Monthly Archives: September 2015

“Big crowd expected for Citizens United argument”

At the Lectern:

There will likely be lots of people attending next week’s argument of Howard Jarvis Taxpayers Association v. Padilla, the case to decide whether the Legislature can ask the voters to give their advisory opinion — through an initiative on the ballot — whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision.  The California Clean Money Action Fund is encouraging its supporters to attend a pre-argument rally outside the court and to then “pack the hearing room” for the purpose of, as an email announcement states, “show[ing] the justices how many Californians demand our right to vote on Prop 49.”

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Interesting Turn in Kelly Horwitz Election Contest

Back in 2013 I wrote about disturbing allegations of vote buying involving sororities and fraternities on the University of Alabama campus in connection with a local board of education race. The candidate involved is Kelly Horwitz, who is married to U of A law prof Paul Horwitz (who wrote a letter to the Alabama faculty about the incident).

Kelly Horwitz lost her election contest at the trial court level, but today the Supreme Court of Alabama reversed and sent the case back to the trial court for “Phase II” additional factfinding for the election contest.

However, the state supreme court did not agree with Horwitz on the vote buying and coercion allegations.  Instead, it found that there were a number of illegal votes cast by college students who had not properly established residency due to their failure to show their intent to remain in the area after graduation. This basis for the ruling prompted a dissent from two Justices, who believe it is going to make it harder for students to vote in Alabama generally.

So now we have what appears to be a good result (because of good evidence of vote buying) but based upon troubling reasoning (about college student residency) and an even longer wait for this case to be resolved. We will see if this case gets resolved before the term at the Tuscaloosa Board of Education comes to an end.

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“Voter ID and driver’s license office closures black-out Alabama’s Black Belt”

Kyle Whitmore:

The Alabama Law Enforcement Agency’s website says their office at the Clarke County Courthouse is still open, but soon a lot of others nearby won’t be. On Wednesday, the agency announced that it would close 31 offices throughout the state, leaving 29 counties without a place where 16-year-olds can take a driver’s test, whether they pass on the first try or not.

That’s an inconvenience.

But there’s something bigger happening here.

In 2011, Alabama lawmakers approved the state’s voter ID law, making it illegal to vote in Alabama without a government-issued photo ID.

For most folks, that’s a driver’s license.

In those 29 counties you might be able to register at the courthouse, but you won’t be able to cast a ballot there unless you have that ID.

That’s not just an inconvenience. That’s a problem.

But it gets worse.

Look at the list of counties now where you can’t get a driver’s license. There’s Choctaw, Sumter, Hale, Greene, Perry, Wilcox, Lowndes, Butler, Crenshaw, Macon, Bullock …

If you had to memorize all the Alabama Counties in 9th grade, like I did — and even if you forgot most of them, like I have — you can probably guess where we’re going with this.

Depending on which counties you count as being in Alabama’s Black Belt, either twelve or fifteen Black Belt counties soon won’t have a place to get a driver’s license.

Counties where some of the state’s poorest live.

Counties that are majority African-American.

Combine that with the federally mandated Star ID taking effect next year, and we’re looking at a nightmare.

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“Watchdog: Top Secret Service official wanted information about Chaffetz made public”


The Secret Service’s assistant director urged that unflattering information the agency had in its files about a congressman critical of the service should be made public, according to a government watchdog report released Wednesday.

“Some information that he might find embarrassing needs to get out,” Assistant Director Edward Lowery wrote in an e-mail to a fellow director on March 31, commenting on an internal file that was being widely circulated inside the service. “Just to be fair.”

Two days later, a news Web site reported that Rep. Jason Chaffetz (R-Utah), chairman of the House Oversight Committee, had applied to be a Secret Service agent in 2003 and been rejected.

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Quote of the Day, Super PAC Noncoordination Coordination Edition

“Essentially, it inoculates a case of coordination by making it public….As long as it’s not hidden in a ‘Where’s Waldo’ game and meets a reasonable definition of being public, it is a way to avoid running afoul of the coordination rules.”

–Attorney Ken Gross, quoted in NYT’s Carly Fiorina’s ‘Super PAC’ Aids Her Campaign, in Plain Sight

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Bauer on Hasen on the Roberts Court at 10 on Campaign Finance


In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful.Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.

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McGinnis on Hasen on the Supreme Court at the 2016 Election

Responding to my piece @TPM, John McGinnis says I’m further politicizing the Court. I’m afraid that horse left the barn long ago, and no amount of originalist scholarship will change that. As I write, regardless of methodology (Alito, for example, is no originalist), it has become increasingly true that Democratic- and Republican-appointed Justices reach results that are different from one another on the most contested issues.

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“Supreme Court Protesters Take First Amendment Challenge to Court”

BLT on the @99Rise campaign finance protestors:

Can a whisper be disruptive? When does speech become loud? A federal district judge in Washington considered those questions on Tuesday in a constitutional challenge to a ban on protest activity at the U.S. Supreme Court.

Five protesters charged with disrupting Supreme Court arguments on April 1 are challenging a law that bans certain types of disruptions and demonstrations inside and outside of the court. U.S. District Judge Christopher Cooper was skeptical that the protesters could challenge sections of the law they weren’t being prosecuted for—provisions, for example, that deal with conduct outside the court.


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“Super PAC Contributions Can Be Considered Bribes: Judge”

Paul Blumenthal for HuffPo:

A district court judge on Monday dismissed four corruption charges against Sen. Robert Menendez (D-N.J.) and his donor Salomon Melgen, but denied motions to toss out other charges including, notably, the senator’s solicitation of contributions for a super PAC.

Lawyers for the senator had asked the court to dismiss charges related to Menendez’s solicitation of $700,000 from Melgen for Senate Majority PAC, a super PAC run by former aides to Sen. Harry Reid (D-Nev.) that made independent expenditures to support Menendez’s 2012 reelection.

The basis for dismissal offered by Menendez’s lawyers were the Supreme Court’s 2010 Citizens United and 2013 McCutcheon decisions. Those two cases redefined corruption as only explicit bribery, excluding influence and access. The senator’s lawyers argued that this redefinition of corruption and Citizens United’s declaration that independent expenditures “do not give rise to corruption or the appearance of corruption” provided freedom of speech protections for all “efforts to influence and obtain access to elected officials,” including any campaign contribution.

Judge William Walls disagreed, ruling that the charges related to the super PAC contributions made by a corporation run by Melgen and solicited by Menendez would stand. In his opinion, Walls writes that “the Constitution does not protect an attempt to influence a public official’s acts through improper means.” (Read Walls’ decision here.)

I’m quoted in the article saying that there is no real tension between the logic of Citizens United and this holding.  One can bribe a Senator by promising to give money to the Senator’s mother. Even though the Senator cannot control the mother’s spending, if the Senator subjectively values the money given to the mother then there can be a bribe.

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