“Voter turnout disparity was key in razor-thin O.C. supervisor race”


The upset marked a political earthquake in central Orange County, an ethnically diverse area dominated by Latinos in Santa Ana and Asian Americans in the Little Saigon area. It’s the only part of Orange County where Democrats hold a voter registration advantage over Republicans.

But a Los Angeles Times analysis of election results shows how Republicans can still win because Asian American voter turnout is so much higher than Latino turnout.

The outcome, the analysis found, turned on the high number of Santa Ana voters who failed to return the absentee ballots that had been mailed to them.

In the core of Santa Ana, where voting heavily favored Correa, only 22% of the absentee voters got around to returning their ballots, far below the state and county’s 50% return rate for absentee ballots in the 2014 general election. The unreturned ballots represented tens of thousands of votes.

Andrew Do, by contrast, got a big boost because more than 40% of the absentee voters in Little Saigon returned their ballots.


“State high court won’t hear arguments in John Doe cases”

Milwaukee Journal-Sentinel:

The Wisconsin Supreme Court ruled Friday it would not hear arguments — in secret or in public — as it considers whether to allow an investigation to continue that has looked into whether Gov. Scott Walker’s campaign illegally worked with conservative groups in recall elections.

“The prospect of oral argument creates severe tension between important and conflicting priorities,” the court wrote, citing the long tradition of open courts and the secrecy of the John Doe.

Instead, the court will decide the matter based on hundreds of pages of briefs that have been filed in the cases, mostly in secret, because the court also rejected a special prosecutor’s argument that the secrecy genie has already largely escaped the bottle.



“Applying Citizens United to Ordinary Corruption”

George Brown has posted this draft on SSRN (forthcoming, Notre Dame Law Review).  Here is the abstract:

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.

The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Federal Election Commission v. Citizens United. There the Court stated that “influence” and “access” brought about through campaign support, including contributions, are not corruption. The Court appears to embrace a narrow view of what is corruption, tied closely to the concept of quid pro quo.

This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not — that preventing purchased political influence, whether generalized or particularized, is central to the federal anti-corruption enterprise. The matter is presented both on a theoretical level, and through examination of Supreme Court cases in what might be called the field of “ordinary corruption.” This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a “stream of benefits” as a means of securing somewhat generalized influence with public officials. The lower courts have thus reached results that further broad anti-corruption goals while ignoring intimations of a narrow view in the campaign finance cases. To the extent that the Supreme Court may extend this narrow view to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.


Are You a Student Taking an Election Law or Legislation Course This Semester?

Then you might want to check out my Examples and Explanations study aid. From the book description:

An up-to-date, user-friendly, and clear student-oriented treatise tackling the complex subjects in this field, including statutory interpretation, lobbying, bribery, campaign finance law, and voting rights. Suitable for use with courses in Legislation and Regulation, Statutory Interpretation, Election Law, Voting Rights, and Campaign Finance. Features an easy-to-follow correlation chart that matches the book’s coverage to the leading casebooks. Written by one of the leading voices in the field of election law and legislation. No other statutory supplement is as comprehensive, up-to-date, and full of examples (and answers) to test student knowledge.


“Judge: Democratic chairwoman took advantage of frail nursing home voters”

Gannett reports from NJ:

In a rare move, a Superior Court judge this week threw out the November election results for a City Council seat, ordering a new election after finding that the city’s Democratic chairwoman took advantage of elderly nursing home residents.

Among the residents whose mail-in ballots were thrown out Wednesday by Judge Heidi Currier was a blind man, a resident who couldn’t recall either her address or having voted, and others who testified that Leslie Dominguez-Rodriguez coerced them into voting for her husband, a candidate for Board of Education.


“Kris Kobach asks U.S. Supreme Court to restore his proof-of-citizenship law”

Wichita Eagle:

Kansas Secretary of State Kris Kobach is asking the U.S. Supreme Court to overturn an appeals court decision and restore a state law he wrote requiring proof-of-citizenship documents to register to vote.

Kobach wants the Supreme Court to undo the November decision by the Denver-based 10th Circuit Court of Appeal, in a case pitting Kansas and Arizona against the federal Election Assistance Commission and a bevy of voting rights groups.

Here is some of my earlier coverage.

“State and Local Officials Look to Improve Election Administration Ahead of 2016″

Bauer and Ginsberg blog at the Bipartisan Policy Center blog: “The 2016 presidential election campaign is officially underway. Millions of votes will be cast in the primaries and general election. Both parties will contest these elections vigorously, but both parties can also agree that voters should have a sound and fair process for casting their ballots.”


“Google searches show that millions of people wanted to vote but couldn’t”

Alex Street at The Monkey Cage:

Some scholars argue that requiring early registration hurts voter mobilization in the final days of the campaign, when interest in the election is most intense. But skeptics counter that most of the people who fail to register in time have little real interest in voting.

Our new research shows that there is a lot of last-minute interest. We estimate that keeping registration open through Election Day in 2012 would have allowed an additional 3 million to 4 million Americans to register and vote.

We used the number of Google searches for “register to vote” in the weeks leading up to the 2012 election to measure late interest in registering. These search terms were entered millions of times, and much of the activity fell at the very end of the campaign period.


“WyLiberty Brief Helps Turn Tide in Texas Free Speech Case”


The Texas Fifth Court of Appeals ruled yesterday in Cary v. Texas that evidence presented by state prosecutors to convict David Cary of bribery, money laundering and engaging in organized criminal activity was legally insufficient. The state brought the case against David Cary and others, arguing that a campaign funding system for a judicial candidate was instead a bribery scheme. Late last year, Wyoming Liberty Group attorneys filed an amicus curiae (friend-of-the-court) brief in the case detailing numerous constitutional problems with the state’s theory.


Fred Woocher Says A Court Could Well Kill the Shoots the Gays Initiative

In this post, I said I’d bet a court would order CA AG Kamala Harris to prepare a title and summary for the odious “shoot the gays” initiative. I base this on CA court cases refusing to engage in pre-election review of substantive constitutional standards. Not so fast says CA super-election lawyer Fred Woocher (in a post on the election law listserv, reprinted with permission here):

I’ll take that bet, Rick.  There is precedent in California at the local initiative level relieving city attorneys of the obligation to prepare a title and summary for a blatantly unconstitutional or invalid initiative proposal.  The same theory should apply to the AG’s office for a statewide initiative.  See, e.g., Widders v. Furchtenicht (2008) 167 Cal.App.4th 769; Jahr v. Casebeer (1999) 70 Cal.App.4th 1250.  And even in Schmitz v. Younger (1978) 21 Cal.3d 90, in which the California Supreme Court held that the AG could not unilaterally refuse to issue a title and summary for a statewide initiative based on his belief that it violated the single subject rule, the Court stated:  “This does not mean that the Attorney General may not challenge the validity of the proposed measure by timely and appropriate legal action. We hold only that without prior judicial authorization he may not delay or impede the initiative process while claims of the measure’s invalidity are determined.”  (Id. at p. 93.)

I don’t think any court is going to want to be responsible for ordering the AG to clear this initiative for circulation.

Fred could well be right, and I’ve learned long ago not to bet against Fred’s anallysis.  It will be interesting to watch.


Two New Reports from the ACLU

Access Denied: Barriers to Online Voter Registration for Citizens with Disabilities

Published by the ACLU and the Center for Accessible Technology focuses on one urgent issue: the accessibility of online voter registration websites for voters with disabilities.

The Cost of Modernizing Voter Registration Systems: A Case Study of California and Arizona

A report by the Social Science Research Council commissioned by the ACLU, found that making online voter registration accessible for Americans with disabilities can save millions of taxpayer dollars.


“Why Isn’t Congress More Corrupt? A Preliminary Inquiry”

I have written this symposium draft (forthcoming Fordham Law Review) and posted it on SSRN.  Here is the abstract:

In the aftermath of the indictment of New York state assembly speaker Sheldon Silver on corruption charges, law professor (and recent reformist gubernatorial candidate) Zephyr Teachout published an op-ed in the New York Times entitled “Legalized Bribery.” In it, she argued that campaign contributions are a “gateway drug” to bribes and that politicians are “pre-corrupted” by taking campaign contributions and doing favors for contributors. She wants campaign finance limits, public financing, and limits on outside income for legislators. Although Teachout used powerful rhetoric, and suggested worthy reforms, I see her as offering an empirical hypothesis about the relationship between campaign contributions and bribery: the easier it is to take campaign contributions, and the higher the contribution limits, the more politicians are primed to be bribed and therefore the more public corruption cases will emerge.

But if campaign contributions lead to corruption, why do we not see more corruption in Congress? After all, members of Congress may take up to $5,400 each election; they also may set up leadership PACs to take more money often used to benefit themselves, and now they can help Super PACs raise money. Further, prosecutors and the media have great incentives to uncover public corruption of our national legislature. Yet we see much more public corruption prosecuted on the state and local level than in Congress. New York legislators, for example, are 7 times more likely to be convicted of corruption-related offenses than members of Congress. Further, public corruption prosecution rates vary significantly from state to state, in ways which seems uncorrelated with campaign finance laws. The preliminary evidence does not support the Teachout hypothesis.

In this short Essay written for a symposium in the Fordham Law Review, I explore three possible explanations for relatively low rates of bribery and corruption in Congress compared to many states. I then make suggestions for reform based upon these explanations. First, the presence of muckracking media, widely consumed by the relevant public, deters corruption. Second, thanks to gridlock, complex rules, and committee structures, members of Congress may have less influence to sell than state and local officials, and therefore there is less demand by corrupt persons and entities to bribe them. Finally, part time legislators may have greater incentive to act corruptly than full time legislators because of a need for additional money to supplement their incomes.

In the end, the preliminary evidence supports only the first argument, that media attention is the best deterrent to corruption and explains both the relative lack of corruption in Congress and variation among the states. Based upon my preliminary analysis, I suggest we deal with public corruption primarily through subsidies of investigative journalism on the state level (the “ProPublica” model) and through appropriate law enforcement. The campaign finance problem is separate, and requires its own solutions.

This is still very early.  Comments welcome!



“Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment”

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

The modern “voting wars” involve repeated legal challenges alleging that proof-of-citizenship requirements for registration, voter identification laws, and other procedures aimed at protecting the electoral process violate the constitutional “right to vote.” In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting “too” burdensome.

Section 2 of the Fourteenth Amendment offers critical—and previously overlooked—insight into the scope of the right to vote. It imposes a uniquely severe penalty—reduction in representation in the House of Representatives and Electoral College—when that right is violated. The theory of “remedial deterrence,” a type of “remedial equilibration,” teaches that courts take into account the severity of the remedy for a violation of a legal provision when determining that provision’s scope. Stripping a state of its seats in Congress and votes in the Electoral College is a uniquely severe penalty, effectively nullifying the results of one or more elections, disenfranchising the people who voted for the ejected representatives, diluting the vote of each member of the state’s electorate, and potentially even changing control of Congress or the outcome of a presidential election.

For such a dramatic penalty to be appropriate, a State’s actions would have to be especially egregious—a direct disenfranchisement of certain disfavored groups of people. Facially neutral registration or voting procedures with which a person must comply in order to vote, in contrast, are insufficient to meet this highly demanding standard. This remedial deterrence interpretation of § 2 is consistent with both the Fourteenth Amendment’s legislative history and Congress’ contemporaneous interpretation of that provision during its immediate attempt to enforce it. All of the state laws and constitutional provisions that Congress concluded violated § 2 imposed additional qualifications for voting by disenfranchising entire groups of people, such as the poor, the illiterate, or racial minorities, due to their purportedly undesirable traits. The text and structure of § 2, the debates leading to its enactment, contemporaneous interpretation and application of that provision, and the persuasive considerations underlying remedial deterrence itself all counsel in favor of construing the Fourteenth Amendment right to vote as prohibiting the actual, direct disenfranchisement of disfavored groups of people, and not administrative procedures for registration or voting.


“American Plutocracy”

Tim Kuhner has posted this draft on SSRN (forthcoming, Kings Law Journal).  Here is the abstract:

This essay explores the linkages between economic inequality, political inequality, and money in politics. Said another way, it explores the linkages between Thomas Piketty, Gilens & Page, and campaign finance law. It argues that the U.S. Supreme Court has constructed and justified a new form of government called plutocracy. Campaign finance cases from Buckley (1976) to McCutcheon (2014) contain a series of constitutional principles that serve to increase political inequality and economic inequality. Those constitutional principles also serve as the “apparatus of justification” sought by Piketty, the justifications for inequality that might allow today’s state of affairs to endure. This essay exposes those constitutional principles and their relationship to works by Piketty, Gilens, and Page. It also contains a summary of some key points from my book, Capitalism v. Democracy (Stanford University Press 2014).

I heard Tim present this at King’s and look forward to reading this.


“‘Rhetoric and Reality': Testing the Harm of Campaign Spending”

Rebecca Brown and Andrew Martin have posted this draft on SSRN (forthcoming, NYU Law Review).  Here is the abstract:

This is an empirical piece prepared for a conference entitled Testing the Constitution, held at the University of Chicago Law School. Brown and Martin collaborated to design a survey experiment aimed at testing some of the factual claims made by the Supreme Court in Citizens United v. FEC. The paper shows that there is a demonstrable harm to the electorate’s faith in democracy, and argues that these findings supply a government interest, separate from prevention of corruption, in regulating campaign spending.


“Campaign Finance Reform Turns to Reward and Punishment”

NYT’s The Upshot:

It isn’t easy to reform the campaign finance system. Ask Lawrence Lessig, the Harvard law professor who last year raised $11 million to elect candidates who favored restrictions on unlimited contributions and spending only to find he’d become the issue’s latest Don Quixote. But he’s back with a new plan, and other groups are trying new lines of attack, hoping to change the behavior of candidates and lawmakers through rewards and punishments.