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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
Remedies: Examples & Explanations (Aspen Publishers, 3d ed. 2012)
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003)
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Excess of Democracy (Derek Muller)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Mischiefs of Faction
The Monkey Cage
More Soft Money Hard Law (Bob Bauer
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Commentaries and Op-Eds
The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013
It's About the Disclosure, Stupid: The larger failing behind the terrible IRS treatment of Tea Party groups, Slate, May 14, 2013
Same-Sex Marriage: Court on the Couch, Reuters Opinion, Mar. 26, 2013
The Voting Wars Within: Is the Justice Department Too Biased to Enforce the Voting Rights Act?, Slate, Mar. 18, 2013
Who Controls Voting Rights?, Reuters Opinion, Feb. 26, 2013
After Scalia: Don’t Give Up on Campaign Finance Reform, However Hopeless It Seems Now, Slate, Feb. 21, 2013
If the Court Strikes Down Section 5 of the Voting Rights Act, Reuters Opinion, Jan. 30, 2013
Democrats, Don’t Freak Out! Why Fear that Republicans Will Gerrymander the Electoral College are Overblown, Slate, Jan. 25, 2013
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Read more opeds from 2006-2009, and these from 2010-2011.
Forthcoming Publications, Recent Articles, and Working Papers
Political Dysfunction and Constitutional Change, 86 Drake Law Review (forthcoming 2013) (symposium) (draft available)
Is “Dependence Corruption” Distinct from a Political Equality Argument for Campaign Finance Reform? A Reply to Professor Lessig, 12 Election Law Journal (forthcoming 2013)
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, 74 Montana Law Review 53 (2013)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013)
Fixing Washington, 126 Harvard Law Review 550 (2012)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (2012)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 Journal of Law and Politics 557 (2012)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review 191 (2012)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012)
Teaching Bush v. Gore as History, 56 St. Louis University Law Review 665 (2012) (symposium on teaching election law)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, 10 Election Law Journal 325 (2011)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Category Archives: SOS White
AP: “Former Indiana Secretary of State Charlie White said in court documents Thursday that his attorney didn’t mount any defense to protect him from the conviction that forced him from office.”
Breaking News: Indiana Supreme Court Unanimously Reverses in Charlie White Case, Says He’s Eligible for His Sec. of State’s Office
Former Indiana Secretary of State Charlie White was eligible to run for office, the Indiana Supreme Court ruled this morning.
The state’s highest court issued a unanimous decision this morning saying that even though White was registered to vote at his ex-wife’s house when he ran for office, he could still be a candidate.
In its decision, the Supreme Court, which has never overturned an election because of a challenge like this, said it was hesitant to go against the will of the voters.
UPDATE: You can read the opinion here.
Further UPDATE: The opinion states that “The appeal before us today does not decide any questions flowing from White‘s subsequent criminal convictions, but rather whether the Democratic Party‘s petition was a basis for barring his taking office after winning the election. We hold it was not.” The Court’s conclusion that White was eligible to take office means that the Democrat does not ascend to the Secretary of State’s position, and that Gov. Daniels will appoint a successor (which I assume will be a temporary successor in the event that White’s criminal convictions are overturned).
The reasoning of the Court is an interesting mix of a laches argument and the Democracy Canon: the Democratic Party knew about the residency problems, and should have sued sooner: their failure to do so would deprive the voters of their choice in the election:
Our conclusion is that the Code places a burden on political campaigns to investigate and vet their opposition before the pre-election time limitations expire, but that is better than the alternative: that a challenger might ignore a known (or knowable) disqualification challenge before the election, wait to see who won at the polls, and then seek to set aside the results of the democratic process. Such a result is inconsistent with free elections and respect for voters‘ expressed preferences. Here, the allegations of White‘s registration impropriety arose before the election and were made public by private citizens, the media, and by the Osili campaign and by the Democratic Party. It is likely that the average voter was aware that there were concerns about White‘s voter registration history at the time of the election, but we will not, on the basis of the present petition, judicially disenfranchise voters who went to the polls aware of what were at that moment only allegations. The fact that criminal charges were filed after the election and resulted in convictions (appeals still pending) does not alter that conclusion.
IndyStar reports. Now it will be up to the state Supreme Court to decide whether the Republican governor gets to appoint a replacement, or whether the second place finisher, a Democrat, gets to take over the office. “White also told [Judge] Nation that comments he made in a Fox News interview the day after a jury convicted him were ‘not prudent.’”
From an emailed press released from the Indiana Attorney General in the Charlie White case:
“The Attorney General’s Office represents the Recount Commission only and does not represent candidate White. In a separate criminal case, a jury on February 4 found White guilty of six felonies and White had to vacate his elected position as Secretary of State. In its appellant brief filed Tuesday in the Indiana Supreme Court, the AG’s Office argues the Recount Commission’s earlier decision upholding the will of the voters is the correct means of resolving the election contest. White’s subsequent convictions in the separate criminal case do not undermine the validity of the Recount Commission’s decision.”
Here’s how the Court’s media advisory describes the issue:
Summary: The chairman of the Indiana Democratic Party (“IDP”) challenged the election of Charlie White as Indiana Secretary of State. The Indiana Recount Commission (“Commission”) heard evidence and rejected the challenge. On IDP’s petition for judicial review, the Marion Circuit Court set aside the Commission’s decision. The Court instructed the Commission to declare that White was not eligible to be a candidate for the office of Secretary of State, and to certify the candidate who received the second highest votes, Vop Osili, as Secretary of State. White and the Commission have appealed the Marion Circuit Court’s decision. The Supreme Court has granted motions to transfer and has assumed jurisdiction over this appeal.
IndyStar: “The Indiana Supreme Court agreed today to hear an appeal over the Democrats’ lawsuit regarding who should serve as Indiana’s secretary of state. The state’s highest court also denied Democrats’ request to put their candidate, Vop Osili, in office as soon as possible.”
“Political sparring continues in Charlie White case; Democrats want Indiana Court of Appeals to enforce a judge’s ruling on replacing the secretary of state.”
Interesting press release in the machinations over what to do about the SOS White guilty verdict on voter fraud charges. Dems want the intermediate court of appeal to declare the Democrat the new Secretary of State.
Meanwhile, a picture of Charlie White still greets visitors to the Indiana Secretary of State home page, even though there is an interim, temporary replacement.
White’s comments. “Indiana is a land of men and not of law….It was a total miscarriage of justice and a perversion….[Prosecutor] was savage…barbaric.” White has negative things to say also about Governor Daniels, Evan Bayh and others. Must-watch.
“I was in love….Indiana election law trumps me being able to raise my children, and step-children the way we want to. I think it’s a travesty.”
White, who did not take the stand in the trial, said he is going to appeal.
Big Question after Charlie White Trial: Does Republican Gov. Get to Appoint or Do Dems Get the Office?
IndyStar: “Charlie White, the elected officer, was convicted of six felony charges — including voter fraud — early this morning, which removed him from office. But he could be reinstated on a technicality. Meanwhile, Gov. Mitch Daniels appointed White’s chief deputy, Jerry Bonnet, as his interim replacement. Democrats, however, claim they’ve won the office because a Marion County judge ruled that White was improperly registered to vote and therefore ineligible to run for secretary of state. White is appealing the ruling, which has not yet been enforced. Democrats will ask the judge to act on the ruling this week so their candidate, Vop Osili, can take office, Democratic Party Chairman Dan Parker said. That move likely would set up another legal battle.”
AP: “But a spokesman for the state Republican party said the civil lawsuit filed by Democrats and the criminal charges handed down by a grand jury were separate. Pete Seat said Democrats were unfairly trying to change the outcome of the election. ‘The Democrats, this is what they do,’ he said. ‘They lose elections and then they try to litigate victory.’”
More on the statutes from the Indiana Law Blog.
IndyStar: “Shortly after White’s verdict was read, Gov. Mitch Daniels announced in a news release shortly before 3 a.m. that he has appointed Jerry Bonnet, White’s chief deputy, as interim secretary of state.’I have chosen not to make a permanent appointment today out of respect for the judge’s authority to lessen the verdict to a misdemeanor and reinstate the elected office holder,’ the Republican governor said in the news release. ‘If the felony convictions are not altered, I anticipate making a permanent appointment quickly.’”
Much more coverage, and links, at the indispensable Indiana Law Blog.
See here. Maybe they don’t want to have to come back first thing Monday morning after the Super Bowl?
Go to trial but offer no defense? Interesting strategy. Counting on jury nullification? Not putting White on the stand?
UPDATE: AP quotes law professor questioning the wisdom of this strategy.
Indiana Secretary of State goes on trial on voter fraud charges Monday.
The Indiana AG has issued this press release in the SOS White matter.
To close, let me reclarify what Rosenberg’s ruling and a subsequent agreement from the Indiana Supreme Court could have in store for our state. Democrats could get the top ballot line for every single race in the state (no matter how down in the weeds) for the next three years. Democrats could get inspectors in all precincts, meaning that we control every precinct board in the state. Furthermore, the Indiana Election Commission and all precinct boards would consist of Democrats and Libertarians. With Osili as Secretary of State, we could gain a majority control over the Indiana Recount Commission. The Republican Party could lose major party status in the state, while the Libertarian Party could take their place as a major party. The Libertarian Party could then gain access to primaries, whereas the Republican Party would lose their access to primaries. It would force Republicans into conventions to nominate their candidates, and that would certainly favor state Treasurer Richard Mourdock in his primary challenge against sitting US Senator Richard Lugar. Because the GOP would lose their line on the ballot for the next three years, it would mean that the GOP would have to petition each time they want to get a candidate on the ballot (ballot line access requires signatures equal to 2% of the number of voters in the Secretary of State race; with Charlie White’s votes invalidated in the total, this equates to 14,659 signatures per candidate). With this lowered number of necessary signatures, a wide array of upstart Independent and third-party candidacies could theoretically sprout up. It could have a massive, massive effect on the crucial sets of elections we’ve got next year: Governor/Lt. Governor, US Senate, Attorney General, Superintendent of Public Instruction, and three competitive US House races. It’s worth noting that Republicans, the people that could be demolished by this ruling, hold all of those offices aside from Joe Donnelly’s US House seat.
I wonder if these implications will (1) affect how the State Supreme Court decides this case; and (2) motivate the Indiana legislature to change these laws.
UPDATE: Richard Winger says the law already has been changed.
Press release: “Concluding that he need not wait for the Indiana Recount Commission to reconvene first, Indiana Attorney General Greg Zoeller announced today that he will file an appeal on behalf of the Recount Commission. On Thursday, a Marion County court reversed the commission’s unanimous decision of last June on candidate Charlie White’s ballot eligibility and found White ineligible for the 2010 ballot. Zoeller, who represents the Recount Commission and other state administrative boards, will seek appellate review of the Marion County court’s ruling in a higher court.”
The ruling is here. If there is no (successful) appeal, the second place finisher, Democrat Vop Osili, becomes Indiana’s Secretary of State.
UPDATE: Emergency relief sought:
The commission is seeking an emergency stay of the ruling, said A.J. Feeney-Ruiz, a spokesman for the secretary of state’s office, of which the commission is a part.
The panel will seek to do so through Indiana Attorney General Greg Zoeller’s office, he said.
Zoeller’s office said it has not yet discussed the matter with the Indiana Recount Commission.
“We’ve not met with them yet. I’m sure we’ll be meeting with them soon to see how they want to proceed. We do not represent Charlie White the candidate,” said Bryan Corbin, a spokesman for the attorney general’s office.
If that request for a stay is granted, it would mean that White will remain in office as the legal case plays out.
AP: “A judge on Monday denied Indiana Secretary of State Charlie White’s bid to avoid a trial on voter fraud and other criminal charges that could lead to his removal from office.”
News from Indiana. “‘As an attorney, I would not have the courage or the chutzpah not to show up in a court proceeding that I was on record as representing a party,’ said William Groth, an attorney representing the Democratic Party.”
Read the Unanimous (Bipartisan) 32-Page Decision of the Indiana Recount Commission in the Charlie White Incident
Here [corrected link].
The Journal Gazette reports: “The Indiana Recount Commission ruled 3-0 Tuesday that Secretary of State Charlie White will keep his statewide office despite confusion over his voting address last year….Commission Chairman Tom Wheeler said White was an eligible candidate and was properly registered at his ex-wife’s home because he intended to live there with his son until his marriage in late May 2010.”
“I cannot believe I’m fighting for my life, my family, over something like this. It’s tragic”
–Indiana SOS Charlie White, in a must-read interview with AP.