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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
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Barnes and Noble
Remedies: Examples & Explanations (Aspen Publishers, 3d ed. 2012)
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)
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)
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)
Excess of Democracy (Derek Muller)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Mischiefs of Faction
The Monkey Cage
More Soft Money Hard Law (Bob Bauer
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 Commentaries and Op-Eds
The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013
It's About the Disclosure, Stupid: The larger failing behind the terrible IRS treatment of Tea Party groups, Slate, May 14, 2013
Same-Sex Marriage: Court on the Couch, Reuters Opinion, Mar. 26, 2013
The Voting Wars Within: Is the Justice Department Too Biased to Enforce the Voting Rights Act?, Slate, Mar. 18, 2013
Who Controls Voting Rights?, Reuters Opinion, Feb. 26, 2013
After Scalia: Don’t Give Up on Campaign Finance Reform, However Hopeless It Seems Now, Slate, Feb. 21, 2013
If the Court Strikes Down Section 5 of the Voting Rights Act, Reuters Opinion, Jan. 30, 2013
Democrats, Don’t Freak Out! Why Fear that Republicans Will Gerrymander the Electoral College are Overblown, Slate, Jan. 25, 2013
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)
Read more opeds from 2006-2009, and these from 2010-2011.
Forthcoming Publications, Recent Articles, and Working Papers
Political Dysfunction and Constitutional Change, 86 Drake Law Review (forthcoming 2013) (symposium) (draft available)
Is “Dependence Corruption” Distinct from a Political Equality Argument for Campaign Finance Reform? A Reply to Professor Lessig, 12 Election Law Journal (forthcoming 2013)
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?, 74 Montana Law Review 53 (2013)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013)
Fixing Washington, 126 Harvard Law Review 550 (2012)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (2012)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 Journal of Law and Politics 557 (2012)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review 191 (2012)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012)
Teaching Bush v. Gore as History, 56 St. Louis University Law Review 665 (2012) (symposium on teaching election law)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, 10 Election Law Journal 325 (2011)
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)
Author Archives: Justin Levitt
Turns out, there’s plenty of “that” to fix in Florida’s elections. One more item to add to the list: how results are reported. There’s been growing concern about results reported in St. Lucie County (one of the counties in the Patrick Murphy-Allen West race), with allegations of massive fraud due to a purported 141% turnout rate.
It actually turns out that the turnout rate in St. Lucie was about 70% of registered voters, well in line with the rest of Florida’s results. But St. Lucie first posted its official results tabulating the number of voters and the number of “cards” cast — 175,554 voters and 247,713 “cards,” fueling the conspiracy theories.
There’s an explanation far simpler than massive fraud: St. Lucie had a two-page ballot this cycle (with races on both front and back of each of the two pages); each page of the ballot was listed as a separate “card.” Some voters didn’t complete both cards (the second page was entirely lengthy ballot initiatives), so the number of cards isn’t exactly twice the number of voters. But some voters did complete both cards, leaving the number of “cards” well over the number of total voters — and to some, looking like solid evidence of fraud.
For President, St. Lucie initially reported 124,031 ballots cast, which looks a whole lot more normal than the total number of “cards.” The kerfuffle seems to be a product of observers misunderstanding data and leaping to conclusions, something I’ve noted in other contexts before. But St. Lucie’s reporting structure certainly didn’t help. Might well be time to put some more prominent disclaimers on the front page of the election-night reporting spreadsheet, to prevent similar confusion in the next election.
As Rick noted (here and here), the National Center for Public Policy Research has produced an essay that has gotten some recent publicity. Branded a “study” by others, it is long on eloquence and passion … but mighty short on facts and logic.
The piece is primarily about the impact of voter fraud. There are pieces with which I agree. But there are also some disturbingly familiar slips. I’ve prepared a thorough annotation, noting that which is correct, that which is correct but misleading or irrelevant, and that which is simply false. More, after the jump.
Yesterday, Nate Silver posted a column entitled “Measuring the Effects of Voter Identification Laws” on his popular (and informative) FiveThirtyEight page of the New York Times. Rick linked to the column here, calling it an “absolute must-read.”
If you do, read with caution. There should really be a question mark after the headline. Two reasons why, after the jump.
Also, another redistricting-related announcement. PDFs, ESRI shapefiles, and Google maps of all of the new federal and state redistricting lines, along with links to state pages with more data about the new districts, are now available here. (All, that is, except the states that aren’t yet done, and Rhode Island, which hasn’t yet made shapefiles publicly available.) For those looking to do research on the new lines before the Census turns around new data products, this collection of files should help.
That’s right — 40 states have now seen 176 lawsuits affecting redistricting this cycle … so far. Numbers 173-176 were filed challenging the newest Pennsylvania state maps late last week. Details on all of the litigation so far, here.
The latest report by the state, based on comparing voter registration rolls with DMV databases, puts the number of registered voters without state photo ID at more than 758,000 — 9.2% of the registered voters in the state. 186,830 of those voters are apparently in Philly — 18% of the city’s registration.
Looks like the comparison was done by trying to match name and date of birth from one list to another. Depending on how the match was conducted, that will count some people as matches who shouldn’t be (two different people with the same name and date of birth), and some people as non-matches who should be (the same person, but with a typo or middle name or nickname on one list); the extent to which the two different types of errors will cancel each other out, leaving a roughly accurate total estimate, is not clear.
Pending signature verification, it looks like Ohio may have redistricting reform on the ballot once again this November. The initiative would create a commission to draw districts modeled in some ways on California’s new commission, though with important differences in the composition of the commission, its voting rules, and the criteria that it would apply.
Official proponents of some of the more controversial provisions of the bills had praised the package in a commentary running earlier this morning.
UPDATE: Follow-up from the NYT, NPR, CBS, Politico, Chicago Tribune, Detroit News, and the Detroit Free Press, each noting the governor’s crossing of partisan lines on, among other things, an expansion of voter ID. Intriguingly, the only expansion of voter ID that I see in the vetoed bills is the provision of HB 5061 requiring photo ID or an affidavit before picking up an absentee ballot in person from a town clerk — the application of ID to absentee ballots (even those picked up in person) is the unusual bit. And that provision wasn’t mentioned anywhere in the Governor’s veto message.
The specific focus of this article out of Pennsylvania: nondrivers’ photo-ID application forms that are only available in English. Might these be “materials or information relating to the electoral process,” for purposes of section 203 of the Voting Rights Act, in a photo-ID state?
In a 2001 decision in Robinson v. Bartels, a NJ federal court invalidated New Jersey’s one-year durational residency requirement for state legislative candidates following a redistricting cycle, on federal constitutional grounds. Earlier this year, the NJ State Supreme Court disagreed, and enjoined a winning state legislative candidate from taking office. Last week, the federal court revisited the issue, affirming the original decision (invalidating the requirement and enjoining its enforcement). (h/t Flavio Komuves).
On top of the discussion of the federal constitutional issues at the conjunction of redistricting and durational residency requirements, the opinion has an interesting discussion of the effect of a federal injunction on state officials. A similar issue (arising out of a consent decree) came up in Ohio earlier this year.
Putting the Voting Wars in perspective. Here, there’s a debate over whether sitting election administrators should have leadership responsibilities in partisan campaigns. In Nigeria, the fight is apparently about whether election officials should be voting at all.
Naturally. The latest in Florida (which is up to six current lawsuits relating to election administration, by my count) is a request for an administrative determination that proceeding with Florida’s new omnibus voting law in 62 counties, while applying the pre-law rules in the 5 counties where some portions of the law are still awaiting preclearance, violates the state’s requirement of uniform voting procedures.
Another interesting campaign finance case filed by the Right to Life Committees, and another interesting campaign finance case out of Vermont. The decision on summary judgment denied the plaintiffs’ challenges to the application of Vermont’s law. Along the way, the court offers an intriguing discussion on “major purpose” as a limit on regulating PACs, at odds with the Fourth and Tenth Circuits. And an intriguing decision on refusing to find segregated bank accounts alone (without distinct accounting) sufficient to render an independent-expenditure entity distinct from a related entity making contributions, distinguishing the DC Circuit’s opinion in Emily’s List (and, perhaps, the Thalheimer litigation that Rick is working on in San Diego).
The case is Vermont Right to Life Committee v. Sorrell (II), No. 2:09-cv-188 (D. Vt.).
That’s the title of a new Center for Responsive Politics blog post, focused not on the degree of disclosure, but the timing: the next disclosure round for quarterly-filing federal PACs is July 15.
A hearing is scheduled for July 17. The MN Supreme Court doesn’t publish appellate briefs, but most of the litigants have published copies themselves. Here are the petitioners’ opening petition and brief, the legislature’s opposition, and the petitioners’ reply. And here are amicus briefs from the City of St. Paul, Minnesota Majority, and Sen. Newman and Rep. Kiffmeyer; I’m still looking for some others.
And in other news, a timely reminder of the systemic need for private entities fostering voter registration.
Dona Ana County, NM, is the source of the latest. There have been no claims of fraud (and from what I can see, no basis for such claims), but there are substantial questions about the accuracy of the lists the organization is using to send voter registration forms to the public. The Voter Participation Center used to be Women’s Voices, Women Vote, which ran into similar accuracy and execution questions four years ago.
I enthusiastically support efforts to help the enormous percentage of eligible but unregistered citizens get registered, and to help those who are registered stay registered when they move. It would be great to update our 19th-century registration system to something a little more modern, with fewer opportunities for error and confusion all around. In the meantime, we’re stuck with a suboptimal process that systemically depends on the efforts of civic-minded individuals, alone and in concert, helping to make sure that democracy works.
That said, too much unchanneled enthusiasm may create problems of its own. Registration forms sent in by voters who are already registered create hassles for election officials, and substantially overbroad efforts, however well-intentioned, will stoke (unwarranted) calls for clamping down on voter registration across the board. This is a script we’ve seen before.
My prediction: we’ll see this FairVote opinion piece again, in — say — October.
New Hampshire’s new voter ID law must still be precleared by the DOJ. In this report, Garry Rayno of the Union Leader says: “Nobody believes the DOJ will simply approve the new law. The department has already found several state photo identification laws in violation of the Voting Rights Act.”
Count me as “nobody.” The New Hampshire law differs in significant ways from the laws in South Carolina and Texas that have drawn preclearance objections, and those differences matter.
UPDATE: Reaction from the Brennan Center.
Ireland decided to buy — and then scrap — 7500 electronic voting machines after concerns about reliability and security. Now it looks like the recycling firm that bought them may be auctioning a few of them for charity, at 100 euros (about $125) apiece.
UPDATE: Not so fast. The recycling company’s contract says they must be entirely and irreversibly disassembled.
A new report by the Manhattan Institute, challenging scholarship on the effect of corporate political spending — not the impact on democratic participation, but on the corporate bottom line.
So reports Politico. If you’ve got a lot of money and you’re looking to influence policy, it’s just smart business to aim local.
The referendum campaign to overturn Maryland’s congressional maps turns in 36,267 signatures. That’s just 7,294 more than the requirement — a pretty slender margin for any petition. So now, the white knuckles turn to verification of the signatures…
From the opinion pages of the Columbus Dispatch.
Below, a piece by Chris Elmendorf on statistical tests for racism, and their impact on the Voting Rights Act. Originally published in JURIST (jurist.org), and available there at http://jurist.org/forum/2012/06/christopher-elmendorf-voting-future.php.
* * *
Enacted in 1965 and reauthorized several times since, the Voting Rights Act (VRA) has long been regarded as the capstone of our nation’s civil rights architecture. The VRA’s core provisions have, however, come under sharp criticism from commentators and jurists who consider them outmoded or even unconstitutional in a society that is far more racially tolerant than it was in 1965. Defenders of the VRA argue that it remains necessary because contemporary racial prejudices or the lingering effects of past discrimination represent ongoing barriers to the political aspirations of minority voters and candidates.
Beyond riling up the already converted, neither side has made much headway in this debate. Progress has been slowed by difficulties in measuring the severity and geography of contemporary racial prejudices, and the extent to which they shape voters’ decisions. Most scholars believe that survey-based measures of overt racial prejudice underestimate contemporary prejudice, because survey respondents do not want to be seen as racist or to see themselves as racist. Psychologists have developed alternative measures of “implicit bias” or “racial resentment” that do not require survey respondents to cop to being racist, but other scholars dispute the scientific [PDF] or normative [PDF] validity of these metrics. And whatever one makes of the metrics, they have not yet yielded a fine-grained picture of the geography of racial discrimination, which is necessary to resolve current controversies about the VRA.
My purpose in writing this commentary is not to describe the contours of seemingly intractable debate, but to argue that answers are finally at hand — thanks to path-breaking new research on the geography of discrimination. Seth Stephens-Davidowitz, a doctoral student in economics at Harvard, is deploying publicly available information to measure the frequency with which Google searches use the “n-word” in each of the nation’s 210 media markets. (It turns out that most searchers who used the n-word were looking for derogatory jokes about black people.) He shows [PDF] that in relatively prejudiced regions, then-candidate for president, Barack Obama, substantially underperformed relative to his expected vote share.
I argue here that Stephens-Davidowitz’s research is likely to be the nail in the coffin of Section 5 of the VRA, which requires jurisdictions in certain regions of the country to “pre-clear” changes to their election laws with the US Department of Justice or the District Court of the District of Columbia. But even as it hastens the demise of Section 5, Stephens-Davidowitz’s work should greatly strengthen Section 2 of the Act, which applies nationally and which prohibits election laws that “result” in minority voters having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
News of a very intriguing change in California’s election law, “to elevate any initiative with a constitutional impact to a more prominent spot on the ballot, right beneath bond measures.” I smell a call for empirical experimentation…
Delaware takes important steps to eliminate the existing 5-year waiting period for those with convictions to regain voting rights after they have completed their sentences. An identical bill must pass the next legislature in order to make this change to the state constitution effective.
Intriguing take on the backlash against corporate spending from Steve Chapman.
If this petition drive succeeds, it would put Maryland’s congressional map up for referendum. The only other such referendum over new redistricting lines that I’m aware of is the referendum over California’s state Senate lines (there was an earlier drive to put Ohio’s new lines to a referendum, since abandoned). Anyone else know of any others?
Montana’s not done yet. The latest exercise of free speech from the Mountain West…
That’s the title of a story from yesterday’s Wall St. Journal. As a follow-up, Paul Streckfus’ EO Tax Journal (paid service) asked some intriguing questions about the source of the information that the IRS is taking steps to investigate Crossroads GPS specifically.
Streckfus also sent along a partial transcript of the relevant remarks by Holly Paz, the acting director of Exempt Organization Rulings and Agreements at the IRS, and the official quoted in the Journal story. Ms. Paz was speaking to the American Institute of CPAs — full transcript (quoted with permission) after the jump.
Here we go again. Also, please note, the story itself does not mention any actual allegation of fraud by any voter.
And really, if you read the NY Times article, the MOVE Act is apparently being blamed for the date change, which is being blamed for 5% turnout on Tuesday — less than the 7% turnout for New York’s presidential primary.
Make no mistake: whatever the cause, the solution has to involve efforts to better inform voters, rather than critique of the decision to schedule elections so that servicemembers can effectively participate.
Beyond Affordable Care, beyond Stolen Valor, the Supreme Court took a third very important action today. The Ninth Circuit — first as a panel, then en banc — decided that Arizona’s refusal to accept federal voter registration forms without proof of citizenship was preempted by the NVRA. Two weeks ago, the state asked Justice Kennedy to stay the mandate of that decision, which he did temporarily, long enough for briefing.
Today, the full Court vacated that temporary order and denied a more durable (or permanent) stay, with Justice Alito dissenting. This means that citizens will be able to register in Arizona for this cycle’s elections without first having to produce specific documentary proof of their citizenship.
UPDATE: Reaction from the Lawyers’ Committee.