Have a Comment?
Generously Supported By
ELB Feeds and Email Subscriptions
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)
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.”
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
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
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.)
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:
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.
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:
Introduction: Linking Election Law and Electoral Politics, Matthew J. Streb. 1: Campaign Finance Law—The Changing Role of Parties and Interest Groups, Michael M. Franz. 2: Public Financing of Elections—Past, Present, Future, Peter L. Francia. 3: The Internet— The Promise of Democratization of American Politics, Lee E. Goodman. 4: Voting Machines—The Question of Equal Protection, Thad Hall and Lucy Williams. 5: Voter Identification Laws—The Controversy over Voter Fraud, Lorraine C. Minnite. 6: Early Voting: The Quiet Revolution in American Elections, Paul Gronke. 7: Recounts—Elections in Overtime, Edward B. Foley. 8: Direct Democracy—Regulating the “Will of the People,” Daniel A. Smith. 9: Political Parties and Primaries—The Tension between Free Association and the Right to Vote, Kristin Kanthak and Eric Loepp. 10: Third Parties—How American Election Law and Institutions Cripple Third Parties, Marjorie Randon Hershey. 11: Redistricting—Racial and Partisan Issues Past and Present, Charles S. Bullock III. 12: Judicial Elections—Just Like Any Other Election, Matthew J. Streb
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.
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!
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:
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:
VOTING RIGHTS ACT OF 1965
Redistricting: Perry v. Perez
- Number of 20 most “centrist” Members from 112th Congress returning in 2013: 8
- Number of House districts leaning more than 52% to 48% for one party that in 2011 were represented by a Member of another party: 26. Number of such districts in 2013: 10
- Number of non-incumbent Republicans who won seats in the 177 most Democratic districts: 0
- Number of non-incumbent Democrats who won seats in the 177 most Republican districts: 0
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.
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.
More Ballots Cast for Democrats Rather than Republicans in House Races But Republicans Control House
“2012 Election Turnout Dips Below 2008 and 2004 Levels: Number Of Eligible Voters Increases By Eight Million, Five Million Fewer Votes Cast”
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.
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
- Voting Politics in the American States
Alec C. Ewald
- Ensuring Every Citizen Has the Opportunity to Vote: Adopting Election Day Registration in Connecticut
Bilal Dabir Sekou
- The Battle Over Election Reform in the Swing State of Florida
Susan A. MacManus
- Voting Restriction Politics in Maine
Amy Fried and Emily Shaw
- Voting Restriction Politics in Minnesota and Wisconsin
Davida J. Alperin and Neil Kraus
- Voter ID in Rhode Island
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!
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.
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.
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.”
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.
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.