“Undercover conservative filmmaker James O’Keefe releases video in NC”

News and Observer:

With a close election, it was inevitable that conservative filmmaker James O’Keefe would bring his hidden cameras and actors to North Carolina.

His goal here: Prove that political campaigns are OK with non-citizens voting in the election. In his new video, a woman poses as a Brazilian-born immigrant who asks campaign volunteers outside early voting sites if she can vote.

She admits to being in the country illegally but says she has a voter registration card. O’Keefe’s premise is riffing off a State Board of Elections audit that found 1,425 registered voters who are likely non-citizens.

O’Keefe didn’t get anyone with major campaigns to take the bait, nor does the video show any poll workers allowing noncitizens to vote. He also doesn’t show anyone in the Triangle, although the video does show O’Keefe entering a Durham County early voting site.

 MORE from WRAL, ABC11.

New Voting Lawsuit in Ohio

Release: “– Today, the Northeast Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, and Ohio Democratic Party—successful plaintiffs in previous complaints to protect Ohioans’ voting rights—filed a proposed Second Supplemental Complaint against Ohio Secretary of State Jon Husted and Ohio Attorney General Mike DeWine asking U.S. District Judge Algenon Marbley of the Southern District of Ohio to declare portions of Ohio Substitute Senate Bills 205 (S.B. 205) and 216 (S.B. 216) invalid for violating the federal Voting Rights Act and the Constitution, risking the disenfranchisement of thousands of Ohio voters who may cast absentee or provisional ballots, and intentionally making it more difficult for many African-American, Latino, and Democractic-Party-member Ohioans to vote.”


“Against Residency Districts”

Mike Pitts has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum).  Here is the abstract:

This article argues against laws which mandate that candidates and elected officials reside in a particular geographic area as a condition of election or office-holding (i.e., residency requirements). The article considers various rationales for residency requirements — some of which have been endorsed by federal and state courts — and concludes that those rationales by-and-large do not hold up under scrutiny. The article also considers the costs of residency requirements and concludes that the costs of such requirements outweigh any purported benefits. The article then ponders why residency requirements have continued to exist despite weak justifications for their use, and concludes that residency requirements likely persist because they insulate incumbent partisans from electoral competition. As such, a politics as markets approach might suggest the elimination of residency requirements.

Looking forward to reading this!  This has been my position, but obviously not (from me) based in a politics as markets approach.


“They’re Not Allowed to Talk. But Candidates and PACs Are Brazenly Communicating All the Time.”

Key National Journal piece:

The Tillis memo shows just how brazen politicians and their allies have become. What started as vaguely outlining ad buys through the media and posting minutes-long “B-roll” footage of a candidate on their website has entered a new phase in which campaigns and parties offer insight into their needs as if they were sitting in a boardroom personally explaining it to the men and women who run outside groups.

“Because we cannot coordinate, our campaign is often in the position of reacting to things our allies do after they have done them,” Shaw wrote, without irony, in the memo. His solution: opening up his own political playbook and trying to indirectly call the plays for his allies.



“North Carolina Campaigns Prepare for Potential Recount”

Roll Call:

The competitive North Carolina Senate race will cost more than $100 million by Election Day, and that price tag could climb further as both parties prepare to spend even more if the race becomes too close to call.

The campaigns for both Sen. Kay Hagan, D-N.C., and Republican state Speaker Thom Tillis confirmed to CQ Roll Call they are making preparations in case of a recount in one of the country’s most competitive races. Recent polls show a tied race, and this week the Rothenberg Political Report/Roll Call moved the race to Tossup this week from Tilts Democratic.

“It’d be kind of silly for us not to [prepare],” said Todd Poole, the executive director of the North Carolina Republican Party.


Must-Read Quote of the Day: Dark Money Edition

““People always ask me one question all the time: ‘How do I know that I won’t be found out as a supporter of what you’re doing?’…We run all of this stuff through nonprofit organizations that are insulated from having to disclose donors. There is total anonymity. People don’t know who supports us.”

Lobbyist Richard Berman, secretly recorded giving advice to oil and gas industry executives on demonizing their opponents, as provided to Eric Lipton of the NYT.


“Messing With Texas Again: Putting It Back Under Federal Supervision”

I have written this piece for TPM Cafe. It begins:

Readers of the entire 147-page opinion issued earlier this month by a federal district court striking down Texas’s strict voter identification law as unconstitutional and a violation of the Voting Rights Act might have been too exhausted to realize that the opinion’s very last sentence may be its most important. The court ended its opinion with a dry statement promising a future hearing on “plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act.” That hearing, however, has the potential to require Texas to get federal approval for any future voting changes for up to the next decade, and to make it much more difficult for the state to pass more restrictive voting rules. It may be much more important than the ruling on the voter ID law itself.


“Argument preview: Racial gerrymandering, partisan politics, and the future of the Voting Rights Act”

I have written an extensive preview for SCOTUSBlog of a pair of cases the Supreme Court will hear at a November 12 oral argument. The issues are complex but very important and I’ve tried to lay it out so that someone not in the election law field can understand what’s at stake.  The preview begins:

The Supreme Court has long ignored Justice Felix Frankfurter’s warning to stay out of the political thicket. It regularly hears challenges to redistricting cases (not to mention lots of other types of election cases), raising issues from the one-person, one-vote rule to vote dilution under the Voting Rights Act, to racial and partisan gerrymandering claims. The Court’s decision to hear a part of a challenge to Alabama’s state legislative redistricting plan enacted after the 2010 census (in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, set for argument on November 12) brings all of these issues together in a seemingly technical but high-stakes case, showing the artificiality of separating issues of race and party in redistricting, offering a bold role reversal in political parties’ use of racial gerrymandering claims, and offering a surprising new threat to the constitutionality of the Voting Rights Act.



“In Michigan, Spending Big Money to Stop Big Money”

NYT First Draft: “Now, with Election Day nearing, Mayday is pinning its hopes on Michigan’s Sixth Congressional District, where Representative Fred Upton, a Republican who is the chairman of the influential Energy and Commerce Committee and was once deemed a safe incumbent, is facing an unexpectedly strong challenge from Paul Clements, a Democrat. In a race that was on no one’s radar a month ago, Mayday is now the biggest outside spender.”


“Election Analysis Blog Launched”

Press release:

The University of Kentucky College of Law Election Law Society, a law student organization, and election law professor, Joshua A. Douglas, announce the first of its kind at UK – an Election Analysis Blog. http://www.uky.edu/electionlaw/

Professor Douglas, the Robert G. Lawson and William H. Fortune Associate Professor of Law, and students from the Election Law Society will provide live analysis on legal issues surrounding the election as results pour in across the Commonwealth and the nation. They will field questions from the general public and media and provide ongoing commentary on any legal issues that may arise.

There have already been significant lawsuits in the past few weeks – about Kentucky’s 300-foot ban on electioneering around a polling site, allegations of false campaign advertising, voter ID laws, and more – that will impact Election Day. The U.S. Senate race in Kentucky between Alison Lundergan Grimes and Mitch McConnell is one of the most expensive – and potentially one of the closest – in the country. UK’s Election Analysis Blog will chronicle it all.

Good luck to Josh Douglas and the students at UK.  They join the great State of Elections blog at William and Mary whose law students do a consistently excellent job.


“Secretary of State candidate violates election law”

Indiana Daily Student:

Secretary of State candidate Beth White and current Marion County clerk will be facing penalties after the midterm election on Nov. 4.

The Democratic challenger to incumbent Connie Lawson was outed by the Indiana Republican Party last week for not having a financial disclaimer on postcard-sized 
campaign literature.

According to Indiana campaign finance regulations, all campaign literature must disclose who paid for it.


“Document: Statewide network of Republican lawyers ready to intervene on Election Day”

Topeka Capital-Journal:

The Kansas Republican Party plans to have a statewide network of GOP lawyers ready to intervene on Election Day, and it will analyze close races for potential legal action — as its director warns of “dubious tactics” from Democrats.

The network of attorneys is part of the Republicans’ plan for a poll-watching program as well as an Election Day war room with a complement of lawyers on standby. The party will target some polling locations for all-day observation and is urging candidates, county officers and precinct leaders to become poll agents (often called poll watchers) and visit polling locations.


“Missouri A.G. Chris Koster rebuts report that campaign money steered office away from investigations”

KC Star:

Missouri Attorney General Chris Koster vehemently denied allegations published Wednesday in The New York Times that his office gave preferential treatment to companies it was investigating in exchange for campaign contributions.

Koster, a Democrat who is his party’s presumptive nominee for governor in 2016, was featured prominently in the story that explored lobbyists’ influence on state attorneys general around the nation.

He denied any wrongdoing and slammed the Times’ reporting.


“Does Election Law Serve the Electorate?”

I am very excited to participate in this event for the University of Chicago Legal Forum. (I’ll be presenting a paper on uniformity in election administration.)  Here are the details:

Legal Forum Symposium: Does Election Law Serve the Electorate?


Friday, November 7, 2014 - 9:00am - 3:30pm

Contact info (email or phone):


The Symposium will take place in Room V, from 9:00 a.m.- 11:45 a.m. and continue after lunch and the keynote from 1:45 p.m. – 3:30 p.m..

The keynote speaker at this year’s event will be Cass Sunstein, Felix Frankfurter Professor of Law.

The keynote will take place at 12 p.m. in Room II


Governance, Polarization, and the Role of Election Law: 9 a.m. – 10:30 a.m.
Voters and Redistricting: 10:45 a.m. – 12 p.m.
Campaign Finance: 1:45 p.m. – 2:15 p.m.
Rules and Regulations: 2:30 p.m. – 3:30 p.m.


Richard Briffault, Columbia Law School
Josh Chafetz, Cornell University Law School
Guy-Uriel Charles, Duke University School of Law
Edward Foley, The Ohio State University Michael E. Moritz College of Law
Luis Fuentes-Rohwer, Indiana University Maurer School of Law
Richard Hasen, University of California, Irvine School of Law
Ellen Katz, University of Michigan Law School
Nolan McCarty, Woodrow Wilson School of Public and International Affairs
Michael Morley, Barry University School of Law
Nathaniel Persily, Stanford Law School
Michael Pitts, Indiana University Robert H. McKinney School of Law
James Sample, Hofstra University School of Law
David Schleicher, George Mason University School of Law
Nicholas Stephanopoulos, University of Chicago Law School
David Strauss, University of Chicago Law School
Zephyr Teachout, Fordham University School of Law

All events are open to the public.
For more information, please contact Erica Jaffe at ericajaffe@uchicago.edu
For special assistance or needs, please contact Lucienne Goodman at 773-702-0877.