“Disclosure Wars: Issues of Policies and Purposes”


Americans for Prosperity has won a decision blocking California’s demand for the disclosure of its donors.  The court didn’t agree with the State that it really needed the information to meet its regulatory responsibilities, and it was satisfied that AFP donors had reason to fear that disclosure would subject them to reprisal and harassment.  The State’s commitment to keep the information confidential did not survive the showing that it had not over time performed very well on that score.

There are concerns and conflicts running throughout this controversy, and others like it, that the court did not expressly acknowledge—but that are now common in cases of this kind.


“Lawyer for Fund-Raisers Tied to de Blasio Fires Back at Elections Board”


In a strongly worded response to a New York State Board of Elections report alleging illegal fund-raising activities by a team of people with close ties to Mayor Bill de Blasio, a lawyer for several of the implicated parties has accused the board of “a shocking lack of understanding or a complete disregard of the most fundamental aspects of the state’s election laws.”

The letter, drafted by Laurence D. Laufer, a longtime campaign finance lawyer who also represents the mayor’s re-election campaign, came two days after accounts in the news media of a January report from Risa S. Sugarman, the board’s chief enforcement counsel. The report, which was confidential, found “willful and flagrant” violations of election law by a group of political operatives known as Team de Blasio, which was formed in 2014 to try to retake the State Senate for Democrats, who are in the minority in Albany’s upper chamber.


“The desperate scramble for Bernie’s secret weapon”


Bernie Sanders shows no sign of dropping out of the presidential race anytime soon, but the vultures are already circling over his email list — perhaps the most coveted and valuable catalog of potential voters and donors in the Democratic Party at the moment.

The post-campaign fate of Sanders’ list — his 2016 crown jewel, and the backbone of the Vermont senator’s online fundraising juggernaut — is the topic of frequent conversation among operatives working with the Democratic Party committees, down-ballot candidates and a variety of liberal interest groups. Some have already begun strategizing about how to access the list through informal conversations with people close to the Sanders campaign.


“Campaign’s Populist Tone Rankles America’s CEOs”


Chief executives at big American companies are increasingly frustrated by the populist tone of the presidential campaign, and concerns are mounting in boardrooms and corner offices that antibusiness rhetoric may solidify even after the November election.

Some business groups had looked to a Republican administration next January that might peel back some Obama administration regulations. But that hope now is in doubt, and such groups are instead focused on key Senate and House races.

While some observers believe candidates may soften their stances once elected, executives worry that for now, the rhetoric of the election discussion could weigh on consumer confidence, thwart any immigration overhaul and derail a sweeping 12-nation trade pact, the Trans-Pacific Partnership, that the U.S. struck last year and that many businesses support.


“Md. congressional primary features largest self-funder ever”


A Maryland congressional primary contender has broken the record for what a self-funded House candidate has poured into a single campaign, as wine superstore owner David Trone has uncorked more than $12 million of his own amid a crowded Democratic field.

The race is the most expensive House primary in the country this election cycle, according to data compiled by the non-partisan Center for Responsive Politics.


“Ted Cruz and John Kasich to Coordinate Against Donald Trump”


Senator Ted Cruz and Gov. John Kasich of Ohio have agreed to coordinate in future primary contests in a last-ditch effort to deny Donald J. Trump the Republican presidential nomination, with each candidate standing aside in certain states amid growing concerns that Mr. Trump cannot otherwise be stopped.

In a statement late Sunday night, Mr. Cruz’s campaign manager, Jeff Roe, said that the campaign would “focus its time and resources in Indiana and in turn clear the path for Governor Kasich to compete in Oregon and New Mexico.”


“Insufficient Electoral Reform”

Japan Times:

The sharp disparity in the weight of votes between populous and less populous electoral districts — in which voters in some constituencies have more power in electing their representatives to the Diet than those in others — is a chronic problem in national elections in this country. It happens because Diet seats are not allocated according to the distribution of the population. The Supreme Court ruled the situation in the last three Lower House elections in 2009, 2012 and 2014 — when the maximum disparity topped 2 to 1 — to be in a “state of unconstitutionality, though it fell short of invalidating the vote results.

Such a disparity in the value of votes exists runs counter to the principle of equality under the Constitution. It distorts the representation of popular will in the Diet. The top court’s decisions even raise doubts about the legitimacy of the electoral process and the lawmakers chosen to the Diet through the elections. Correcting the disparity is an urgent task.


“Labor unions sue state of Michigan over election law”

Detroit Free Press:

A coalition of labor unions sued the State of Michigan in U.S. District Court in Detroit on Friday over a law that allows corporations, but not unions, to use payroll deductions for contributions to political action committees.

The sweeping law was one of the final ones passed in last year’s legislative session, after it transformed from an innocuous bill on campaign finance law into a 53-page wholesale revision of campaign finance law.


“Voters’ ‘Bernie or Bust’ efforts persist despite Sanders’ vow not to be another Ralph Nader”


Sanders’ chances of winning the nomination have dimmed since his 16-point loss to Clinton in last week’s New York primary. Polls show he faces an uphill race in several of the five Eastern states that vote on Tuesday, as well as in California’s June 7 primary.

Some of his supporters remain so steadfast, however, that a #BernieOrBust movement has picked up momentum on Twitter. So has an online pledge for supporters who vow to vote for Sanders as a write-in candidate if he loses the nomination.

A recent McClatchy-Marist poll found that 1 in 4 Sanders supporters would not back Clinton as the nominee, a sign of the party’s deep divide — and Clinton’s high negatives — at this point of the race.


“Federal judge orders recount of 2014 abortion ballot vote”

The Tennessean:

A federal judge has ordered a recount of Tennessee’s controversial 2014 abortion measure Amendment 1.

U.S. District Judge Kevin Sharp on Friday declared the method the state used to count votes for the amendment “fundamentally unfair” and in violation of due process and equal protection rights for voters under the U.S. Constitution.

The “no” votes of the eight plaintiffs “were not accorded the same weight” as those who voted in favor of the amendment, the judge concluded.

“As a remedy, the Court will order a recount of the 2014 Election solely in relation to Amendment 1, but defer ruling on the question of whether the election on Amendment 1 should be voided,” the 52-page ruling said. The ruling does not apply to three other amendments on the ballot in 2014.


“2 million ballots botched in latest Maricopa County fiasco”


In yet another elections embarrassment for Maricopa County, two million ballots were printed with the wrong Spanish-language description for a ballot proposition May 17, resulting in a massive reprinting of ballots and mailing of postcards to correct the mistake.

This latest screw-up was uncovered the same day the county recorder’s office filed its formal response to a U.S Justice Department investigation of the botched presidential primary in March, which forced many voters to stand in line for hours.

Many voters claimed they were disenfranchised by elections officials huge cut in polling places for the primary.


“Donald Trump’s ‘Self-Funding’ Stalls G.O.P. in Donor-Data Collection”


He often brags that he is paying for his campaign, saying, “I don’t need anybody’s money.”

But Donald J. Trump’s disregard for fund-raising by email, building lists of small-dollar donors and assembling a modern campaign digital operation could hamstring him as a general-election candidate and do lasting damage to the Republican Party, strategists say.

In 2013 and 2014, one of the most valuable assets for Republican candidates at every level was Mitt Romney’s email list, containing the names and contact information for his donors, volunteers and supporters — a trove that had been amassed, culled and refined over 18 months of the 2012 campaign.

That required painstaking work, including frequent communications with supporters in hopes of conditioning them to donate repeatedly. And it paved the way for candidates to send emails to a vast, inherited universe of potential contributors who could easily make gifts with one click.


“EXCLUSIVE: De Blasio team skirted campaign donation limits; investigators found ‘willful and flagrant’ violations ‘warranting prosecution'”


The head investigator for the state Board of Elections probed the 2014 fundraising efforts by Mayor de Blasio and his team on behalf of the Senate Democrats and found enough “willful and flagrant” violations to warrant a criminal referral to the Manhattan DA’s office.

The Daily News obtained a bombshell memo state Board of Elections Chief Enforcement Officer Risa Sugarman sent to the board’s four commissioners on Jan. 4 recommending the referral.

“I have determined that reasonable cause exists to believe a violation warranting criminal prosecution has taken place,” Sugarman wrote. “The violations discovered by this investigation can only be described as willful and flagrant.”


“Lawsuit alleges Kern County “unlawfully discriminates” against Latino voters’

Bakersfield Now:

A group of Latino residents has sued the Kern County Board of Supervisors, claiming the board violated section 2 of the U.S. Voting Rights Act of 1965.

“It is clear that the Latino community has grown to the point it should have more than one supervisorial district,” said Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Education Fund (MALDEF), which filed the suit on behalf of the plaintiffs.

The lawsuit challenges Kern County’s 2011 redistricting plan, which divided the largely Latino communities of Delano, Wasco, Shafter and McFarland into two separate districts.

“The fracturing of the Latino community in northern Kern County is precisely the kind of racial gerrymandering that the Voting Rights Act was intended to cure,” added Matthew Barragan, a staff attorney at MALDEF.


“Snapchat Wants To Make ‘Ballot Selfies’ Legal On Election Day”


A federal judge struck down New Hampshire’s ban on ballot photos last year, and the state is appealing that decision to the U.S. Court of Appeals for the 1st Circuit. Under the law, voters faced a $1,000 fine for sharing a picture of their ballot.

On Friday, Snapchat filed an amicus brief in the case, arguing that the state’s ban violates the First Amendment. [Note: updated with working link]

My view: Why the Selfie is a Threat to Democracy, Reuters Opinion, Aug. 18, 2015



“A manifesto to mend our politics”

David Ignatius WaPo column:

It has become a truism that the American political system is suffering from dysfunction. But weirdly, even the insurgent candidates, Donald Trump and Bernie Sanders, don’t talk much about how they would fix it. This is a populist insurgency without a clear manifesto.

So it’s refreshing to hear Rep. John Sarbanes (D-Md.) present a detailed action plan to try to repair what’s broken. This proposal isn’t a cure-all. It wouldn’t fix the immigration problem or fund Social Security or fight terrorism. But by changing the way we fund elections, this proposal could make it easier to elect the politicians who would make the U.S. government work again for its citizens.


“In Baltimore, ex-felons cherish newfound right to vote”

Zack Roth for MSNBC:

In February, prodded by a grassroots campaign by Communities United and other voting rights and civil rights groups, Maryland restored voting rights to people with felony convictions as soon as they’re released from prison — re-enfranchising an estimated 40,000 predominantly African-American Marylanders. Previously, they’d had to wait until they had completed probation or parole. Democratic lawmakers overrode a veto by Maryland’s Republican governor to push the measure into law. Communities United says it’s registered about 1300 new voters since the law passed.

The move was perhaps the biggest victory yet for a nationwide movement to scrap or weaken felon disenfranchisement laws, which shut nearly 6 million Americans, disproportionately non-white, out of the political process.


“Get moving on vetting vice-presidential candidates, report urges”

Dan Balz:

The presidential candidates in both parties are still in the throes of their nomination contests, but a new report authored by veterans of past campaigns and conventions offers a clear warning to them all: If you haven’t already done so, start your vice-presidential selection process now.

Already, some of the campaigns have made preliminary steps to begin that process, but none appears very far along. As a result, two suggestions in the report are notable, given time pressures that could affect this year’s selections. One is to avoid any last-minute vetting of prospective candidates. The other calls on candidates to carve out time well ahead of their decision to get to know their prospective running mates.

The report, issued under the auspices of the Bipartisan Policy Center, concludes that the process of vetting and selecting a vice-presidential running mate takes a full eight weeks. With the two political conventions convening in mid-to-late July, rather than at the end of August or early September as in the past two presidential elections, that suggests that the candidates are already up against the clock.


“Virginia Governor Restores Voting Rights to Felons”


Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing the Republican-run legislature. The action effectively overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans.

The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole or probation to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party….

The executive order builds on steps the governor had already taken to restore voting rights to 18,000 Virginians since the beginning of his term, and he said he believed his authority to issue the decision was “ironclad.”

Prof. A. E. Dick Howard of the University of Virginia School of Law, the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once.


“Republicans Reject Effort to Alter Rules on Allowing New Candidate at Convention”


A Republican National Committee panel on Thursday overwhelmingly rejected an effort to make preliminary changes to the rules governing the party’s convention this summer, batting away a move to make it more difficult for party leaders to draft a “white knight” candidate into the race.

On a voice vote, the R.N.C.’s rules committee turned back a bid to switch the rules of the convention from those used by the House of Representatives to Robert’s Rules of Order. The committee member who proposed the change, Solomon Yue of Oregon, said in the days leading up to the party’s spring meeting here that he wanted to alter the rules to prevent the establishment-aligned Republicans running the convention from being able to place in nomination the name of a candidate not already in the race.


“Gyrocopter pilot who landed at U.S. Capitol sentenced to four months in prison”


A federal judge sentenced a former Florida postal worker to four months in prison Thursday for his gyrocopter flight last year to the U.S. Capitol, a campaign finance protest cited in recent demonstrations that led to 1,200 arrests in Washington.

“You had tunnel vision for publicity and media attention to yourself and not to the public-safety consequences,” U.S. District Judge Colleen Kollar-Kotelly told Douglas Hughes, 62, of Ruskin, Fla., ordering him to stay away from the White House and U.S. Capitol grounds after his release.

Hughes’s “publicity stunt” recklessly endangered others in what Kollar-Kotelly called an act of “self-aggrandizement.” She said she hoped a prison sentence would deter others “who might not be so lucky” to avoid accidental or intentional downing for violating no-fly zones around the nation’s capital.


“Hillary PAC Spends $1 Million to ‘Correct’ Commenters on Reddit and Facebook”

Daily Beast:

Citing “lessons learned from online engagement with ‘Bernie Bros,’” a pro-Hillary Clinton Super PAC is pledging to spend $1 million to “push back against” users on Twitter, Facebook, Reddit and Instagram.
Correct the Record’s “Barrier Breakers” project boasts in a press release that it has already “addressed more than 5,000 people that have personally attacked Hillary Clinton on Twitter.” The PAC released this on Thursday.
The PAC was created in May of last year when it was spun off from the American Bridge SuperPAC, which is run by longtime Hillary and Bill Clinton supporter David Brock. Brock also founded the left-wing media watchdog website Media Matters for America.


“Koch-linked group scores legal victory over California AG”

Josh Gerstein:

A federal judge in Los Angeles has again shut down California Attorney General Kamala Harris’ drive to obtain the donor list for Americans for Prosperity, an influential political group funded by Charles and David Koch.

U.S. District Court Judge Manuel Real issued a permanent injunction Thursday barring Harris’ office from requiring AFP to submit the donor list. And AFP may not be considered deficient or delinquent in its filings because it won’t turn over the form, the judge said.

In his ruling, Real said the California attorney general’s claims that she needed the information for investigative purposes were dubious since officials “virtually never” looked at donor information when investigating nonprofit groups. The judge also said the Kochs and other donors faced a real threat of harm because of nearly 1,800 instances where the state inadvertently disclosed donor lists, also known as “Schedule B” filings, on a public website designed to host other registration forms filed by charities and other nonprofit organizations.

Not only will the state appeal, I think the state will have a good shot especially given the reputation of the trial judge generally and in this case.


“John Kasich says DC residents can’t vote because they vote for Democrats”


So when the Post editorial board sat down with Ohio Gov. John Kasich, they asked him about it and he offered a strikingly honest case against voting rights for the District — too many Democrats:

ARMAO: But you realize though that people in D.C. pay taxes, go to war and they have no vote in Congress.


ARMAO: How is that–

KASICH: Well look, I am not – I don’t – I am not, because you know what, what it really gets down to if you want to be honest is because they know that’s just more votes in the Democratic Party. That’s what–

ARMAO: So if there were Republicans in the District, you would have a different position?

KASICH: Yeah, okay, well look, they send me a bill, I’m president of the United States, I’ll read your editorials.


“Essay — Softening Voter ID Laws Through Litigation: Is it Enough?”

I have posted on SSRN a revised version of this piece, now forthcoming in the Wisconsin Law Review Forward.  Here is the abstract:

Headlines about voter identification laws often place court rulings in a simple win or loss frame. For example, the New York Times headline describing the result in Crawford v. Marion County Election Board, a 2008 case involving the constitutionality of Indiana’s strict voter identification law, read: In a 6-3 Vote, Justices Uphold a Voter ID Law. Similarly, in reporting on the 2015 decision of the United States Court of Appeals for the Fifth Circuit involving Texas’ voter identification law, the Associated Press article was headlined Federal Court Strikes Down Tough Texas Voter ID Law.

In fact, the results in both cases were more nuanced. As reporter Linda Greenhouse explained in that New York Times article, the Supreme Court decision in Crawford was fractured. Although a majority of the Court rejected a full facial challenge to Indiana’s law on equal protection grounds, a plurality of the Court, as well as the dissenters, left open the possibility that Indiana’s law could be unconstitutional “as applied” to certain voters who faced special burdens in getting a voter identification law. Further, although the Fifth Circuit did hold in Veasey v. Abbott that Texas’s voter identification law violated Section 2 of the Voting Rights Act, the Court held that the appropriate remedy would not be a wholesale abandonment of the law; instead the appeals court directed the lower federal district court to allow Texas to use its law in most instances, but to craft a remedy which would allow those facing special burdens additional ways to prove identity and cast a ballot.

In theory, softening of voter identification laws through litigation is a positive development aimed at avoiding disenfranchisement of both voters who face special burdens obtaining an acceptable government-issued identification necessary to vote and of those voters who face confusion or administrative error. In practice, however, softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings. In fact, softening devices still leave an uncertain number voters disenfranchised. These burdens might be justified if there were evidence that state voter identification laws solve a serious problem, but there is no such evidence.

This brief Essay first describes the theoretical softening which emerged in some voter identification litigation. It then explains that such softening offers less than meets the eye in helping voters facing difficulties voting in states with strict voter identification requirements. It concludes that courts should strike down fully strict voter identification laws, because the laws deprive at least some voters of the ability to cast a valid vote for no good reason, and the softening devices do not do enough.


“Clinton Campaign Money Legal but Problematic”

Eliza Newlin Carney for TAP:

In legal terms, Bernie Sanders’s complaint that Hillary Clinton’s joint fundraising agreement with the Democratic National Committee improperly benefits her campaign doesn’t withstand close scrutiny.

The Sanders camp’s professed shock that the Hillary Victory Fund is collecting contributions “as high as $353,400 or more” says less about Clinton’s fundraising than it does about the near-total deregulation of the nation’s campaign-finance system. Sanders lawyer Brad C. Deutsch’s letter to the DNC cites no actual rules violations, and manages to contradict itself….

Nevertheless, the Sanders-Clinton dustup over the Hillary Victory Fund, which hasraised $60.6 million to be divvied up between the DNC and 32 state party committees, spotlights a type of high-dollar fundraising that is ripe for abuse and has not been seen since the soft-money days of the 1990s. Thanks to a 2014 Supreme Court ruling, and to the Senate’s quiet move that same year to blow the lid off political party contributions, the parties are pocketing six- and seven-figure checks from donors—and lawmakers and candidates are helping them raise it.


“Americans need a government that works for all”

Liz Kennedy in the San Diego Union-Tribune:

But the fact is that a majority of Americans support the same basic policies — including government action to fight income inequality and improve wages, to regulate banks and the financial sector, to make college more affordable and to deal with climate change.

Unfortunately, wealthy and special interests keep government from being responsive and accountable to the people. And some politicians seek to hold on to political power by preventing American voters from exercising our authority in the voting booth. Simply put, Americans don’t believe that government is working for them, and studies confirm that government is more responsive to the policy preferences of the wealthiest few than the majority of Americans.

 That is not a healthy democracy; rather, it’s a corruption of our democracy. Because in a democracy we should all be political equals.

“California’s voter registration forms don’t make sense — it’s time for the state to change them”

George Skelton in the LAT:

About 400,000 Californians who might be planning to vote in the state’s pivotal Democratic presidential primary June 7 could be in for a shock.

They’ll be told, “Sorry, your vote’s no good here.”

 They’re getting rooked, although they primarily rooked themselves.

The state also is to blame, however. It sat back, not giving a hoot, and allowed this to happen. It should have been protecting the voters.