“The Case for Outside Spending: New Hampshire Edition”

Paul Jossey Daily Caller oped:

As the New Hampshire senate race continues to tighten, outside groups seeking to influence the outcome are getting more creative. One group “tracked” Republican Scott Brown down a river via kayak. Another described Brown as a “lobbyist” — technically untrue — and is now gleefully encouraging his camp to sue.

Provided no laws are broken, Granite Staters should welcome these and other tactics employed to get their attention. A freedom-based campaign finance system will occasionally produce the outlandish and the tasteless. But it is far superior to having government decide the quantity and quality of political discourse



Will Cutbacks in Days But Not Hours of Early Voting in NC Increase Turnout?

Fascinating statistics from Gerry Cohen: “All in all, however, I think plaintiffs are barking up the wrong tree in litigating early voting hours and days. The current State Board of Elections has adopted plans that are MUCH more useful to voters than under the old law. If you like almost half the counties closing up early voting at 5 pm, I guess the 2010 plan is the one to advocate for”


About the $2 Birth Certificate in Texas to Get “Free” Voter ID

Brennan Center report from the trial [with language updated from the Brennan Center];

  • Under cross-examination by Dan Freeman, [Victor Farinelli, the electronic registration manager of the Department of State Health Services’ Vital Statistics Unit] testified that there is no law or regulation that requires DSHS to offer an EIC birth certificate. Farinelli testified that DSHS has not issued any EIC birth certificates in Austin to date.* He stated that a certified copy of birth record costs $22 to order in person or online, plus a credit card fee and a potential $5 dollars to expedite. He testified that there are many documents that establish identity for purposes of obtaining a birth certificate that do not establish identity for purpose of voting. Farinelli was shown the version of the election identification birth certificate application form in use as of September 2, 2014, and agreed that it stated that applications without photo ID would not be processed.* Farinelli stated that the birth certificate application form has not been translated into Spanish. He stated that identity theft using forged birth certificates “happens sometimes” and has happened more than four times over the past 10 years. Farinelli testified that he is not aware of any press releases, media campaigns, or direct mailers advertising the EIC birth certificate, and that the DSHS web page devoted to EIC birth certificates was created last week. He stated that Texans born in another state are not eligible for a reduced-price birth certificate unless that state has such a program.
  • *This post has been updated to reflect that Farinelli testified that DSHS has not issued any EIC birth certificates in Austin to date and that the version of the election identification birth certificate application form in use as of September 2, 2014 stated that applications without photo ID would not be processed.

True the Vote: “Elections in America are under fire.”

From a TTV fundraising email:

Elections in America are under fire. We’ve known it, we’ve lived it, and we’ve been targeted for our efforts to stop it. But until now, the political election suppression machine that exists to stop us (and others like us) hadn’t stepped out from the shadows. This week, The Washington Post printed a schematic that clearly shows the interconnectedness of hundreds of leftist groups, all of whom have aligned to achieve one primary goal – to stop any advancement of election integrity efforts. These groups are tethered together into a collective body known as the Democracy Alliance. Aided by the likes of Attorney General Eric Holder and billionaire investor George Soros,  the Democracy Alliance funnels money into the collective to fuel efforts that will destabilize and ultimately destroy free and fair elections.


Wow: Single Voter Without ID Could Decide Outcome of Local MS Election

Clarion Ledger:

Unless a lone affidavit voter shows up with a valid photo ID before next Tuesday, Glenn Bolin and Stephanie Bounds will draw straws to see who becomes Poplarville alderman.

In a special election runoff Tuesday, Bolin and Bounds each received 177 votes. But one voter showed up at the polls without a photo ID, as now required by law in Mississippi, and voted affidavit. That voter has five business days to bring in a valid ID, and could determine the election.

As I’ve said, despite the fact that those on the left hype the suppressive effects of voter id laws, in very close races i.d. laws could make a difference.  There’s no better illustration than this small 177-177 election.


“On Points: Local Broadcast TV Ad Spend: Starting to Settle?”

Cook Political Report:

Rumors of local TV’s aging and eventual demise as the leading medium for political advertising have abounded this year, but are greatly exaggerated. It simply has comprised too large a share of campaign ad budgets for too long to dissipate significantly within a few cycles. And if TV’s audienceis aging, well, seniors are a pretty key voting demographic.

But its heyday is ending. We’re not putting forth any projections for 2016 yet—too many X factors remain at this point—but the spectacular cycle-over-cycle growth we’re so used to seeing is going to slow. Local broadcast ad spend surely will spike again for the presidential race, but we don’t see it shooting upward by another $900 million, as we saw between 2010 and 2012.



Message from AALS Election Law Section

Josh Douglas asked me to post the following:

Dear Election Law Professors,

The Executive Committee of the AALS Section on Election Law has selected its winner of the Call for Papers for January’s meeting:  David Garter (ASU), Universal Participation.
We are now looking for one more person to join the panel, which includes Pam Karlan, Chris Elmendorf, Kareem Crayton, and now David Gartner.  Those interested must be law professors at an AALS-member school.  To nominate yourself, please send me an email at joshuadouglas@uky.edu with a paragraph explaining what you will present.  The panel title and description is below.  The deadline to submit is Tuesday, September 23.  The Executive Committee is particularly interested in adding a speaker that will bring a diversity of backgrounds and viewpoints.
The Voting Rights Act at 50

On August 6, 1965, President Lyndon Johnson signed the Voting Rights Act into law.  During the signing ceremony, President Johnson referred to the Act as “one of the most monumental laws in the entire history of American freedom.”  Over the past fifty years, the Supreme Court has issued numerous decisions on various aspects of the Voting Rights Act, Congress has amended it several times, and it remains an important component of public debate.  This panel – the first programming for the new AALS Section on Election Law – will explore the many facets of that debate.  The panel will analyze the current issues regarding voting rights, from the Supreme Court’s recent invalidation of the Section 4 coverage formula in its Shelby County decision – essentially rendering Section 5 inoperable – to Congress’s consideration of a Voting Rights Act Amendment, to the report of the bipartisan Presidential Commission on Election Administration.  Part of this inquiry will include a discussion of whether we have reached the ideals President Johnson aspired to 50 years ago when he signed this Act, and where we should go from here in protecting and effectuating the right to vote.


@Lessig: “We Lost. Badly”

He writes:

There’s no spinning this. We tried something that others said couldn’t be done. So far, the evidence supports their theory. We went big in New Hampshire. Going big increased the salience of the issue among the citizens of New Hampshire. But among the 7% of New Hampshire who voted in the Republican Primary, another issue was even more salient: who could beat the Democrat in November….

But in the end, the burden of this mistake rests with me, and me alone. Our first poll found our candidate with 9% of the vote. I knew we had to take on some unwinnable races — and win them. But by failing now, we have made the others harder. I should have accepted the advice not to take on that risk.

Bob Bauer:

 Moreover, it will be little solace to progressives that Stark360, like Mayday, supported Jim Rubens for the United States Senate in New Hampshire. It supported Rubens for entirely different reasons and utterly opposed electing him for the reason motivating Mayday. So if Rubens had been elected, to whom in this alliance would he have owed his allegiance—the organization in the coalition that wants public financing reform, or the one very much against it? It seems this is quite a muddled politics that can only send the candidate Mayday is supporting a mixed message about what level of obligation he actually carries into office as a campaign finance supporter.

How then, in these circumstances, could Mayday have shown what it most wanted to—that its spending demonstrated the power of reform as a message and the strength of public support for it?  If Rubens had won, who would have elected him—Mayday, or the organization working hand-in-glove with Mayday that doesn’t support reform but did like the other elements of Rubens’ distinctly un-progressive program?


Does the Democracy Canon Support Removing Taylor’s Name from #KSSEN Ballot?

Taylor makes essentially that argument in the memorandum supporting the writ of mandamus filed in the KS Supreme Court.

I think that’s probably right. What good does it do to give voters the choice of a candidate who has attempted to withdraw and who has pledged not to serve?  So to the extent the statute is ambiguous about what was required for Taylor to withdraw, the Democracy Canon suggests interpreting it to allow Taylor to withdraw. In some ways this is like the Samson case from New Jersey Torrecelli which I discuss in detail in the article: a State supreme court has to construe a statute about how to deal with a withdrawing candidate shortly before the time of printing of ballots.


“Issa accuses Holder spokesman of attempting to ‘conspire’ with Democrats on IRS documents”


Attorney General Eric Holder’s communications director is being accused of calling the House Oversight Committee Republican staff and asking for help spinning a story. The twist? The GOP staff alleges that Holder’s spokesman thought he was talking to the Democrats.

Oversight Committee Chairman Darrell Issa (R-Calif.) sent a letter to Holder on Monday about the incident, saying he was “extremely troubled” that the Justice Department may have been trying to coordinate with the minority staff on the release of documents to the committee regarding the Internal Revenue Service targeting certain political groups.

Issa’s letter claims that Brian Fallon asked for a specific committee aide and then told that person that he wanted to get materials to “interested reporters” before sending them to the majority, so that the agency could spin the story first.


Tom Edsall Deep Dive into 501c4 Lack of Transparency in Campaign Spending

New NYT column concludes:

A two-class structure of election financing is emerging. The first is the traditional system of federally regulated individual contributions in which the small donor has become increasingly important. The second is the combination of “super PACs” and tax-exempt independent expenditure groups, including 501(c)(4)s, which together operate without limits and cater almost exclusively to those at the very top of the economic pyramid. Policing the hodgepodge of regulations, statutes and rulings governing elections has become virtually impossible. A kind of lawlessness prevails that is incompatible with the goals of democracy.


First Report from 7th Circuit Suggests Reversal in Scott Walker/John Doe Campaign Case

Milwaukee Journal Sentinel:

 A panel of three federal appeals judges on Tuesday questioned why they had been brought into a stalled criminal investigation into campaign activity by Gov. Scott Walker and conservative groups allied with him, saying it appeared to be a matter for state courts.

“I don’t understand why the federal courts at the micro-level would be brought in,” said Diane Wood, chief judge of the U.S. 7th Circuit Court of Appeals.

Later, she expressed uncertainty about taking “an invitation to butt into a state criminal proceeding.”

This AP story suggests Judge Easterbrook was similarly skeptical of federal court involvement.


“Breaking: Fourth Circuit to hear expedited appeal of voting rights decision”

The Progressive Pulse: “In an order issued today, the 4th U.S. Circuit Court of Appeals has agreed to expedite an appeal of a lower court’s refusal to block voting law changes from taking effect this November, and has scheduled argument on that appeal for September 25 in Charlotte.”


Here is the order, which also denied a motion for a preliminary injunction pending appeal.


“Koch Brothers’ Real Fear Revealed In Secret Audio: Liberal Money”

Fascinating HuffPo report:

At a private retreat on June 16 in Dana Point, California, Mark Holden, general counsel of Koch Industries, the Kochs’ privately held company, delivered a disquisition on the overwhelming power of rich progressive donors lined up against the meager resources of the oil barons and their network of elite allies. His speech, an audio recording of which was obtained by Lauren Windsor‘s YouTube show The Undercurrent and provided exclusively to The Huffington Post, was titled “The Opposition: Understanding Their Strategy and Infrastructure.”

Holden’s talk focused on the Democracy Alliance, a network of wealthy liberal donors who strategically steer money to a set of hand-picked progressive groups. Holden told those assembled that “we’ve been able to learn a lot more details about them in the last couple of months from documents that someone in the group, Democracy Alliance, left behind at their last seminar.”