The law of politics and the politics of law: election law, campaign finance, legislation, voting rights, initiatives, redistricting, and the Supreme Court nomination process
Rick Hasen's web log

No Explanation Given to Commissioner Mason for Being Thrown Under the Bus

CQ Politics reports that FEC Commissioner Mason "said the White House personnel office called him 'the day they withdrew the nomination to inform me about that. And that was a pretty routine process, just a courtesy call to me. And they did not say anything substantive.'"

Trevor Potter's Comments on Election Law Listserv About the Dumping of Commissioner Mason Appear in Tomorrow's NY Times

The Times article is here. Trevor's listserv comments were reposted on this blog here. And it started with the question I posed to Trevor at the beginning of that post.

"Senators Feinstein and Kerry Express Concerns About Apparent Reversal in Department of Veterans' Affairs Policy in Providing Access to Voter Registration for Veterans"

See this press release and this AlterNet story.

Post-Crawford Movement on Voter ID in the States

There's a nice summary paragraph in "Election Reform News This Week" in the new Electionline weekly. Note that the beginning of the newsletter provides details on how current and new subscribers can sign up under a new procedure to receive the weekly newsletter via email.

"McCain Lawyer: FEC Flap 'Manufactured'"

The Politico offers this report.

"Why Clinton Stands to Lose Millions"

This interesting report in U.S. News notes a provision in McCain-Feingold that will be very important if Sen. Clinton wishes to recoup her campaign loan. See also this Explainer column from Slate.

AEI-Brookings Task Force Report on EAC Voting Recommendations

See here.

"Did Rush Limbaugh Tilt the Vote in Indiana?"

The Washington Post offers this report.

More Commentary on Crawford

Vik Amar has written this Findlaw piece. Key quote: "It doesn't take a genius to see that relegating plaintiffs to 'as applied' challenges in these kinds of cases doesn't really leave them with much."

Tokaji on Elmendorf on Crawford on Harper.

John Fund on the nun controversy.

Steve Hoersting on Leake and SpeechNow.org

See here.

At Least a Bit of Confusion over Indiana's "Open" Primary

Ed Still has the details.

"Clinton-Obama cash gap looms large"

Jeanne Cummings has written this article for The Politico.

"Florida 2006: Can Statistics Tell Us Who Won Congressional District 13?"

Alrene Ash and John Lamperti have written this article for Chance, a statistics magazine. The pdf includes responses by Joseph Hall and Walter Mebane.

"Presidential Public Funding, Extreme Makeover Edition"

Laura MacCleery and Andrew Stengel have written this post at The Huffington Post.

"Questions abound over late vote tallies from Lake County"

AP offers this report.

Same as It Ever Was Dept.

The Politico:

Senate Majority Leader Mitch McConnell (R-Ky.), said he would not allow Democrats a separate vote on each nominee and instead wanted the FEC nominees voted on as a package, which would ensure approval of the most controversial GOP pick, Hans von Spakovsky. Democrats have made it clear that von Spakovsky would not pass the Senate while the other four nominees would be approved.

Campaign Legal Center Objects to Throwing Commissioner Mason Overboard

See here. So Bob Bauer, Fred Wertheimer, Gerry Hebert, and I all agree. What about Trevor Potter, Sen. McCain's lawyer, and Brad Smith? I'd be interested to know.
UPDATE: Trevor Potter responded to my query on the election law listserv, and with his permission, I post his response below:

Rick Hasen's last post asked "Trevor Potter, Sen. McCain's lawyer" to respond to the series of recent statements about the President"s FEC nominations.

The McCain campaign has said for some time that it would like to see the current stalemate resolved as soon as possible in order to get the FEC functioning again. Sen McCain has repeatedly stated this position publicly, and I of course agree with statements made by many others that this is an vital public policy objective, as well as directly important to the Presidential candidates. For this reason, the several recent letters from Sen. Reid to the White House proposing a resolution to the logjam, and the White House announcement yesterday that it would send new nominees to the Senate are welcome.

However, I have not commented on the recommendations by Sen. Reid of specific persons for FEC seats, and on the White House decision to nominate specific individuals, and not to nominate others, for two reasons. First, as the the McCain campaign has noted to the press today, these are the President's appointments, and not Sen. McCain's. Senator McCain's only role was to urge all parties to resolve the deadlock. Second, it has seemed inappropriate for me to comment on the specific composition of the FEC since it is well-known that matters involving the McCain campaign are before the Commission, and thus before whoever is ultimately confirmed.

However, now that Rick has publicly prodded me, I expect continued silence would be taken as an unwillingness to engage, with adverse conclusions drawn. So, let me say that I think the criticism of the President's decision not to re-appoint Dave Mason rests on a faulty assumption. Critics write as if Commissioner Mason has already determined that Sen. McCain has violated federal campaign finance law, and that he would so find if only he is on the Commission when a quorum is restored. I do not believe this is the case. Commissioner Mason wrote the campaign in February to ask for additional information concerning Sen. McCain's withdrawal from the public funding system, and it was provided to him in full. Commissioner Mason did not state that the McCain campaign acted improperly in any way: he stated that he believed the FEC had to vote on Sen. McCain's withdrawal from the primary funding system, while the campaign's lawyers do not think such a vote is required. The McCain campaign believes that Commissioner Mason's questions have been answered satisfactorily, and that if he is on the Commission when a quorum is restored he will agree that Sen. McCain's withdrawal from the system was proper. Accordingly, given the lack of evidence that Commissioner Mason thinks otherwise, the controversy about the White House decision to nominate someone else for the Mason seat seems to be a manufactured one.

From a McCain campaign perspective, the only other thing I will say now is that I hope the Senate acts quickly to vote on these nominations, and if Hans von Spakovsky does not have the votes that a replacement is found rapidly so that the election cycle may finally have the benefit of a fully functioning FEC.

Trevor Potter

Still more: Adam Bonin weighs in at DailyKos and Bob Bauer responds to Trevor.

How Do We Know How Much the Indiana Voter ID Law Deterred Voting?

Via Jonathan Adler comes this Washington Post blog posting suggesting that the Indiana voter ID law did not cause many problems (nuns and students aside) at the polling places.

That may be true, but it doesn't prove much about the deterrent effect of the ID. That is, if a would-be voter does not have a valid id the voter has learned through the state's "extensive education" efforts, that the voter need not bother to show up to vote. What would be the point, unless the voter was indigent or had a religious objection, and was willing to make a second trip to the county seat within 10 days to have that vote count.

"Ghosts of Bush v. Gore loom before state high court"

This post appears at a Miami Herald blog. Thanks to Dan Smith for the pointer.

New Names Unlikely to Break FEC Deadlock

So reports NPR. See also Today's Must Read column at Talking Points Memo.

"There's Value in Voter ID Requirement--If It's Done Properly"

Norm Ornstein has written this Roll Call oped (free access). Norm concludes:

I do not think, in principle, that requiring a photo ID is evil or onerous. An official photo ID can protect voters against charges that they are ineligible to vote. I agree with civil rights activist Andrew Young that a photo ID would be a huge help to poor people who are often victimized by huge fees they are charged to cash paychecks because they lack any such identification.

But there are certain clear principles that need to be applied. Any such ID has to be offered for free--including no-cost access to whatever support documents are required. In a free society, no one should have to pay to vote, and there should not be any unequal burden on those citizens who want to vote. Not only should the ID be free, but it must be readily accessible--in multiple places convenient to the poor and elderly, and through mobile vans to reach those who can't get out easily to the fixed sites.

With these conditions, a voter ID is not an undue burden. But to get to that point requires two things: federal guidelines for the states, under Congress' constitutional power to regulate federal elections, and federal money to make the system work for all. This issue is significant and controversial enough that it ought to be on Congress' agenda this year. But Congress' track record on election reform this year suggests that the chance of that happening is zero.

"Sir Elton, the FEC, and You"

Eric Wang has written this column for The Hill.

Throwing FEC Commissioner Mason Under the Bus to Help Senator McCain?

As a political junkie, I've been focused on the close race in Indiana tonight, but another important political story, perhaps not coincidentally, dropped tonight: President Bush has made a move to break the impasse over FEC nominations. But rather than jettison the controversial nominee to the FEC, Hans von Spakovsky, which would surely break the impasse, the President has dropped Commissioner David Mason, the Republican member on the now two-member FEC. The new Republican nominees are Don McGahn and Carolyn Hunter, who is currently a commissioner on the U.S. Election Assistance Commission.

What's going on? I don't always agree with Fred Wertheimer of Democracy 21, but this time I agree entirely with his insight: "The only apparent reason for President Bush to drop Commissioner David Mason at this stage, an FEC candidate he had twice proposed for the Commission, is to prevent him from casting an adverse vote against Senator McCain on important enforcement questions pending at the Commission. The questions deal with Senator McCain’s request to withdraw from the presidential primary public financing system and the consequences of a loan the McCain campaign took out and the collateral provided for the loan."

For Democracy 21 to be coming to Commissioner Mason's defense is extraordinary; Mason is no supporter of reform. But the other FEC nominees are going to be much more likely to tow the Republican party line on the commission. Commissioner Hunter has been one of more partisan members of the EAC, and likely will continue in that direction if confirmed to the FEC.

This move could well break the impasse over the FEC, but maybe not. Note that a vote on von Spakovsky would apparently be paired with a vote for Steven Walther, who is close with Senator Reid. If Sen. McConnell insists on a vote for the two of them as a package, it might not happen.

My guess now is that Republicans ultimately allow separate votes. They need the FEC to approve Sen. McCain's expected request for public financing in the general election portion of the campaign. They need that more than the Democrats now need a functioning FEC.
UPDATE: Bob Bauer weighs in.

"The Effect of the Carter-Baker Commission on the Supreme Court"

Heather Gerken responds on shadow institutions and Carter-Baker.

"FEC stalemate may be over with new nominees"

The Politico offers this report. Not sure yet what to make of this.

"Indiana nuns lacking ID denied at poll by fellow sister"

AP offers this report.

"Nunez Introduces Comprehensive Redistricting/Term Limits/Contribution Ban Proposal"

The following press release arrived via email:

Assembly Speaker Fabian Nunez (D-Los Angeles) today introduced a sweeping proposal to change the way the state's political boundaries are drawn coupled with a revision in the state term limits law and a proposal to ban political contributions during the budget season.

"It's time for real reform to make the legislature more efficient and effective," said Speaker Nunez. "This proposal is workable, has bipartisan support, and will ensure that our Legislature continues to be diverse and represent all Californians."

Speaker Nunez's proposal includes an independent 17-person "hybrid" redistricting commission. No legislators would serve on the commission, and it excludes anyone who has recently run or been elected to state office. Political party officers, lobbyists, and employees of the Legislature, Congress, and other offices also would be banned from serving.

Fact sheets on the Speaker's proposals, as well as a document highlighting the Speakership of Speaker Nunez, are attached.

Unlike other proposals, the Nunez proposal has strong protections to ensure diversity during all steps of process, including selection of the panel that screens commissioners, the nominees, and legislative selections to the commission. Most importantly, it puts compliance with the Voting Rights Act and respecting communities of interest among its top criteria.

The Nunez proposal also has the strongest transparency and public input provisions of any redistricting plan. The final redistricting plan also would be subject to referendum.

Congressional district boundaries will still be drawn by the Legislature, but the process would be bound by many of the same rules that apply to the commission.

The term limits provision would reduce the maximum amount of time of service in the legislature from 14 years to 12 years. It would allow a person to serve all their time in one house. The provisions included in Prop 93, which "grandfathered" several legislators, have been removed; the proposal has a transition period that allows sitting members of the legislature to serve no more than the total number of years permitted under current law.

The Nunez proposal also would prohibit campaign contributions to legislators and the Governor from May 15th until the budget is enacted. May 15 is the typical time for the release of the May Budget Revision.



Posted by Rick Hasen at 12:35 PM

Crossover Voters in Indiana

The latest update from the Indianapolis Star shows "hardcore" Republicans turning out in droves to vote in the Democratic primary.

Assuming this is perfectly acceptable to Democrats, isn't it time for Indiana to repeal its quirky challenge law, under which some of the voters in the Indianapolis Star story have just admitted to breaking the law?

"Court Hears Appeal of Campaign Finance Rules"

CQ offers this report on what must be Shays v. FEC XII.

"GOP Seeks Order to Primary Chaos"

The Politico offers this report on last week's Kennedy School conference.

"Missed Opportunity ID'd"

Bruce Fein has written this very interesting oped in the Washington Times.

More on Persily on the Renewed VRA

There are more responses to Nate's piece on VRA renewal. Here's one by Joaquin Avila and one by Epstein and O'Halloran. Nate also has written a response to Rick Pildes's must read comment on Nate's original article. Looking forward to reading these.

"Judicial Review of Electoral Mechanics After Crawford"

I've been anxiously awaiting this analysis from Chris Elmendorf. Very interesting indeed.

Bauer on Gerken, Foley, Amicus Courts and Carter-Baker

Here. More Gerken here.

Erwin Chemerinsky on the Crawford Decision

See this editorial in the News and Observer newspaper (North Carolina).

Scrap the Superdelegate System Next Time Around?

Josh Marshall says probably [corrected link]. I've written this piece for the Northwestern University Law Review Colloquy on whether Congress itself could abolish superdelegates if the Democratic Party does not do so on its own.

Creighton LR Symposium on Election Law

View the cover here.

"Out of the Shadows: Private Redistricting Plans Can Help Overcome Lawmakers' Partisanship"

Heather Gerken has written this piece for Legal Times. I'd be interested to hear from Heather if she believes that the Carter-Baker commission played this kind of "shadow" role for election administration reform, and if not, how do we ensure that shadow groups are fairly composed and make good decisions.

UPDATE: Heather Gerken responds to my query:

Great question, Rick. In my view, the prominent role that the Carter-Baker Commission played in the Supreme Court's voter i.d. decision offers two important lessons about shadow institutions. First, it makes clear just how powerful the decision of a shadow commission can be. The Justices were plainly on the hunt for a neutral metric to evaluate the Indiana law. In the eyes of Justices Stevens and Breyer, at least, the Carter-Baker Commission offered just such a metric, and they therefore deferred to it. This is precisely the dynamic I would expect should Ned Foley's amicus court or my shadow districting commissions be created. People need a baseline to evaluate a decision, and a shadow institution provides it.

Second, the Carter-Baker Commission confirms how important it is for shadow institutions to be composed of nonpartisan experts. (I know, of course, that no one is truly "nonpartisan," but surely most would concede that we're dealing with a sliding scale here). Carter and Baker are not experts, nor are they politically neutral. The position the Commission took on voter i.d. is exactly what one would expect from a bipartisan decisionmaking body -- an obviously political compromise that lies roughly in the middle of the positions that the political parties have taken on this issue. While I would expect better from a truly nonpartisan body of experts, I will say this. For all if its flaws, the Carter-Baker Commission's compromise was still superior to what the ruthlessly partisan Indiana legislature passed, a fact that Justices Souter and Breyer used to great effect in their dissents.

"How Hard Should It Be to Vote?"

The NY Times offers these letters to the editor.

"Clinton Campaign Considering Nuclear Option to Overtake Delegate Lead"

Tom Edsall has written this must-read report at the Huffington Post.

"ID law could depress black turnout in Ind."

The Politico offers this report.

"Why Voter ID"

Why Tuesday has this video post (which includes an interview with me) on the Crawford decision. It is also posted at NPR's Soapbox Sunday. UPDATE: Here is an excerpt on NPR's Weekend Edition.

"Republicans Crossing Over to Vote in Democratic Contests"

The NY Times offers this report. The article discusses the "Limbaugh factor" but does not note the quirky Indiana election law that allows some of these Republican voters to be challenged in Indiana on Tuesday.

Amitai Etzioni on the Crawford Decision

See here.

"Tell us your voter fraud story at voterfraud@foxnews.com"

No kidding.

"Hey, What About the 24th?"

Bruce Ackerman and Jennifer Nou have written this article for Slate. It begins: "Americans have long fought hard to protect the right to vote and a generation ago emphatically rejected the idea of paying for the ballot. As the civil rights revolution reached its peak, Congress and the states in 1964 enacted the 24th Amendment, forbidding any 'poll-tax or other tax' in federal elections. Yet, remarkably enough, this basic text went unmentioned by the Supreme Court when it upheld Indiana's photo-ID law this week." And it is not as though the Court was unaware of the 24th Amendment argument.

"Group with Clinton Ties Behind Dubious Robocalls"

NPR offers this very interesting report.

Symposium on "No Strings Attached?: The First Amendment and Tax-Exempt Organizations"

It is in the latest issue of the First Amendment Law Review. Unfortunately, the articles themselves are not on line.

"Small Donors Increase Impact"

USA Today offers this report.

"Lawmakers Seek Same-Day Registration Law"

AP offers this report.

Hawaii Passes National Popular Vote

Rob Richie has the details.

"McCain's Birth Abroad Stirs Legal Debate"

The Washington Post offers this report.

Bob Bauer on the Fourth Circuit Campaign Finance Decisions

See here.

"The Inestimable Popular Vote Estimates"

The Columbia Journalism Review offers this interesting report.

"Voting Rights Are Too Important to Leave to the States"

Adam Cohen has written this Editorial Observer column for the NY Times. Most notable among Adam's suggestions for federal legislation: "The patchwork of state ID laws should be replaced by a single standard that allows people to present any of an array of identification, including college IDs, and permits voters to sign an affidavit if they do not have ID." [Disclosure: I had a conversation with Adam about some of the ideas in this column.]