“Campaign Finance Analysis: Deadlocks Are Only Part of Story at FEC”

Ken Doyle for Bloomberg BNA:

Partisan deadlocks at Federal Election Commission have been highlighted as the source of dysfunction at the beleaguered agency, but a new analysis of some of the most controversial matters handled by the FEC shows that focusing solely on the battles between the FEC’s Democratic and Republican commissioners misses a lot of what is really going on.
The analysis looked at more than two dozen closed enforcement cases dealing with one of the thorniest issues now faced by the agency—allegations of illegal coordination between nominally independent super political action committees and the candidates they support. The result: Democrats and Republicans on the FEC agreed nearly three times more often than they deadlocked on these controversial cases.
Super PAC cases are important because those organizations, which can raise unlimited amounts of money to influence elections, are becoming increasingly dominant in U.S. campaigns. In theory, at least, they are supposed to remain legally independent of the candidates they support. But, whether super PACs face any practical limits on their activities largely is determined by the enforcement rulings of the FEC in individual cases.
And, the bottom line in all of the cases resolved by the FEC so far is that the allegations of illegal coordination have been dismissed.

“The Donald Trump of the Left; Larry Lessig may have the most distorted views of what the presidency is.”

Seth Masket at Pacific Standard:

Overall, Lessig seems to be treating the presidency as a symbol, or simply a bulletin board on which to attach his reform manifesto. The presidency may be those things (and has certainly been used as such by many others before Lessig), but it’s also an actual job. Lessig has displayed no interest in holding it. His whole campaign is a gimmick, and this does his reform ideas no favors.



Two Preview Talks on “Plutocrats United”

I’ve just approved the final corrections to my Yale University Press book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections due out Jan. 12. (You can preorder at a 28% discount at Amazon.)

I’ll be doing a book tour in January and February which should take me to LA, NY, DC, Irvine, Boston, Philadelphia, Atlanta, and Miami (with perhaps more to be added). I’ll announce details in December. But I’ll be previewing the talk in the fall, with a Constitution Day lecture September 16 at Chico State and a Democracy Studies lecture October 8 at Ohio State.

Looking forward to talking about the book. Here is the book description:

Campaign financing is one of today’s most divisive political issues. The left asserts that the electoral process is rife with corruption. The right protests that the real aim of campaign limits is to suppress political activity and protect incumbents. Meanwhile, money flows freely on both sides. In Plutocrats United, Richard Hasen argues that both left and right avoid the key issue of the new Citizens United era: balancing political inequality with free speech.

The Supreme Court has long held that corruption and its appearance are the only reasons to constitutionally restrict campaign funds. Progressives often agree but have a much broader view of corruption. Hasen argues for a new focus and way forward: if the government is to ensure robust political debate, the Supreme Court should allow limits on money in politics to prevent those with great economic power from distorting the political process.


“More Than 40 U.S. Senators Call for Disclosure of Corporate Political Spending”


In a letter released today, 44 senators are calling on U.S. Securities and Exchange Commission (SEC) Chair Mary Jo White to act on a rulemaking petition that would require companies to disclose their political spending.

Spearheaded by U.S. Sens. Jeff Merkley (D-Ore.), Charles Schumer (D-N.Y.), Tom Udall (D-N.M.), Sheldon Whitehouse (D-R.I.) and Robert Menendez (D-N.J.), the letter states, “If implemented, the Petition would require public companies to disclose to their shareholders how they use corporate resources for political activities, bringing much needed accountability to shareholders and transparency to corporate political spending. We believe this is consistent with the SEC’s requirement for public companies to disclose meaningful financial information to the public.”


#SCOTUS Lets VA Gov. McDonnell Stay Out of Jail for Now: What It Means

Via Chris Geidner comes this order from the Supreme Court keeping Virginia ex-governor Bob McDonnell out of jail pending a Supreme Court decision whether or not to hear his case after he lost in the trial court and the 4th Circuit. He remains on bail until either the Supreme Court denies cert. or, if it takes the case, until the end of his case in the Court.

What does it mean? To begin with, it means it is fairly likely the Court will take his case, and there is at least a decent chance he will win it (that’s because the standards the Court considers in granting a stay factor in the likelihood of a cert. grant and an eventual win in the case).  it is no sure thing. It might be that there are simply enough Justices who think the issue merits serious consideration. But it is quite rare for the Court to keep a convicted criminal defendant out of jail pending a cert. petition, and this no doubt reflects both the famous nature of the defendant as well as concern about what counts as official acts for purposes of bribery laws. The case will likely provide the Court with an opportunity to further explore the line between what counts as illegal bribery and what counts as politics as usual, a line which the Court has found more difficult to police than one might think.


ELB Podcast Episode 3: Larry Lessig: Bold Campaign Reformer or Don Quixote?

Larry Lessig for president? The campaign finance reformer considers throwing his hat in the ring and proposes being president only long enough to pass a package of election reforms. What does Lessig believe about campaign finance? What other changes would he make in how we run our elections? Is his campaign strategy sound, given other reformers who have blasted his tactics?

Larry Lessig joins us for a frank conversation about Lessig for President. Larry Lessig: Bold Campaign Reformer or Don Quixote?

You can listen to the ELB Podcast Episode 3 on Soundcloud or subscribe at iTunes.


“Defection of Perry Aide to Trump Camp Has Iowans Fearing for Image”

Fascinating Trip Gabriel for the NYT:

Is Iowa for sale?

That is the perception sending shudders through the state’s Republicans, after the leader of Rick Perry’s Iowa campaign quit when Mr. Perry suspended pay to staff members, then quickly went to work for Donald J. Trump, who he had earlier said lacked a “moral center.”

The head-spinning dismount and remount came three weeks after another embarrassing episode for the state’s Republicans. A long-running scandal over under-the-table payments to a state senator to endorse Ron Paul’s presidential bid in 2011 led to the federal indictment this month of Mr. Paul’s former campaign manager.

On Tuesday, at a meeting of the Polk County Republican Party in Des Moines, the two events were linked in many conversations — as they have been all week by Iowa’s political insiders, who are hypersensitive about the state’s privileged role as the first to vote in presidential races.


“Could Donald Trump win the Republican presidential nomination?”

Sandy Levinson:

The quick and dirty answer to the question is yes.  And the reason has to do with the formal rules adopted by the Republican Party with regard to the allocation of delegates to the 2016 Convention, to be held in Cleveland in June.  Four states are allowed to have their primaries in February–Iowa, South Carolina, New Hampshire, and Nevada–and then the scramble begins.  A whole bunch of states will have their primaries before March 15.  AND THE RULES REQUIRE THAT ALL OF THESE STATES OPERATE ON THE BASIS OF PROPORTIONAL REPRESENTATION(as is true for the first four states).  Then things get interesting, for it is up to the states themselves to decide whether delegates will be allocated by proportional representation or winner take all.  The current calendar for the Republican primaries indicates that the following states will be holding their primaries after March 15:  Arizona, Utah, Wisconsin, Connecticut, Delaware, Maryland, Pennsylvania, Rhode Island, Indiana, Nebraska, West Virginia, Oregon, California, Montana, New Jersey, New Mexico, South Dakota, and DC.  Apparently dates are not yet firmed up for New York, North Dakota, Utah, Colorado, Idaho, Kansas, Maine, Washington, and Wyoming.  Game theory suggests that there will be advantages to coming late precisely because it looks almost certain that there will be at least five or six candidates still duking it out by the Spring.  (I was on a program several weeks ago with the leader of the Travis County Republican Party, who predicted that there will be at least 5 or 6 candidates in the Texas primary on Super Tuesday, March 1.  It seems altogether likely that Trump will have more delegates on March 15 than any other single candidate, even if, as I am assuming, he has, say, “only” 30% of the total.  But if six or seven others are dividing up the remaining 70%, that obviously means that none of the others is likely to be all that close to Trump.


Speaking on Two Panels at APSA

Really looking forward to these:


Author Meets Critics: Bruce Cain’s Democracy More or Less

Sun, September 6, 8:00 to 9:45am, Parc 55, Mission ISession Submission Type: Roundtable

Session Description

This panel brings political scientists with electoral and institutional expertise together with legal scholars to discuss Bruce Cain’s new book, Democracy More or Less: America’s Political Reform Quandary (Cambridge University Press, 2014). They will bring their diverse approaches to electoral reform to this discussion with the author to give a balanced look at this work and the prospects of reform overall

Sub Unit



  • Thad Kousser, University of California, San Diego


  • Bruce E. Cain
  • Richard L. Hasen, UC Irvine School of Law
  • Frances E. Lee, University of Maryland, College Park
  • Raymond J. La Raja, University of Massachusetts, Amherst
  • Richard Pildes, New York University



The Prospects for Constitutional Change and Reform in the U.S.

Fri, September 4, 11:30am to 1:00pm, Hilton, Franciscan ASession Submission Type: Roundtable

Session Description

This roundtable will address and assess the current prospects for fundamental constitutional change and reform in the U.S. The roundtable will particularly engage with the contemporary concern with dysfunctional government, the prospects for reform through formal amendment or a constitutional convention, the various political currents impelling us toward (or away) from reform, and what these practical topics imply for the theory of constitutional change. I (Steve Griffin) am proposing eminent discussants who have both general and specific expertise on each of these topics. Sandy Levinson’s book “Framed” set the stage for recent discussion of formal efforts at reform. Both Sandy and John Vile are informed observers of current efforts by conservative groups to call a constitutional convention to restore a traditional understanding of American federalism. Vile is also well informed on all of the proposals for formal amendment and significant alteration of the Constitution in American history. Rick Hasen is an expert on voting rights and political reform generally. He can also speak to the California experience with direct democracy, which is also important to this topic. I have a book coming out with Kansas Press in fall 2015 on the links between our current troubles with dysfunctional government and the Constitution itself. The book argues that a number of recent “policy disasters” can be traced back to the elements of our contemporary constitutional order. In addition, it focuses attention on the key role of trust in government and argues that maintaining trust is a constitutional issue as well. The book discusses how the issue of trust has been addressed historically in California and other western states through the use of direct democracy. The book also discusses the prospects for fundamental constitutional reform.
Melissa Schwartzberg is a rising scholar of constitutional and democratic theory who brings an unusual historical perspective to her work. She has specifically written on the theory of constitutional change in a way that makes it easy to relate theory to contemporary concerns over dysfunctional government. This is really an outstanding group for this topic and we look forward to having a very productive exchange!

Sub Unit



  • Stephen M. Griffin, Tulane Law School


  • John R. Vile, Middle Tennessee State University
  • Sanford Levinson, University of Texas, Austin
  • Richard L. Hasen, UC Irvine School of Law
  • Melissa A. Schwartzberg, New York University



Two Law and Political Process Study Group Panels at APSA

We hope to see you there:


Political Parties and Campaign Finance in the Post-Citizens United World

Sat, September 5, 10:15am to 12:00pm, Hilton, Mason RoomSession Submission Type: Full Panel

Session Description

Political Parties and Campaign Finance in the Post-Citizens United World

Sub Unit

  • Related Groups / Law and Political Process Study Group


  • DanielH.Lowenstein, University of California, Los Angeles


  • YasminDawood, University of Toronto

Individual Submissions

  • Ideological Donors, Contribution Limits, and the Polarization of American LegislaturesMichaelBarber, Brigham Young University
  • The Federalist Safeguards of PoliticsAnthonyJohnstone, University of Montana
  • Legislators as Party Elites: Intraparty Factionalism and Presidential Politics in the New Hampshire State HouseSethE.Masket, University of Denver
  • Democratic RomanticismRichardPildes, New York University

Roundtable on the Voting Rights Act at 50

Fri, September 4, 2:30 to 4:00pm, Hilton, Union Square 1 & 2Session Submission Type: Roundtable

Session Description

2015 marks the 50th anniversary of the passage of the Voting Rights Act, providing an opportunity for reflection on the past and thoughts about the Act’s future. Among the questions to be considered: What has been the effect of the Supreme Court’s decision in Shelby County to render the preclearance provisions of the Act ineffective? What is the likelihood of congressional reinstitution of the preclearance provision? Does Section 2 of the Act continue to function as intended? What is the future for Section 2 and Section 203 language claims in the courts?

Sub Unit

  • Related Groups / Law and Political Process Study Group


  • Bernard N. Grofman, University of California, Irvine


  • Matt A. Barreto, University of California, Los Angeles
  • Kareem Crayton, Crimcard Consulting Services
  • Pamela S. Karlan, Stanford Law School
  • Derek Muller, Pepperdine University School of Law




“What’s the Deal with Trump? Cleaning up elections, beating up corporations”

Weekly Standard:

This economic critique fits into a sophisticated attack on the present state of presidential campaign finance. It is not a call for reform. It is a boast of his own unbuyability in a world where all politicians can be bought. A Washington Post article about the consternation of top Republicans took the boast at face value: “Donors feel powerless. Republican officials have little leverage. Candidates are skittish. Super-PAC operatives say attack ads against him could backfire.” Most voters will read of such big-donor consternation and think: What’s not to like? On the trail, Trump has of late been telling the story of a lobbyist who came to him offering the campaign $5 million, only to be sent away. Otherwise, Trump says, “he’ll be coming in two years, representing some foreign government.” Trump alleges that Jeb Bush has secretly raised either $114 million or $135 million this way. Whether this lobbyist is an actual person or a composite, the story is plausible, and Trump uses it for a beautiful piece of oratorical pedagogy. He talks about how even the noblest politicians with the best intentions will give in to lobbyists once they get behind closed doors:

I turned down so much money I feel like a stupid person .  .  . five million dollars. I could have it right now, and I turned him down. In fact, how about—I’ll just take a vote—how about if I take all this money and promise you, swear to you, that I won’t do anything for these people. What about that? No?

Nooooo!” the crowd bellows.

This kind of campaign-finance talk could broaden Trump’s appeal far beyond the Republican party. This week, a Quinnipiac poll found his support strongest among liberal and moderate Republicans. Progressive campaign-finance activist Lawrence Lessig of Harvard Law School told Politico he would consider running with Trump on a third-party ticket.

In an interview with me for the ELB Podcast, Lessig says he would not consider a run with Trump.



“Kris Kobach says voter registrations without ‘proof of citizenship’ need to go”

KC Star:

One complication of the state’s proof-of-citizenship law is that federal elections have no such requirement.

Two voters are challenging Kobach’s decision that those who register to vote using a federal form, which doesn’t require proof of citizenship, can’t cast ballots in state and local elections. A Shawnee County district judge last week allowed that lawsuit to go forward.

Earlier this summer, Kobach lost his bid to add the state’s proof-of-citizenship requirements to the federal form. The U.S. Supreme Court upheld a lower court ruling against that idea, leaving in place a system in which Kansas voters who register with the federal form can only vote in federal races.


More on Congressional Overrides of #SCOTUS Statutory Decisions

In 2012, I wrote a paper, End of the Dialogue: Political Polarization, the Supreme Court and Congress. Using Bill Eskridge’s methodology, I updated his pathbreaking 1991 study on congressional overrides.

Professor Eskridge and his co-author, Matt Christiansen did a new study of overrides, Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 19672011, 92 TEXAS L. REV. 1317 (2014). It is a long and important piece, but it took issue with some aspects of my 2012 study.

Jim Buatti (my research assistant on the 2012 paper) and I have now written a response to the critique, Conscious Congressional Overriding of the Supreme Court, Gridlock, and Partisan Politics, for the Texas Law Review See Also, and Eskridge, Christiansen and Sam N. Thypin-Bermeo have written a reply, The Conscious Congress: How Not to Define Overrides.

I hope you find the dialogue of interest.


“Deep in minority, Dems look to redistricting for hope”

The Hill:

But Pelosi’s co-sponsorship of this year’s reform proposal marks a rare move for a party leader who seldom lends an official signature to individual bills.

Her formal endorsement is both an escalation of support for non-partisan redistricting and an indication that Democratic leaders want to rein in gerrymandering and lay the groundwork for reform heading into the 2016 elections.

It may also be a tacit acknowledgement that the current map gives the Democrats little chance of regaining the Speaker’s gavel before the next national census, in 2020.



“Owned by Union, Amalgamated Bank Gives Lift to the Left”

Nick Confessore for the NYT:

When Ready for Hillary, a pro-Hillary Rodham Clintonsuper PAC,” wanted to take out a million-dollar loan five months before it planned to go out of business, it turned to a bank that was founded to guard the savings of New York City garment workers.

When the Democracy Alliance, an influential club of liberal donors, sought to recruit members in advance of the 2016 elections, the bank’s president helped to make introductions.

And when workers-rights groups wanted to embarrass Walmart and the Gap for unsafe working conditions at factories supplying their stores, Amalgamated Bank, which manages $40 billion in pension fund assets, stepped in again, rounding up fellow investors to warn the companies that they could face lawsuits and shareholder actions.

Four years after nearly collapsing amid the financial crisis, Amalgamated has aggressively carved out a position as the left’s private banker, leveraging deep connections with the Democratic establishment to expand rapidly in a niche long dominated by larger but less nimble financial institutions.


“Alabama Risks Making It Much Harder To Get Required Voter ID”


The Alabama Law Enforcement Agency said Monday that proposed budget cuts would force it to close all but four driver’s license offices, even though the state requires government-issued photo identification, like a driver’s license, to vote in elections.

The 45 other locations would be closed in phases, the agency said, if the Republican-controlled state legislature were to pass the kind of “drastic” budget cuts it’s now considering. Lawmakers have proposed $40 million for the agency next year, which would be a $15 million cut from what it received in state funding this year.



“Secretary of state accused of fraud, money laundering”

News from New Mexico:

Secretary of State Dianna Duran was charged Friday in state District Court with fraud, embezzlement, money laundering and other crimes related to allegedly converting thousands of dollars in campaign contributions to her personal use in 2013 and 2014.

At the same time, it appears she was frequenting casinos across the state and withdrawing hundreds of thousands of dollars at them from accounts in her name.

Democratic Attorney General Hector Balderas alleged 64 violations in a criminal complaint and information that said Duran shifted money between campaign and personal accounts and withdrew sums at eight casinos.

Duran is a Republican in her second term; she was elected in 2010 and re-elected last year. The secretary of state, who oversees elections and campaign finance, has the role of state government ethics regulator.

The complaint says Duran violated “the ethical principles of public service” by converting intended campaign contributions to her own use.

Duran’s lawyer, Erlinda Johnson, issued a statement saying “we have identified some serious potential violations of law by the New Mexico Attorney General’s Office, in conducting the investigation

View the complaint.


Breaking: TX Seeks En Banc Review in 5th Circuit Voter ID Case

You can read the petition for en banc review here. The effect of this filing is to stay the mandate and to put the remand of the case on hold, at least for now.  It is not clear if the 5th Circuit will take this en banc (it is not clear if the votes are there), but my guess is that if it does not that Texas is likely to ask the Supreme Court to review the case, and I think such review would be fairly likely to resolve issues about the proper scope of Voting Rights Act section 2 in vote denial cases.

Here is Texas’s explanation for why it believes en banc review is proper:

En banc review is necessary to maintain the uniformity of the Court’s decisions and to consider questions of exceptional importance. In holding that SB14 violates Voting Rights Act §2 based on disparate rates of ID possession, socioeconomic disparities, and historical discrimination—without any evidence of depressed political participation by minority voters—the panel’s decision conflicts with this Court’s decision in League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc), the Seventh Circuit’s decision in Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), and the Ninth Circuit’s decision in Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). The panel’s expansive interpretation of §2 presents two questions of exceptional importance: first, whether the text of §2 imposes liability without proof that the challenged voting qualification causes any inequality in voting opportunities on account of race; and second, if it does, whether the statute exceeds Congress’s power to enforce the Fifteenth Amendment.

The panel’s decision creates two additional conflicts. By characterizing the policy behind SB14 as “tenuous” because in-person voter fraud is “rare,” the panel’s decision conflicts with Crawford v. Marion County Election Board, 553 U.S. 181 (2008), and Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013). And by vacating the district court’s finding that SB14 was enacted with a racially discriminatory purpose, but remanding for further consideration even after a complete trial and suggesting that the district court could reopen the evidence, the panel’s decision conflicts with this Court’s decisions in Meche v. Doucet, 777 F.3d 237, 246-47 (5th Cir. 2015), and Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 2014), cert. denied, 135 S. Ct. 2859 (2015).


Please Unregister from Voting So Property Owners Can Vote

Bizarre story out of Missouri:

A mistake by representatives of the Business Loop 70 Community Improvement District means a sales tax increase the district needs to thrive will require approval by a single University of Missouri student.

On Feb. 28, Jen Henderson, 23, became the sole registered voter living within the community improvement district, or CID, meaning she is the only person who would vote on a half-cent sales tax increase for the district.

The Columbia City Council established the district on a 5-2 vote in April in response to a petition from a group of property owners in the CID boundaries. The “qualified voters” in a CID are capable of levying various taxes or assessments within the boundaries of the district to fund improvement projects. Under state law, decisions to impose sales taxes in a CID are to be made by registered voters living in the district boundaries. If no such registered voters are present, property owners vote….

Henderson said she doesn’t want her involvement with the CID to be private. She said Gartner initially approached her in June to explain the goals of the CID and ask her to consider “unregistering her vote” so the property owners could make the decision. The more she researched the situation, Henderson said, things “just didn’t seem to be as good as they were saying to me at first.”

Gartner “tried to get me to unregister, and that’s pretty manipulative,” Henderson said. “The district plan and the district border is manipulative, too.”

Gartner said she did nothing illegal when contacting Henderson and was surprised Henderson viewed her contact negatively.

Noren said she spoke with Henderson about withdrawing her registration but that the clerk’s office only does so “very occasionally” and does not recommend it.


“On ‘dumbing down’ the Democratic debate”

Larry Lessig responds to Tom Mann’s post of yesterday:

I get the appeal in blaming Republicans. I understand the attraction in good vs evil stories. I see the strength in the partisan rally. I get it’s a great strategy for winning elections.

But it is not a strategy for governing. We won’t have a functioning government until we create a functioning democracy. And it is precisely because of the rhetoric of Republicans such as Trump, that we have a chance now to build a campaign that rallies America to this obvious truth. There will be citizens of good conscience who argue against the idea of wealth equality. There will be liberals as well as conservatives who argue against the notion of speech equality. But who is going to explain to America that citizens do not deserve equal representation as citizens? Who’s going to defend the grotesque system that gives 400 families so much political power? If there is one truth for us that is self-evident, it is that a representative democracy should represent us equally. And if there is one truth that cannot be denied, it is that America’s democracy doesn’t.

Focusing America on that core principle may well be “dumbing down” the debate. I don’t think so. I think its a way to elevate the debate above the stupid partisanship that has disillusioned so many. I think it’s time to fight for a big idea that Americans actually believe and that was the core idea of our Republic: that representative democracy represent its citizens equally. I think we could win that fight. And if we do, we would win something much bigger than yet another partisan election.

I’m happy to be called “absurd” and “foolish” for standing up for that ideal, and proposing an idea to get it. But when I am, I’m not sure it is I who am “dumbing down” the democratic debate. I’m not sure that’s debate at all.


“Redistricting Reform Commission holds first meeting with just 10 weeks to act”

Maryland Reporter:

Gov. Larry Hogan’s 11-member  Redistricting Reform Commission, created on Aug. 6 by executive order, met for first time near the State House Thursday where they outlined their first steps to reform the process of drawing Maryland’s congressional and legislative district lines.

In order to combat Maryland’s A+ grade in gerrymandering, an unlucky subject to be excelling at, the commission plans to hold four to five “regional summits,” or public hearings, over the next two months. The final outcome will be a report outlining voters concerns with redistricting, due to the governor and General Assembly leaders by Nov. 3, less than 10 weeks from now.

The commission will have to produce a quick turnaround with a “fairly aggressive” schedule, according to the governor’s office. In addition to the report, the commission is tasked with recommending a constitutional amendment on congressional and legislative redistricting to be introduced during the Maryland General Assembly’s next legislative session.


“FairVote in the Supreme Court”


FairVote provides its innovative analysis and pro-voter perspective to activists, local and state policymakers, and to all three branches of the federal government. This month, FairVote submitted amicus curiae (“friend of the court”) briefs along with the Center for Competitive Democracy in the Supreme Court for two cases, each seeking a full hearing before the highest court in the land. Both briefs highlight practical statutory solutions, such as forms of ranked choice voting, to the problem of no-choice elections.

Read FairVote’s brief in Balsam v. Guadagno, the New Jersey case about closed primaries, here.

Read FairVote’s brief in Rubin v. Padilla, the California case about “top two,” here.


“Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own”

Adam Liptak in the NYT:

Mr. Feldman conducted an extensive analysis of overlapping language, using anti-plagiarism software to detect similar wording in briefs and opinions from 1946 to 2014. The study and related findings were based on almost 10,000 briefs and looked for passages of at least six words with an overlap of at least 80 percent.

Justice Thomas’s majority opinions had the highest rate of overlaps with language in parties’ briefs in the decade since Chief Justice John G. Roberts Jr. joined the court.

Paul M. Collins Jr., a political scientist at the University of Massachusetts, Amherst, who helped conduct two more limited studies that came to similar conclusions, said there might be a link between Justice Thomas’s approach to arguments and the high rates of seemingly borrowed language in his opinions.“His lack of engagement in oral arguments suggests that he doesn’t find them especially useful,” Professor Collins said. “If this is true, his view of cases is being heavily shaped by the legal briefs filed in the cases.”

Justice Thomas is often more expansive when not writing for the majority. In the last term, he filed 30 dissents and concurrences, more than any other justice. Many concerned major constitutional questions, were longer than the majority opinions they critiqued and made novel points.

Over the years, the average rate of nearly identical language between a party’s brief and the majority opinion was 9.6 percent. Justice Thomas’s rate was 11.3 percent. Justice Sonia Sotomayor’s was 11 percent, and Justice Ruth Bader Ginsburg’s 10.5 percent. All three sometimes produce institutional prose.

In response to my tweeting a link to this piece, Judge Michael Smyth tweeted (in a tweet since deleted) questioning whether the focus on Justice Thomas was fair, given the close rates for Justices Sotomayor and Ginsburg.


AALS Election Law Winner

From Josh Douglas:

I am pleased to announce that the AALS Section on Election Law has selected the winner of the Call for Papers:  Hank Chambers (U. of Richmond) “Local Officials and Voter ID.”

Hank will join David Schleicher (Yale Law School), Jocelyn Benson (Wayne State), Richard T. Ford (Stanford), and Trey Grayson (former KY Secretary of State) at the Section’s program, titled “Election Law at the Local Level,” on  Friday, January 8, 2016 from 10:30 am-12:15 pm at the AALS Annual Meeting in New York City.

The final paper will be published in the Election Law Journal.  I have pasted the abstract below.

Congratulations, Hank!

Local Officials and Voter ID

Henry L. Chambers, Jr., Professor of Law, University of Richmond

The interpretation state and local officials provide of voting laws can be just as important as the substance of the law. For example, how voter identification laws are interpreted can be just as important as the fact that voter identification is required of voters at the polls.  Whether a voter can vote or be assured that his vote will be counted may depend on the interpretation of voter identification laws.  However, whether a voter can vote may also depend on how a poll official or poll worker interprets the law.  Further, how much time the voter or other voters must devote to voting may depend on how the local official or the poll worker interprets voter identification laws.

Virginia’s voter identification law provides an example.  One legitimate form of identification under that law is “any valid employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer’s business.” Va. Code §24.2-643.  The language of the law raises many issues.  Two are whether validity requires that the card have an unexpired expiration date and whether validity requires that the employee continues to be employed by the employer.  Though these questions can be answered by state or local officials well before an election, poll officials and poll workers must understand how officials have interpreted the law.

However, even if the official interpretation of the law is relatively clear, poll officials and poll workers still must determine whether the identification the voter presents is sufficient.  For example, if the validity of the identification requires that the voter be employed by the employer when the identification card is proffered, whether the poll worker may deny the identification if the voter cannot prove that he or she works for the employer or whether the poll worker may deny the identification only if there is a reason for the poll worker to suspect that the voter does not work for the employer remains an issue.  Resolving such issues in the absence of an absolutely clear interpretation of the law may take time.

The length of time necessary for a poll worker to determine whether a voter has valid identification matters.  Delays will affect how long other voters must wait to vote, the likelihood that those other voters will stay in line to vote, and the likelihood that others will see long lines and not bother to vote.  Media reports of long lines may also dissuade potential voters from approaching the polls at all.  That is particularly problematic given that voter identification is not about voter qualification, but is merely supposed to prove that the voter is the person identified in the poll book.



“Has Lessig Lost It? The Marriage of Larry and the Donald”

Steven Rosenfeld at Alternet:

Given the arc of Lessig’s activism, it’s not surprising that an individual who is driven to address one of the fundamental flaws in American politics is willing to embrace one of America’s most divisive politicans because he’s saying the right things about his issue. While that may be predictable or inevitable, it also a bit desperate and naïve—which has always been the danger of single-issue politics.

Let’s imagine that Lessig somehow links up with Trump. Are people who want to see a fundamental restructuring of interplay between private money and political candidates suppose to ignore Trump’s racism, sexism, elitism, and war-mongering, just because Trump has been bombastically telling Americans that he’s invested and gotten results from politicians, and “that’s a broken system”?

This is the danger of single-issue politics: seeing the light and being blinded by it. The problem is not that Lessig’s analysis of the problem is wrong. His remedies, including a national system of publically financed elections, are also correct—that, too, has been proven over the years in states and cities to be a generally better approach than the endless dialing-for-campaign-dollars status quo.


“We the Sheeple”

WSJ editorial:

Wisconsin’s Supreme Court shut down the John Doe investigation of conservative groups in July, but it turns out the probe was even worse than the judges knew. Documents filed at the state Supreme Court opposing Special Prosecutor Francis Schmitz’s motion to reconsider show that partisan motives ran through those who conducted their operations in secret while using gag orders to silence targets….In an email to Mr. Schmitz on Nov. 27, 2013, GAB staff counsel Shane Falk encouraged the special prosecutor to keep up the good work and “stay strong” in his pursuit of conservative nonprofit groups and allies of Mr. Walker. “Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires,” Mr. Falk wrote. “That isn’t democracy to say the least, but due to how they do this dark money, the populace never gets to know.” “The cynic in me says the sheeple would still follow the propaganda even if they knew,” Mr. Falk continued, “but at least it would all be out there so that the influences on our politicians is clearly known.” By “the sheeple” Mr. Falk means Wisconsin voters.


“Evenwel, Voting Power and Dual Districting”

Paul Edelman has posted this draft on SSRN.  Here is the abstract:

With the noting of probable jurisdiction in Evenwel v Abbott it appears that the Supreme Court will finally make clear what “one person, one vote” is meant to accomplish. Is it supposed to equate representation between districts, or is it supposed to equate voting power between districts? Having side-stepped this issue for 50 years it is time for the Court to make clear what its doctrine is about.

One possibility raised by the plaintiffs in Evenwel is that, at least in the context of the Texas state senate districts, one achieve both ends simultaneously. That is, the plaintiffs claim that it is possible to draw the districts so as to have both equality of total population as well as equality of citizen voting age population in every district. To support this claim they provide an affidavit claiming it can be done in this case as well as an appeal to the increasing power of the districting software.

If the Court wishes to go down the road of accommodating both interests it may need to be reassured that the option is available not only in Texas but in any districting situation. And even if the Court does not require that districting plans consider the power of the vote, individual states themselves may wish to if they can do that as well as achieve equality of representation. That is what I provide in this paper. I will show that there are very good theoretical reasons to believe that it will always be possible to draw districts that will be simultaneously close in both total population and citizen voting age population (or, indeed, any other additional population that the Court desires.)

Some of this analysis, however, depends on how the Court chooses to assess the deviation in voting power. I argue that the choice of a threshold for total deviation in the voting age population is intimately related to one’s model of voting power. I show that the relationship between the deviation of voting power and the deviation of voting populations is linear in the variable that characterizes the voting model. Thus, the Court must choose, either explicitly or implicitly, a model of voting power should it decide to take the power of the vote into consideration. Even so, I show that the standard of 10% deviation in the voting population leads to a deviation of less than 10% in voting power over a broad range of models.



Tom Mann Pulls No Punches in Attacking @Lessig Candidacy

Election 2016: Dumbing Down American Politics: Lawrence Lessig and the Presidency:

The hubris of the Harvard Professor is breathtaking. In virtually every respect, his strategy is absurd. Lessig’s political reform agenda is stymied by Republicans, not Democrats.  Why not direct his energies where the opposition resides? All of the current Democratic presidential candidates support the thrust of these reforms. But saying that this is their highest priority is likely to harm, not boost, their candidacies. Why would even the most ardent supporter of the three pillars of Lessig’s reform agenda cast a ballot solely on this basis? Big and important issues divide the two parties today and the stakes of public action or inaction are huge. We don’t have the luxury of using the election to try to build a mandate for a set of political reforms that would have no chance of passing in the face of GOP opposition and would be of only incremental utility if they did.  …

Lessig is a far less commanding presence but his ambition burns no less than that of Trump. The notoriety, celebrity, and adoring audiences are heady stuff, even if on a much smaller scale. Lessig told Bloomberg that Trump’s candidacy is evidence that his reform message is taking hold. Lessig said, Trump “strikes people as credible when he says all these people (politicians) are bought – I used to buy them…Trump is saying the truth.”  Lessig will be a minor figure in this election and the causes for which he fights are unlikely to advance from it. Both Lessig and Trump, despite their differences in visibility and importance in the election, will have contributed to the dumbing down of American politics, a reality that will bring tears to the eyes of civics teachers and political science professors across the country.


“Parties Play Politics With FEC Complaints”

Roll Call:

But the recent complaints could signal a shift from how the parties have approached complaints in the past.

“A general truce was in place for a number of years as both parties realized it wasn’t in their interest,” explained veteran campaign finance attorney Michael Toner, who is also a former FEC chairman, about the cost and burden of pursuing and defending complaints. “That truce is breaking down.”

The source believes the creation of the American Democracy Legal Fund is a sign that filing FEC complaints could become an establishment-endorsed tactic in campaigns.

“That would up the ante,” Toner said.