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Thursday, September 24, 2015

notes for an article

cu article yet.

What Citizens United says about voter ID applied challenges.

part 1 voter ID and remedies.
part II CU's discussion of applied versus facial challenges
part III my involvement in indiana's voter ID litigation.

part IV suggestions for going forward.

abstract:
while there have been successes, overall the litigation campaign against voter ID has been losing more than winning, and voter ID has spread faster than it has been contained by litigation.

there has been no coordinated national campaign against voter ID, but Hillary Clinton's campaign seems to be sponsoring Marc Elias's work which is bringing a new set of challenges.

this short paper explores the problems and opportunities of facial and as-applied challenges as strategies to oppose voter ID,
and looks to Citizens United for advice.
Citizens United took an as-applied challenge to independent expenditures by a non-profit corporation, and ended up issuing very broad relief, overruling Austin and freeing corporations to spend on political campaigns.

Recently I was rereading the case and for the first time caught its discussion of as-applied versus facial suits,and thought about how that applied to voter ID. 

I have been involved with voter ID litigation in Indiana, failing at least so far. I will discuss what I've tried, and why it didn't work.

I then discuss how I think as-applied challenges can be used to mount a broad attack on voter ID.

This paper is a belated response to (article about voter ID as-applied lawsuits)

What Citizens United says about voter ID applied challenges.

part 1 voter ID and remedies.
part II CU's discussion of applied versus facial challenges
part III my involvement in indiana's voter ID litigation.

part IV suggestions for going forward.

abstract:
while there have been successes, overall the litigation campaign against voter ID has been losing more than winning, and voter ID has spread faster than it has been contained by litigation.

there has been no coordinated national campaign against voter ID, but Hillary Clinton's campaign seems to be sponsoring Marc Elias's work which is bringing a new set of challenges.

this short paper explores the problems and opportunities of facial and as-applied challenges as strategies to oppose voter ID,
and looks to Citizens United for advice.
Citizens United took an as-applied challenge to independent expenditures by a non-profit corporation, and ended up issuing very broad relief, overruling Austin and freeing corporations to spend on political campaigns.

Recently I was rereading the case and for the first time caught its discussion of as-applied versus facial suits,and thought about how that applied to voter ID. 

I have been involved with voter ID litigation in Indiana, failing at least so far. I will discuss what I've tried, and why it didn't work.

I then discuss how I think as-applied challenges can be used to mount a broad attack on voter ID.

In 2005 the Indiana legislature passed the first photo ID requirement for voting, hereinafter called voter ID.
In 2006 two cases were filed against it in federal court in Indianapolis, one by the ACLU, the other by the Democratic Party.
I expected that these cases would be successful, because voter ID raises serious constitution problems. date the district court upheld the statute under the law review standard of Burdick v Takushi.
The case was appealed to the 7th circuit. When it became apparent that the 7th circuit was unlikely to rule in time for the 2006 general election, I filed suit in state court, seeking a TRO and preliminary injunction on behalf of myself and Joell Palmer.
Palmer had been a successful plaintiff in Edmond v Indianapolis, in which drug roadblocks were struck down. Palmer viewed voter ID as a similar unwarranted search, a roadblock at the polls.
 I am a member of the bar, focused on election law issues, but I would be the first to say I'm not a skilled lawyer. The story that follows is full of unforced errors on my part.
I had expected that I would be able to find competent co-counsel. Democratic Chairman Howard Dean had publicly stated that the party would fund lawsuits to overturn voter ID. No such help ever came.
 The trial court denied injunction and TRO without opinion. I petitioned the Indiana Supreme Court to take up the case, skipping the court of appeals, which it can do but generally doesn't. It declined. The Court of Appeals turned down the appeal on the grounds that A) the trial court hadn't given leave to appeal, which it hadn't, and B) the denial of a temporary injunction wasn't a denial of a temporary injunction. So they court got the procedural facts wrong, but by then it was too late because the election had taken place. 
The injunctive relief I had sought offer a range of options for relief:
that the ID program be halted altogether, that it be halted only in Marion County, or that Palmer and I be allowed to vote.
That case was later dismissed on the grounds that the complaint was too detailed and argumentative. That dismissal was erroneous, but I did not appeal.

At some point (date) a split 7th circuit panel led by Judge Posner had sustained the ruling below in the consolidated cases, 
My next step was  to submit an amicus brief to the 7th circuit, which had scheduled a vote on rehearing. In most circuits, amicus briefs are routinely accepted,and the parties routinely consent. The 7th circuit is different.


The state refused to consent. I filed a motion for leave to file, but I neglected to mention how the 7th circuit's ruling might be dispositive on my state case. That is among the few exceptions the 7th circuit allows for the filing of opposed amicus briefs.

Among the points I raised in the brief were
A) the standard of review was wrong
B) the panel completely ignored the state constitutional claims, which were substantial and supported by controlling authority.
C) the state claims could be certified to the Indiana Supreme Court.

Judge Posner denied the motion for leave to file. The court en banc split 5-5. I will never know if, had my brief been filed and read, it might have turned one vote and made it 6-4, and thus avoiding the Supreme Court's ruling in Crawford. Because the court split 5-5, the panel decision held, which was then appealed to the Supreme Court.
Judge Posner now admits he was wrong about voter ID, but no one has ever asked him if he thinks it was wrong to deny leave to file my brief.
In 2008, I filed a new suit, Stewart v Marion County Election Board. The state was notified, but declined to participate, running out its clock. The trial judge denied a TRO. 
I moved to consolidate the case with League of Women Voters v Rokita, which had been filed after mine and raised some of the same issues of state constitutional law, but the Indiana Supreme Court denied this motion. The Supreme Court clerk later denied my attempt to file an amicus in LWV. 
The county removed the case to federal court, where it was assigned to Judge McKinney. In  my previous encounter with Judge McKinney, he had chained together 5 legal errors to dismiss a case after sitting on it for 5 years, in a ruling later found erroneous by Judge Posner in Majors v Abell I @cite both, so it was not a receptive forum. 
McKinney denied a TRO and invited the state's participation. McKinney is a former co-worker of the AG's office and seems on good terms with them.
On election day in 2008 I went to try to vote at my local precinct. I was told that I could not vote, and was not offered even a provisional ballot. I then drove to Chicago to file an interlocutory appeal of the denial of the TRO. I had been told by the court's staff that I would not have to pay a filing fee for this motion, which turned out to be in error. I was still without counsel, doing this pro se. That appeal was denied in one page ruling.
I sought to amend the pleading to add the new facts of having been denied even a provisional ballot, but Judge McKinney denied that motion, and later ruled against me, cite, ruling, for example, that demanding my ID as a condition of voting was not a search for 4th Amendment purposes, and ruling that the 7th circuit had said in Crawford that voter ID was not a poll tax, to dispose of my 24th Amendment claim, although in Crawford there had been no 24th Amendment claim and its offhand mention of a poll tax was in another content altogether. I did not get an appeal in on time, due to other things going on in my life at the time.
   
I next filed a new suit based on the new facts at the 2008 general election, Stewart v Proffitt et al. It also was removed to federal court. Proffitt, the election official who told me I couldn't vote without ID and didnt even give me a provisional ballot, filed a false affidavit saying I was only there momentarily and left before she could hand me a provisional ballot. That was false, as I was there for about 12 minutes and we had an extensive discussion at which she was adamant that I couldnt vote. Under Indiana law one can be arrested if they linger at the polls for more than 15 minutes, and I used most of my 15 minutes.  The Obama justice department has not responded to my reporting of this perjury, even after Senator Coats sent them a letter asking them to look into it.  I did not make the deadline for opposing the state's motion for summary judgment, and based on the false facts and the previous ruling, judge Hamilton dismissed the case. For the 2012 and 2014 elections I tried to recruit other people to go file provisional ballots, but in the end did not succeed.   

Wednesday, April 15, 2015

The Supreme Court has consistently held that "an author's decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995). See also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 200 (1999); Talley v. California, 362 U.S. 60, 65 (1960).

Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009)

http://www.dmlp.org/sites/citmedialaw.org/files/2009-12-09-Order%20Denying%20Motion%20to%20Compel.pdf

Additionally, while applying this standard, the Court must keep in mind other First Amendment principles, such as the strict scrutiny applied to restrictions on political speech.' See McIntyre, 514 U.S. at 346-47. The Supreme Court has long held that discussions centered around
 governmental or political issues are the "core" or "essence" of the First Amendment and therefore restrictions on such speech must be "narrowly tailored to serve an overriding state interest." Id. Keeping the strict scrutiny of political speech restrictions in mind, the Court finds this is not the exceptional case that warrants disclosure of an anonymous speaker's identity. Id.



Sunday, April 12, 2015

United States Court of Appeals For The Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis, Missouri 63102 Michael E. Gans Clerk of Court VOICE (314) 244-2400 FAX (314) 244-2780 www.ca8.uscourts.gov March 30, 2015 Mr. Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 454 Whittier Street Saint Louis, MO 63108-0000 RE: 15-1645 John Doe v. Charles Weedman, et al Dear Counsel: The district court clerk has transmitted a notice of appeal in this matter, and we have docketed it under the caption and case number shown above. Please include the caption and the case number on all correspondence or pleadings submitted to this court. Counsel for the appellant has stated that an Emergency Motion will be filed in the appellate case upon docketing. Once the motion is filed, the case will be submitted to the court for review. Counsel in the case must supply the clerk with an Appearance Form. Counsel may download or fill out an Appearance Form on the "Forms" page on our web site at www.ca8.uscourts.gov. On June 1, 2007, the Eighth Circuit implemented the appellate version of CM/ECF. Electronic filing is now mandatory for attorneys and voluntary for pro se litigants proceeding without an attorney. Information about electronic filing can be found at the court's web site www.ca8.uscourts.gov. In order to become an authorized Eighth Circuit filer, you must register with the PACER Service Center at https://www.pacer.gov/psco/cgi-bin/cmecf/ea-regform.pl. Questions about CM/ECF may be addressed to the Clerk's office. If you have any questions about the schedule or procedures for the case, please contact our office. Michael E. Gans Clerk of Court EDG Enclosure(s) Appellate Case: 15-1645 Page: 1 Date Filed: 03/30/2015 Entry ID: 4259548 Case 2:15-cv-04054-DW Document 26 Filed 03/30/15 Page 1 of 4 cc: Mr. Grant R Doty Mr. John Andrew Hirth Mr. Andrew McNulty Ms. Ann Thompson Ms. Gillian R. Wilcox District Court/Agency Case Number(s): 2:15-cv-04054-DW
did today: looked up the TRO opinion and opp brief in john doe v weedman.
Defendants. ) ORDER On March 27, 2015, the Court presided over a hearing on Plaintiff’s Motion for Temporary Restraining Order (Doc. 2), Motion for Preliminary Injunction (Doc. 5), and Motion for Leave to Proceed Under Pseudonym (Doc. 3). The purpose of this Order is to memorialize the rulings made at the hearing. After considering the entire record and the arguments of counsel, it is hereby ORDERED that: (1) Plaintiff’s Motion for Temporary Restraining Order (Doc. 2), and Plaintiff’s Motion for Preliminary Injunction (Doc. 5) are DENIED for the reasons stated by the Court at the hearing and for the reasons stated in Defendants’ opposition brief (Doc. 17); and (2) Plaintiff’s Motion for Leave to Proceed Under Pseudonym (Doc. 3) is DENIED. IT IS SO ORDERED. Date: March 27, 2015 ________/s/ Dean Whipple ______ Dean Whipple United States District Judge

Friday, April 10, 2015

here's some notes i made toward an amicus in a missouri case.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

John Doe,

Plaintiff,

v. No. 2:15-cv-4054

Charles E. Weedman, et al.,

Defendants. )


Amicus Brief of Robbin Stewart


toc contents
toc cases
Interest of Amicus Curiae:

I hold a JD from U of Missouri-Columbia, 1993, and an LLM from UMKC, 1994.
While I lived in Missouri I authored anonymous election flyers, held appointed office, ran for local office, and was active politically. I then moved to Indiana, where I was the plaintiff in Stewart v Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997), which found Indiana's disclaimer statute unconstitutional. The court wrote “Stewart contends that this case is controlled by McIntyre. Stewart is correct. The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is 'core political speech' that is entitled to the fullest protection of the First Amendment.” I continue to advocate for candidates and issues in Missouri, Indiana, and elsewhere, primarily via the internet, without using disclaimers or otherwise letting the government dictate the content of my speech.

Statement of case:
Plaintiff, with help from the ACLU, seeks to enjoin a statute, 130.031.8, which makes it a criminal act to put up signs or flyers that say “Vote for Smith” or the like, regarding the upcoming Ferguson elections. The town of Ferguson has been the site of civil unrest following a police killing,and it is hoped that free and open elections will help channel this unrest into constructive paths.
Time is of the essence as the election is soon. Although passage of the election would not moot the issues in this case, irreparable harm will result if the injunction is not granted.

Summary of argument

I Plaintiff has a very strong likelihood of success on the merits. A long line of cases, controlling and persuasive, support plaintiff's request.
II Citizens United does not overrule McIntyre, and is inapplicable here.
III State cases show there is no state interest
Each factor for injunctive relief is met.

Argument
I Plaintiff should prevail on the merits. A long of cases, controlling and persuasive, support plaintiff's request.

Controlling cases include Talley, McIntyre, Buckley v ACLF and Watchtower v Stratton.
This court is obligated to follow these controlling precedents of the Supreme Court, whether or not it likes those policy choices.

ShrinkMo v Maupin, the leading Missouri case in federal courts, addressed a more narrow question,and did not reach the constitutionality of the disclaimer statute at issue here, but applied McIntyre to strike down a statutory provision that interfered with campaign speech.

Dozens of decisions have reached the same conclusion. McIntyre is not an isolated case limited to its facts, but is part of mainstream of decisions which have found campaign speech protected against government censorship.

Concurring in McIntyre, Justice Thomas traces the origins of the First Amendment and finds that anonymous political speech was a norm at the time of the adoption of the constitution. John Peter Zenger's case, (1735), was highly influential on the founders and led to both the First and Seventh Amendments.
Zenger was prosecuted for anonymously printing two books critical of the king's administration. A jury refused to convict him. The First Amendment was designed to protect speech like Zenger's, which is the same sort of speech at issue in this case, anonymous discussion of the government. Similarly the right to trial by jury was put into the constitution as a check and balance of government oppressing people like Zenger.

The First Amendment protects many things, art literature poetry and music, but its core function is enable debate about government, especially in the election context. Missouri seeks to make certain campaign statements a jailable offense. This is prohibited by the First Amendment.

The right to free speech includes a right to not have one's speech compelled. Wooley v Maynard, Tornillo v Miami Herald, Riley v Federation of the Blind, all establish this principle. Even if Talley and McIntyre had never happened, these cases would be enough to compel this court to grant the injunction.

Talley v California, 1960, was the first case to rule specifically on the issue of whether a state could require a disclaimer on political literature. It found that to do so would violate the First Amendment.
Talley is part of a trio of civil rights era cases, along with NAACP v Alabama ex rel. Patterson (1958) and Bates v Little Rock (1960) that found a right of privacy and a right of political association.

Recent events in Ferguson and Alabama show that the civil rights struggle is a live issue. State authorities have resisted the ruling in Talley, much as they have resisted the ruling in Brown v Board that public schools must be desegregated, but there is no excuse in 2015 for allowing any further delay in complying with what the court ruled in 1960.

The issue presented in McIntyre was whether there is an “elections exception” to the rule in Talley. The court found none, ruling that strict scrutiny applies and Ohio's statute is unenforceable and void. The Missouri statute must fall based on that authority.

A number of lower court cases have followed Talley or McIntyre.

ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd on other grounds, 71 F.3d 1422 (8th Cir. 1995), Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000), Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), ACLU v Heller 378 F3d 979 (9th cir. 2004).
Here is a chart, by year, of cases on disclaimers or related free speech cases.
1961 United States v. Scott (D.N.D.) 195 F. Supp. 440 (1961)
1962 People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962)
1964 Canon v. Justice Court for Lake Valley, 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428 (1964),
1968 Idaho v. Barney, 448 P.2d 195 (1968),
1969 Zwickler v Koota 389 U.S. 241 (1967), 290 F.Supp. 244, mooted 394 U.S. 103 (1969) sub nom Golden v Zwickler
1973 Opinion of the Justices, 306 A.2d 18 (Maine 1973)
1973 United States v. Insco, 365 F. Supp. 1308 (M.D. Fla. 1973)
1974 Miami Herald v. Tornillo, 418 U.S. 241 (1974)
1974 In re Opinion of the Justices, 324 A.2d 211 (Del. 1974)
1974 New York v. Duryea, 351 NYS2d 978 (1974)
1974 Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974), 42 L.Ed.26 33 dismissed as moot. http://openjurist.org/422/us/937/hill-v-printing-industries-of-gulf-coast
1975 Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), http://masscases.com/cases/sjc/368/368mass92.html
1976 State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976)
1977 Wooley v. Maynard, 430 U.S. 705 (1977)
1978 State v. North Dakota Educ. Ass'n, 262 N.W.2d 731 (N.D. 1978)
1980 Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.
1980), cert. denied, 450 U.S. 1042 45. http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CCA%5CCA2%5C1980%5C19800828_0040409.CA.htm/qx
1987 Illinois v. White, 506 NE2d 1284 (Ill. 1987) http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CIL%5CIL2%5Carchp%5C1987%5C19870220_0000193.IL.htm/qx
1987 Wilson v. Stocker, 819 F.2d 943, 950 (10th Cir. 1987);
199x N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731 http://www.ndcourts.com/court/opinions/612.htm
1995 Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995)
1995 McIntyre v. Ohio, 514 U.S. 334 (1995) http://www.law.cornell.edu/supct/html/93-986.ZO.html
1995 ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422 (8th Cir. 1995), http://www.ca8.uscourts.gov/opndir/95/12/952857P.pdf
1996 W. Va. for Life, Inc. v. Smith, 960 F. Supp. 1036, 1042 (S.D. W. Va. 1996)
1997 Stewart v Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997), https://casetext.com/case/stewart-v-taylor
1997 ACLU of Georgia v. Miller, (977 F.Supp. 1228 (N.D.Ga 1997) http://www2.bc.edu/~herbeck/cyberlaw.acluvmiller.html
1997 ACLU v. Reno, 117 S.Ct. 2329 (1997) http://en.wikipedia.org/wiki/Reno_v._American_Civil_Liberties_Union
1997 ALA v. Pataki, 969 F.Supp 160 (1997) http://www.loundy.com/CASES/ALA_v_Pataki.html
1998 Doe v. Mortham, 708 So.2d 929 (Fla.1998)
1998 Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998)
1998 Riley v. Federation of the Blind, 487 U.S. 781 (1998) http://laws.findlaw.com/us/487/781.html
1999 Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999)
1999 Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D. Mich 1999) http://www.cyberspace.org/cyberspace/lawsuit/
1999 Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds, @(fuller cite needed)
2000 Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),
2000 Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, 2000 (10th Cir. 2000);
2000 N.C. Right to Life, Inc. v. Leake, 108 F. Supp. 2d 498, 510 (E.D. N.C. 2000)
2000 Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000);
2000x Doe v. 2theMart, 140 F.Supp.2d 1088,http://cyber.law.harvard.edu/stjohns/2themart.html
2001 Melvin v Doe, 2001 Pa. Super. 33044 P.3d 1044 (2002)
2002 Tattered Cover v Thornton, 44 P.3d 1044 (Co. 2002)
2002 Free Speech Coalition, Ashcroft v., 535 U.S. 234 (2002 )http://www.law.cornell.edu/supct/html/00-795.ZS.html
2002 Ogden v Marendt 264 F.Supp.2d 785 (S.D. Ind. 2003)
http://fortune.com/2012/09/18/bad-to-the-bone-a-medical-horror-story/2003 Doe v. Texas, 2003 Tex. Crim. App. LEXIS 88 (Tex. Crim. App. May 14, 2003).
2004 ACLU v Heller 378 F3d 979 (9th cir. 2004) http://openjurist.org/378/f3d/979/american-civil-liberties-union-of-nevada-v-heller
2004 ACLU v. Ashcroft, _ U.S. _ (2004), http://en.wikipedia.org/wiki/ACLU_v._Ashcroft_(2004) see Doe v Gonzales, 546 U.S. 1301 (2005),
2008 The Broward Coalition v. Browning (N.D. Fla. 2008)
2009 Michael James Berger, aka Magic Mike v. City of Seattle (9th Cir. 2009)
Freedom’s Heritage v. FEC, FEC v. Freedom's Heritage Forum, No. 3:98CV-549-S (W.D. Ky September 29, 1999). FEC v. FREEDOM'S HERITAGE FORUM, ET AL.,March 28, 2002, August 14, 2003
Sampson v. Buescher, 625 F.3d 1247, (10th Cir. 2010)
2012 Hatchett v Barland, (E.D.Wi) , on appeal to 7th Cir.
Mulholland v Marion County Election Board (7th Circ 2014), ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D03-20/C:13-3027:J:Hamilton:aut:T:fnOp:N:1311081:S:0

Additionally, at least 13 states have found disclaimer statutes to violate their own state constitutions. Missouri is one of these.

1908 ex Parte Harrison, 110 S.W. 709 (Mo 1908)

1968 Idaho v. Barney, 448 P.2d 195 (1968),
1973 Opinion of the Justices, 306 A.2d 18 (Maine 1973)
1974 In re Opinion of the Justices, 324 A.2d 211 (Del. 1974)
1974 New York v. Duryea, 351 NYS2d 978 (1974)
1975 Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), http://masscases.com/cases/sjc/368/368mass92.html
1976 State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976)
1978 State v. North Dakota Educ. Ass'n, 262 N.W.2d 731 (N.D. 1978)
1980 Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.
1980), cert. denied, 450 U.S. 1042 45. http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CCA%5CCA2%5C1980%5C19800828_0040409.CA.htm/qx
1987 Illinois v. White, 506 NE2d 1284 (Ill. 1987) http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CIL%5CIL2%5Carchp%5C1987%5C19870220_0000193.IL.htm/qx
1995 Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995)
2002 Tattered Cover v Thornton, 44 P.3d 1044 (Co. 2002)

In Ex Parte Harrison, an election official had been jailed after publishing a neutral description of who was running, that did not comply with a disclaimer requirement. The Missouri Supreme Court released him, finding that speech about elections is protected under the state constitution.
This is the earliest case on disclaimers that I have found, and remains good law.

Unfortunately, plaintiff here does not rely on the state constitution, either the free speech clause or the free and open elections clause. But Harrison and the state constitution remain relevant to this case. Under McIntyre, the standard of review is strict scrutiny. To survive strict scrutiny, a statute must be narrowly tailored and use least restrictive means to further a compelling state interest. Here, the legislative interest may have been to deter election-eve false libelous anonymous rumors, which are among the 'dirty tricks' sometimes used in campaigns. But the legislature's interest in forbidding anonymous speech is not legitimate, much less compelling, if it violates the state constitution, as construed in Harrison by the Missouri Supreme Court. Nor, of course, is the statute narrowly tailored to dirty tricks. It forbids advocacy such as “Vote for Smith” or “Robbin Stewart for Township Board – Vote Tuesday” which was the text at issue in Stewart v Taylor.

III Citizens United does not overrule McIntyre, and is inapplicable here.
Each factor for injunctive relief is met.

In Citizens United, the Supreme Court approved a disclaimer statute for political speech by corporations, against an argument that the speech in question was not express advocacy.
Several lower courts, in cases about speech by corporations, have upheld disclaimer statutes based on that authority. Such an argument is not applicable to this case

Concurring in McIntyre, Justice Ginsberg wrote “In for a calf is not in for a cow... We do not thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity. Appropriately leaving open matters not presented by Mclntyre's handbills, the Court recognizes that a State's interest in protecting an election process 'might justify a more limited identification requirement.”

Citizens United was such a more limited identification requirement, for corporate speech which had previously been banned entirely. Read in context, Citizens United is a case that expands rather than limits the speech protected by the First Amendment. Plaintiff here is not a corporation,and the Missouri statute is not directed solely toward corporations. It might be possible for this court to construe the statute as only applying to corporations, but that would be a stretch; better to enjoin the statute in its entirety and let the legislature handle the issue of a more narrowly tailored constitutional statute if they wish to do so.

Citizens United did not overrule Talley or McIntyre. Had it meant to do so it would have explained what it was doing any why, as it did in its disussion of why it was overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), .

Subsequently to Citizens United, the court has re-affirmed its commitment to the principle that government may not compel speech, in Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321, 186 L. Ed. 2D 398 (2013)

It is, however, a basic First Amendment principle that "freedom of speech prohibits the government from telling people what they must say." Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 , 61 (2006) (citing West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 , 642 (1943), and Wooley v. Maynard, 430 U.S. 705 , 717 (1977)). "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 , 641 (1994); see Knox v. Service Employees, 567 U.S. ___ , ___-___ (2012) (slip op., at 8-9 ) ("The government may not ... compel the endorsement of ideas that it approves.").”

In addition to contolling cases from the federal and state Supreme Courts, a previous federal case on the unconstitutionality of RSMo 130 is worth noting.
Shrink Missouri Government PAC v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995) challenged, among other sections,
(4) the requirement that negative campaign advertisements state that they were approved and authorized by the candidate on whose behalf they were disseminated, id. § 130.031.”
The state did not appeal this finding, although the 8th circuit did affirm this ruling as to the other issues on which the state appealed, saying “we conclude that the challenged provisions violate the First Amendment. We therefore affirm the well-reasoned decision of the District Court.”
http://media.ca8.uscourts.gov/opndir/95/12/952857P.pdf.

If plaintiffs should prevail on the merits, as shown above, each of the other factors for injunction is met. There is irreparable harm, no burden to defendants, severe burden to plaintiff, the injury would be cued by issuance of injunction,and the public interest in free and open elections requires it.

Respectfully submitted,
Robbin Stewart.

@ Cert stuff goes here.












Thursday, March 26, 2015

 It is, however, a basic First Amendmentprinciple that "freedom of speech prohibits the government from telling people what they must say." Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 61 (2006) (citing West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 642 (1943), and Wooley v. Maynard, 430 U.S. 705 717 (1977)). "At the heart of theFirst Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 641 (1994); see Knox v. Service Employees, 567 U.S. ___ ___-___ (2012) (slip op., at 8-9 ) ("The government may not ... compel the endorsement of ideas that it approves."). 


Monday, April 21, 2014

i dont know if this will post since i havent updated this blog in years, but both sides have cited majors v abell in susan b anthony list v driehaus which is going to be argued before the supreme court tomorrow. i don't expect the case name to come up in argument, but it is likely to come up in the opinions.

Friday, July 19, 2013

http://gab.wi.gov/about/members

defendants, retired judges to file ethics complaints against.

http://gab.wi.gov/about/staff

names and emails. some of these would be defendants, some wouldn't.
http://gab.wi.gov/sites/default/files/opinions/29/76_12opelbd_pdf_10052.pdf

http://gab.wi.gov/sites/default/files/opinions/29/77_10opelbd_pdf_10364.pdf

http://gab.wi.gov/sites/default/files/opinions/29/74_6opelbd_pdf_17289.pdf

examples of smoking gun memos from wisconsin showing unconstitutional censorship of political speech.




wi accountability board smoking gun 

http://gab.wi.gov/sites/default/files/opinions/29/76_14opelbd_pdf_30914.pdf
El. Bd. Op. 76-14 (Revised 6/9/08)
Summary:
Disclaimers; Political Advertising: Roadside billboards carrying political
advertisements must carry disclaimers readable from the road; the party designing,
printing and erecting such billboard and the source of the advertisement are each
subject to the disclaimer requirement. §11.30 (2), Stats. (Issued to Sandra Hafenbraedl,
September 16, 1976)
This opinion was reviewed by the Government Accountability Board pursuant to 2007
Wisconsin Act 1 and was revised to remove portions of the opinion relating to the liability of
communications media providers. 1979 Wisconsin Act 328 exempted communications media
from liability if they relied on the person who placed the advertisement’s assertion that the
disclaimer was inapplicable. §11.30(2)(i), Stats. The opinion below was reaffirmed by the
Government Accountability Board on June 9, 2008 and fully incorporates the revisions
directed by the G.A.B.
Opinion:
The statements required to be affixed to political communications by this section will be
referred to collectively as a "disclaimer." In your first two questions, you ask whether a
roadside billboard is required by §11.30 (2) to carry a disclaimer which is readable from the
road.
Section 11.30 (2) requires that the source of all political communications "clearly appear
thereon." That language indicates a legislative intent to require that a disclaimer be readable by
those exposed to a political communication.
In addition, a disclaimer provides those exposed to a political communication with information
which is significant for several reasons. Among them are: (1) The information aids the public in
understanding the relationship between particular candidates and organizations and understanding
the public positions taken by a candidate or organization, (2) The information aids the public in
determining the weight that should be accorded a political communication, (3) The information
protects a candidate from association by the voters with groups with whom he should not be
associated and ideas which he does not espouse.
In the light of the apparent purposes of the statute and the statutory language requiring that the
source "clearly appear" on the communication, the Board is of the opinion that a billboard
alongside a road should carry a disclaimer which is readable from the road.

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