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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
WaPo’s fact checker gives Lerner Four Pinocchios for a number of statements she made in connection with the IRS controversy.
David Keating and Eric Wang: “For a bill supposedly about “disclosure,” Sens. Ron Wyden (D-Ore.) and Lisa Murkowski (R-Alaska) gave surprisingly few details about their Follow the Money Act in their POLITICO op-ed, (“Shedding Light on Anonymous Ads,” May 13). While they wrote in broad generalities about requiring “full transparency on the part of independent political spenders,” they had already articulated that principle in a Washington Post op-ed last December. Five months later, they now have a completed bill pending in the Senate yet shy away from discussing the legislative details. What are they hiding?”
AP: “There’s an irony in the Internal Revenue Service’s crackdown on conservative groups. The nation’s tax agency has admitted to inappropriately scrutinizing smaller tea party organizations that applied for tax-exempt status, and senior Treasury Department officials were notified in the midst of the 2012 presidential election season that an internal investigation was underway. But the IRS largely maintained a hands-off policy with the much larger, big-budget organizations on the left and right that were most influential in the elections and are organized under a section of the tax code that allows them to hide their donors.”
Sarah Binder sees confusion ahead.
WaPo: “The story of the IRS’s policy of targeting right-leaning groups, which played out over several years in Cincinnati, Washington and dozens of other cities and towns, was one of a bureaucracy caught in a morass of uncertainty and outside pressure. The actions also confirmed the suspicions of many conservatives after they had complained for years of harassment by the tax agency.”
WSJ: “The White House’s chief lawyer learned weeks ago that an audit of the Internal Revenue Service likely would show that agency employees inappropriately targeted conservative groups, a senior White House official said Sunday. That disclosure has prompted a debate over whether the president should have been notified at that time.”
Bruce Cain has posted this draft on SSRN (forthcoming, California Law Review). Here is the abstract:
Lawrence Lessig has suggested that the answer to contemporary campaign finance issues is reframing it as dependence corruption problem. I examine the merits of this approach from a political science perspective, and offer an alternative way to look at the same problem. Professor Lessig’s original intent account rests on too many contestable counterfactual assumptions about what the Founders would have thought about conditions and political practices that they could not have imagined in their day. Moreover, the argument that the Constitution’s intent is direct popular sovereignty alone ignores the Electoral College and US Senate elections based on geography. Nonetheless, I suggest that a simpler alternative is to think of the problem as one of democratic distortion, and that the solution under the current constitutional constraints requires continuing efforts to open up donor participation to all voters, fixing the broken disclosure system and preserving the current system of congestion pricing.
This is a must-read from Bruce, responding to Larry’s Jorde lecture. I particularly like Bruce’s take on Larry’s originalist argument for the “dependence corruption” rationale. (For those not following earlier, continues a conversation on “dependence corruption” and political equality begun with my Harvard Law Review book review of Larry’s book, Republic, Lost, followed by Larry’s reply at the Harvard Law Review Forum, and continued with my Response to be published in the Election Law Journal.)
In theory, the civil-servant structure should make an organization less prone to an eruption of bias or of hive-mind behavior. But that’s not how it works. Liberals are more likely to enter the civil service, and to stick to it, than conservatives are. And why not? Conservatives want to shrink the size of government; Republicans have negotiated deals federally, and in the states, that slashed or froze the size of the bureaucracies. Ron Swanson aside, the public sector is no place for a libertarian.
Every single number proves this. Tim Carney has collected the campaign finance figures for IRS employees nationally and in the Cincinnati office. In the past three election cycles, IRS workers donated $247,000 to Democrats and $145,000 to Republicans. In Ohio, the number was skewed even further—75 percent to Democrats. According to a 2011 Gallup poll, around 40 percent of unionized federal employees identified as Democrats; only 27 percent identified as Republicans. State and local government employees are far more likely to be Democrats than Republicans.
- IRS Admits to Targeting Conservative Groups in 2012 Election (May 10, 2013)
- WaPo and WSJ Agree: IRS Targeting of Conservatives Is Appalling (May 11, 2013)
- Schmalbeck on the IRS ‘Targeting’ of Conservative Groups (May 12, 2013)
- The Deepening IRS Scandal (May 13, 2013)
- The IRS Scandal, Day 5 (May 14, 2013)
- Jon Stewart and Vic Fleischer on the IRS Scandal (May 14, 2013)
- Inspector General: Ineffective IRS Management Allowed Agents to Target Conservative Groups (May 14, 2013)
- The IRS Scandal, Day 6 (May 15, 2013)
- Ellen Aprill, The TIGTA Report on the IRS Scandal: Questions About the IRS and About the Report (May 15, 2013)
- Phillip Hackney, The TIGTA Report on the IRS Scandal: Be on the Lookout for False Partisan Witchunts (May 15, 2013)
- The IRS Scandal, Day 7 (May 16, 2013)
- The IRS Scandal, Day 8 (May 17, 2013)
- The IRS Scandal, Day 9 (May 18, 2013)
Extensive front-page NYT report.
See the Update at the bottom of this Pro Publica story.
Until Congress passes the Disclose Act, which would end the practice of anonymous political spending, the IRS will continue to oversee groups that spend millions to influence the political process. What’s more, well-financed, powerful groups with deep political connections and access to first-rate legal advice will continue to whiz through the IRS express lane while genuine citizen organizations, Tea-Party-inspired and otherwise, will endure long waits to have their applications approved. The inspector general found one hapless applicant waiting 1,138 days for approval. We don’t know the victim’s name. We’re pretty sure it wasn’t “Rove.”
I make the pitch for DISCLOSE II to solve the broader IRS problem here.
Must-read Pro Publica deep dive.
Jonathan Bernstein wants unlimited disclosed contributions to candidates.
NYT on today’s hearing.
Andy Kroll reports for Mother Jones.
Whether or not the total number of c4 applications were going up, c4 political spending was exploding, beginning with WRTL and continuing into Citizens United. See my charts here from last year’s presentation at Stanford PACs, based upon data from the Center for Responsive Politics.
WaPo went to talk to the Cincinnati office workers.
Look: the IRS should have revealed its targeting of Tea Party groups much sooner, and it should not have had officials fail to report it (or perhaps even lie about it) when asked by Members of Congress.
But simply as a matter of PR, if the IRS decided it needed to get out in front of the damning upcoming TIGTA report, this was not the way to do it. It should have issued a press release later that day on Friday, ahead of the weekend. But it did it this way, in an offhanded, almost cavalier way (look at the exact text of what Lerner said: “So I guess my bottom line here is that we at the IRS should apologize for that, it was not intentional, and as soon as we found out what was going on, we took steps to make it better and I don’t expect that to reoccur.”) as part of the answer at a tax meeting where word was sure to leak out; it then was unprepared for questions at the press call afterwards (including the Lerner line that she was not good at math—true she’s a lawyer, not an accountant, but the optics) and then no formal response for a few days, and then apparently posting further private information about who was approved and put through this process on its website.
The bumbling nature of this seems to demonstrate that Lerner and others did not realize, at all, the extent to which this was politically radioactive and damaging. The IRS probably isn’t an agency used to interacting often with the national press, and it shows, very starkly, in this incident.
More about today’s hearings later.
“Committee on House Administration Democrats Introduce Bill to Reform and Reauthorize the Election Assistance Commission”
“Stevens: Rationale for Bush v. Gore was ‘unacceptable’; The former Supreme Court justice speaks out on John Roberts and the case that decided the 2000 election.”
“Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United”
John Samples has posted this draft on SSRN. Here is the abstract:
Three years ago the U.S. Supreme Court decided the case of Citizens United v. Federal Election Commission. It found that Congress lacked the power to prohibit independent spending on electoral speech by corporations. A later lower-court decision, SpeechNow v. Federal Election Commission, applied Citizens United to such spending and related fundraising by individuals. Concerns about the putative political and electoral consequences of the Citizens United decision have fostered several proposals to amend the Constitution. Most simply propose giving Congress unchecked new power over spending on political speech, power that will be certainly abused. The old and new public purposes cited for restricting political spending and speech (preventing corruption, restoring equality, and others) are not persuasive in general and do not justify the breadth of power granted under these amendments.
Republicans in the Ohio Legislature are pushing a plan that could cost the state’s public universities millions of dollars if they provide students with documents to help them register to vote. Backers of the bill describe it as intended to resolve discrepancies between residency requirements for tuition and voter registration, while Democrats and other opponents argue it is a blatant attempt at voter suppression in a crucial swing state.
“What the bill would do is penalize public universities for providing their students with the documents they need to vote,” Daniel Tokaji, a professor and election law expert at Ohio State University told TPM. “It’s a transparent effort at vote suppression — about the most blatant and shameful we’ve seen in this state, which is saying quite a lot.”
Gary Bass and Beth Kingsley have written this oped for the Chronicle of Philanthropy.
“Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act”
Steve Ansolabehere, Nate Persily, and Charles Stewart have written this article for the Harvard Law Review Forum. Here is the conclusion:
Reasonable people can disagree about the relevance of the 2012 election or even racially polarized voting patterns to the constitutionality of the coverage formula for section 5 of the Voting Rights Act. Indeed, we view our findings more as a response to the notion that the election and reelection of an African American President settles the constitutional question in favor of the VRA’s detractors. If anything, the opposite is true. To be sure, the coverage formula does not capture every racially polarized jurisdiction, nor does every county covered by section 5 outrank every noncovered county on this score. However, the stark race-based differences in voting patterns between the covered and noncovered jurisdictions taken as a whole demonstrate the coverage formula’s continuing relevance.
In particular, for those looking for a way to distinguish the covered jurisdictions from the noncovered jurisdictions, and to do so without running afoul of the “elephant whistle” problem, differential rates of racially polarized voting provide an ideal metric. There can be no doubt that the covered jurisdictions differ, as a group, from the noncovered jurisdictions in their rates of racially polarized voting. There can also be no doubt that voting in the covered jurisdictions as a whole is becoming more, not less, polarized over time.
This is a must-read, careful analysis. The question, which I first posed in 2005, is whether differences in racially polarized voting are of constitutional significance to save section 5 of the Act for the swing Justice(s) on the current Supreme Court. On that question, we likely will have to wait until the end of June.
Matea Gold, soon of WaPo, writes this article for the LA Times.