Category Archives: Uncategorized

Louis Michael Seidman has written this NYT oped, which begins: “AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.”

See here.

Blogging will be intermittent over the next two weeks. Happy holidays and a happy new year to all my ELB readers!

Here’s to a happy, healthy and safe 2013.

Paul Gronke writes: “The most recent issue of Perspectives on Politics is a theme issue about the role of elections and other democratic institutions in non-democratic nations (authoritarian and autocratic regimes). The issue has very rich content, including original research articles, “controversy” pieces, and a large number of book reviews broadly on the topic of elections, from an American, comparative, and normative perspective. The website link is gated but the table of contents is open access, and anyone at an academic institution should be able to access the content.”

The latest issue of Election Law Journal is now available.  The featured topic is redistricting, with eight articles on the subject.  The issue also articles on Alvin Greene’s surprising victory in the 2010 Democratic primary in South Carolina and Americans’ perceptions of corruption, as well as a forum on Argentinian electoral reforms and a book review of Race, Reform, and Regulation of the Electoral Process.  The full table of contents appears below.

The Party Line: Dimensions of Redistricting, by Daniel P. Tokaji, Paul Gronke, Michael Halberstam

Articles

Alvin Greene? Who? How Did He Win the United States Senate Nomination in South Carolina?, by Joseph Bafumi, Michael C. Herron, Seth J. Hill & Jeffrey B. Lewis

Corruption, Political Participation, and Appetite for Reform: Americans’ Assessment of the Role of Money in Politics, by Daron Shaw, Brian Roberts, Abby Blass

Featured Topic: Major Developments in Redistricting

How to Do Things with Boundaries: Redistricting and the Construction of Politics, by James A. Gardner

On Overreaching, or Why Rick Perry May Save the Voting Rights Act but Destroy Affirmative Action, by Ellen D. Katz

Court Deference to State Legislatures in Redistricting After Perry v. Perez, by Jeffrey M. Wice & Leonard M. Kohen

Process Failure and Transparency Reform in Local Redistricting, by Michael Halberstam

Adventures in Redistricting: A Look at the California Redistricting Commission, by Karin Mac Donald

The Effects of Redistricting on Incumbents, by Stephen Ansolabehere & James M. Snyder Jr.

Defining Communities of Interest in Redistricting Through Initiative Voting,  by Todd Makse

Electoral Constituencies and Political Parties in Kuwait: An Assessment, by Abdullah Al-Remaidhi & Bob Watt

Forum: Argentina’s Electoral Reforms

Prologue, by Samuel Issacharoff

The Move Toward State-Run Mass Media Electoral Campaigns in Latin America: An Evaluation of the First Implementation in the 2011 Argentine Presidential Elections, by Maria Page & Julia Pomares

Book Review

The Bright Future of Elections Scholarship, by Grant M. Hayden, reviewing Race, Reform, and Regulation of the Electoral Process: Recurring Puzzles in American Democracy (Guy Charles, Heather Gerken, and Michael Kang, eds.)

See here.

See you then.

Must-read longread from Molly Ball.

Bloomberg: “Republican presidential nominee Mitt Romney and an allied super-political action committee spent about $7 million a day during the final three weeks of his unsuccessful campaign to defeat President Barack Obama. Romney’s campaign committee reported to the Federal Election Commission today that it spent $100 million between Oct. 18 and Nov. 6, and the pro-Romney super-PAC Restore Our Future spent $44 million. That combined total of $144 million averaged $7.2 million on each of the 20 days from Oct. 18 to Nov. 6.”

Politico: “As the presidential election reached its climax, Obama’s campaign spending dwarfed that of Romney’s campaign, outspending its Republican counterpart by more than $71 million between Oct. 18 and Election Day, according to documents filed Thursday night with the Federal Election Commission.”

CNN: ” Nevada casino mogul Sheldon Adelson and his wife Miriam contributed $33 million to two major Republican super PACs in the closing weeks of the 2012 campaign, according to campaign finance disclosure reports filed Thursday with the Federal Election Commission.”

WaPo: Manic Spending Marked End of 2012 Campaigns, FEC Records Show.

Reuters: “Mitt Romney’s presidential campaign had $25.7 million left in the bank days after the November 6 election that ended months of relentless fundraising in the most expensive race in U.S. history, new campaign finance disclosures showed on Thursday.”

LA Times: ” Mitt Romney raised more than $85.9 million in the last two weeks of the presidential race, his campaign announced Thursday, detailing the GOP hopeful’s final money push in his ultimately unsuccessful bid against President Obama.”

You can read the cert. petition and appendix filed by the RNC and the opposition filed by the DNC.  Here is the Supreme Court docket.  Even putting aside the political nature of the case which will get it some attention at the Court, I rate this as having a pretty good chance of being taken up by the Court, given the interesting Remedies issues involved.  Here are the questions presented:

QUESTIONS PRESENTED
1. Did the United States Court of Appeals for the Third Circuit misinterpret United States v. Munsingwear, Inc., 340 U.S. 36 (1950), and thus improperly rely on the district court’s factual findings and legal rulings in an earlier case that was vacated as moot while on appeal, even though other courts of appeals have interpreted Munsingwear as rendering a vacated decision a nullity, as if it the case had never been filed, and draining its factual findings of all vitality?
2. Did the United States Court of Appeals for the Third Circuit misconstrue Rule 60(b)(5), Fed. R. Civ. P., as this Court has interpreted that rule in Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991), and Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), by deeming substantial compliance with a consent decree over more than two decades insufficient to justify termination, even though other courts of appeals have held that the defendant’s good faith and substantial compliance with a decree over a long period of time is a ground, standing alone, for terminating the decree?
3. Did the United States Court of Appeals for the Third Circuit misconstrue Rule 60(b)(5), Fed. R. Civ. P., by affirming the district court’s unilateral expansion of the decree, even though other courts of appeals have held that the rule does not authorize a court to increase the obligations imposed by a decree?

This evening’s federal court decision upholding Nevada’s ban on same sex marriages against constitutional challenge came from Chief Judge Robert C. Jones of the United States District Court for the District of Nevada.  As Sam Bagenstos notes, this is the same judge who recently decided a controversial case regarding Nevada’s “none of the above” election law.  Judge Jones in that case was not only reversed by the Ninth Circuit—he was smacked down in a concurring opinion by Judge Reinhardt (who also happens to be the author of the Ninth Circuit Prop. 8 decision striking down California’s anti-SSM ban).   And after Chief Judge Jones was smacked down, he smacked back at Judge Reinhardt in a statement accusing Judge Reinhardt of improper conduct in contacting his chambers.

Get out the popcorn as this new case goes forward.

The Union Leader reports.

I just received my copy of this important new book edited by Matt Streb in the mail.  Here’s my blurb about it from the back cover:

“Streb has assembled a volume which needs to be on the bookshelf of everyone who studies the intersection of law and electoral politics. The completely fresh second edition of Law and Election Politics consistently provides insight and wisdom from some of the brightest minds working in election law, on issues ranging from political parties to voter identification laws to judicial elections to direct democracy. Professors, graduate students, and undergraduates will all learn a great deal.”

—Richard L. Hasen, University of California, Irvine

Here’s the table of contents:

Early voting (EV) is a recent development in American democracy. The 2008 election was the first time EV was used extensively in presidential elections.  And in the 2012 election, the courts began to confront for the first time the issue of how to understand early voting as a legal matter, including for purposes of constitutional law.  The most significant election litigation in 2012 involved early voting, with cases in Ohio and Florida (including cases litigated the weekend of the election) leading to more than 106,000 people in Ohio alone making use of judicial decisions to vote the weekend before the election.

If we reason by analogy, the question is whether early voting should be thought about more like election-day voting or like absentee voting.  Is EV best understood, legally, as expanding election day back in time a bit, so that the legal and constitutional framework should be thought about much like the framework that applies to election day in general?  Or is EV best understood as like traditional absentee voting, in which States have long made decisions about which groups of voters have sufficiently good “excuses” for not being able to show up on election day to justify their access to an absentee ballot?  This was one of the fundamental questions underlying the Obama campaign’s constitutional challenge to Ohio’s “decision” (I will explain the quotes later) to open early voting to some voters but not others the weekend before the election — i.e., military and overseas voters.

To assess the federal courts’ decision that it was unconstitutional for Ohio to open early voting to some voters but not all voters on equal terms, this fundamental question about how to understand early voting has to be confronted.  Yet most of the critical commentary (by which I mean, mostly, Rick Hasen’s blog posts) on the Sixth Circuit and federal District Court decisions doesn’t start the process of beginning to come to terms with this issue. Much as the state of Ohio did during that litigation, this commentary just assumes that EV should be treated under Supreme Court precedents that apply to absentee voting, which permit the state to pick and choose among “proper” voters to vote absentee.

The reason every federal judge to address the merits of these issues rejected that position has much to do, I believe, with the way federal judges are beginning to understand EV as they start to work out its legal meaning.  As a matter of the actual practice on the ground, EV looks in virtually every way like election-day voting:  voters line up in person, sometimes for hours, at state polling locations and they go in and cast their vote.  Unlike with absentee voting, no state has ever tried to carve up its electorate during early voting and insist that some voters can vote early but others cannot.  Since early voting has been developed, it has always been open to all voters on equal terms, just as election day voting is.  Everything about the way early voting is covered in the media and treated by campaigns is just the same as it is on election day.  And voters use early voting in massive numbers that dwarf the traditional absentee ballot process.  Yet what Ohio wanted to do the weekend before the election was to have polling locations that were open, but to turn most voters away while letting a select group of voters through the doors.  No state had ever adopted a policy like that before.   That was the situation the federal courts confronted.

As a window into how federal courts thought about EV, those courts cited many of the classic right-to-vote cases, such as Kramer, Dunn, and Harper.  That is a powerful signal that the courts did not think that EV should be viewed through the lens of absentee voting.  Instead, the courts viewed EV as much like election-day voting, just extended earlier in time.  That is why the courts invoked these foundational precedents that preclude states from opening their polls to some voters but not others.  Because the commentary fails to recognize that the courts viewed EV as better analogized to election day voting than absentee voting, that commentary has bypassed the central issue that made the litigation successful.

Could a state ever permit some voters to vote early and not others, if the state truly had some compelling reason for picking and choosing among voters?  We don’t know the answer to that yet at this early stage of the development of the jurisprudence of early voting.  But that issue was not convincingly presented in the Ohio litigation, because Ohio appeared to have stumbled into the situation it created:  the state actually enacted two separate statutes, one that would have treated everyone equally for early voting, and one that permitted only military voters to vote the final weekend.  In the face of such keystone cops-like legislative efforts (again, the commentary doesn’t take into account these specific facts about the bizarre situation Ohio stumbled into), the federal courts found it hard to credit any post-hoc claim that there were powerful and convincing reasons that justified Ohio opening its polls for EV to some voters but not others.

I did not comment or blog about this case or any other matters during the election because I was working as a Senior Legal Advisor to the Obama campaign and considered it inappropriate to write as an academic expert when I was directly involved in these matters.  But now that the election is over and I’m free to write, I want to make the point that once you conclude that the best way to understand EV is that it is an extension of election-day voting earlier in time — which is what the federal courts concluded and which is how, I would venture to say, voters overwhelmingly understand EV — it is easy to understand why the courts would have held it unconstitutional for a state to open its doors to some voters but not others.  That is why I also thought the constitutional challenge to Ohio’s selective access to early voting would be successful and why I think most federal judges, not just those who sat on the case, would be likely to come out the same way.

You can find the list here.

If you are so inclined, you can vote for ELB in the “Niche” category.

Election law a niche? Really?  Not everyone is obsessed with it?

Thanks ABA Journal!

a happy, joyous and peaceful Thanksgiving.  Regular blogging resumes Monday.

Release: “Daniel Tokaji, one of the foremost experts in the nation on election law and voting rights, will deliver the annual O’Hara Lecture on Law and Politics on Thursday, November 29, at 4 pm, in 111 Harrison Hall at Miami University in Oxford. The lecture is co-sponsored by the department of political science and the pre-law program in the College of Arts and Science.”

Can’t wait to read Pam’s piece–touching on many election law cases–and the responses:

FOREWORD
Democracy and Disdain
Pamela S. Karlan

RESPONSE TO THIS ARTICLE

The Disdain Campaign
By Randy E. Barnett

The Constitution and Disdain
By Steven G. Calabresi

There’s also this in the student-written portion of the HLR Supreme Court issue:

LEADING CASES
FIRST AMENDMENT

False Statements of Fact: United States v. Alvarez

VOTING RIGHTS ACT OF 1965
Redistricting: Perry v. Perez

It’s just about that time.  (Here’s the order form.)

That’s Doug Chapin’s argument, in response to my NYT Room for Debate piece and the arguments I make in The Voting Wars.

As I’ve been telling the press, I’m under no illusions that national election administration is on the horizon any time soon.  Indeed, I’ve written that it will take a meltdown worse than Florida 2000 to get us there.  And in fact I have called for a blue ribbon bipartisan commission to focus solely on the question of how to alleviate the long lines problem: this is a doable goal, with an easy to measure metric in the next election to judge success.  But getting Congress to successfully tackle this problem and to show a successful national role in fixing the problems would be a good first step.

But I won’t back off my long-run argument: we should join other mature democracies in having national, professional nonpartisan election administration: uniform rules, uniform ballot, universal voter registration and national voter i.d.

For my dinky little arcane blog, I’m thrilled.  Thanks for reading!

Jonathan Tobin writes for Commentary.

Howard has a more extensive roundup now.

Thursday I travel to the great GW election law conference taking place on Friday.

The election put me behind on lots of things.

So I hope to slow down a bit on the blogging and recharge the batteries a little.

But first I’m scheduled to be on CNN tomorrow morning at 10:15 am eastern.

See Think Progress, Peter Shane

See this release from the Bipartisan Policy Center.

This has been probably the busiest season yet for the Election Law Blog, as issues related to the voting wars seemed to have hit the public consciousness in a way they never did before.  Add into that the new campaign finance regime and hyper-polarization and the rise of litigation–there’s been a lot to cover.

I appreciate that you’ve taken the time to visit this site, and thanks especially to those of you who emailed me tips, criticisms, and suggestions—you’ve helped to make this a more accurate and fairer place to get information about election law.

The election is over, though there could well be some recounts.  I’ll be turning my attention to issues related to the expected Supreme Court case over the constitutionality of the voting rights act, the continuing deregulation of campaign finance, attempts to fix our broken election system, the role of political polarization in Congress and the courts, and other issues that often take place below the radar but that have profound implications for the nature of our democracy and representation.

Thank you for reading.

AP reports.  UPDATE: AP has called MT for Tester.

but it may not matter for the electoral college outcome (thank goodness).

Politico reports.

BLT reports.

David Firestone blogs at the NYT “Taking Note” blog.

Timely current issue of the New England Journal of Political Science: [updated link]

NEW ENGLAND JOURNAL OF POLITICAL SCIENCE: CURRENT ISSUE

VOLUME VI NUMBER 2

SPECIAL ISSUE ON THE POLITICS OF VOTING IN THE AMERICAN STATES

GUEST EDITORS: AMY FRIED AND ALEC C. EWALD

TABLE OF CONTENTS

TABLE OF CONTENTS

Editor’s Forward 187

Articles

• Voting Politics in the American States
  Alec C. Ewald
  188
• Ensuring Every Citizen Has the Opportunity to Vote: Adopting Election Day Registration in Connecticut
  Bilal Dabir Sekou
  198
• The Battle Over Election Reform in the Swing State of Florida
  Susan A. MacManus
  237
• Voting Restriction Politics in Maine
  Amy Fried and Emily Shaw
  293
• Voting Restriction Politics in Minnesota and Wisconsin
  Davida J. Alperin and Neil Kraus
  334
• Voter ID in Rhode Island
  Maureen Moakley
  358

Steve Huefner writes: “Election Law @ Moritz has developed this day-by-day calendar to show when various post-election steps – processing of ballots, canvassing, recounts, and contests — will occur in the Presidential election swing states. A more extensive spreadsheet, broken down by individual state, with statutory citations, will be posted shortly.”

or at least I hope that the Nov. 16 event will be post-election!

Here is the link and here is my earlier post with the details.

Emily Bazelon writes at Slate.

William & Mary Law’s student-run “State of Elections” blog is running a two day series, “Battleground 2012,” featuring original analysis and reporting by W&M law students. Topics range from shoehorning third party candidates onto ballots in Oklahoma, to the finance free-for-all in Missouri, and the aftermath of September’s early-voting battle in Ohio. Click here to read.

I have written this cover piece for the Sacramento Bee’s Sunday Forum section.  It begins:

On Tuesday, voters will go to the polls in what is expected to be a nail-bitingly close presidential election. Indeed, we may wake up Wednesday morning, as voters did in 2000 and 2004, not knowing who won. If we are extremely unlucky, the election will be so close that it will go to a recount and possibly to the courts. The state whose votes are pivotal to the election outcome – Ohio, Florida, who knows? – will see its election process go under a microscope with full dissection in real time over Twitter and Facebook. It would get very ugly very quickly.

If the election comes down to the wire in this way, and if Mitt Romney ekes out a win, then a series of election changes and administrative actions pursued by Republican legislatures and election officials, as well as challenges pursued by tea party activists, may prove to have given him the winning margin. While crass political calculation is part of the explanation for Republican pursuit of these tough new voting rules, there is also a deeper philosophical divide between Republicans and Democrats over the nature of voting and democracy, a divide that the most recent skirmishes in the voting wars have laid bare.

Another snippet:

Whether or not Republicans are genuinely concerned about voter fraud – and if they were, the first thing they should do is get rid of absentee ballots, which would eliminate the lion’s share ofvoter fraud issues – a voter fraud rationale cannot explain recent Republican cutbacks on early voting.

In Ohio, Doug Preisse, chair of the Franklin County Republican Party and elections board member, offered the Columbus Dispatch a different explanation for his vote against extended weekend early voting: “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban – read African American – voter-turnout machine. … Let’s be fair and reasonable.”

But Republican cutbacks on voting go beyond the naked political calculation to a philosophical divide with Democrats over the nature of voting and elections. To many Republicans, voting is an exercise in choosing the best candidate. Under that philosophy, it makes sense to make voting harder to weed out those who might care less, or be less tied to the community, or be less educated or intelligent.

And:

The Democrats’ philosophy about voting and elections could not be more different. Democrats tend to see elections as about the allocation of power among political equals, and it is not the state’s job to decide who is smart enough or motivated enough to vote. Indeed, Democrats’ concerns about these new Republican laws is not really that they literally will disenfranchise many voters; it is that by adding additional effort to the requirements to cast a ballot, these new Republican restrictions will deter casual voters from bothering to take the steps necessary to cast a ballot that will count.

As with Republicans, the Democrats’ philosophy on voting neatly ties in with the party’s self-interest. These casual voters are going to be more likely to vote Democratic. Thus, proclaiming a high-minded commitment to universal enfranchisement also is good for Democratic candidates. It is no surprise that states which have adopted Election Day registration – as California recently did for future elections – tend to be states with Democratic-dominated legislatures. Nor have Democrats shown any interest in removing noncitizens from the rolls in the off-season, although noncitizen voting remains a real, if small, problem.

The latest skirmishes in the voting wars have laid bare the underlying voting philosophies of the two major parties, and the connection of those philosophies to each party’s self- interest. This is a fight that’s taken place at the margin, in technical changes to voting rules. Perhaps these changes will have no effect at all on the identity of the next president. Or perhaps they will be the difference between four more years of Barack Obama and a new presidency under Mitt Romney.

Scheduled to be on Diane Rehm Monday at 10 am Eastern talking about election and voting issues before Tuesday.

NJ.com reports. ”As the hours tick down toward Election Day, confusion across the state reigns among people affected by Hurricane Sandy who want to vote Tuesday but have not been given information about how or where they can.”

Michael Hiltzik LA Times column:

Here’s a question about Charles Munger Jr. that’s been buried by coverage of his $35 million in campaign spending to pass an anti-union initiative and torpedo Gov. Jerry Brown‘s tax initiative in next week’s election: Has he been maneuvering to bankrupt a public interest activist who had the temerity to mount a court challenge to one of his previous initiatives?

That’s the picture of the multimillionaire being painted by the activist, Richard Winger, 69, who has run San Francisco-based Ballot Access News since 1985. To say Winger’s efforts to track voter-rights litigation nationwide operate on a shoestring is to insult shoestrings; he says his income in each of the last two years came to $6,000.

NYT on the election and Sandy.

Now the singer (and Romney supporter) is accused of voter fraud.

Allegedly he left Calabasas like a bat outta hell but forgot to take his registration with him.

As they say, only in America!

Odd, but unfortunately not the oddest news of the day.

Kids say the darnedest things!  (h/t Shana Hasen-Klein)

Starting at 12 pm eastern.

AP: “There are 300 more suspected noncitizens on Colorado’s voter rolls, Secretary of State Gessler announced Tuesday in the latest chapter of a contentious national debate over what Republicans say is vulnerability in the voting system. The latest figures are from the 3,903 people who received letters from Gessler’s office questioning their citizenship in August. During a first round of checks, Gessler said 141 others were found to be possible noncitizens based on a federal immigration database.”

I expect that these numbers will be challenged by opponents of the purge. Stay tuned.