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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Author Archives: Guest Blogger
The following is a guest post from Anita Krishankumar:
Justice Scalia’s dissenting opinion in Sykes v. United States issued last Thursday, has quickly received a fair amount of buzz in the blogosphere. The buzz is understandable—the Sykes dissent is a Scalia classic: pithy, full of colorful phrases, and entertainingly blunt. But there is more to the opinion than just a few memorable Congress-bashing quotes. Indeed, there seem to me to be at least two related statutory interpretation techniques, or methodological biases, at work in Justice Scalia’s dissent. The first is an intolerance for imprecise statutory constructions that leave courts to engage in messy, case-by-case applications of a statute down the line. The second is a limited, black-and-white view of the reasons why Congress might end up enacting a statute that calls for just such messy, case-by-case judicial judgments in the implementation of a given statute.
I have argued elsewhere that the Supreme Court sometimes employs an “anti-messiness” principle in interpreting statutes—meaning that it deliberately rejects statutory constructions that require case-by-case factual inquiries or judicial judgments that will prove “messy”/complicated/confusing for implementing courts to administer. Justice Scalia is a strong proponent of this interpretive principle and his Sykes dissent very much reflects his commitment to such messiness avoidance. For example, his dissent criticizes the majority opinion on the grounds that “instead of producing a clarification of the Delphic residual clause, [it] produces a fourth ad hoc judgment that will sow further confusion.” In a bit of an I-told-you-so moment, his dissent also points to his opinion in James v. United States, an earlier case interpreting the ACCA’s residual clause, which warned that the Court’s interpretation “permit[ted] an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.” The intervening years, Justice Scalia’s Sykes dissent scolds, have proved that warning correct. In Justice Scalia’s view, one of the Supreme Court’s roles as statutory interpreter is to give statutes a clear, predictable meaning that can be implemented almost automatically, without the need for further judicial line-drawing or clarification. If such line-drawing or clarification become necessary, then the Court’s initial interpretation was by definition inadequate. Hence his admonition in Sykes that “Four times is enough” and his sarcastic observation that “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.”
Justice Scalia’s Sykes dissent also criticizes the Court, in terms reminiscent of formalist Judge Keen in the Legal Process classic the Speluncean Explorers, for teaching Congress bad habits by tolerating such hopelessly imprecise statutes. “[O]ur indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution,” he complains. But it is worth noting that Justice Scalia’s fair-notice-based constitutional argument is weak in cases involving sentencing provisions, as opposed to cases involving the definition or elements of a criminal offense. There is no uncertainty as to the illegality of the defendant’s conduct in ACCA residual clause cases; what is at issue is the application of a sentencing enhancement to the defendant’s punishment. The fair notice argument carries significantly less weight in this context than in the context of determining what underlying conduct is prohibited.
Notably, Justice Scalia saves his sharpest criticism for Congress itself, and this part of his Sykes dissent has garnered most of the attention in the blogosphere. “Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation,” Justice Scalia accuses, “is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty.” This harangue against Congress seems to assume that the ACCA’s residual clause intentionally was left vague by a Congress that was shirking its duty. The problem with this argument is not that Congress never behaves in this fashion; it surely does in some cases. But Justice Scalia’s dissent paints with a broad brush stroke and ignores the very real possibility that Congress may have had other, less objectionable, reasons for not providing an exhaustive list of the crimes that count for purposes of the ACCA’s residual clause. Perhaps given the large universe of state crimes that present a “serious potential risk of physical injury to another,” Congress was loath to provide a lengthy list within the statute—on the theory that its list almost certainly would leave out some crimes that should be included and that those crimes then would be automatically excluded under an expressio unius argument. Or perhaps Congress genuinely failed to anticipate the confusion that the ACCA’s residual clause would cause for implementing courts. Alternatively, Congress may have made a judgment that courts, which are experienced in evaluating the elements of a crime, are better suited to drawing fine distinctions between specific offenses than is the legislature and may accordingly have left the sorting out of such crimes to judges in the implementation stage. It also is possible that Congress, unlike Justice Scalia, has agreed with—or at least had no significant problems with—the manner in which the Court has applied the residual clause thus far; that is, perhaps Congress is satisfied with the Court’s ad-hoc judgments in James, Begay, and Chambers and has chosen to spend its resources legislating on other matters that it deems more pressing.
Justice Scalia seems to dismiss such possibilities with a glib flip of the hand, claiming that “Congress can quickly add what it wishes” to the statute. But as Justice Scalia undoubtedly is aware, few things happen quickly or easily in Congress. His Sykes dissent thus presents an interesting take on the Court-Congress dialogue: He seems to be advocating that the Court should reject statutory language that requires messy, case-by-case judicial implementation and should seek—through a “void for vagueness” ruling—to force Congress to rework statutes that produce undue messiness in the application (“undue” as defined by Justice Scalia, since no other Justice joined his dissent)—and that it should do so irrespective of how satisfied Congress itself might be with the judiciary’s current implementation of such statutes.
St. John’s University School of Law
The following is a guest post from Jim Brudney.
Today, an Administrative Law Judge begins hearing argument and evidence in a complaint brought against the Boeing Company under the National Labor Relations Act. The complaint was filed less than two months ago, and the trial process is just starting. Yet, I cannot recall any case that has attracted such intense and sustained congressional attention at such an early stage.
Ten Republican senators wrote to the Board’s acting General Counsel, Lafe Solomon, suggesting that his confirmation prospects would be linked to his position on the Boeing case. Nineteen Republican senators wrote to President Obama urging him to withdraw immediately Solomon’s nomination because of the Boeing complaint. Thirty-five Republican senators have cosponsored a bill to block the Boeing case by amending the law to immunize Boeing’s allegedly unlawful conduct. Last week, a Republican senator submitted a Freedom of Information Act request that Solomon turn over all documents (including email, call logs, memoranda, or meeting notes) generated by Labor Board members or staff that were used to support the filing of the Boeing complaint.
In the House, two separate committees demanded that Solomon produce all internal agency documents addressing the Boeing complaint and all documents referring or relating in any way to the agency’s investigation of Boeing—and do so in advance of the June 14 hearing. Solomon declined these document requests. He cited the confidential nature of affidavit testimony obtained from possible witnesses and the threat to a fair litigation process if strategic litigation plans were disclosed before trial. One committee chairman expressed extreme disappointment and promised to discuss the request further with Solomon. The other chairman requested that Solomon testify at an oversight hearing three days after the ALJ trial commences, and effectively compelled him to testify by threatening him with a subpoena. Solomon is scheduled to appear “voluntarily” this Friday before Congress as the trial process unfolds without him
Why all the fuss?
The complaint alleges that Boeing unlawfully established a second assembly line of aircraft production at a nonunion plant in South Carolina in retaliation against union workers at its main Seattle plant who had engaged in lawful strikes during prior collective bargaining negotiations. Boeing denies the allegations. It argues that its decision was motivated by lawful considerations of economic cost, not unlawful anti-union animus. A major source of concern among Republican members of Congress is part of the requested remedy: if the company’s movement of work is deemed unlawful, the government seeks an order that Boeing’s second line be produced in Seattle and not South Carolina.
The complaint invokes five separate statements made by top Boeing executives and managers, suggesting that a desire to avoid lawful union activity may well have played a part in Boeing’s decision. Whether it was the motivating factor is what the trial and subsequent appeals are there to resolve. It will be up to the ALJ to assess the allegations and defenses, to consider the nature of the relief sought, and to decide the case on its merits. That is how our system of due process works for adjudications—or at least how it should work.
My concern here is not with the merits of the complaint but with the threat to basic fairness resulting from the avalanche of congressional pressure.
Congress has an important constitutional role to investigate executive branch activities and conduct. This broad oversight power is more limited, however, when Congress investigates a pending adjudicatory proceeding. Such a proceeding resembles a court action. When agencies conduct adjudications, they are acting similarly to federal prosecutors and judges.
Federal appellate courts have expressed concern over congressional pressure focused intensely and extensively on the decisional processes of key agency officials in a case that is pending before the agency. A leading Fifth Circuit decision invalidated an agency adjudication, holding that congressional interrogation impermissibly tainted the agency’s decisional process.
More broadly, a central premise of the Administrative Procedure Act is that agency adjudicatory decisions be made exclusively on the record presented to the judge, and that the decision be based entirely on factors specified by the governing statute—in this case the NLRA.
Congress’s own ethics rules reiterate these abiding principles. The House Ethics Manual recognizes there are judicial opinions that discourage “inordinate pressure” on officials charged with responsibility for making agency decisions. It emphasizes that “a Member should not directly or indirectly threaten reprisal” against an agency official.
In the Boeing case, Congress has engaged in a relentless month-long series of public and often high-profile attacks, directed at the acting General Counsel for prosecuting the complaint. Congress needs to take a step back. The adjudicative process will ultimately yield a decision after the facts have been presented, arguments heard, remedial options reviewed, and appeals exhausted. Congress will be able to alter the law going forward if it disagrees with the decision reached. That is the appropriate way for legislators to take issue with an adjudicative result—as Congress has often done in the past.
I hope that the interrogations and threats do not ultimately intimidate acting General Counsel Solomon, who is not a politician but a career civil servant. But there is reason to fear that Congress’s ongoing course of conduct may undermine neutral analysis and chill independent judgment by any reasonably attentive ALJ hearing this case.
Ironically, if the case ends up being decided in Boeing’s favor, a reviewing court might well overturn the result. A judge could infer that the agency decided against the government’s position in response not to the facts or legal arguments, but rather to the browbeating from both House and Senate Republicans.
For members of Congress, as for all Americans, maintaining the integrity of the government’s decision-making process should matter no less than the outcome of any particular case.
James J. Brudney
Newton D. Baker-Baker & Hostetler Chair in Law
The Ohio State University Moritz College of Law