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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: election administration
The latest round of letters questioning the citizenship of some Colorado registered voters has 63 out of 298 people affirming their right to vote, and most recipients are ignoring the May letters altogether.
The letters are part of an ongoing effort by Republican Secretary of State Scott Gessler to address what he says is a risk for voter fraud. Gessler’s office provided the latest numbers to The Associated Press this week. Another 15 people who received letters last month said they weren’t U.S. citizens and asked to be removed from voter rolls.
A Denver grand jury ruled Wednesday that Secretary of State Scott Gessler did not violate the law when he used his office’s discretionary fund to pay about $1,300 to attend the Republican National Lawyers Association meeting in Sarasota in August.
However, the panel rebuked Gessler for using state money on the trip, and the secretary’s subsequent trip to the Republican National Convention in Tampa.
In Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012), I discuss different methods Justices use to move the law in their preferred direction aside from getting a majority to agree with a direct holding. One of the most important is the “time bomb.” As I explained:
Justices are sometimes more subtle than they are with invitations[ to litigants to ask the Court to overrule past precedent]. I became familiar with the “time bombs” concept from Seth Stern and Steve Wermiel’s fascinating 2010 biography of Justice Brennan. Discussing Justice O’Connor’s reluctance to join one of Justice Brennan’s opinions, the authors wrote, “O’Connor had taken to heart [Justice] Powell’s warnings that Brennan planted ‘time bombs’ in his opinions. She had learned to watch for those seemingly offhand, throwaway phrases that he exploited in later cases.
Yesterday’s opinion in Arizona v. Inter-Tribal Council is full of time bombs from Justice Scalia. Not only does he explain how Arizona might go to court to get an order compelling the FEC to alter the federal form to conform with the state’s citizenship requirements, he also draws a broad distinction between federal power to set the manner of elections and its lack of power to prescribe voter qualifications. (This was the main point of my Daily Beast piece yesterday, as well as Marty Lederman’s SCOTUSBlog post and much in line with Lyle Denniston’s analysis.) Justice Scalia’s footnote all but burying a key part of Oregon v. Mitchell on the right of Congress to require states to allow 18 year olds to vote in federal elections is sure to give states new powers to challenge federal voting rules. He suggests that arguments such as Arizona’s should be recast as challenges to registration rules and that they may have much greater success.
It is true that all of the Scalia language in yesterday’s opinion (on pages 13-17) is full of “might” and “could” language—most of it is dicta. Justice Alito notes those facts in the dissent. But this is scary stuff for those who worry about some states cutting back on voting rights. So the mystery to me is: why would the liberals on the Court go along with all this? Why not just join Justice Scalia’s opinion in part? After all, as a former clerk to Justice O’Connor emailed me, it looks like Justice Scalia is trying to provide a roadmap for states to implement voter id laws over federal objection.
Without inside knowledge from the Court, the answer is unclear. Here are a few possibilities, though I would be open to hearing others:
(1) The liberals were thrilled to get an opinion from Justice Scalia with a very muscular reading of Congress’s Elections Clause power. That battle is won, and other fights over qualifications and state challenges to federal voting rules can wait the next day. Note in Marty’s revised post comments from Rick Pildes emphasizing the importance of the win in yesterday’s case.
(2) The liberals agree with Justice Scalia on the dicta on pages 13-17, and they think these issues are better left to the states. (That seems unlikely to me, given divides in cases like Crawford).
(3) As Marty suggests in his post, there’s a larger end game here involving Shelby County, and reliance on the Elections Clause in that case to uphold section 5 of the Voting Rights Act.
I’m open to other ideas.
South Bend Tribune: “The former chairman of the St. Joseph County Democratic Party will serve one year in prison for his role in a scheme to forge signatures onto petitions that qualified Democratic candidates for the state’s 2008 primary election.”
A special U.S. Senate election to replace the late Democratic Sen. Frank Lautenberg can be held in October, as it was scheduled by Republican Gov. Chris Christie, a state court ruled Thursday.
The ruling could be appealed. And while it keeps an election on course it does not seem likely to chill criticism of the popular governor for how he chose to replace Lautenberg, the Senate’s oldest member, who died last week at age 89.
I have posted the opinion here.
“It doesn’t matter who wins. It matters that they win by a lot.”
“Senators Boxer, Coons, Warner, Nelson Urge Presidential Election Commission to Take Steps to Reduce Voting Wait Times”
The League of Women Voters of Ohio is “deeply disturbed” by the possible prosecution of 39 Hamilton County voters.In an open letter sent to election officials, LWVO President Nancy Brown said the citizens involved in 39 cases of possible voter fraud acted in line with Ohio’s election law.
Adam Ambrogi: “Election Day, Cleveland, Ohio 2004. I participated in an election observation trip for the newly established U.S. Election Assistance Commission, travelling around Cuyahoga County, Ohio, from dawn until dusk. The goal was to observe as many different kinds of polling places as possible—more than a dozen locations that spanned Cleveland’s diverse neighborhoods.”
Miami Herald Ed Board seems skeptical of Rep. Garcia’s claims of innocence.
Just over a year ago, the Washington Redskins drafted quarterback sensation Robert Griffin III (or “RGIII” to his fans). In that year, the star player has become a Washington-area sports and pop culture phenomenon for his on-the-field ability and his off-the-field character. He has even become the subject of two memes, further fueling his ascension from football phenom to pop culture icon.
But RGIII also did something this past year that even non-superstars do – he moved.
Moving is a fact of modern life, and a real concern for election administrators. Every election cycle, election officials face a flood of voters who, after initially registering, move to a new address without updating their registration. With few exceptions, voters may only vote if they are registered at their current address, so these voters are in danger of being turned away from the polls. Their right to vote depends on the flexibility of their state’s law.
Minnesota Secretary of State Mark Ritchie decided that eight years of long hours, accusations of stolen elections and the occasional death threat was enough. On Tuesday the Minneapolis DFLer announced he will step down at the end of next year, setting off an immediate scramble for an office that both Democrats and Republicans are eager to control.
“Simultaneous Elections in New Jersey; This fall, New Jersey voters will need to navigate a confusing calendar of deadlines and voting periods”
Matt Weil of Bipartisan Policy Center:
Elections do not just happen on Election Day. While procedures vary from state to state, every election cycle includes at least the start of absentee voting, the voter registration deadline, the absentee ballot request deadline, Election Day, post-election canvassing and auditing, and the certification of the election.
When multiple elections hit near the same time—as will happen in New Jersey this fall following Governor Chris Christie’s decision to hold an October special election to fill the U.S. Senate seat left vacant following the passing of long time Senator Frank Lautenberg—the result can be a lot of voter confusion and administrative difficulties.
Rokita Helps Pass Bill to End Wasteful Election Assistance Commission
Committee Also Holds Hearing on Rokita-sponsored Bill to Ensure Accuracy of Voter Lists
(Washington, D.C.) – U.S. Rep. Todd Rokita, a member of the House Committee on Administration, released the following statement today following the passage of H.R. 1994, a bill to terminate the Election Assistance Commission (EAC).
“During my service as Indiana’s Secretary of State, we reformed and streamlined our electoral system with the goal of more fair and accurate elections. We built Indiana’s statewide voter file, installed new voting equipment, and made voting more convenient by harnessing technology so that voting centers could be used if counties chose to do so. We also led an innovative effort to expand online voter registration. This was completed on time, under budget, and we only had to build it once. I am well aware of the great work along similar lines in many other states, and today’s vote is a continuation of that effort.
“The EAC is an outdated program that no longer provides value to taxpayers. And unfortunately, the attitude demonstrated by this small agency is indicative of the problems we’re seeing across all agencies – that somehow, overseers in Washington, D.C., ought to be telling state and local officials how to do their jobs better. It is one more example of an overreaching, wasteful government program that must be cut if we’re going to get serious about our debt crisis and hold the federal government accountable to the Constitution,” said Rokita.
The Elections Assistance Commission (EAC) was created by the Help America Vote Act (HAVA) to help states replace old punch card and lever voting systems, and to implement statewide registration databases. When the Commission was created, it was only authorized for three years, yet more than five years later, with its mission largely complete, the EAC continues.
Election experts across the country, including the National Association of Secretaries of State, an organization that Rokita formerly served as president, have supported ending the EAC.
You can view Rokita’s remarks at the hearing regarding the effectiveness of the EAC, or the entire hearing, here. Rokita’s first exchange begins at 54:23.
The committee also discussed the Voter Registration Efficiency Act, a bill sponsored by Rokita and Chairman Candice Miller, to require new state residents applying for a driver’s license to notify the state if they intend to use their new residency for the purpose of voting. If so, the legislation then requires the new state to notify the previous state of residence so its chief election official can update voter lists accordingly. This legislation was introduced last year as the Voter Registration Integrity Act.
Additional legislation passed by the committee today would reform or eliminate the Presidential Election Campaign Fund.
H.R. 94, Sponsored by Rep. Tom Cole, R-Okla., would prohibit taxpayer funds collected through the Presidential Election Campaign Fund from being used for national party conventions. Last year, the RNC and DNC received $36 million for their conventions. However, a review of the 2008 convention expenditures showed that these funds were used for floral arrangements, gift bags, live music and makeup consultants.
H.R. 95, Sponsored by Rep. Tom Cole, R-Okla., would eliminate the Presidential Election Campaign Fund altogether, returning the Fund’s remaining balance of $260 million back to the U.S. Treasury for deficit reduction. The program, intended to instill greater public confidence in presidential election campaigns, has lost the support of taxpayers and candidates alike. According to the Federal Election Commission, the percentage of participating taxpayers dropped from 29% in 1980 to approximately 5% in 2012. Major candidates started refusing the funds back in 2000, and President Obama entirely opted out the program in 2008 and 2012, refusing funds for both the primary and general elections.
“Reform Groups Call on House Administration Committee to Reject Efforts to Repeal Presidential Public Financing, Election Assistance Commission”
This is far from the end of the line. This case can be appealed to the state Supreme Court; there is also a separate case (as the Court of Appeals acknowledges) raising separate issues. Further, the Court of Appeals leaves open the possibility of an additional challenge based upon some factfinding of the burdens of the Wisconsin law in a new case.
Nonetheless, as I write in this forthcoming piece in the GW Law Review 2012 election law symposium, I expect that both the Wisconsin and Pennsylvania voter id laws will likely be in place for the 2014 and 2016 elections.
NYT reports. Lots of nostalgia for these machines among Ne York—but it is really time to move on and for NY to adopt some more reliable voting technology and actually be able to pull off a run-off election without dusting off these old machines.
Gannett: “One of the chief authors of Wisconsin’s voter photo identification plan is shopping around a new bill designed to allay legal concerns that the requirements are too burdensome by letting poor people opt out.”
A former Hamilton County poll worker was convicted Tuesday of illegal voting and could go to prison for up to six years for it.
Melowese Richardson, 58, of Madisonville pleaded no contest to four counts of illegal voting – including voting three times for a relative who has been in a coma since 2003 – in exchange for prosecutors dropping four other illegal voting charges. Common Pleas Court Judge Robert Ruehlman immediately convicted her, making her a felon.
A poll worker from 1998 until being fired this year, Richardson admitted she voted illegally in the 2008, 2011 and 2012 elections.
A pair of Democratic congressmen is pushing an amendment that would place an affirmative right to vote in the U.S. Constitution. According to Rep. Mark Pocan (D-WI), who is sponsoring the legislation along with Rep. Keith Ellison (D-MN), the amendment would protect voters from what he described as a “systematic” push to “restrict voting access” through voter ID laws, shorter early voting deadlines, and other measures that are being proposed in many states.
This is a new one for me:
A state Supreme Court justice in Westchester County has dismissed a charge of contempt that had been leveled against the Republican commissioner of the Dutchess County Board of Elections by his Democratic counterpart.
In an order signed Wednesday, Judge Robert DiBella ruled Erik Haight’s decision to have a stack of voter registration forms investigated by the Dutchess County Sheriff’s Office did not violate a previous legal agreement that requires both commissioners to act together on elections-related matters.
The charge of contempt was brought by Democratic Commissioner Fran Knapp. She contended that by calling the Sheriff’s Office without consulting her, Haight was in contempt of the court-ordered agreement.
DiBella ruled that because the agreement did not expressly prohibit either commissioner from unilaterally calling police to investigate a stack of possibly altered forms, neither civil nor criminal contempt apply.