New Ed Blum Voting Rights Lawsuit in Texas

Press release via email:

Voting Rights Lawsuit Filed Against State of Texas:

State Senate Districts Unconstitutional


(Alexandria, VA) Today, the Project on Fair Representation (POFR) announces the filing of a federal lawsuit challenging the constitutionality of Texas’ state senate districts. The complaint can be found at  


The plaintiffs in this case are registered voters in Texas Senate Districts #1 and #4 who assert that Plan S172—the Texas Senate redistricting plan enacted by the Legislature and signed into law by Governor Rick Perry on June 26, 2013— is unconstitutional under the Fourteenth Amendment to the United States Constitution. The plaintiffs seek an order enjoining Texas from conducting further state Senate elections under Plan S172 and ask the court to require the Texas Legislature to reapportion state senatorial voting districts in conformity with the Fourteenth Amendment. 


The Defendants are Rick Perry, in his official capacity as Governor of Texas, and Nandita Berry, in her official capacity as Texas Secretary of State.


The lawsuit alleges that Texas’s senate districts are grossly malapportioned by various measures of eligible voters, thus violating the principle of “one person, one vote” even though all of the districts are roughly equal in total population. The plaintiffs reside in two of the most malapportioned districts in the state.


The complaint notes that by some measures the gap between eligible voters in the two Senate Districts and those in other districts approaches 50%. The effect of this severe overpopulation of voters in Senate Districts #1 and #4 is that the Plaintiffs’ votes carry far less weight than the votes of other citizens in districts that are under-populated with electors.


For example, the votes of electors in Senate District 3, a district over-populated with electors, have only sixty-one percent (61%) of the weight of the votes of electors in Senate District 27, a district under-populated with electors.  The gross disparities created by Plan S172 violate the fundamental requirement of voter equality under the 14th Amendment. 


As the Supreme Court of the United States held in Reynolds v. Sims, the Fourteenth Amendment prohibits “weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside.”  By adopting Plan S172, the State of Texas has run afoul of what the Supreme Court in Reynolds refers to as “the basic principle of representative government,” specifically, that “the weight of a citizen’s vote cannot be made to depend upon where he lives.”  Texas has done so despite the fact that equalization of voter populations can be achieved compatibly with equalization of total population in properly apportioned senatorial districts. 


Bert W. Rein, William S. Consovoy and Brendan J. Morrissey of Wiley Rein, LLP in Washington, D.C. are counsel for the Plaintiffs. They successfully represented Shelby Co. Alabama in Shelby Co. Ala v. Holder and Abigail Fisher in Fisher v. Univ. of Texas last term at the U.S. Supreme Court.  Also representing the Plaintiffs is Meredith B. Parenti of Parenti Law PLLC in Houston, Texas.


Edward Blum, director of the Project on Fair Representation, said, “One-person, one-vote is the cornerstone of our nation’s most enduring election principles. That is why we are asking the court to compel the state to remedy the glaring eligible voter gaps.”


Blum added, “Equalizing eligible voters does not have to come at the expense of equalizing for total population. Both can and should be achieved.”


POFR is a legal defense foundation based in Alexandria, Virginia that has provide pro bono legal representation to individuals and jurisdictions in a number of important U.S. Supreme Court cases, including in NW Austin MUD v. Holder, Shelby Co. Ala. v. Holder and Abigail Fisher v. Univ. of Texas-Austin.


Marcia Coyle on Souter’s Draft Dissent in Citizens United

Earlier today I linked to Adam Liptak’s interview with Justice Stevens about campaign finance and his proposed amendment.

A reader reminded me that Marcia Coyle’s excellent 2013 book, The Roberts Court: the Struggle for the Constitution, provides an inside-the-Court look at the Souter dissent, including quotes from the Justices.  The discussion is at pages 251-52 of the book.


“State Aggregate Limits and Proportional Bans under McCutcheon”

New report from CCP. “Policymakers in the District of Columbia and the 18 states with aggregate limits and proportional bans should strongly consider repealing these speech-stifling regulations in order to comply with the precedent set in the McCutcheon decision and avoid a likely successful legal challenge. Additionally, repealing these regulations will also enhance the First Amendment freedoms of the citizens residing in each of these states.”


Quote of the Day

“Judicial Watch sent the University of California at Irvine a freedom of information request demanding Hasen’s emails to the White House and other government officials including any on the topic of speech regulations. The University told Judicial Watch to pound sand, and still hasn’t provided anything.”
What will judicial watch think if a liberal group asks universities to hunt down all the political emails of its conservative professors? I’m one of those, so I feel threatened myself. And since when have the emails of a single employee with no authority to act for [the] university on a subject been subject to FOIA requests?
Indiana University Professor Eric Rasmussen, commenting at PJ Media.

Justice Stevens Especially Unconvincing About His Partisan Gerrymandering Amendment

In my Daily Beast review of Justice Stevens new book, Six Amendments, I was pretty tough on Justice Stevens. I focused on campaign finance, but there are problems throughout the book on questions of drafting of the amendments and his reasoning (note today’s Liptak column in which Justice Stevens cannot even tell us how he would deal with the media exemption, one of the key questions in overturning Citizens United etc.). Josh Blackman, to give another example, notes the poor drafting of Justice Stevens’ attempt to overturn Second Amendment jurisprudence.

I wanted to focus a bit more here on partisan gerrymandering, on an issue which did not make it into the Daily Beast piece. In his ABC interview, Justice Stevens says “it doesn’t take a genius” to recognize political gerrymandering—basically that gerrymandering can be determined from the bizarre shape of the district. When the interviewer, George Stephanopoulos analogizes this to Potter Stewart’s pornography standard (“I know it when I see it”), Stevens agrees and says Stewart would have agreed with him on political gerrymandering.

Whether or not Justice Stewart would have agreed with Justice Stevens (I’m skeptical, given his dissenting opinion in Lucas), Justice Stevens’ take in his book on political gerrymandering is wholly unconvincing. Here is his proposed amendment:

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

The language of the proposed Amendment would have courts decide how “compact” is compact enough and what the definition of “preserving the political power of the party in control of the state government means,” As with the other amendments, these leave room for very wide and varying judicial interpretations.

But more to the point, I don’t think the Amendment reflects the standard Justice Stevens would use, this Amendment focuses on intent, but in the book and the ABC News interview the Justice says he would focus on the physical appearance of the districts. Twice in his book he analogizes partisan gerrymandering questions to the racial gerrymandering cases. “As our racial gerrymandering cases demonstrate, the courts are fully capable of recognizing and remedying such a violation.”  Further, discussing the 1993 case of Shaw v. Reno, Justice Stevens writes:

While [the Court in Shaw v. Reno] recognized that a state legislature is not entirely prohibited from acting with consciousness of race, it concluded that racial gerrymandering is impermissible whenever race was the legislature’s “dominant and controlling rationale” in drawing district lines. There is no reason why that test should not also apply to political gerrymanders like the one that Governor Gerry and his fellow Republicans designed in 1812.

Justice Stevens omits the key fact that he dissented in Shaw and in all of the racial gerrymandering cases of the Court. He does not believe that such districting violates the Constitution.  He explains that the Shaw dissenters “thought that race-conscious districting for the purpose of benefiting minority voters was permissible….”

But that was not the sole basis for the dissents in Shaw and in the racial cases. Further, unlike racial categories, political categories are much harder to characterize, and social scientists and courts have struggled with workable definitions of the term “partisan gerrymandering.” At the very least, we deserve an explanation as to how a partisan gerrymandering test would be workable when he believes a racial gerrymandering test would not be.

“I know it when I see it” pretty much sums up the Justice’s explanation of this amendment. Like much else in the book, Justice Stevens does not offer a clear and full defense of his controversial ideas. Perhaps a full defense would be convincing.  Too bad we do not have one to consider.


More on Justice Breyer’s Citation to Book Not in the Record

The other day I noted that Justice Breyer cited to unavailable scholarship in his McCutcheon dissent. I updated the post to reflect that Derek Muller had made those points when the opinion was released, something I had missed.  Here’s another reference I missed, from Collins and Skover’s introduction to the SCOTUSBlog McCutcheon symposium:

Reliance on secondary sources

While James Madison and The Federalist Papers were quoted by the dissent, neither the plurality opinion nor Justice Thomas’s concurrence found the need to do so. Then again, the plurality did quote from an Edmund Burke speech, though it otherwise did not cite to any other secondary sources apart from references to news articles.  Justice Thomas did not reference any secondary scholarly authorities, not even any originalist sources. In his dissenting opinion, Justice Breyer did find some use for secondary sources beyond the two mentioned.  Those sources ranged from Jean Jacques Rousseau’s An Inquiry Into the Nature of the Social Contract (1791) to James Wilson’sCommentaries on the Constitution of the United States of America (1792) to precise page citations to Robert Post’s forthcoming book Citizens Divided: Campaign Financed Reform and the Constitution. The latter citation may be a first in Supreme Court history, especially since we were unable to find any reference to it in any of the briefs filed with Court or in any text of the forthcoming book (due out in June) on the Internet.  Another possible first:  Breyer’s reference to the Oxford Dictionary of Humorous Quotations. Finally, all in all, none of the opinions found any value in relying on any law review articles.


Today’s Must-Read: Liptak Talks to Justice Stevens About Citizens United, McCutcheon

For one thing, in this column Justice Stevens confirms the rumors swirling for years that Justice Souter wrote the first draft of a Citizens United dissent.  (I called for its release in this Slate column.)

The draft dissent, which has not been made public, questioned the majority’s attempt to recast a modest case into a blockbuster that would overrule major precedents and allow unlimited campaign spending by corporations and unions.

The draft dissent caused the majority to pause, Justice Stevens said, thanks to “the strong expression of the feeling among the dissenters that procedurally the case was not in the proper posture to reach the issue that they ultimately decided.”

“I think it persuaded the majority that it would be better to have a re-argument so that they could not be accused of deciding something that had not been adequately argued,” he said. “And I think they were right to do that.”

For another thing, Justice Stevens opines on whether under his proposed Amendment dealing with Citizens United would cover corporate books and newspaper editorials:

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”

Or perhaps not. His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates.

Justice Stevens said he would not go that far.

“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”

As I said yesterday in my Daily Beast review of Justice Stevens’ book, Justice Stevens Six Amendments does not favors for progressives. It lacks nuance and deep thought.


Ginni Thomas, Justice Thomas’s Spouse, Interviews Cleta Mitchell, and Reflects on IRS Scandal

Thomas says:

Contrary to the president’s allegation to Fox’s Bill O’Reilly on Feb. 2 that there is “not a smidgen of corruption,” the IRS scandal is going from bad to worse as newly released emails have revealed even more information.

Now, the Department of Justice, the Federal Election Commission and even the White House Counsel’s office have been alleged to be involved.

What would PunditFact say about those claims?


PunditFact on George Will on IRS as “Obama’s Watergate”


Will likened the events at the IRS to Watergate. That’s his right as a Washington pundit, but we found little evidence (in fact, no one has) linking the actions of the IRS to the Obama White House in the way the Watergate break-in and cover up was orchestrated by Nixon’s White House.

That’s part of Will’s point — a more thorough investigation is merited. But several investigations are under way.

Democrats say the Republicans are on an endless witch hunt that conveniently falls during a midterm election cycle, and Republicans say Democrats are protecting Obama and to ice out conservative groups from the elections process.

The evidence available so far indicates IRS employees behaved poorly but did so in a silo; it was not reflective of corruption from the White House or external forces.


“‘Lying in Politics’ Plaintiffs Go on Offense in Several New States”

Roll Call:

The lead plaintiff in the “Can you lie in politics?” case going before the Supreme Court next week, anti-abortion group Susan B. Anthony List, says Ohio’s law against false campaign assertions will stifle that state’s midterm congressional debates.

The group is apparently not worried about a similarly chilling effect elsewhere – at least not in four races elsewhere in the country where it’s inserted itself in recent days.


“Leland Yee case: Disgraced California state senator’s legislative efforts fueled cash for campaigns”

Contra Costa Times:

Beginning in early 2011, state Sen. Leland Yee repeatedly solicited bribes to fund his San Francisco mayor and California secretary of state campaigns, according to the FBI agents who brought him down last month.

But he appears to have devoted more time and energy to a far more lucrative pursuit: crafting or carrying legislation benefiting special interests who supply campaign contributions. It’s a practice that’s all too common in Sacramento, but Yee was a master.

A review of Yee’s legislation and campaign finance records during the time of the FBI investigation shows that, when he wasn’t allegedly trading his influence and trying to broker an international arms deal with undercover agents for $62,600 in illegal cash payments, the San Francisco Democratic lawmaker raised more than $150,000 in perfectly legal fashion, scooping up donations from labor unions, trade associations and other groups whose bills he advocated in the hearing rooms and hallways of the Capitol.


“Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens; From campaign finance to political gerrymandering, the retired Supreme Court justice skips hard arguments in his new book in favor of unrealistic, poorly drafted solutions. “

I have written this book review for The Daily Beast. It begins:

Reading retired Supreme Court Justice John Paul Stevens’s new book, Six Amendments: How and Why We Should Change the Constitution, I was reminded of an old Steve Martin routine from his standup days. “First, get a million dollars,” Martin explains in “You Can Be a Millionaire and Never Pay Taxes.” Then if the tax collector comes to your door asking why you didn’t pay taxes on your million dollars, just say, “I forgot.” Just like Martin, Justice Stevens wants to skip all the tough stuff, using his slim volume to offer overly simplistic solutions to some of the country’s most pressing problems, from political gerrymandering to Second Amendment gun rights and campaign finance. I’m afraid it will take much more to cure our nation’s ills.

Let’s consider Justice Stevens’s take on campaign finance. The Supreme Court has been on a long march toward lifting all campaign finance limits, most famously in the Citizens United case, which freed corporate money from its shackles, and most recently in the McCutcheon case (PDF), which dropped limits on the total amount people can donate to federal candidates in a two-year period. These cases have all been 5-4, with the five conservative justices, led by Chief Justice John Roberts, striking down or limiting campaign finance laws and the four liberals, which included Justice Stevens when he was still on the court, protesting that reasonable campaign finance limits can coexist with the First Amendment.

Mercifully, Justice Stevens assures us that he won’t repeat the arguments he made in his somewhat meandering and ineffective 86-page dissent in Citizens United. (He does reveal that Justice David Souter told him he too would have joined the Citizens United dissent had he still been on the court, something consistent with earlier leaks). Justice Stevens instead offers 20 or so pages describing the nature of the dispute followed by his proposed amendment: “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in elections.”


Perhaps for First Time, Justice Breyer’s McCutcheon Dissent Cites Unavailable Forthcoming Scholarship

I was rereading McCutcheon last night in preparation for a Monday talk on the case at the Center for the Study of Democracy.  I noticed that Justice Breyer cites to Robert Post’s forthcoming book on Citizens United:

That is also why the Court has used the phrase “subversion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470 U.S., at 497, 105 S.Ct. 1459. See also Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 208, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (the Government’s interests in preventing corruption “directly implicate the integrity of our electoral process” (internal quotation marks and citation omitted)). See generally R. Post, Citizens Divided: Campaign Finance Reform and the Constitution 7–16, 80–94 (forthcoming 2014) (arguing that the efficacy of American democracy depends on “electoral integrity” and the responsiveness of public officials to public opinion).

The book is forthcoming in June according to Amazon, based on Robert’s Tanner lectures and with responses by Pam Karlan, Larry Lessig, and Frank Michelman.  SSRN notes the book, but provides no draft.

Have there been any other occasions where Justices have cited scholarship not available in the public record?  Justice Scalia cited a forthcoming piece posted on SSRN in Heller (“And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J.L. & Pub. Pol’y (forthcoming Sept. 2008), online at http://papers. (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period).”). Justice Kennedy did in Boumediene (“. Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The **2245 Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L.Rev. 575, 585 (2008) (hereinafter Halliday & White) (manuscript, at 11, online at 3 /papers.cfm?abstract_id =1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)”.)

But Justice Breyer cited to something which is not available on SSRN nor is there any notation that a copy is in the Clerk of Court’s file.

Is there any precedent for this?

UPDATE: Derek Muller writes:

Rick, I tweeted (the height of academic inquiry, I know–here and here, the second with a link to a now-expired HUP page) about it when McCutcheon was released–but, sadly, the only response was of interest, not of anyone who could identify any precedent. Interestingly, the HUP link identifying the forthcoming book was available when McCutcheon was released, but it appears that HUP has now moved the page to here:

Another question I had is, who sent him the advance copy, and did everyone on the Court get them?

“Protect academic freedom in N.C.”

Charlotte Observer editorial: “What’s happening to UNC Chapel Hill law professor Gene Nichol should trouble all of us in North Carolina. A campaign appears afoot to silence his criticism of Republicans and their legislative policies that Nichol deems harmful to the state and its residents….In email records obtained by the (Raleigh) News & Observer, criticism by Republican supporters of GOP Gov. Pat McCrory – including university board members, alumni and others – spurred the university to request notice when Nichol writes opinion pieces. University officials also asked him to omit his title as director of the privately funded, university-based Center on Poverty, Work & Opportunity when the issue does not directly involve poverty. Last October after he criticized the governor and legislature for election law changes that this editorial board has also lambasted as partisan and racially motivated, the school asked him to include an explicit disclaimer that “he doesn’t speak for UNC.”…It is understandable officials would make such requests, given the legislative rock and hard place the university finds itself in these days. Budget director Art Pope just last month chastised university officials for submitting a funding request that asks for what they needed rather than acceding to his directive for something much less. After his tongue-lashing, officials revised their request substantially downward.”

Art Pope?  Now where have I heard that name before?  Oh yeah.


“Nevada secretary of state says woman arrested for voter fraud; used false identity”

AP: “Secretary of State Ross Miller says a woman has been arrested on two felony charges for allegedly using a false identity to register to vote and casting ballots in two elections.

Jon Ralston: .@rossjmiller: “This was… identity theft. The suspect had identification, albeit fraudulent, which is why she was allowed to vote.” MORE: .@rossjmiller: “….no reason to believe that this type of fraud is widespread….a ‘voter ID’ law would not have prevented this incident.”


“Are Democrats Trying To Energize The Base With The Race Card?”


For some voters, suggestions that some of the opposition to Obama and his policies is more than just honest disagreement — and is indeed racially based — could help do the trick.

The Democrats’ use of voting rights strikes the same chord. Voting rights and race have been so inextricably linked in the nation’s history, and in the African-American experience, that Obama can send a resonant message to many minority voters without ever explicitly mentioning race.

He did exactly that when he spoke to the same Sharpton group as Holder, a few days after the attorney general.

Obama portrayed Republican voter ID efforts as attempts to undo civil and voting rights protections enacted during the Johnson administration — protections won at the price of blood.

That those Johnson-era laws were needed to counter racist laws and practices that prevented blacks from voting, especially in the South, could go unsaid before an audience well-steeped in that racial history.


IRS’s Lois Lerner Was Skeptical of Criminal Prosecution of 501c(4)s

Politico Morning Tax:


DOJ CONTACTED LERNER ABOUT PROSECUTING SOCIAL WELFARE GROUPS. Two days before Lois Lerner broke the IRS scandal news at a tax law conference, the Department of Justice reached out to the former IRS agent to discuss the possibility of prosecuting social welfare organizations that quietly underwrote their political activities against tax-exempt rules. That’s according to emails released by Judicial Watch, a conservative watchdog group that FOIA-ed documents. The email that details the DOJ-Lerner convo doesn’t mention a specific group or even groups that lean toward a certain ideology — just 501(c)4s in general.

THE LERNER EMAIL: Sent on May 8, 2013 to IRS colleagues, including the chief of staff for then-Acting IRS Commissioner Steven Miller: “I got a call today from Richard Pilger Director [of the] Elections Crimes Branch at DOJ…. [Pilger] wanted to know who at IRS the DOJ folks could talk to about Sen. [Sheldon] Whitehouse idea at the hearing that DOJ could piece together false statement cases about applicants who ‘lied’ on their [applications] –saying they weren’t planning on doing political activity, and then turning around and making large visible political expenditures…. DOJ is feeling like it needs to respond, but want to talk to the right folks at IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs.”

THE ‘WHY’ FACTOR: CONGRESSIONAL PRESSURE? At first glance conspiracy theorists may latch on to this Justice correspondence to suggest a second federal department was involved in the targeting scandal. But a closer look at the emails suggests the departments may have been covering their backs after getting some congressional pressure. Sen. Whitehouse (D-R.I), a prominent campaign finance reformer, wanted to know why the IRS had not referred any suspect (c)4s to DOJ for prosecution and used his time during an April 9, 2013 hearing to press DOJ on the matter. It is in that context that Justice reached out to Lerner.

Campaign Legal Center’s Larry Noble, Lerner’s former boss at the Federal Election Commission, has this to say about the correspondence: “What I get from these emails is two agencies trying to figure out… how to answer this question… They’re not conspiring how to do it but rather answering why they weren’t doing it. Nothing in here leads me to believe they were going to do it but respond to Sen. Whitehouse’s questions as to why they weren’t.”

LERNER WAS SKEPTICAL. Lerner expressed skepticism that any suspect (c)4 groups could really be prosecuted in a later email chain to her IRS colleagues, also released Wednesday. “In looking at their testimony though, it’s all about criminal prosecution of federal campaign laws — so we’re all talking apples and oranges. … In both instances, the issue is whether a particular expenditure was political intervention. Whether there was a false statement or fraud regarding an description of an alleged political expenditure that doesn’t say vote for or vote against is not realistic under current law. Everyone is looking for a magic bullet or scapegoat — there isn’t one. The law in this area is just hard.”

FOOTNOTE: The IRS usually handles unruly (c)4s that don’t follow the rules, internally, by simply revoking tax-exempt status. But Marc Owens, former IRS exempt-orgs chief, said there have been a few charities, 501(c)3s, that were criminally charged for willfully lying to the IRS and secretly funneling funds to political campaigns.



“Carl P. Leubsdorf commentary: Voting Rights Act will get new attention”

Column: “Voting issues will get a more extensive airing next year when the LBJ Library marks the Voting Rights Act’s 50th anniversary. But the topic has come up often this year because, unlike the 1964 Civil Rights Act that banned discrimination in public accommodations and many other areas of American life, the voting-rights measure remains under direct legal and political challenge a half-century later.


Views of Some Conservatives and Libertarians of the Election Law Listserv

I have run the Election Law Listserv with Dan Lowenstein of UCLA since 1995. It began on the servers at Chicago-Kent, moved with me to Loyola Law School, and is now housed with me at the University of California, Irvine.  It currently has over 1,000 members, including most of the people who teach election law, historians, political scientists, journalists, students, and lawyers of all political stripes interested in these issues.  It is one of the rare fora in which people from widely divergent backgrounds exchange ideas on election law issues.  Its archives are public, although  “Members of the press …. may describe in general terms the substance of discussion on the list, but should not quote posted comments or attribute ideas to specific individuals without the consent of the individuals.  Our rules also provide that “Discussions on the listserv are often contentious, but they are conducted in a civil manner. The proprietors reserve the right to expel or otherwise discipline subscribers whose postings are in their judgment uncivil or otherwise objectionable.” While I occasionally chime in to promote civility, we have only removed one person in the history of the listserv for incivility (someone whose politics was very far to the left, by the way).

In this post yesterday, I linked to a piece in which Election Law listserv non-participant J. Christian Adams said the list was made of of “would be totalitarians” and where conservatives “are often deliberately given a cold shoulder and ignored, per plan…” This was not my understanding of how conservatives and libertarians viewed the list, and many conservative list members took to the list, Twitter, or in a private email to disagree with Adams. I asked anyone who self-identifies as a conservative or libertarian and participates on the listserv if I could post some of their comments on the blog.  Readers will recognize some of these names as people with whom I have great substantive disagreements but with whom I and the 1000+ listserv members enjoy a fruitful dialogue.  Here are a few of their comments, along with some tweeted comments:

Rob Kelner, Chair, Covington & Burling LLP’s Election and Political Law Practice Group (via Twitter): “Rick Hasen’s listserv is an institution. A valuable one. Attacks on Rick are unfounded. Civility is the glue that holds democracy together.”

Joe La Rue, attorney (my oral argument opponent in the San Diego Campaign finance case, formerly from Jim Bopp’s law firm): I write as a political conservative and an opponent of excessive regulation of political speech to commend both the Election Law Listserve and also Rick Hasen as its moderator.  Rick clearly favors more regulation than I.  But he moderates the Listerve in a fair and evenhanded way.  I have never been reprimanded by Rick or otherwise discouraged from posting because my view differs from his.  Rather, I have been allowed to engage in spirited debate with those who advocate for different policy results than I.  For the most part, these discussions have always remained friendly, even though the participants passionately disagree.  I am grateful both for the discussions that take place and also for Rick’s approach to moderating them.”

Jeffrey Milyo, Professor, Dept of Economics, University of Missouri: “I am writing to personally thank you for the tremendous public service that you provide via the election law list serve and election law blog. The list serve in particular provides an open and accessible forum for informative discussion and debate among legal scholars and professionals from a variety of backgrounds and view points; it is a true marketplace of ideas. I greatly appreciate all the time and effort that you devote to maintaining the list serve, as well as your judicious and tolerant appproach to moderating comments. You consistently achieve a balance between the goals of civility and open participation (a task none of us envy!).” (Read Professor Milyo’s full letter.)

Mark Scarberry, Professor of Law, Pepperdine: “I couldn’t disagree more with Adams. I consider myself to be mostly conservative on election law issues, if that’s a meaningful category, and to be on the ‘less regulation more 1st Amendment-protective’ side; and I think the list is a great ‘place’ for discussion. Sometimes my posts get substantial responses; sometimes not. But Rick and UCI do a real service in providing this viewpoint-neutral limited forum (if that’s the right description).

Michael Toner, Former FEC Chairman (Republican nominee) and Partner, Wiley, Rein (via Twitter): “The following diatribe directed at Larry Noble, Rick Hasen & Bob Bauer among others is a disservice … via @PJMedia_com”; “I’ve differed w/ Noble, Hasen & Bauer some in past but they have integrity & always been fair to me…”

Abigail Thernstrom, Adjunct Scholar, American Enterprise Institute, Vice-chair, U.S. Commission on Civil Rights, 2001 – 2013: “Conservatives are generally lonely in the academy, but Rick makes sure that voices across the political spectrum are heard.  I’m fully of admiration and gratitude.  I am also indebted.  I know one corner of election law: the VRA, about which I have written two books, the first published by Harvard University Press in 1987 and the recipient of multiple prizes including one from the ABA (a small miracle given my conservative politics).  But I have been woefully ignorant about most other election law topics, and the listserv has provided some much-needed education.”



“Democrats: Husted must enforce election spending rule”

This is interesting:

Secretary of State Jon Husted should enforce a controversial rule that limits election spending by companies, nonprofits and unions, Democrats said Thursday.

The regulation requires companies, unions and nonprofits to disclose when they pay for election ads. It also prohibits companies from spending money to influence elections for a year after they receive state or federal money, such as through a contract or a grant to promote job creation. Ohio House Republicans drew attention to the rule last week by passing legislation that would void it, saying limiting corporate election spending was a violation of free speech.

Readers may recall that the original version of Democrats’ DISCLOSE Act would have limited election spending by government contractors. I took the position (and still do) that such a limitation violates the First Amendment under Citizens United.  (The current version of the DISCLOSE Act does not do so, and I testified in favor of it before the Senate Rules Committee.)


What If the President Engages in False Speech to Further a Political Message?

A few days before the Supreme Court tackles false campaign speech laws in the Susan B. Anthony case, John Dickerson makes a provocative claim in his Slate column:

The issue last week was the pay gap between men and women. The president issued executive orders to address the disparity, and Democrats pushed legislation in Congress. In making the case, the president and White House advisers used a figure they knew to be imprecise and controversial—a Census Bureau statistic that the median wages of working women in America are 77 percent of median wages earned by men.

Under this approach, a president wants the fact-checkers to call him out (again and again) because that hubbub keeps the issue in the news, which is good for promoting the issue to the public. It is the political equivalent of “there is no such thing as bad publicity” or the quote attributed to Mae West (and others): “I don’t care what the newspapers say about me as long as they spell my name right.” The tactic represents one more step in the embrace of cynicism that has characterized President Obama’s journey in office….

Facts, schmacts. As long as people are talking about an issue where my party has an advantage with voters, it’s good. So, the theory goes, if I’m a Republican candidate, I benefit from conversations about budget deficits and spending restraint because voters trust Republicans more on the issue of the budget and spending restraint, and it excites Republican voters who care about those issues. Democrats have several reasons to keep stories about equal-pay equity in the news. It excites their voters, attracts female voters, and crowds out whatever the Republicans wanted to talk about (these days, Obamacare). It also sets a trap. The more Republicans have to talk about politically unfavorable issues, the greater chance they’ll slip up and say something dumb like candidates Todd Akin and Richard Mourdock did that can be exploited more broadly.