Monthly Archives: December 2013

NYC Dept. of Investigations Reveals Ease of Voting in the Name of Ineligible Voters

Press release: “DOI’s operations also revealed that there are names of ineligible voters (e.g. felons and people no longer City residents), and deceased voters, on the BOE voter rolls, some for periods of up to four years. Accordingly, DOI investigators posing as a number of those ineligible or deceased individuals were permitted to vote in 61 cases, with no challenge or question by BOE poll workers. Investigators were turned away in 2 other cases. No votes were cast for any actual candidate or on any proposal during the course of the DOI operation. Investigators were not questioned by BOE poll workers, even when undercover investigators said they no longer resided in the City, or when there were obvious disparities between the ages of the investigators, some in their 20s and 30s, and the ineligible individuals in the voter rolls, some who would have been in their 80s and 90s.”

Coverage from NY Daily News, NY Post, John Fund.  So far I don’t see any NYT coverage.

There is no evidence any criminals engaged in any real world attempt to commit such fraud on a scale large enough to affect an election, in NYC or any other place of which I am aware, at least since the 1980s.

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“WyLiberty Attorneys File Petition with the United States Supreme Court”

Press release: “Wyoming Liberty Group attorneys filed a petition with the United States Supreme Court today, requesting the Court hear an appeal of the case Free Speech v. Federal Election Commission (FEC). Free Speech, a small grassroots group of three Wyomingites, sued the FEC in 2012 for maintaining vague and overbroad regulations that prevent political engagement. The case was dismissed by the Wyoming Federal District Court and the Tenth Circuit Court of Appeals affirmed its ruling.”

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ELB Vacation Quick Hits

Dan Balz writes on red state law and blue state law in the polarized states.

The Lawyers’ Committee (and Perkins Coie) bring suit against Arizona for the addition of two at-large seats in a community college district.

New York says SpeechNow.org is wrongly decided and wants to keep its contribution limits to independent expenditure committees.

Political Maryland writes on a campaign finance “loophole.”

Harold Simmons, the large donor connected with the “Swift Boat” ads, has passed away.

WSJ considers blurred lines when lobbyists invest in the industries they represent.

Marc Caputo describes public corruption in Miami-Dade, including quite a few election law activities.

The Concord Monitor editorializes in favor for 17-year-old primary voting.

 CPI gives a Harper’s-like Money-in-Politics Index for 2013.

NYT considers a socialist on the Seattle city council.

WaPo canvasses new state election laws.

AND former Indiana Secretary of State Charlie White loses his voter fraud appeal based upon ineffective assistance of counsel.

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How Soon Before SCOTUS Reaches Merits of Same-Sex Marriage Issue? Very Soon

Back in July, I wrote the following in a piece for Reuters Opinion:

Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”

Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states  still ban the practice. What the court does then is anyone’s guess.

I pressed Adam on this point when he appeared at UCI Law’s 2013 Supreme Court term in review event last summer.  I asked Adam with so many cases in the pipeline, how could the Court not take them?  Adam’s response was two words: “cert. denied.”  In other words, these cases would come up as part of the Supreme Court’s discretionary docket, and that means that the Court could simply decline to hear the cases.

I thought that the Court simply ducking the issue for a while was unlikely when I wrote the piece last July, and I think it even more unlikely now.  It takes only four votes to grant a cert. petition, and it is hard for me to imagine Justices Scalia, Thomas and Alito not wanting to take one of the cases coming up, such as the Utah case, in which a federal court held that the state’s ban on same-sex marriage violates both equal protection and due process guarantees, or the Ohio case, where a federal judge indicated he’s quite likely to reach that same result as to Ohio’s law.  If lower courts are going to start siding with same-sex marriage proponents, and start legalizing same-sex marriage as a result of court order in places such as conservative Utah, then it seems hard to imagine Scalia, Thomas, and Alito not urging the Court to take the case.

So where’s the fourth vote?  I think Adam is right that Kennedy would rather let the issue percolate for a while (witness his convoluted opinion in Windsor not addressing the issue more straightforwardly). But Chief Justice Roberts is a different story.  He appears in Windsor to oppose judicial imposition of same sex marriage.  That’s where his sympathies are. The question is whether he pulls the trigger or not and votes to take one of these cases. Strategically, he could decide it is better not to vote to take the cases if he thinks, as many thoughtful observers do, that if Kennedy had to decide the issue, he would side with the right to same-sex marriage.

But that same strategic calculation which might lead the Chief not to vote to grant cert. could lead one of the four Court liberals to vote to take the case. That is, they too may want to force Kennedy’s hand, if they are confident in his vote.  If it only takes one of the four to join in a vote for cert., I think it is pretty likely to happen. The way it might not happen happen is if Alito, Scalia and Thomas all decide to vote strategically not to hear these cases.  I’m guessing they won’t be able to resist.

We may get a sense of all of this in a few days when the Court will rule on the request for a stay in the Utah case. The issue will go to Justice Sotomayor, and if she does not issue a stay herself, it will get referred to the whole Court.  We may get some statements from the Justices with respect to granting a stay.

It is fairly likely that the Court grants a stay to keep the status quo as things progress in the 10th Circuit.  That will buy the Court some time.  But not that much.  I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits.  There are just too many questions, and so much litigation, for the Court to avoid the merits for too long.

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