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2008 Election Law Conference

Free Speech and Election Law Practice Group

October 7, 2008

The election season is upon us, but many experts disagree on important legal questions that might decide races.  What are the most important campaign finance requirements and restrictions?  Who is eligible to vote, and who should decide who is eligible?  What should be and what will be the role of the courts be in deciding election day questions, and post election day contests and protests?

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9:00 a.m. - 10:30 a.m.
The Scope of the Franchise, 2008

2008 Election Law Conference

Topics: Civil Rights • Constitution • Federalism • Litigation • State Governments • Federalism & Separation of Powers • Free Speech & Election Law
Wiley Rein
1776 K Street NW
Washington, DC 20006

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Description

On October 7, 2008, the Federalist Society held presented the 2008 Election Law Conference. This panel will consider the various means by which states are regulating qualifications and registration of voters and voting. It will consider absentee, early voting, and Election Day issues.  What federal interests are served when litigators challenge state election administration under the Constitution?  Do states restrict access to voting primarily for “invidious” reasons, to serve partisan interests, or to ensure the integrity of the electoral system – and does the state’s purpose matter?  Must states extend the right to vote to ex-felons?  Can same-day registration provide greater access without also providing greater opportunities for fraud? Has technology improved confidence in elections or increased anxiety?  To what degree should the state regulation of elections and the franchise be preempted by Congress to provide uniform national rules?

  • Mr. David B. Muhlhausen, Ph.D., Center for Data Analysis, The Heritage Foundation
  • Mr. Douglas Kellner, New York State Board of Elections
  • Hon. Hans A. von Spakovsky, former member of the Federal Election Commission and Counsel to the Assistant Attorney General for Civil Rights, U.S. Department of Justice
  • Ms. Wendy R. Weiser, Brennan Center for Justice
  • Moderator: Prof. Allison Hayward, George Mason University School of Law

Speakers

10:30 a.m. - 11:45 a.m.
Election Finance and 527s

2008 Election Law Conference

Topics: Administrative Law & Regulation • Campaign Finance • First Amendment • Telecommunications & Electronic Media • Free Speech & Election Law
Wiley Rein
1776 K Street NW
Washington, DC 20006

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On October 7, 2008, the Federalist Society presented the 2008 Election Law Conference. This panel will consider the laws and regulations that limit or restrict giving, receiving, and/or spending related to an election, as well as the constitutional requirements and boundaries for such rules.  Thus, the panel will consider the topics that generally fall under the umbrella of campaign finance, most notably the continued fight over who can contribute and/or expend what money on political advertising.

The Bipartisan Campaign Reform Act of 2002 (BCRA), popularly known as McCain-Feingold, was supposed to usher in a new bright line rule when it came to broadcast advertising that referred to a federal candidate around election time.  However, this rule has never been implemented, and the contribution and expenditure of so-called “soft money” around election time has persisted.  The presidential election cycle of 2004 was replete with broadcast advertisements referring to candidates that were paid for using “soft money.”  Our panel will discuss potential constitutional, statutory, and regulatory questions about the free speech rights of non-profit or tax-exempt groups such as so-called 527 and 501(c)(4) organizations.

  • Mr. Joseph M. Birkenstock,  Caplin Drysdale
  • Mr. James Bopp, Bopp, Coleson & Bostrom
  • Hon. Bradley A. Smith, Capital University Law School and former member of the Federal Election Commission
  • Mr. Scott E. Thomas, Dickstein Shapiro
  • Moderator: Mr. Reid Alan Cox, Center for Competitive Politics

Speakers

12:00 p.m. - 2:00 p.m.
Election Through Litigation

2008 Election Law Conference

Topics: Constitution • Federal Courts • Litigation • Free Speech & Election Law
Wiley Rein
1776 K Street NW
Washington, DC 20006

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On October 7, 2008, the Federalist Society presented the 2008 Election Law Conference. In recent years, the courts (both federal and state) have become increasingly involved in elections.  Before Election Day, courts are involved in determining whether and how candidates and initiatives qualify for inclusion on the ballot.  On Election Day, courts decide whether voting problems or irregularities require that polling places be kept open beyond the hours originally intended.  After Election Day, courts are involved in election contests and protests.  Is the ubiquitous involvement of the judiciary in the election process nothing more than a reflection of the litigiousness of our society?  Is it a healthy or unwelcome development with possible separation of powers implications?  If unwelcome, is there any way to “put the genie back in the bottle,” or to limit the involvement of the judiciary?

  • Mr. Adam Bonin,  Cozen O’Connor
  • Mr. James Bopp, Bopp, Coleson & Bostrom
  • Mr. John Fund, The Wall Street Journal
  • Moderator: Mr. Erik S. Jaffe, Law Offices of Erik S. Jaffe

Speakers

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