“Why is an obscure Montana company one of John Kasich’s biggest boosters? One day after forming, the LLC gave $500,000 to group backing Ohio governor”


A group backing Republican John Kasich‘s presidential aspirations received $500,000 in seed money from a seemingly odd source, according to documents filed today: an obscure limited liability company in Montana.

But a Center for Public Integrity review of business filings indicates the company is linked to someone quite familiar to Kasich, the current governor of Ohio — a venture capitalist who served in Kasich’s administration.

The limited liability company, called MMWP12 LLC, made a half-million-dollar donation to the pro-Kasich New Day Independent Media Committee the day after the company formed.

Making matters murkier: MMWP12 LLC is actually controlled by another Montana-based company called K2M LLC, according to state business records.



State Expert in NC Trial: Walking 3 Miles (Each Way) to Vote Not a Big Deal

From the uncorrected transcript of 7/28 from the North Carolina voting trial (my emphasis):



Q Thank you, Your Honor. I have just a couple of questions. Dr. Hofeller, in your analysis of the proximity to early voting sites, you concluded that a 5-mile range is a reasonable distance; is that correct?

A I’m sorry. I think it was 3 miles, was it not?

Q If it’s a 3-mile range, are you assuming that people will have access to a car or a motor vehicle or are you assuming that they would walk 3 miles?

A Well, I mean, some will have a motor vehicle and some won’t have a motor vehicle.

Q So —

A I know you could probably walk 3 miles. I walk 2 miles a day, and it doesn’t wear me out very much.

Q So you didn’t make any assumption either way as to whether or not people have access to motor vehicles?

A You are correct. I did not make an assumption.



“Pillar of Law Calls on Texas Court to Prevent Criminalization of Politics”

Press release:

The Pillar of Law Institute filed an amicus curiae (friend-of-the-court) brief with the Texas Court of Criminal Appeals in the case Cary v. Texas today, arguing that the Texas Attorney General’s Office unconstitutionally applied the state’s bribery, money laundering and organized crime statutes to what were actually campaign finance violations.

I’m one who is generally concerned about the criminalization of politics, but from my quick look I worry this would greatly expand first amendment protections for bribery.



“David Prosser says he didn’t need to step aside in Scott Walker probe”

Milwaukee Journal-Sentinel:

Wisconsin Supreme Court Justice David Prosser issued an opinion Wednesday saying he did not need to step aside from cases over an investigation into Gov. Scott Walker‘s campaign even though groups spent millions of dollars to support both him and the governor.

Prosser’s decision revealed two of the people caught up in the investigation had been involved in Prosser’s 2011 re-election bid and had stressed the importance of finding donors for him.

Prosser wrote that outside spending to help him was “very valuable to my campaign” but did not rise to a level that would require him to step down from the challenge to the investigation of those groups. That’s because the expenditures were made four years ago, at a time when there was no indication they would appear before the state’s high court.

“The public ultimately decides at the ballot box who is permitted to serve on the Wisconsin Supreme Court,” Prosser wrote. “The special prosecutor seeks to prevent an elected justice from performing that service unless that unelected special prosecutor wants the elected justice to sit on the case. This is not the way the system works.”

Prosser was part of a 4-2 majority that ruled this month that the probe into Walker’s campaign must be ended and evidence prosecutors have obtained must be destroyed. It came three days after the GOP governor formally announced his bid for the presidency.


NVRA Settlement Reached with Oklahoma

Demos press release:

Voting rights advocates and Oklahoma officials announced today that a settlement has been reachedto provide more effective voter registration opportunities to citizens throughout the state.

This effort began last summer when the Metropolitan Tulsa Urban League, the League of Women Voters of Oklahoma and Metropolitan Tulsa, and YWCA Tulsa notified Paul Ziriax, the Secretary of the Oklahoma State Election Board, that it appeared Oklahoma’s public assistance agencies were not offering clients a meaningful opportunity to register to vote. Under the National Voter Registration Act of 1993 (NVRA), state agencies that provide public assistance must ask clients whether they want to register to vote, offer them voter registration materials, and help them complete registration forms.

The community groups said in their letter to Secretary Ziriax that the number of voter registration applications reported statewide by Oklahoma public assistance agencies had dropped 81 percent since the initial implementation of the NVRA in 1995. At the same time, the average monthly participation in the SNAP program, just  one of the programs covered by the NVRA, nearly doubled. Only 61 percent of Oklahoma citizens in low-income households were registered to vote in 2012, compared to 81 percent of those in affluent households. In fieldwork investigations conducted at Oklahoma public assistance agencies on behalf of the community groups, a significant percentage of agency clients interviewed said that they received no voter registration services whatsoever when, under the NVRA, they should have….

Read the full settlement here.


The Most Interesting Question in Evenwel

In my contribution to the SCOTUS blog Symposium in this case, I provide reasons that the Court is unlikely, in my view, to accept the appellants’ position.  But that is not the end of the case.  The more interesting question is whether the Court will decide that the Constitution forbids states from basing districts on eligible voters lone and requires that total population be used (as, in fact, has been existing practice for several decades).  Here is part of what I say about whether states are free to pick and choose between “voter equality” or “representational equality” in designing districts:

Remarkably, the Court has only focused on this substantive question at all in one case, Burns v. Richardson (1966), decided at the dawn of the reapportionment revolution; Burns concluded states could make either choice. Now that the issue is back before the Court nearly fifty years later, the jurisprudential issue is whether all the developments in redistricting and voting-rights law in those intervening years should lead the Court to conclude that equal protection requires a uniform understanding concerning the correct population measure that must be used. (My co-authored casebook, The Law of Democracy, asks whether “Burns survives the subsequent development of voting rights law.”) If the Court does conclude that a uniform understanding of “equality” is required, the most likely outcome is representational equality – equality of the total number of persons across districts.

The argument for a uniform understanding of “equality” is strong, as a matter of both constitutional principle and pragmatic judicial implementation of the Constitution. In the apportionment cases, the Court has spoken eloquently many times about the importance of political equality in designing districts – but equality of whom, people or voters?   If the basic principle is of such constitutional magnitude, there is much force to the conclusion that the Court has an obligation to specify equality of whom, or equality with respect to what value or principle. The choice between electoral equality and representational quality is not a fine-grained technical detail of how to implement the Equal Protection Clause. That choice is a fundamental, categorical one about the essential interpretation and meaning of equal protection in the context of designing our basic democratic institutions. Does the clause require that all persons in a jurisdiction (non-eligible voters as well as voters) have roughly equal political representation? Or does it require that all eligible voters have a roughly equal voting power? Those are fundamentally different-in-kind understandings of equal protection that flow from the Court’s “one person, one vote” jurisprudence – precisely the kind of question, in other contexts, to which the Court would provide the answer.

The reason the Court gave in Burns for leaving this choice instead to state discretion was that the decision of which groups to include in the baseline for districting “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” But in the context of the Reapportionment Cases, this explanation is off-key. After all, it was the vehement position of the dissenting Justices in these cases, such as Justices Harlan and Frankfurter, that the Court should not get involved in these issues at all because to get involved was to require the Court to choose among competing theories of political representation.

The Court crossed that Rubicon when it decided that equal protection did not permit representation to be based on geographic units, such as towns and counties, and did require it to be based on equal numbers of sentient beings (people or voters). Having completely redefined the basis of political representation the Constitution requires, the Court’s reticence about not wanting to choose between competing theories of representation when it comes to voters or people rings hollow. Instead, Burns reads like a tentative, interim, and transitional decision in the early stages of working out the meaning of the Reapportionment Cases. Decided only two months after argument, Burns arose with elections imminently pending and dealt with what was only an interim districting plan; in other words, the stakes were low, the need for an immediate decision pressing.

With the much fuller development of the “one person, one vote” doctrine in the fifty years since, it is not obvious the Court will be comfortable with leaving states as much discretion to choose “equality of whom” in districting. And given the intensity of today’s political conflicts over immigration, it is not difficult to imagine those politics coming to further poison redistricting, if states are free to move back and forth between using voters or persons as the measure of district equality. Given how aware the Court is of the extreme partisan polarization of our era, and how that polarization plays out already in districting, the Justices might conclude that strong pragmatic reasons further support adoption of a uniform principle concerning district “equality.”

The courts of appeals, in the three major cases raising this issue, have all explained why representational equality is the better interpretation of the principles underlying the “one person, one vote” doctrine. But all have recognized that the issue is important and the question close. In Evenwel, this issue arose for the first time in the Court’s non-discretionary appellate jurisdiction; the Court was right to take the case, rather than summarily affirm, and to give this issue the attention it deserves. Texas, as the defendant-appellee, will only ask the Court to affirm the status quo and let Texas (and other States) continue to have discretion to choose whether to create district equality between persons or voters. Texas will succeed to at least that extent, I believe. But now that the Court will be forced to confront these issues, the Court might well conclude that it has an obligation to decide whether there is a right answer to the question under the Equal Protection Clause of “equality of whom” and that the better answer is equality of political representation for all persons.


“Federal voting rights trial expected to end today”

Winston-Salem Journal (which commendably has been covering every day of the trial):

After nearly three weeks, a federal trial on North Carolina’s election law is wrapping up, with closing arguments to begin either late this morning or early afternoon.

The trial has been closely watched in North Carolina and nationally. Critics have described House Bill 589 as the most sweeping change in election laws since the U.S. Supreme Court in June 2013 invalidated Section 5 of the Voting Rights Act of 1965. Section 5 required 40 counties in North Carolina and several other states to seek federal approval for election law changes. House Bill 589 was signed into law a little more than a month after the U.S. Supreme Court ruling.



Justice Ginsburg Speaks on Citizens United, Arizona Redistricting

The Justice spoke at Duke. She said this about Citizens United (via Adam Liptak):

The court’s worst blunder, she said, was its 2010 decision in Citizens United “because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

And she said this about the recent Arizona redistricting decision (via HuffPo):

The words in the Arizona case were “the legislature thereof.” What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, “No, the only way you could make law that counts for this purpose is by the legislature thereof.” We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, “That’s lawmaking.” What we had in mind is who makes the law for the state. Otherwise you’d freeze things as they existed, it would allow no room for affirmative development, no room for the voice of the people, which is what the initiative did.


“Judge threatens IRS chief with contempt”


A federal judge has threatened to hold the commissioner of the Internal Revenue Service in contempt of court.

The threat came Wednesday from U.S. District Court Judge Emmet Sullivan, who has been presiding over a lawsuit by the conservative group Judicial Watch and its request that the Internal Revenue Service release the emails of Lois Lerner. She headed the IRS’s Exempt Organizations division.

Sullivan ordered a status hearing Wednesday after Judicial Watch complained his earlier orders were not being followed by the Justice Department, which is defending the IRS.

Read more here: http://www.mcclatchydc.com/news/nation-world/national/article29422690.html#storylink=cpy

“Fattah Buttonholed Obama Directly, According to Indictment”

Roll Call:

The Department of Justice’s indictment of Rep. Chaka Fattah alleges Fattah’s quid-pro-quo scheme included an in-person effort to get President Barack Obama to give a lobbyist an ambassadorship.

Fattah, a powerful Pennsylvania Democrat, is a longtime ally of the president’s and a frequent visitor to the White House.

But according to the indictment, Fattah abused his relationship with the president and his staff and tried to get the lobbyist a nomination, first as an ambassador and later as a member of “a federal trade commission.”


An Academic Elegy

Guy-Urïel Charles and Luis Fuentes-Rohwer, have a new piece in the Iowa Law Review. I offered a commentary, here. Just to give you a flavor for the piece is, here’s a brief excerpt from my introduction, which offers a rough summary of their argument:

It feels like a moment. I know I’m supposed to analyze this piece from a purely academic perspective, but first I want to mark the occasion. Guy-Urïel Charles and Luis Fuentes-Rohwer, two of the most astute commentators on the intersection of election law and civil rights, think it’s time to give up on Section 5 of the Voting Rights Act (“VRA”), perhaps it’s even time to give up on the civil-rights paradigm altogether. When I assigned this paper to my class, one of the students said that she realized it’s time for her to start mourning the Voting Rights Act because it’s never coming back.

For me, the mourning process began when Shelby County v. Holder came down. But until I’d read “The Voting Rights Act in Winter: The Death of a Superstatute,” I’d been a naïve cynic (or a cynical naïf). I’d hoped that I wasn’t being hopeful enough. But when the always-wise and ever-optimistic Guy Charles—the academic who insisted in 2006 that the civil-rights community should reject the renewal act and try for better—tells us that something’s over, it’s probably over. When the duo that valiantly tried to lay the groundwork for rebuilding Section 5 tells you it’s time to chart a different course, it’s probably time to chart a different course.

None of this will be easy to hear if you still subscribe to the political consensus that animated the Voting Rights Act, if you believe that Section 5 was the crown jewel of the VRA, if you think that we still need an administrative alternative to costly litigation for race-based voting claims. Now feels like an especially hard time to hear that we must set aside the race-discrimination model given how large Ferguson and Garner loom. Which is why it takes a certain kind of courage to write what Charles and Fuentes-Rohwer have written here. If you think it’s hard to hear these things, just imagine how hard it is to write them, at least for people who haven’t spent their careers playing the studied contrarian.

Academic pieces are strange creatures, and they aren’t well suited for elegies. Yet this feels like one to me. Academics are strange creatures themselves. Perhaps, then, it’s not surprising that an elegy by two scholars would come in the form this one does: the systematic, clear-eyed, and relentless documenting of the death of a superstatute. It feels like the scholarly equivalent of a doctor calling it when the patient’s heart has stopped.

Perhaps because this is an elegy wrapped in a piece of scholarship, some readers will offer the conventional academic critique and say that there are really two articles here. The first half of the Article charts the death of a superstatute, and the second imagines a new future for voting rights.

At first glance, the two subjects seem unrelated. The first half enters into a conversation (carried on mostly by my colleagues at Yale) about what Ernie Young has called “the constitution outside the Constitution” — those sturdy, stable programs and principles that constitute our society even if they are not enshrined in our Constitution’s text. The death of a superstatute is an understudied topic precisely because superstatutes aren’t supposed to die. The second half of the Article, meanwhile, continues a conversation that the field of election law had been having ever since the oral argument in Northwest Austin Municipal District No. 1 v. Holder (“NAMUDNO”), one that is more pragmatically focused on identifying a framework for resolving elections claims. That conversation is not nearly as wide-ranging or theoretically oriented as the one on superstatutes. Election law scholars, after all, are trying to come up with a regulatory scheme at the intersection of what Congress can pass and what the Court can accept, and it may well be a null set. These are different conversations, and it’s no wonder that the two halves of the Article read so differently.

While I have something to say about each part of the Article, I think the two pieces are much more closely related than that. To be sure, the effort to chart the death of a superstatute is interesting standing alone and generates its own cache of insights, as I note below. But this argument serves a larger purpose here: It reminds you how much work it takes to maintain a superstatute in the first place. Those who resist the premise of the second half of the Article—that it’s time to chart a new course—must first grapple with the truths in the first half of the Article. As the authors show, it was a huge lift to get three branches of government to work in conjunction with one another to support Section 5. For those who think that all we need is a fifth vote on the Supreme Court to restore Section 5 to her old glory, Charles and Fuentes-Rohwer remind us just how many times the Court and Congress and the Executive Branch had to bend over backwards not just to keep the old girl alive, but to maintain Section 5 as a vibrant regulatory framework. This analysis will be sobering to those who want to cast Shelby County simply as a 5–4 ruling rather than part of a political sea change. Indeed, the first half of the Article makes clear just how far these tides have receded. While the two halves of the Article are quite different, then, they plainly work in tandem and deepen the authors’ argument along almost every dimension.


“The New Elections Clause”

Michael Morley has posted this draft on SSRN. Here is the abstract:

The Supreme Court’s recent ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) lays to rest several pressing disputes concerning the Elections Clause of the U.S. Constitution, but other important controversies remain. This short essay offers a critical examination of the “new” Elections Clause, as it remains in the wake of this momentous ruling. The essay contends that the Court’s ruling is best viewed as either a legal process or representation-reinforcing interpretation of the Clause. From either perspective, the Court’s methodology can have important consequences for how it interprets the Constitution’s other election-related provisions. This essay then explores several issues, apart from the validity of independent redistricting commissions, that AIRC resolves, including the permissibility of delegations under the Elections Clause, the Court’s repudiation of the independent state legislature doctrine, and the likely permissibility of changing the process through which a state awards its electoral votes through a public initiative. The essay concludes by identifying major remaining controversies under the Clause, most notably whether it imposes a constitutionally mandated “plain meaning” canon of construction for state election laws.

Looking forward to reading this!


Is Trump Aide Violating Campaign Finance Law?


According to campaign finance laws, there are two potential issues if Cohen is taking on campaign-related duties. Campaign finance and lobbying regulations expert Joseph Sandler, a lawyer for Sandler Reiff Lamb Rosenstein & Birkenstock, explained to BuzzFeed News that it would be a violation of the law if Cohen were to reduce his hours devoted to Trump Organization work in favor of the campaign without having reduced his pay from the Trump Organization, constituting an illegal corporate in-kind contribution to the campaign.

Also, the time spent working on campaign-related affairs could be a factor. “If Cohen is working out of the Trump Organization’s offices and doing campaign work during working hours, if that work exceeds four hours a month, that would constitute an unlawful use of corporate resources for a federal campaign,” Sandler said.

Paul S. Ryan, senior counsel at the Campaign Legal Center, echoed Sandler in an email to BuzzFeed News. He said that anyone can volunteer for a campaign legally, but “if Mr. Cohen is actually being paid by the Trump Organization for the campaign work he’s doing—i.e., he’s ‘on the clock’—then the Trump Organization is making an illegal in-kind corporate contribution to the Trump campaign. In all likelihood, Mr. Cohen is a salaried individual who can simply say/decide when his is on and off the clock for the Trump Organization. By contrast, it would be clearly illegal for the Trump Organization to pay hourly workers to do campaign work on the clock.”


“A Bipartisan Proposal to Fix the Lobbyist Disclosure Act that Even the Lobbyists’ Association Can Get Behind”


The Lobbying Disclosure Act (LDA) is broken and it is time for Congress to fix it.  The LDA is falling woefully short of its stated goal of “ensuring public awareness of the efforts of paid lobbyists to influence the public decision-making process” and through this transparency “increase public confidence in the integrity of Government.”  Lobbyists have deregistered, or simply never registered in droves.  As a result the American people are left in the dark as to who is lobbying and the special interests paying them to influence decision-makers in Washington.

A new, bipartisan proposal to update the LDA seeks to change the registration and reporting requirements for lobbyists and shift enforcement of the LDA to the Department of Justice.  The proposal comes out of the work of a blue ribbon Task Force assembled by the American Bar Association, chaired by Campaign Legal Center President Trevor Potter, a former Republican Federal Election Commission Chair; Harvard University law professor Charles Fried, a former Solicitor General under President George H. W. Bush; Perkins Coie attorney Rebecca Gordon, a former Deputy General Counsel to the Democratic National Committee; and attorney Joseph Sandler, a former counsel for the Democratic National Committee.  The Association of Government Relations Professionals (formerly the American League of Lobbyists) has endorsed a similar set of reforms

[Disclosure: I was a member of that ABA task force.]


“W&M Law’s Revive My Vote project receives Knight Foundation grant”


William & Mary Law School’s Revive My Vote is pleased to announce it has received a grant of $230,000 through the Knight News Challenge, a grant program aimed at better informing voters and increasing civic participation before, during, and after elections.

Created in conjunction with the Williamsburg Bar Association and launched in April 2014, Revive My Vote helps Virginians with prior felony convictions who have served their time and are eligible for voting rights restoration to navigate the process of regaining their right to vote.


“Legislature sets special session for October to redraw Florida Senate districts”

Miami Herald:

The Florida Legislature has set yet another special session, this time for October to redraw the Florida Senate district lines that opponents had argued violated the state constitution prohibition on gerrymandering to favor or disfavor politicians.

The Legislature will meet from Oct. 19 to Nov. 6, according to a joint statement put out by House Speaker Steve Crisafulli and Senate President Andy Gardiner.

It will mark the third special session this year. In June, legislators met in special session to finish a budget that was not completed during the regular session in the spring. In August, legislators will be in special session again to redraw the state’s 27 congressional districts, which the Florida Supreme Court ruled earlier this month violated the state consitution….A trial over the Senate map was scheduled to begin Sept. 28 in Leon County Circuit Court in a case in which two Democrat-leaning groups, the League of Women Voters and Common Cause, argue that 28 of the 40 Senate districts were designed to favor incumbents and the Republican Party, violating the Fair Districts amendments to the state Constitution.


“Citizens United loses New York ruling over donors”


A federal judge on Monday rejected Citizens United’s effort to block New York Attorney General Eric Schneiderman from demanding that the conservative group disclose more information about its major donors.

U.S. District Judge Sidney Stein in Manhattan refused to impose a preliminary injunction that would stop Schneiderman from requiring charities to disclose names, addresses and total contributions of big donors in order to solicit funds in the state.

You can read the ruling here (via Josh Gerstein).

I expect this will go up the food chain, like CCP’s battle with Kamala Harris in CA.