Alaska challenges galore: how to spell Murkowski

The Alaska Daily News reports.

I was hardly alone in predicting this might happen, but I'll say it anyway: I saw this coming.

Apparently, the Miller team is challenging every mis-spelled "Murkowski." On Martin Kaste's report for NPR last night, he mentioned that some of the challenges boiled down to difficult-to-read cursive handwriting. (New way to motive kids to work on handwriting: "You're practicing handwriting to save democracy!")

As a legal strategy, it makes sense: If the Miller team is going to make a legal challenge to the election in court, they need to make as many challenges as possible now. Once in the courtroom, they won't be able to add more challenges. So at this point, they're doing what they need to be doing.

I'm also curious, from a legal perspective, whether there is a Bush v. Gore type issue with equal protection in how votes are counted. Voters were told (or thought they were told) that some mis-spellings, and maybe even gross deviations from the proper spelling would be tolerated. And now it's looking like the counting methods may become far more strict. I wonder if there's a voter lawsuit in the mix? Look for it: the Murkowski camp will have, as a party to their suit, a voter who wrote "Lisa M" or "Lisa Merkowsky" on the ballot, suing against disenfranchisement. I mean, clearly they will have testimony from people saying: 1. I was told that Lisa M or "something close" would work; 2. I wrote "Lisa M" because I intended to vote for Lisa M, and 3. everyone else who wrote that intended to vote for her. But I think they will find voters to join the suit. Anyway, more to come, I'm sure.

Oregon in the news: Shock, shock that someone forges signatures...

Here.

Vote fraud is vote fraud, even if the initiative doesn't qualify for the ballot.

Oregon Ballot Initiatives: Voters face 11 Initiatives in 2010

Oregon voters will face 11 ballot measures in 2010; four have already been voted upon. Two were approved by voters in January, and two more, 68 and 69, were approved in June.

The November ballot contains 7 measures. (Some sites are listing the number as six, but I count seven.*) Oregon is one of five states with more than 10 measures in 2010, and is one of four states with a marijuana-related measure.

Here are the seven measures:

Measure 70: Expands the availability of home loans for veterans.

Measure 71: Changes the Constitution to require the legislature to meet every year.

Measure 72: Authorizes "lowest-cost borrowing" for the state's projects [that wasn't allowed before?]

Measure 73: Increases minimum sentences for repeat sex offenders and drunk drivers.

Measure 74: Provides for state licensing of marijuana farmers who can distribute marijuana for medical purposes.

Measure 75: Creates a 25% tax on gambling revenues; allows casinos in Multnomah County. 

Measure 76: Re-dedicates 15% of lottery revenue to parks.

As I noted earlier, Measures 73 and 76 appear headed to victory, and Measures 74 and 75 appear to be headed toward defeat. Measure 70 had good support in an August poll by Grove Insight. I haven't seen anything on 71, although I expect that it will pass.

*Updated: From what I can gather, two petitions were combined into Measure 75. Thus, five measures qualified for the November ballot, but will appear under four Measure Numbers. Measures 70 and 71 are "Legislatively Referred Constitutional Amendments"--written and passed by the state Legislature, pending approval by the voters.

Pre-emptive Lawyering: Oregon Governor

Both parties have hired attorneys to watch vote-counting activities in Oregon.

KATU reports.

The race is expected to be very close; it will be interesting to find out what the attorneys "see" while they're watching.

Oregon Ballot Initiatives: Latest Polls

The Oregonian reports. The short of it: sex offenders are bad, parks are good, pot is bad, casinos are bad.

Measures 73 and 76 appear to have adequate support for passage, with about 60% of poll respondents indicating support. Measure 73 imposes longer sentences for repeat sex offenders (and drunk drivers(!)). Measure 76 authorizes the continued use of lottery money for parks.

Measures 74 and 75 appear to be headed for defeat. Measure 74 would legalize medical marijuana dispensaries. Measure 75 would allow a casino to be built in Multnomah County.

Measure 73 has me curious: given the single subject rule, why is a law that increases sentences for sex offenders and drunk drivers allowed on the same measure. Expect a challenge if this passes.

Ballot instructions don't matter.

Posted on Hasen's ElectionLaw Blog... The instructions on ballots for the upcoming New York Governor's race have incorrect instructions:

In what appears to be yet another "royal screwup," the city Board of Elections printed a sample ballot that instructs voters to fill the "oval above" a candidate's name.

The correct oval is actually below each candidate's name.

Although it appears to be too late to fix the ballots, it apparently probably doesn't matter:

Neal Rosenstein, voting coordinator for the New York Public Interest Research Group, said the error won't have a large impact on voters because most don't even read the instructions.

Italics are mine.

Read more: http://www.nydailynews.com/ny_local/2010/10/22/2010-10-22_its_royal_screwup_redux_as_sample_ballots_are_printed_with_wrong_instructions_el.html#ixzz13OYbAwQq

Ballot Initiatives by the Pros, for the Pros

The New York Times recently ran this article about professional petitioners and ballot initiatives. As a legal matter, I am not certain how a professional petitioner differs from any other campaign worker, although it does somehow seem less appropriate... The impression I get from the article is the same that I have of the guys who stand in my local supermarket trying to get me to subscribe to the newspaper: a little pushy, and to be avoided at all costs.

The New Reality of Campaign Funding

HuffingtonPost discusses the "One-Person Funded Super PAC"

Back soon...

I haven't posted recently. I took a much-needed break to go to Italy, and started a few new posts, but they "grew in the telling" as Professor Tolkein once said, and got a way from me a little. More soon.

Update on worst person...

The subject of my last post has been placed on leave, and will apparently face a disciplinary hearing upon his return. He has also set his blog to "private," which it should have been in the first place.

Meet the worst person in the world

And, imagine him slightly worse, and slightly dumber, and you get Michigan's Assistant Attorney General, Andrew Shirvell. Watch this. Read Elie's description on Above the Law. Others have spoken out about this dope in far more eloquent and pointed expressions than I. Also, on a semi-personal note, having just fought my way onto the Oregon Bar, and knowing some very smart, well-intentioned people who are continuing to get there, that this person is a practicing attorney is mind-blowing.

Bar Exams: FAQ

So, the bar exam results are out in your state. Or they aren't, yet, but you're curious. Maybe you took the bar exam, or maybe your husband/wife/special someone did. And you want to make sense of this horrific experience. To make things simpler, I have answered some common questions about the bar exam.

1. Is the bar exam fair? Probably. If you passed, yes. If not, maybe.

2. How can I tell if I deserve to pass? They tell you when you get the results.

3. If I did not pass, how will I know what to improve? They tell you what you could have done better. Presumably, if you do those things, you will do better.

4. Does the bar exam measure legal knowledge? Not particularly.

5. Does a higher score translate into a "better" lawyer? Maybe. No one knows. They don't tell you your score, just whether you passed. So no one has any way of knowing the answer to that question.

6. I failed the first time, what can I do to improve? Do everything that you did well better, and the stuff you didn't do well, do it much better.

7. Does failing the bar mean I'm not as smart as my fellow law school graduates? Probably not. Does it mean I won't be a good lawyer or an effective advocate? Again, probably not.

8. Do good law students fail the bar exam? Yes. Famous law professors and Supreme Court justices failed the first time.

9. Do crappy law students pass the bar exam? Yes. Oh god, yes.

10. I mean, my cousin is an idiot, and he passed. I wouldn't trust him to button my suit, much less file it. Exactly.

11. Who got the best score in the state? No one knows.

12. I thought I aced it. Good for you. No one will ever know. Unless you didn't.

13. If I did really well, can I practice in another state? Only if you pass their bar exam, too.

14. Why does it take so long to publish results? Lawyers are not known for being sensitive.

15. I really think question #27 was ambiguous, and it's been bothering me. How can I find out the official answer? HaHaHaHaHa Releasing answers would cheapen the process.

16.  OK, you passed the bar exam, any advice on how to pass it? Study very very hard. Study some more. Listen to all advice. Ignore the stupid advice, but follow the good stuff. Pray, etc. Wish for luck.

17. I heard this year's test was harder than last years'. Is it getting harder? God, I have no idea. Once you figure out the rule in Dumpor's Case, they'll never ask it again.

18. I heard flashcards were a great mnenomic tool? Yes, they were.

19. I also heard flashcards were a huge waste of time. That, too.

And they say competition is good for the market...

The beer lobby is spending to oppose the California marijuana-liberalization initiative.

http://www.huffingtonpost.com/2010/09/21/this-buds-not-for-you-bee_n_732901.html

Hmmn.

Why Your Toaster Works Better Than Your Voting Machine

The Atlantic's politics blog offers this discussion.

The key?

"The instruments entrusted with our democracy, in other words, get less scrutiny than our toasters."

As a recent report from the Brennan Center for Justice argues,

"For the vast majority of voting systems in use today, manufacturers are not required to report malfunctions to any government agency, and there is no agency that either investigates such alleged failures or alerts election officials and the general public to possible problems."

The crux of the argument is that the US should either go big or go home when it comes to electronic voting machines. Either we go back to paper, flawed but with certain advantages, or invest in a system worthy of its importance to our democracy.

Lisa M... mis-spells her own name in ad!

It's true. In her first post-GOP write-in ad, her name is spelled incorrectly.

http://gawker.com/5644250/write+in-candidate-lisa-murkowski-misspells-name-in-very-first-ad

Unfortunately, it's made even worse by the fact that her name is used in a URL for her campaign website. A fast-moving individual, apparently not a fan of Lisa M., quickly setup a mocking page at the incorrect site. http://lisamurkwski.com/ is the "incorrect," but funnier, site.

So you always wanted to put an initiative on the Oregon ballot? part 1

Before I can discuss the process for getting an initiative on a ballot in Oregon, we probably need some preliminary explanations.

Referenda, Initiatives, Propositions, etc.
There are many different names for different forms of direct democratic procedures. The first thing to know is that there isn't one formal name for an election where individual voters, rather than the legislature, enacts law.

Many, as I just did, call it "Direct Democracy." Some prefer "Plebiscite," but that name seems too elitist to properly describe such a populist mechanism. (Plebiscite is also used to describe a particular type of ballot measure.) On the other hand, I do sometimes call the actual vote a "plebiscite," to distinguish it from an election, which implies candidates. Some writers call it "pure democracy," in the sense that having individual citizens vote on laws is democratic in the ancient Greek aspect of the term; I avoid it because while "pure" is used in the sense of "actual," it implies "free from flaw," which it isn't.

There are several basic forms of Direct Democracy: Recall/Retention, the Referendum/Referral, and the Initiative. Other sources describe and group them differently; for example Ballotpedia says that there are "seven generally acknowledged forms of direct democracy." It doesn't include retention elections, and groups/separates the categories based on other criteria.

More after the break...

More on Lisa M

A few followup items on Lisa Murkowski's write-in campaign for Senate in Alaska.

First, Slate's Explainer discusses the "How badly can you spell Murkowski but still have your vote count?" issue: What Happens If You Misspell A Write-In Vote? An interesting read, echoing what I discussed. From a journalistic perspective, I'm interested that they spelled out the "dirty version" of Sekula-Gibbs' name, rather than hinting at it.

Second, Rick Hasen on his Election Law Blog discusses why she's running as a write-in Republican rather than run "on ballot" as an Independent or pick up the standard of a third party. (There's no link to just the article).

Hasen notes that no less a political eminence gris as Cokie Roberts proffered a plausibly political, but clearly incorrect explanation for Murkowski running a write-in campaign. Roberts suggested on NPR that Murkowski made a decision to run as a Republican, rather than as an independent to show that she's the real Republican candidate, and will be a Republican if she is re-elected to the Senate. Plausible, but shows an interestingly myopic vision of election law.

Maybe not even myopic; perhaps completely ignorant of the more likely reason: Murkowski didn't have a choice. Murkowski wasn't allowed to run as a Libertarian, reports Political Wire (It's unclear from the report whether she requested either the ballot line or the meeting); and Alaska law prevents her from officially entering the race as an independent candidate. Alaska, like many states, has what is sometimes known as a "Sore Loser Law," that, one way or the other, prevents a candidate that loses a party primary from switching parties or running as an independent. Accordingly, Alaska requires that independent candidates must have registered before August 24, the day of the primary election, which prevents a loser from just adding themselves to the ballot. In Alaska, a losing candidate may only run as a write-in, unless another party had an officially-registered candidate who then withdraws; in that case, anyone may step into that candidate's shoes. Other than the Democrats and Republicans, only the Libertarians were running a candidate... thus, once the Libertarians spurned her, her only choice was to run as a write-in.

And, sorry, Cokie, write-ins don't have a party. (Although I agree that Murkowski's best bet is to run as the "real Republican" and hope that Joe Miller has an "I-dabbled-in-Witchcraft" moment.)


http://www.ballot-access.org/2010/08/25/alaska-politics-blog-suggests-new-candidates-could-conceivably-enter-u-s-senate-race/

Randy Barnett's Repeal Amendment

An interesting idea from Randy Barnett on The Volokh Conspiracy.  In a post titled The Case for a Repeal Amendment, Barnett proposes an amendment to the Constitution that would allow states to repeal federally-enacted laws.

Here is the wording of the amendment:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

My gut reaction is against the proposal, for political reasons, mostly that I'm no more confident of the wisdom of state legislatures than I am in the wisdom of Congress.

I have some legal reservations as well. Primarily, I'm not sure that it's necessary, even if one wants the "several states" to take a more active role in repealing national laws. Recall that under the current system, the "several states" already have the power to call a Constitutional Convention, and enact an amendment to the Constitution in the convention. Because the Amendment would have the power of law, it would supersede federal statutes. So I'm not sure why another Amendment is needed to give the states a power they have already.

However, I also have several more "practical" complaints about the proposal as written. In my discussion, imagine that Congress has enacted Statutes A, B, and C. 

1. "Particularly describe"? Does this mean that a legislature can say, "repeal Statute A?" Or do they have to specify provisions of the law they want to repeal?

2. Changing laws: Suppose that ten states pass resolutions to repeal Statute A. In response, Congress passes a modified version, A1, that addresses complaints raised by proponents of repeal in the states. However, another 25 states pass repeal resolutions of their own, opposing the new version of Statute A. Do the first ten states' votes for repeal count? They repealed a different law.

3. Additional Laws: Similar to the above scenario, can Congress pass a new, but related, Statute A-1 after Statute A has been repealed? How long does the "ban" on the subject matter of Statute A last? How many states must pass a repealing-the-repeal resolution? Is the statute un-repealed after the total number of states supporting repeal falls below the 2/3 mark?

4. Single Subject Rules: Many states restrict individual acts of legislation to a "single subject," although there is a wide variation of interpretation and strictness of enforcement from state to state. Does the Repeal Amendment authorize state legislatures to pass a single resolution to repeal A, B, and C regardless of their single subject rules?

5. Overlapping Resolutions: Ignoring the single subject question for now, say that 20 states pass resolutions to repeal A and B, and 17 (or whatever makes 2/3rds) pass resolutions to repeal B and C. Is Statute B repealed?

6. Ballot measures: The amendment as proposed specifically mentions legislatures. But can a state that augments its legislative process with direct democratic processes (like initiatives) pass a repeal via popular vote? And, perhaps splitting too many hairs, what about states with a "referendum" process. A referendum is a bill passed by a legislature, subject to popular approval in the next election. Does that count?

Anyway, my primary opposition is based on my personal politics as much as anything, but I'm also concerned about the legal/constitutional questions such an Amendment would entail.

UPDATED

A few other blogs have covered this, and have raised some of the same questions, and some different ones.

The Big Think notes in a post titled Repealed that they support the idea, apparently without reservations ("I can't think of a downside.") However, their commenter "Friend Daniel" lists several, which I quote verbatim:

"Initial thoughts on the repeal amendment, which I hadn’t heard about until reading your post. Since my reaction is entirely negative, I’ll present this as a list of reasons not to pass the amendment. And since I’m at work I won’t do too much explicating of my points:

"1) As an occasionally amused and often exasperated observer of the goings-on in Austin, I don’t trust state legislatures to act more wisely or judiciously than Congress, and I certainly don’t consider my state rep to be a more reliable proxy for my voice than my federal rep.

"2) Related to the first point, why is one group of elected officials to be preferred over the other? You might call this a problem of democratic epistemology: How do we know which is the “real” will of the people? The answer is that we don’t, and we don’t get closer to it by adding to the already maddening difficulty and complexity of getting legislation passed.

"3) Congress works on legislation that is national in scope. State legislatures are (quite properly) only concerned with how things affect their state. Giving states veto power over federal actions blurs the lines of authority and political accountability.

"4) In practice it would likely never or almost never be put into practice, but in the meantime it would turn every contentious federal issue into an occasion for posturing and spluttering on the part of state pols, eating up valuable time and energy from our already stretched-too-thin state legislatures.

"5) Special interest groups operate with considerably less transparancy at the state level compared to the federal level.

"6) We’ve already got a mechanism for how to deal with massively unpopular legislation. We vote the responsible parties out of office.

"7) It isn’t clear to me that we need to be able to veto unpopular legislation. Unpopular legislation that turns out to work will be a good thing. Unpopular legislation that doesn’t work can be repealed through the normal federal legislative process."

Anyway, good food for thought.

Why So Socialist?

Although I was born in New York, I spent enough of my formative years in Utah, known, apparently, mostly for labyrinthine liquor laws. The reputation is both exaggerated and founded in reality.  Not having lived there for a while, I haven't thought much about Utah laws from a political/legal standpoint. I saw this article in The Economist the other day and I've been wondering on and off since why our most "conservative" states tolerate such blatant socialism.

Basically, in nine states, the government maintains a direct monopoly over liquor sales.  As the article points out, "these lonely outposts of American socialism are not the country's most liberal states." In fact, in the three most conservative states in the country, Idaho, Alabama, and (yes) Utah, the state government controls all access to wine and hard alcohol. [Utah allows markets to sell 3.2 beer; I am not sure about the exact situation in either Idaho or Alabama]. Even more, they do not merely control access; they are the sole purveyors of spirits--in short, the governments of Utah, Alabama, and Idaho are commercial enterprises. Socialism. But they HATE socialism in Utah, Alabama, and Idaho, where most politicians stand so far to the right that they complain that the NRA's stance on gun rights is too soft. How the heck did this happen???


Before I digress into the political/legal issues, I will skip ahead to the end of the story: Ultimately, 1) the states need the revenue; and 2) the states control sales because it limits access. Yeah, I know, #2 is kinda obvious, but remember that there are other ways to control access, such as raising taxes or limiting store hours, etc. I'll get to that in a bit.


More after the Jump...

Addition to previous post

In a related event, the Campaign Legal Center has accused (well, is seeking a public explanation) of comments by FEC employees that the FEC is no longer regulating "express advocacy" in campaign communications. In the complicated world of election law, an advertisement that contains words of "express advocacy" may be subject to some regulation, but "issue ads" (which are theoretically educational) may not be regulated.

As an aside, the meaning of "express advocacy" has vexed legal scholars, including the Supreme Court, for the last 40 years, since the test was inaugurated. Some use a "magic words" test, that using certain words--"vote for X" "elect X," "defeat X" etc. are per se express advocacy, and no other words or combinations of words may be regulated in any fashion. Others use a more functional test, arguing that where the words are understood as advocating for defeat or election of a candidate ("If you love freedom, call X and tell him you oppose his voting record!") that is sufficient to support regulation. A recent formulation, in Wisconsin Right to Life, created a toothless variation, that only where the words cannot be understood as anything but calling for the election or defeat of a candidate, then the words are not advocacy and may not be regulated.

OK, back to the Campaign Legal Center's complaint.

Basically, a staffer for the FEC was quoted as stating that an ad, paid for by the Chamber of Commerce, asked voters to "Help" one candidate, did not fall into any of the categories above (magic words, functional, no other interpretation), and therefore would not be investigated. Clearly, the Campaign Legal Center is not amused by this development. The Chamber of Commerce has been skirting the tax-exempt/advocacy regulations for some time... will add updates as I hear them.

Group seeks IRS Audit of US Chamber

I mentioned in a recent post that the IRS has been placed in an awkward situation by the recent Citizens United decision. Basically, organizations of all stripes are now allowed to spend essentially unlimited funds on election-related spending. The wisdom of that decision can, and has, been widely debated.

 A side effect, however, results from the Tax Code. In brief, non-profit organizations, registered with the IRS as a 501(c) organization (usually a 501(c)(3), or social welfare entity) may not engage in certain types of activities, lest they lose their non-profit status. Clearly, acting as a commercial (i.e., selling something) is a violation. Less obviously, however, is that 501(c) organizations may "educate" on issues related to their purpose (i.e., a group dedicated to opposing flourination of water could run ads opposing a referendum on that subject) but may not run ads for or against candidates. (This is further complicated by various "magic words" tests of what it means to be "for" or "against" a candidate... "defeat Joe Smith"? or "Call Joe Smith and ask him why he's not getting your vote"? but I digress...)

Anyway, this issue is even further complicated by the complex web of organizations (on both sides of the ideological aisle) who pass funds from one another. Tracking such funds, which may start as a charitable contribution, and then pass to increasingly less tax-exempt organizations, eventually ending up being used to support pure lobbying efforts (and therefore not tax-exempt). Even more complicated is that organizations can say that a contribution was used for organizational (i.e., salaries) expenses but not political outreach, even though the contributor was clearly making the donation for political purposes, and not to support the staff. (Again I digress). 

The net is that even though we have a government entity called the Federal Election Commission, only the IRS now has the legal mandate to track such funds. Not surprisingly, the IRS is not eager to embrace this role; it's not geared towards figuring such things out.

However, some groups are beginning to publicly call for IRS investigations into the questionable spending habits of some of these groups. One, the Nonprofit Law Prof Blog (which I believe means that they teach the laws related to running non-profit organizations), has formally called for an audit into one such web of expenditures.

Group Seeks Audit of U.S Chamber of Commerce and Affiliate

A group called U.S. Chamber Watch (“Chamber Watch”) has asked the Internal Revenue Service to audit the Starr Foundation, the National Chamber Foundation (“NCF”) and the Chamber of Commerce of the USA, also known as the U.S. Chamber of Commerce (the “Chamber”).  The Chamber is an organization exempt from federal income tax and described in Section 501(c)(6) of the Internal Revenue Code, and  NCF is a tax-exempt affiliate of the Chamber described in Code section 501(c)(3).   In its letter to the IRS, Chamber Watch asserts that the Starr Foundation, a private foundation established by AIG founder Cornelius Vander Starr, appears to have acted contrary to the requirements of Code section 501(c)(3) by making $19 million in grants to NCF, which then used the money to “finance NCF’s transfer of at least $18 million” to the US Chamber of Commerce.   The letter further states that “it appears that charitable funds” were eventually used to support the Chamber’s “lobbying and electoral agenda.”   As reported in the New York Times, the Chamber’s chief financial officer, Stan Harrell, maintains that the Chamber's legal and accounting advisors have reviewed the Starr Foundation funding and found that it complied with all relevant tax law.  He is further reported as saying, “Chamber Watch, which was created by a federation of five unions called Change to Win, was simply trying to create trouble for the chamber because of its opposing political views.”

To be continued, I'm sure...

The Big Murkowski: Broad vision of "intent" in write-in ballots

Think back to November, 2000... in the contested election between Al Gore and George W. Bush, in Florida, there was a little controversy over "voter intent." While most people remember "hanging chads," that argument was a single facet of a more complicated issue: On a ballot, how do we know what the voter intended to do? Thus, we argue about a hanging chad--did the voter intend to vote for the candidate, or did the voter begin to vote for the candidate and changed their mind, leaving the chad still attached?

Well, quick, spell Lisa Murcowski Murkowsky Murkowski. Murkowski (I checked) is the recently defeated incumbent in a Republican primary for Senate in Alaska. Word on the street is that she may run a write-in campaign. In a tough Bush v. Gore world, imagine the conflicts over a requirement that a written-in candidate's name be spelled perfectly, or how to count an ambiguously-spelled name Apparently, in Alaska, even though the Murkowski family has held a statewide political office for 20+ years leaves open the very definite possibility that her name will be spelled wrong often enough that it might affect the election results.

Or not. According to this report in the Alaska Daily News, the "Big Murkowski" has been thinking about this very problem, and the Alaska Election Board has been pondering it as well. Apparently, just writing "Lisa" probably isn't enough, but "Lisa M" would probably register. What about Lisa N? They've also ruled out stamps and stickers with her name, although I'm not sure what they'd do if someone went ahead and did that--placed a little "Lisa M" sticker on the ballot. Not sure what this says about the spelling skills of Alaskans--as I mentioned, there's been a Murkowski in a statewide office for the past 30 years or so, you'd think they could spell it.

Also, it seems strange to simply allow "Lisa M." I would think that voters should at least make an attempt at spelling her name--allowing Lisa M in advance seems like a big cop-out to me.

(Athough, in full disclosure, I can't spell Kulongoski without looking it up). I am also reminded of a funny-ish story from Texas in 2006, when Shelley Sekula-Gibbs ran for Congress, and failed. Ms. Sekula-Gibbs, you almost certainly won't remember, was the Michelle Bachmann-esque crazy who took over Tom DeLay's seat for a few weeks after he resigned. She promptly lost the seat, although the timing of DeLay's resignation required that she run by a write-in campaign. (She was famously insane and awful; at one point in her 7-week reign, most of which was after the election, she sent out a press release touting her attendance record to meetings).  Wonkette reported with relish both her antics and the unfortunate spelling capabilities of her constituency, noting that among the written-in spelling variations were, 

"Kelly Segula Gibbs, Snelly Gibbr, Schikulla Gibbs, Sheila Gibbs, Shelly Schulla Gibbs, Shelly Gibkula and, by someone who obviously never wanted the joy of using the machine to end, ShelleySkulaGibbsssss." 

Those were the name accepted by the Elections Office. Another name (unclear if it was accepted as a vote) was clearly NSFW. I've redacted the letters, but you can take a guess (or follow the Wonkette link):

"The absolute best one — perhaps the best political name of all time — was (we are not lying) “Shelly DraculaC[XXX] Gibs.” It counted. And we will say it over and over again until the end of DraculaC[XXX]’s all-too-brief term."

IRS as Campaign Watchdog

One of the most interesting results of the Citizens United decision is that the IRS may now be the primary arbiter of proper and improper campaign donations.

The Washington Post reports.

Basically, the IRS must now distinguish between 1) "genuine" tax-exempt campaign spending, whose purpose is to educate (and thus persuade) the electorate; 2) lobbying, which is not tax exempt; and 3) commercials, which are also clearly not tax-exempt. The issue is complicated because not just the nature of the communication is at issue; in some cases, organizations are hiding behind tax-exempt status to encourage donations to their organizations. Before CU, the FEC had some ability to limit such donations. Today, however, it is up to the IRS to determine whether the organization is a true "social welfare" or "educational" organization, or merely a front for corporate interests. Furthermore, the IRS has little or no authority to require disclosure of sources of financial support.

A bill that would require enhanced disclosure of both campaign expenditures and contributions failed in the Senate this summer.

Record Spending on Campaigns in NW... just the beginning?

Despite 2010 being a "midterm" year, Jeff Mapes reports that Washington is on course to break the previous record for spending on a single ballot measure. The projected spending also shatters the previous Oregon record.

Fairly incredibly, the American Beverage Association has donated nearly $14.5 million to defeat a proposed 2 cent tax on cans of soda. Supporters of the increase have raised less than $500,000.

With the looser laws regulating campaign and election-related spending after Citizens United, I believe this is a harbinger of things to come.

Oregon Redistricting Measure fails to make ballot

Reported in late July by Oregon Live/The Oregonian.

Although I'm not familiar with the details of the proposed measure, in a broad stroke, it would create a panel of retired state judges to oversee the state political districting process. Under current state law, the process is up to the Legislature (who, of course, are the ones who benefit from owning the process). The process has become increasingly political (and, as with most things "political" recently) correspondingly less cordial.

In general, passage of such a law, placing oversight in a relatively neutral third-party's hands, would be a good thing. Oh well... Next time, count your signatures better, guys!

Lisa M is enough.

http://www.adn.com/2010/09/11/1449989/alaska-ear.html

The Single Subject Rule

Most states with ballot initiatives follow some variation of the Single Subject Rule. The Rule has been criticized by me (and countless more luminous figures) as unmanageable and, indeed, unmanaged. Critics of many different ideological bents seem to agree that the SSR gives "activist" courts an excuse to overturn voter-enacted legislation without directly addressing the merits of the law.

I've attached an interesting debate between several well-known scholars of election law which has taken place in the Columbia Law Review over the last few months. I hope to add a few comments of my own, as well.

First, in April, the Columbia Law Review published this article, "A Theory of Direct Democracy and the Single Subject Rule," by Robert D. Cooter and Michael Gilbert, 110 Colum. L. Rev. 687 (2010). 

A week later, Richard Hasen and John Matsusake posted this reply to the Columbia Law Review "Sidebar," which was respectfully critical of Cooter and Gilbert.

Most recently, Cooter and Gilbert published a brief note in reply to them. 

Citizens United, free speech, and regulated speech

Jim Gardner has posted a draft to SSRN, called "Anti-Regulatory Absolutism in the Campaign Arena: Citizens United and the Implied Slippery Slope."


I haven't read it yet (but look forward to it). The abstract says: 

Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And how reasonable is the Court’s apparent belief that any movement at all down the slope will result in an irreversible slide into the disfavored outcome?

Although the evidence is scanty, the Court’s behavior appears to be motivated by a deep-seated fear of loss of democratic self-rule, especially a fear that incumbents will use government power to entrench themselves in office, resulting in a catastrophic and possibly irremediable loss of popular sovereignty. This is without question a serious and legitimate fear. Justification of the Court’s rigid response to this fear, however, requires more: it requires the existence of some mechanism by which permitting even a modicum of government regulation of campaign spending might plausibly lead down the slippery slope to political slavery. Because slippery slope arguments nearly always rest on speculative empirical premises, they rarely can be rebutted in any formal sense. Nevertheless, slippery slope arguments can be more or less plausible, and I argue that none of the possible mechanisms of descent down the slope is sufficiently plausible to justify the Court’s uncompromising, absolutist stance against regulation of campaign spending.

As he notes, we allow a broad range of regulation of all sorts of speech. Perhaps the most notable exception to this tolerance is the Supreme Court's apparent complete lack of tolerance for regulation of election-related speech. Plus, I'm always a sucker for a slippery slope argument.

From Mirror of justice

...A blog dedicated to the development of Catholic legal theory. "Citizens United: Main Street v.Wall Street."  http://mirrorofjustice.blogs.com/mirrorofjustice/2010/08/citzens-unitedwall-street-v-main-street.html

Paper on Judicial Interpretation of Initiatives

I wrote this paper early this year about judicial interpretation of voter-enacted legislation. The paper has its flaws, and is a work in progress (I hope) but just in case someone is interested...

http://www.scribd.com/doc/36305435/Jealous-Guardians

The Oregon Independent Party

OPB reported on July 19, 2010 on voter confusion between being independent and being a member of the Independent Party.

http://news.opb.org/article/9096-oregon-voters-flock-independent-party-whether-they-mean-or-not/

Sometimes a bright line rule has drawbacks...

“It’s a clear test….It’s also an idiotic test.”

—	California Fair Political Practices Commissioner Beth Garrett, on the “Magic Words” test for campaign speech.