Slim MT Campaign Against EDR

From the Helena Independent Record:

Progressive groups are putting money and shoe leather into defeating a Republican-sponsored ballot measure that would end Election Day voter-registration in Montana.

Yet the campaign for the measure, known as Legislative Referendum 126, is pretty much nonexistent.

A group called the Montana Equality Project, formed in February to support LR-126, hasn’t reported raising or spending a single cent for a campaign.


And Now, a Ruling on Texas ID

And, of course, we’ve now got a SCOTUS ruling on Texas ID.  In the wee hours of Saturday morning, the Court refused to vacate the 5th Circuit’s stay.

In real-person, that means that despite a full trial leading to a 147-page opinion finding the Texas ID law unconstitutional, the law will be in place for this November’s election.  Justice Ginsburg, joined by Justices Sotomayor and Kagan, strongly dissented from the Court’s decision to let the law stay in place for now.

The ultimate fate of the law is still TBD.  The trial court struck it down, and the appellate courts have pressed pause on that ruling, but they have not overturned it.  After the election, the case will proceed to the 5th Circuit for review on the merits.

More to come.


The AP Bulks Up in a Big Way on Redistricting

With four different stories. 

Juliet Williams describes the structure of redistricting in the states that take the process out of the hands of the legislature – an issue up at the Supreme Court this year, in a case out of Arizona.  Each state’s process is a bit different, and put in place to achieve slightly different ends. 

Stephen Ohlemacher’s “Congressional Redistricting 101” describes how the other states do the job.

Ohlemacher’s piece on the partisan politics of the process then talks about the partisan results.

And then a joint piece by Ohlemacher and Donna Cassata – “GOP Has a Built-In Advantage in Fight for US House” wraps up the conclusion.


“In Defense of Private Civic Engagement”

Nick Dranias, in turn, looks into a right to anonymity.

The right to private civic engagement — the right to participate in politics confidentially as an individual or in association with others — is under assault as the product of “dark money.” But the attack on “dark money” is really an effort to suppress opposing ideologies by exposing speakers and their associates to retaliation. Unfortunately, current Supreme Court precedent is enabling and emboldening such suppression. But there is hope for a return to our Nation’s tradition of respect for private speech and association. Mandatory disclosure and disclaimer requirements are still subject to an exception for those who can claim a reasonable probability of retaliation. Sadly, in today’s polarized political environment, it is increasingly apparent that this exception should be the rule. A focused litigation strategy can help usher this recognition into wider acceptance by the judiciary. Moreover, states can assist in protecting private civic engagement by enacting the proposed Free Speech Privacy Act, which would codify the right to be free from disclosure and disclaimer mandates that impose a reasonable probability of retaliation. Furthermore, states can enact the proposed Publius Confidentiality Act, which would guarantee citizens, who legitimately fear retaliation, the right to secure a confidential identity for use in their political activities. These proposed tactics are fully constitutional under current precedent and will also help move the debate towards once again recognizing the fundamental importance of private civic engagement in our Republic.


“Voter ID Facts and Motivation: Easterbrook v. Posner”

Bauer finds the difference between Judges Easterbrook and Posner (and the difference between Crawford and the instant Wisconsin struggle) to be their consideration of legislative motive.

Maybe.  But I think there’s (perhaps also) a difference between the quality of the factual record.  Too little has been made, I think, of the role of the trial court in actually weighing evidence.  The trial court found the evidence submitted in Indiana wanting, and the trial court found the evidence submitted in Wisconsin persuasive … but most of the analysis thus far has either assessed the evidence as if it were the same, or as if the evidence actually presented to the trial court (and subject to cross-examination) didn’t matter.  Perhaps this is related to the increasing (and not salutary) tendency of the appellate courts to purport to do their own factfinding.


Money in Politics 2030: Toward a New Jurisprudence

I had the great honor to participate in this exceptional campaign finance symposium in May.  The NYU Law Review has now published papers associated with the symposium, online.  My own contribution reflects on the electoral integrity concept behind Robert Post’s Tanner Lectures, Citizens Divided, and the differing roles of democratic theory and constitutional law. 

But the symposium’s contributions are both broad and deep, including work by Johanna Kalb and  Burt Neuborne, Yasmin Dawood, Deborah Hellman, Joey Fishkin and Heather Gerken, Kate Andrias, Ned Foley, Lisa Manheim, Rick Hasen, Michael Malbin, Sam Issacharoff, and Ciara Torres-Spelliscy.

The Brennan Center is also hosting an ongoing blog series following up on the thoughts raised at the symposium.


7th Circuit Stays Mandate: WI ID Law Formally Blocked for This Election

Close watchers of the fight over Wisconsin’s ID law noted last week that there was a slight procedural hiccup. 

The trial court issued a permanent injunction blocking the ID law.  That decision was then stayed by the 7th Circuit; the 7th Circuit’s stay, in turn, was vacated by SCOTUS.  Separately, the 7th Circuit also issued an order reversing the trial court on the merits; though it seemed likely that the Supreme Court would similarly press pause on that order, that order had not yet been blocked – which meant that technically, whenever the 7th Circuit issued its mandate, the Wisconsin ID law would be implemented for this election.

Yesterday, the 7th Circuit formally issued a stay of its own mandate, pending the disposition of a cert petition (or a failure to file such a petition).  That was the last technical shoe to fall, and it ensures that the Wisconsin ID law will formally be blocked for this election. 

After the election, the law will be back in place unless the Supreme Court decides to hear the case and overturn the 7th Circuit’s decision on the merits.


New Hampshire Supreme Court Finds Push-Polling Law Preempted

A New Hampshire state law requires disclosure of the candidate supported or opposed by a “push poll.”  Today, the New Hampshire Supreme Court held that to the extent this law applies to federal candidates, it is preempted by federal campaign finance laws, which provide the exclusive provisions for disclosure with respect to federal election activities.

The Nashua Telegraph has more.