s reasoning not in any written opinion but contained only in a transcript.
Here’s another example, from the write-up on the Purcell v. Gonzalez case (which is the origin of the controversial Purcell Principle on timing of emergency election litigation). One of the issues in the case is that the district court denied a request for a preliminary injunction of Arizona’s voter id law, pending a trial on the merits, without immediately giving written reasons for denying the stay. Plaintiffs then sought a stay from the Ninth Circuit, which issued the stay of the law, also without giving reasons. The case ended up at the Supreme Court with the Court reversing the Ninth Circuit, which criticized the courrts for not giving reasons.
Here’s a very fascinating tidbit from the write up:
On September 11, Judge Silver declined to interfere with the next day’s primary election and denied the plaintiffs a preliminary injunction.17 She issued findings of fact and conclusions of law on October 12.18 On interlocutory appeal, however, a motions panel of the court of appeals enjoined application of proposition 200 on October 5.19 The Supreme Court vacated the injunction on October 20.20 In its per curiam opinion, the Supreme Court scolded the district court for not providing the court of appeals with findings of fact and conclusions of law more promptly: “These findings were important because resolution of legal questions in the Court of Appeals required evaluation of underlying factual issues.”21
Following a tradition in the Ninth Circuit, where district judges are encouraged to bring misunderstandings to the attention of appellate judges, Judge Silver wrote the Chief Justice in an effort to explain the difficulties of striking a balance between quick action and a complete record.22 (my emphasis)
Montana Public Radio:
Republican candidate for governor Greg Gianforte is pressuring local TV stations to stop running an ad that he says falsely calls him “a millionaire from New Jersey.”
Earlier this month, Gianforte’s attorneys sent a cease-and-desist letter to Montana broadcasters calling on stations to refuse to air what they call a false and misleading advertisement.
Here is the cease and desist letter written by James Bopp, who successfully challenged Montana’s truth in campaigning law as a First Amendment violation.
Ittai Bar-Siman-Tov has posted this draft on SSRN. Here is the abstract:
This article presents the findings of an extensive multi-method empirical study that explored the relationship between temporary legislation, better regulation, and experimentalist governance. Temporary (or “sunset”) legislation, statutes enacted for a limited time and set to expire unless their validity is extended, is often hailed as a key tool for promoting experimental and better regulation. Despite the importance of temporary legislation and the bourgeoning theoretical scholarship on the subject, there is still a dearth of empirical studies about how temporary legislation is used in practice. The lack of empirical evidence creates a lacuna in at least three areas of theoretical scholarship, concerning temporary legislation, better regulation, and experimentalist governance. This paper is a first step in filling this gap.
The paper has recently won the Giandomenico Majone Prize, awarded by the European Consortium for Political Research’s Standing Group on Regulatory Governance, for the best conference paper at its 6th Biennial Conference on ‘Between Collaboration and Contestation: Regulatory Governance in a Turbulent World’ at Tilburg Law School.
Looking forward to reading this!
Shaun Bowler and Todd Donovan have written this article for State Politics and Policy Quarterly. Here is the abstract:
We propose a model of public response to politicized election reform. In this model, rival partisan elites send signals on the need and consequences of a proposed reform, with partisans in public adopting those positions. We apply this to test how state use of voter identification laws corresponded with public evaluations of the conduct of a state’s elections. We find that the relationship between photo identification laws and confidence in state elections was polarized and conditioned by party identification in 2014. Democrats in states with strict photo identification laws were less confident in their state’s elections. Republicans in states with strict identification laws were more confident than others. Results suggest strict photo identification laws are failing to instill broad-based confidence in elections, and that the reform could correspond with diminished confidence among some
Following up on this post, here is the decision of the District Court finding the elimination of straight ticket voting violates both the Voting Rights Act and the Constitution’s equal protection clause.
The state of Michigan has appealed, so now there is a Michigan case joining a couple of Ohio election cases at the Sixth Circuit.
Charlie Savage reports for the NYT.
This statement does not necessarily negate Russian involvement. Assange, as I understand it, heavily depends on Russian support.
Bickering commissioners, ineffective managers and lousy internal communication rank among the top reasons why the Federal Election Commission staff is one of the federal government’s most bedraggled.
That’s the dispiriting — if unsurprising — conclusion of a new report from the FEC’s Office of Inspector General, which for months had conducted employee surveys and interviews in hopes of answering a nagging question: why, specifically, is agency morale so consistently rotten?
Investigators dump the most blame on the FEC’s six commissioners: three Democratic appointees and three Republican appointees who have regularly criticized one another and frequently (but not exclusively) deadlocked on high-profile political issues before them.
I discussed the low morale problem at the FEC with FEC Commissioners in 2 ELB podcasts:
# 7 Ellen Weintraub
# 11 Lee Goodman
Here it is for the special election and could well be what the judge orders statewide in Texas in November.
More from the Texas Tribune.
“As some of you may know, I support Bernie Sanders and the movement behind him. And Bernie has already succeeded in so many ways. He proved that Citizens United is in fact not a necessary evil, and by the way, Citizens United, isn’t that such a beautiful name for something that means billionaires buying politicians? Good lord. Rails against the very spirit of our democracy. And I’m very glad that Hillary has vowed to overturn it.”
—Sarah Siverman at the DNC
Jacob Gershman for the WSJ Law Blog:
Claims that Democratic Party leaders conspired to squash the presidential primary campaign of Sen. Bernie Sanders have not only led to a party shake-up but have sparked class-action litigation.
A trove of hacked party emails posted by WikiLeaks show that Democratic National Committee officials had worked to undermine the underdog campaign of Mr. Sanders.
Weeks before the firestorm erupted, culminating in the resignation of party chief Debbie Wasserman Schultz, a group of plaintiffs brought a lawsuit in federal court alleging that DNC “actively concealed its bias” from its donors and Democrats backing Mr. Sanders.
The plaintiffs, about 150 of whom are identified in the lawsuit, are mostly Sanders supporters and include a number of DNC donors.
Reid Wilson for The Hill:
In recent weeks, several courts have issued rulings blocking or upholding the laws, but those rulings have at times been contradictory, sowing even more confusion.
The suits, which have spent years in a maze of federal courts, focus mainly on laws passed by Republican-led legislatures after the 2010 midterm elections. Those laws, voting rights advocates say, are part of a determined strategy to restrict access to the ballot box.
WMNF interviews Ciara Torres-Spelliscy.
David Sanger for the NYT:
Proving the source of a cyberattack is notoriously difficult. But researchers have concluded that the national committee was breached by two Russian intelligence agencies, which were the same attackers behind previous Russian cyberoperations at the White House, the State Department and the Joint Chiefs of Staff last year. And metadata from the released emails suggests that the documents passed through Russian computers. Though a hacker claimed responsibility for giving the emails to WikiLeaks, the same agencies are the prime suspects. Whether the thefts were ordered by Mr. Putin, or just carried out by apparatchiks who thought they might please him, is anyone’s guess….
It may take months, or years, to figure out the motives of those who stole the emails, and more important, whether they were being commanded by Russian authorities, and specifically by Mr. Putin. But the theft from the national committee would be among the most important state-sponsored hacks yet of an American organization, rivaled only by the attacks on the Office of Personnel Management by state-sponsored Chinese hackers, and the attack on Sony Pictures Entertainment, which Mr. Obama blamed on North Korea. There, too, embarrassing emails were released, but they had no political significance. The WikiLeaks release, however, has more of a tinge of Russian-style information war, in which the intent of the revelations is to alter political events. Exactly how, though, is a bit of a mystery, apart from embarrassing Democrats and further alienating Mr. Sanders’s supporters from Mrs. Clinton.
Evidence so far suggests that the cyberattack was the work of at least two separate agencies, each apparently working without the knowledge that the other was inside the Democrats’ computers. It is unclear how WikiLeaks obtained the email trove. But the presumption is that the intelligence agencies turned it over, either directly or through an intermediary. Moreover, the timing of the release, between the end of the Republican convention and the beginning of the Democratic one, seems too well-planned to be coincidental.
Chris Megarian for the LAT:
Democrats reached an agreement on Saturday that could sharply reduce the influence of superdelegates in the next presidential election, resolving an emotionally charged issue that threatened to boil over this week.
From the Ryan Lizza New Yorker story:
“If it gets thrown to the House of Representatives and it goes beyond one ballot, I could be President,” Johnson said, smiling at the absurdity of the idea. “Because, if it goes beyond one ballot, Democrats are not going to cross over the line to change to Trump, and Republicans are not going to go over the line to support Clinton. They’re going to have to compromise, and I’d be the compromise.”
The 12th amendment provides that if no one gets a majority for President the House votes by state, and it is hard to imagine the Republican not chosen by the House.
There are stark differences between Kaine’s gifts and McDonnell’s. For one, Kaine’s gifts were properly disclosed; McDonnell failed to disclose some of what he received.
For another, Kaine has never faced accusations of promising state action in exchange for any of his gifts….
During his eight years as Virginia’s lieutenant governor and then governor, Kaine disclosed that he accepted $201,600 in personal gifts, according to data compiled from the Virginia Public Access Project, a nonpartisan tracker of money in state politics.
The majority of those gifts came in the form of air travel, including from the 2008 campaign of President Obama, which paid to fly Kaine across the country as a campaign surrogate. Under murky Virginia law, the proper way to disclose such political travel has been unclear; other politicians have disclosed it as a campaign contribution to their political action committee, rather than a personal gift, as did Kaine.
I also missed this earlier Politico piece:
Shortly after winning the governorship in 2005, Kaine and his family vacationed on the exclusive West Indies island of Mustique in a house belonging to Charlottesville-area investor James B. Murray Jr. Murray made a fortune investing in cellphones together with Kaine’s Senate predecessor, Mark Warner. Murray invited Kaine to spend a week at his house to relax after the campaign.
“I didn’t consider it a gift: There was no cash, I just let him use a house,” Murray said in an interview with Politico. “There was no quid pro quo. I don’t have any business with him.”
For the purpose of the disclosure, Kaine’s staff determined that $18,000 was the fair market value of a week’s stay. Kaine paid all his own expenses besides lodging.
“It’s just the kind of thing you do for a friend, but who’s to draw the line?” Murray said. “It’s probably better to declare everything.”
Republican unity plan leaked to Bloomberg:
Donald Trump plans to create and fund super-PACs specifically aimed at ending the political careers of Ted Cruz and John Kasich should either run for office again, after both snubbed the Republican nominee during his party’s convention this week, a source familiar with Trump’s thinking told Bloomberg Politics on Friday.
The plan would involve Trump investing millions of his own money –perhaps $20 million or more — in one or two outside groups about six months before their respective election days if Texas Senator Cruz or Ohio Governor Kasich stand for office again. The source said Trump is willing to set up two separate super-PACs – one for Cruz and one for Kasich – and put millions into each.
Wisconsin will seek to reverse the order of the federal district court from earlier this week requiring election officials to allow those who lack the right form of ID to vote in WI elections to be able to vote upon signing an affidavit that they face a reasonable impediment in getting the right form of ID.
The suit will go to the 7th Circuit, presumably to the Easterbook-led panel again—the same court that sent the case back to Judge Adelman in the district court and told him to entertain a remedy for those voters who face special burdens in obtaining the right form of ID.
The motion for a stay filed in the district court previews the kinds of arguments that Wisconsin will make when, as is inevitable, the trial court denies this motion and an emergency motion is filed in the 7th circuit. The main arguments are that the affidavit is unnecessary, as the DMV procedures are good enough, and that in any case the affidavit is overbroad (because it would allow filling in “other” and any excuse for filing the id.
What will the 7th Circuit do? I’m not sure. It would not surprise me if the court trimmed the id requirement back a bit. But it is possible that the court does nothing and sees how it goes this election, or that it rejects the affidavit entirely.
Whatever the 7th Circuit does could be taken en banc, and the last time that court divided 5-5 on what to do. That could happen again if the 7th Circuit gets rid of the affidavit entirely for the next election. [Update: Bill Groth reminds me: Since the 7th Circuit deadlocked 5-5 in Frank v. Walker, Judge Tinder, who voted with the Easterbrook faction to uphold the law, retired. There are now just 9 active judges with no confirmations imminent. Thus, there can’t be another 5-5 split if the case were to go en banc.” That could potentially be good news for supporters of the affidavit requirement.]
And the Supreme Court? I don’t expect there would be 5 votes to do anything, unless it is about an issue of making a change too close to the election.
You can find the 63 pages of opinions here.
This is a big blow both politically to Democrats (who would have gotten a boost from the restoration of voting rights to felons who had secured their sentences) as well as to the cause of felon reenfranchisement generally.
This decision is based upon interpretation of the Va Constitution, and there does not seem to be a path to the U.S. Supreme Court (not that there would be a majority to overturn this is any case). Much of the opinions are a debate about standing. Here is the money quote from the majority on the merits;
The assertion that a Virginia Governor has the power to grant blanket, group pardons is irreconcilable with the specific requirement in Article V, Section 12 that the Governor communicate to the General Assembly the “particulars of every case” and state his “reasons” for each pardon. This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons. No such requirement exists in the United States Constitution, and thus, the text of Article V, Section 12 of the Constitution of Virginia undermines the Governor’s argument by analogy.
From one of the two dissents:
The merits of this case do not concern the issue of whether the Governor has done 18 something he has no right to do, but rather whether he has done what he has a right to do in an 19 unconstitutional manner. Indeed, it is particularly telling that the majority does not dispute the 20 fact that the Governor may remove an individual felon’s political disabilities for any reason he chooses, including that he has served his sentence. Moreover, the majority acknowledges that the Governor could use many individual orders to achieve the mass restoration of rights he sought to accomplish under the Executive Order. Thus, the majority, in essence, takes the position that the Suspension Clause requires the Governor to exercise his executive powers in a different, less efficient manner.
[This post has been updated]
Milwaukee Journal-Sentinel editorial:
Wisconsin’s voter ID law was a mistake from the start; a political talking point dressed up as policy, aiming to fix a problem that doesn’t exist. And although the law isn’t particularly onerous for most people, there are some for whom obtaining the necessary ID is substantially difficult. So difficult that some won’t — or won’t be able to — go through the hassle of getting one.
On Tuesday, U.S. District Judge Lynn Adelman threw those people a lifeline, or “safety net,” as he called it. Adelman issued a preliminary ruling allowing Wisconsin voters without photo identification to cast ballots by swearing to their identity. Good for Adelman; allowing people to use affidavits to vote opens the ballot door to those who otherwise might not cast a ballot.
Attorney General Brad Schimel said the ruling was disappointing but did not say whether the state would appeal it. It shouldn’t. Government should be encouraging more people to vote, not placing limits on those who legitimately can.
Sopan Deb has the quotes: