Election Law

The point I was making in my book in mentioning the Crawford case was not that the decision was right or wrong … but that in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another.

– Judge Richard Posner, backtracking a bit from his earlier comments suggesting that he now feels he wrongly decided Crawford v. Marion County Election Board when he noted in his book Reflections on Judging (affiliate link) that empirical evidence, unavailable in the 2007 case, has mounted that voter ID laws may suppress voting more than prevent fraud.

* A Houston couple is suing Carnival Cruises for stranding them on that infamous Poop Ship. Except they were never on that ship. [Houston Chronicle]

* Herman Cain has figured out the culprit behind the sexual harassment allegations that plagued his campaign. It was the Devil! Maybe O.J. should look into where the Devil was when Ron and Nicole were killed. [Talking Points Memo]

* In the running for the worst company name ever: “Dis Is We Thing, Inc.” As always, Above the Law is brought to you by They It Is, LLC. [Rapaport Law Firm]

* The mixologists behind “The OxyContin” cocktail have renamed it “The Cease and Desist” after the pharmaceutical company that makes OxyContin shot off its cease and desist letter. Because this cocktail was more damaging to their reputation than being one of the most used and abused drugs on the market. [Forbes]

* People unfairly zero in on the personalities behind information leaks rather than the substance of the leaks themselves. I don’t know about that… I mean, The Fifth Estate bombed. [Politix]

* The new Phoenix Wright: Ace Attorney game is coming to America. I gather you can yell “Objection!” at your Nintendo DS and it responds. Anyway, here’s the review. [GameSpot]

* Down in Texas, Judge Sandra Watts got a taste of the new draconian totally fair voter ID requirements when election officials tried to block the 49-year veteran of the voting process from voting because her maiden name was on her ID. Thankfully for Judge Watts, she understood the law a little better than the poll workers. [ThinkProgress]

* Mike Lickver, whose legally-inspired music videos have graced these pages a couple of times before, has a new video. It’s not legally-themed at all, but he’s a rapping lawyer, so we give him a pass for venturing out into other themes. Video after the jump…

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* Belgium has captured a real-life pirate king! But pirate kings just aren’t what they used to be. Something tells me Blackbeard wouldn’t have gone down because somebody said, “Hey, come back to England so we can make a movie about you.” [The Volokh Conspiracy]

* After a roller coaster malfunction killed a passenger, Six Flags responds by pointing the finger at someone else. They didn’t design or build the ride… they just bought it, promoted it, operated it, and profited off it, but they did not design or build it. [Houston Chronicle]

* At oral argument, Justice Scalia ripped a lawyer for thinking the Fourteenth Amendment was designed to protect minority rights against a white majority. As Scalia notes, “that was the argument in the early years…. But I thought we rejected that.” Leave it to Justice Scalia to point out that no one makes decisions based on the publicly known original intent of the drafters of constitutional provisions from 150 years ago. That would just be silly. Now, if we’re talking 200 years ago… [Josh Blackman's Blog]

* A Texas judge is reprimanded for trying to pull strings for a friend. Unfortunately, it seems like he’s also really bad at pulling strings. [Legal Juice]

* Mitchell Silberberg & Knupp has started a fashion industry law blog. Ooh Law Law. Oh, I see what you did there. [Ooh Law Law]

* Judge Posner, who authored the decision that framed the entire voter ID debate by casting doubt that the laws could be used to disenfranchise voters, tells HuffPo Live’s Mike Sacks that he was completely wrong. Judge Posner explains that events have confirmed that voter ID laws are really all about disenfranchising poor and minority voters. Ever the empiricist that Posner guy. Full video after the jump… [New York Times]

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* Who says bipartisanship is dead? Senators McCain and Gillibrand hammer Obama’s nominee for Navy Undersecretary. Gillibrand went after her specifically over prosecuting sexual assaults. [Breaking Defense]

* Lawyers per capita by state. For everyone who says lawyers make the world worse, note that Arkansas has the fewest lawyers per capita and do with that information what you will. [Law School Tuition Bubble]

* A bunch of rabbis were arrested for plotting to kidnap and torture a guy into granting a Jewish divorce. This is a thing? [Wall Street Journal]

* Professor Larry Lessig thinks the administration should have made originalist arguments in the McCutcheon case to salvage campaign finance limits. First, I don’t see why this would have worked. Second, someone in Washington has to be an adult and resist the urge to make stupid arguments just because someone might listen. [The Atlantic]

* An agent is facing 14 felony counts for giving improper benefits to college athletes. For all the alleged cheating, you’d think UNC would be better at football. [Forbes]

* A Texas judge ordered a teen to move back in with a sex offender. This was a poor decision. [USA Today]

* Upon hearing former NYC Mayor David Dinkins saying, “You don’t need to be too smart to be a lawyer, so I went to law school,” the dean of New York Law School said, “So you went to Brooklyn Law School?” Which of course Dinkins did. What is wrong with NYU’s Tribeca campus? [NYLS (exchange begins at 23:00)]

* Is this related to the law? Not really. Is it the cast of Archer doing the video of Danger Zone? Yes…

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This week, the Supreme Court heard oral arguments in McCutcheon v. FEC. In McCutcheon, the Court will rule on whether certain campaign finance restrictions violate the First Amendment. ATL’s Joe Patrice offered his thoughts on the oral arguments yesterday. Today, I offer an alternative perspective.

Currently, byzantine election laws restrict the total political contributions that a person can make in a two-year period, as well as the number of candidates a person can contribute the maximum amount to. The plaintiff, Shaun McCutcheon, is a suburban Alabama businessman, the owner and founder of an electrical engineering firm. McCutcheon wanted to contribute $1,776 (a very patriotic sum, indeed) to 27 candidates across the country. Each of those individual contributions in isolation was legal, falling below the $2,600 maximum amount allowed for individual contributions. Yet, had McCutcheon done so, his total contributions would have run afoul of the maximum total allowed, currently $48,600.

Supporting political causes and candidates of your choice is an exercise of your First Amendment rights. Like all constitutional rights, though, it is subject to an overriding compelling governmental interest. In the case of campaign finance restrictions, your speech rights are trumped by the government’s interest in preventing political corruption or the appearance of political corruption.

Here, McCutcheon was expressing his political values, innocently — even laudably — participating in the democratic electoral process as he contributed up to 2600 bucks to individual candidates . . . until he supported one candidate too many. Suddenly, the First Amendment no longer safeguards his political expression. Suddenly, the threat of corruption or the appearance of corruption is so great that democracy just cannot stand if Shaun McCutcheon is allowed to give a penny more to support a candidate who shares his values….

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Supreme Court arguments are off and running, and the Supremes wasted no time in getting to the fun stuff. In this instance, it’s McCutcheon v. FEC, the case billed as Citizens United II: Electric Boogaloo. The conservative wing of the Court is expected to side with McCutcheon in its continuing war to make American elections safe for multi-millionaires.

Anyway, the oral argument was marked by the usual humorous sniping amongst the justices and lots of fun exchanges where counsel and the conservative justices worked overtime to subordinate reality to ideology. Up to and including Justice Scalia arguing that $3.5 million isn’t that much money for one individual to spend on an election.

Here are 3 immediate, largely stream-of-consciousness thoughts based on reading the transcript (available at the end of the post) coming out of this oral argument:

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* Dr. Shiping Bao, the medical examiner in the Zimmerman trial, claims that Florida state prosecutors were biased against Trayvon Martin and purposely threw the case and now he’s suing. While it’s hard to believe a prosecution could be that bad absent purposeful mismanagement, Bao’s allegations conveniently surfaced right after he was fired. [News One]

* An explanation of what happened in the Colorado recalls last night. Basically, David Kopel argues that it was a victory for the Second Amendment and the Fourteenth Amendment. It was also a victory for the idea that “democracy” should be replaced by “scheduling off-elections to minimize the representative sample of the voting populace.” Yay! [The Volokh Conspiracy]

* Maybe law clerks shouldn’t answer the phone. [Judicial Clerk Review]

* Horn-honking is “small town terrorism,” says man who probably didn’t look at a calendar when filing his lawsuit. [ABA Journal]

* “Every landlord’s worst nightmare” showing an epically trashed home is making the rounds. Is it a warrant for making it easier for landlords to bully all poor tenants? [Overlawyered]

* Continuing from above, the answer is “no” because this Hamptons rental story demonstrates that the ability to trash an apartment has nothing to do with your account balance. [Jezebel]

* Congrats to Jane Genova of Law and More on her personal blog being named one of the top online resources for public speaking. [Masters in Communication]

* Tomorrow at 2 p.m., Towleroad will be webcasting the first-ever ENDA Situation Room at New York Law School, discussing the Employment Non-Discrimination Act (ENDA). [Towleroad]

Off-year primary day was yesterday. For political junkies, last night was kind of like the Hall of Fame game that kicks off the NFL preseason and signifies that football is back. For non-junkies, last night was a pointless exhibition.

The big national story from last night was don’t f**k with the NRA. I think we all knew that already, but two Colorado Senators were recalled for passing tough gun legislation in a state with enough mass shootings to be a province in Syria. The always excellent Election Law Blog puts these results in context. Essentially, these votes will give purple state Democrats even more reason to react to the NRA like most people react to an armed mugger: “Please, take my legislative agenda, just don’t hurt me.”

So ends my coverage of mythical places west of the Hudson. Here in New York City, we had a pretty big slate of primaries yesterday. Every primary is a lesson for the politicians, but this election cycle was also a lesson for political prosecutors. Those who seek to rise to power based on their skills at seeking justice for aggrieved citizens can learn a lot from yesterday’s results.

See if you can finish the joke: A black guy, a police commissioner, and Eliot Spitzer walk into a bar…

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She’s basically Boss Tweed in Tuscaloosa.

Ed. note: Above the Law will not be publishing on Monday, September 2, in observance of the Labor Day holiday.

* Municipal election fraud is being alleged in Tuscaloosa after a sorority bribed people with free drinks to get a University of Alabama Law grad elected (defeating the incumbent, another lawyer — and wife of a UA Law professor). The big question here is how f**king terrible is voter turnout in Tuscaloosa that a sorority can rig an election? [AL.com]

* A banned food truck launched a First Amendment suit after officials banned the truck for using an ethnic slur in the name. I haven’t seen a food truck shut down like that since “Steak Me Home Tonight.” [WSJ Law Blog]

* The NFL looks to London. Tax laws are one of many obstacles. [Grantland]

* From partner to delivery boy. But hey, definitely go to law school kids! [St. Louis Post-Dispatch]

* A thorough look at the legality of the pending Syria strike. Obama administration addresses these grave concerns with the phrase, “Talk to the hand.” [Foreign Affairs]

* Even the election law controversies are bigger in Texas. The Department of Justice is currently planning to intervene in one lawsuit and file another against the Lone Star state over its voter identification law and redistricting plans. [National Law Journal]

* Here’s an especially helpful ruling for people who have been living their lives without landlines (so, basically everyone). You can gratefully thank the Third Circuit for allowing you to block those annoying robocalls on your cellphones. [Legal Intelligencer]

* Well, that was quick — a Biglaw pump and dump, if you will. After only a year, David M. Bernick, former general counsel of Philip Morris, is leaving Boies Schiller and will likely be taking a position at Dechert. [DealBook / New York Times]

* “[L]ife got in the way.” Who really needs loyalty in Biglaw these days? More than half of the nearly 500 associates and counsel who made partner in 2013 started their careers at different firms. [Am Law Daily]

* Another one bites the dust. John McGahren, the New Jersey managing partner of Patton Boggs, just resigned from an office he opened himself after some major attorney downsizing. [New Jersey Law Journal]

* “In a community of 98,000 people and 640,000 partners, it isn’t possible to say there will never be wrongdoing.” Comforting. Microsoft is under the microscope of a federal bribery probe. [Corporate Counsel]

* Ronald Motley, a “charismatic master of the courtroom” who founded Motley Rice, RIP. [WSJ Law Blog]

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