Have a Comment?
E-Mail Me at rhasen-AT-law.uci.edu
Election Law Blogger
Rick Hasen (posts)
Guest Bloggers
Heather Gerken (posts)
Justin Levitt (posts)
Nate Persily (posts)
Rick Pildes (posts)
Dan Tokaji (posts)Generously Supported By
ELB Feeds and Email Subscriptions
RSS XML
Get ELB Delivered by E-Mail to Your In-box via Feedburner
Books by Rick
The Voting Wars Website
NOW AVAILABLE from
Amazon
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
Book introduction
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
Election Law--Cases and Materials (4th edition 2008) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
Election Law Journal
Election Law Listserv homepage
Election Law Teacher Database
Repository of Election Law Teaching Materials (2011 update)
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Balkinization
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
Buzzfeed Politics
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)
Concurring Opinions
CQ Politics
Demos
Election Updates
Fairvote
Election Law@Moritz
Electionline.org
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
The Hill
How Appealing
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Political Wire
Politico
Prawfsblawg
Roll Call
SCOTUSblog
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
Why Tuesday?
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)
Articles 2004-2007
Author Archives: Heather Gerken
Gerken: Pew’s Election Performance Index
A few years ago, I proposed creating a “Democracy Index” that would rank states and localities based on how well they run elections. Since then, the Pew Charitable Trusts, a nonpartisan organization well known for promoting data-driven governance, has tried to put these ideas into action. It created the nation’s first Elections Performance Index, which was released this week. The EPI measures state performance based on seventeen indicators, which include the length of lines, the accuracy of voting technology, and the percentage of voters who experienced problems registering or casting an absentee ballot.
The process for creating the Index was remarkable – as serious and professional an undertaking as I’ve witnessed. Pew itself devoted significant funding and top-notch staffers to the project. It also assembled an extraordinary group of advisors, which included some of the top state and local election administrators in the country. The legendary Charles Stewart, the former chair of MIT’s political science department, served as the data expert (though that seems a bit like calling a Ferrari a “car”). The Pew staff and advisors — along with numerous outside experts Pew called in to poke and prod and test and challenge the validity of the indicators – narrowed down a list of almost fifty potential performance indicators to the seventeen you see on the website. A huge amount of effort was put in to be sure the indicators were measuring something meaningful, and that the data gave us genuine signals rather than noise. I am frankly amazed that Pew came up with so many good measures – it’s a testament to the creativity of the team, especially the political scientists who were involved.
I devoted a book to explaining why an election performance index like Pew’s has the potential to make a difference in election administration. Indices are incredibly useful tools in the policymaking world. They allow us to spot, surface, and solve problems by making election problems visible to everyone. They help policymakers identify the drivers of performance and sort useful policy needles from a haystack of disparate practices. They allow us to judge state performance against a realistic baseline – how a jurisdiction compared to its neighbors – rather than relying on a crisis to tell us there’s a problem.
Rather than rehash all of those arguments here, I’ll just note two things that really came through during the process. The first was how important it is to have an EPI. The EPI isn’t perfect, to be sure. It measures what can be measured using the best means available. But there are obviously areas where we can and ought to have better measures in the long run (something that Pew itself has shown itself expert at generating in other areas). The EPI is thus best understood as a baseline for measuring election performance going forward.
Nonetheless, it makes a huge difference to have that marker laid down. Going forward, we’ll be able to trace the effects of policy interventions (like the reform to the military and overseas voting process). We’ll be able to identify problems we might not have seen before (even within this short period, we’ve already seen tantalizing glimpses of this possibility). For the first time, we’ve had a chance to acknowledge the unsung heroes of our democracy – the election administrators whose only reward for doing a good job before today has been a quiet election and no media firestorm. And the EPI should help low-performing jurisdictions lobby for the resources they need to improve.
The second thing that process underscored was how seriously election administrators take these numbers. I spent a chunk of the book talking about the ways in which professional norms may be the best guarantor of a well-run election system. I wrote that we often think that reform and high-quality performance are due to pressure from the outside, but it’s actually the people inside the system who are best situated to improve it. I’ve now begun to wonder whether I should have devoted the entire book to the idea. Election administrators do a very hard job with very few resources. They care deeply about whether they are doing a good job, and they all want to do their jobs better. What I found most impressive about the meetings of the Pew advisors was how much they cared about their own performance on each and every indicator. These folks, after all, were chosen because they are so well regarded in the field. And yet every time a number was put up on the screen, the room fell silent as the administrators absorbed the results. What happened next was even more striking. They started to talk to each other. They talked about where they fell short and why, whether a low ranking was a glitch or trend, whether a high ranking was due to luck or skill. And they began to swap information about how similar problems were addressed or similar practices were used elsewhere. The data generated exactly the kind of conversations that will lay the groundwork for a better-run system. The EPI, in short, is the type of reform that makes bigger, better reform possible.
Gerken: Deal or No Deal?
Deal or No Deal? – Gerken
I thought I’d offer a quick follow-up on Dan Tokaji’s typically thoughtful post. As Dan correctly notes, there’s some disagreement between the civil rights community and academics about whether the deal on the table is a good one. To be sure, neither group is monolithic, but virtually all the mainstream civil rights groups seem to have endorsed the deal, whereas there aren’t many academics offering full-throated support for the bill in its current form. Indeed, if you privately asked academics the question made popular by NBC’s addictively awful show, “Deal or No Deal?”, I wonder how many academics would wholeheartedly urge the civil rights community to accept the deal.
There are, however, at least two things inhibiting the type of vigorous debate that Dan rightly points out ought to occur. The first is, believe it or not, modesty. It’s not like law professors have a comparative advantage in counting votes and brokering legislative compromises. The danger, of course, is that we become like those annoying “Deal or No Deal” audience members who urge hapless contestants to turn down massive amounts of money for a risky pursuit of the whole jackpot. After all, it is no mean accomplishment in this political climate to persuade Congress to renew the Voting Rights Act some 38 years after its original passage. Not only will Section 5 be renewed in toto, but Congress will prune back two Supreme Court decisions that have caused a great deal of consternation in the civil rights community. Efforts to tinker with the deal might sink it, and the civil rights community could find itself negotiating next year with a much weaker hand than it now holds.
The second reason academics may be reluctant to intervene is that so many of us genuinely believe in the Act, its aspirations, and its accomplishments. If the deal is going to go through regardless of what a few academics think about its merits, why allow the perfect to be the enemy of the good? (I’ll spare you the hand wringing on what these choices mean for us in our role as academics). As Dan mentions, I think there is a better way to administer Section 5, a strategy that is constitutionally more defensible and does a better job of protecting minority voters and deploying civil-rights enforcement resources. But I would certainly prefer the current bill to allowing Section 5 to expire.
The last time Section 5 was up for renewal in 1982, the civil rights community faced a similarly difficult choice. During the early part of the process, the deal on the table was far from ideal. At the time, many thought it was as good a deal as they could get with Republicans wielding control in the Senate and Ronald Reagan holding the presidency. There is a story- perhaps apocryphal – of the major players in the civil rights community meeting in a single room to debate whether to accept the deal. Though the majority thought they ought to accept the deal, in the end the civil rights community continued to press the case for tougher standards and persuaded Congress to enact a far stronger Voting Rights Act than existed prior to 1982. The 1982 amendments, coupled with a very helpful decision by Justice Brennan interpreting them, dramatically changed the rules of redistricting and resulted in the election of an unprecedented number of black and Latino candidates during the 1990s.
This may not be 1982 and it may not be possible to do any more for minority voters than the current bill does. At the very least, however, we all should be frank about the deal that is being cut so that the extension of the Voting Rights Act represents the beginning of this conversation, not the end. There is a lot to praise in the current bill. But it’s far from perfect, a point that tends to get lost in the press releases and triumphalist rhetoric we’ve seen in this debate. It does nothing to rein in the increasingly politicized Department of Justice, which has granted several preclearance requests under circumstances that have led many to think that the interests of the GOP, not minority voters, guided the decisions. It leaves in place a creaky, top-down regulatory system that cannot adapt quickly to changing political realities, let alone deal with many of the problems encountered by minority voters in the 2000 and 2004 presidential elections. Most seriously, it requires supporters of the Act to gamble that the coverage formula- the lynchpin of Section 5- will survive Supreme Court review. Political deals always require hard choices, but it would be a shame of all of the energy behind renewal evaporated the moment the bill is passed. The one thing that the academics and practitioners who support the Act ought to agree on is that we shouldn’t stop here.
–Heather Gerken, Professor of Law, Yale Law School

