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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: judicial elections
Should Ohio judicial elections go entirely nonpartisan on the ballot? Should Ohio switch to some nonpartisan process to help governors fill judicial vacancies, and should those appointments require state Senate confirmation?
In a Cleveland appearance Thursday before the Ohio State Bar Association, Chief Justice Maureen O’Connor put eight topics on the table for discussion that she hopes will lead to judicial election reform by year’s end.
The plan skirts the political hot-potato of replacing elections with a form of merit appointment process.
The Michigan Supreme Court is corrupted by “dark money,” secrecy and ideology.
So contends former Supreme Court Chief Justice Elizabeth Weaver, a Republican from Glen Arbor, who’s co-authored a book in which she alleges Michigan’s highest court often rules on behalf of special interest groups that bankroll judges’ election campaigns, as opposed to the merits of cases.
The Virginia Supreme Court of Virginia ruled unanimously that Hugh Caperton and his coal companies — Harman Mining and Sovereign Coal Sales — can pursue a lawsuit against the former A.T. Massey Coal Co. in a Virginia circuit court.
In a 27-page opinion released on Thursday morning, Virginia’s top court ruled the civil lawsuit can proceed. The same lawsuit was dismissed by the West Virginia Supreme Court three times.
“The [West Virginia] court determined that a forum selection clause in an agreement between the parties required that the suit be brought in Virginia,” the Virginia Supreme Court noted in its 5-0 decision.
Gannett: “[Wisconsin] State Supreme Court Justice David Prosser says reports of conflict on the state’s highest court are greatly exaggerated.”
Gavel Grab: “TV ad spending in the Wisconsin Supreme Court race that concluded this week exceeded $1.1 million, and more than two-thirds of it came from conservative interest groups, Justice at Stake and the Brennan Center for Justice reported on Thursday.”
Recall Elections Blog: “Ozaukee County Circuit Judge Tom Wolfgram, a three-term incumbent who faced heavy criticism for signing the Scott Walker recall petitions lost to Joe Voiland. The vote was not close — Voiland garnered over 60%.”
Milwaukee Journal-Sentinel: “Roggensack’s victory gives her a second 10-year term on the bench and preserves the court’s conservative majority. On the most controversial issues and cases in recent years, the court has often split 4-3, with Roggensack in the majority.”
The so-called Missouri plan for choosing judges has become so troublesome that several states are now altering or abandoning it. In Pennsylvania, however, three former Governors are getting on board with an effort to impose it for state appellate and Supreme Court judges.
On a conference call in March with the George Soros-funded Justice at Stake, former Governors Ed Rendell, Tom Ridge and Dick Thornburgh said they want judicial selection taken away from voters and given to a judicial nominating commission. The state’s current system of judicial elections, Mr. Ridge said, “casts a dark shadow, a heavy cloud over the integrity and independence of the judicial system.”
This is especially awkward for Republicans Thornburgh and Ridge, who are embracing a plan that has regularly sent state courts to the left. While the Missouri Plan was created with the hopes of insulating judges from politics, and travels under the false front of “merit selection,” it has instead transferred power to state bar associations while shielding the selection process from public scrutiny.
Check it out:
Table of Contents
|Reflecting on Forty Years of Merit Selection in Indiana: An Introduction||Joel M. Schumm||1|
|Keynote Address Justice in Jeopardy: The ABA Perspective||Wm. T. (Bill) Robinson III||7|
|Merit Selection in Indiana: The Foundation for a Fair and Impartial Appellate Judiciary||Judge Edward W. Najam, Jr.||15|
|Merit Selection and Diversity on the Bench||K.O. Myers||43|
|Judicial Retention Elections After 2010||Judge Melissa S. May||59|
|The Perils of Merit Selection||James Bopp, Jr.||87|
|A New Perspective on Judicial Disqualification: An Antidote to the Effects of the Decisions in White and Citizens United||Penny J. White||103|
|Assuring Due Process Through Merit Selection of Judges||Frank Sullivan, Jr.||123|
James Sample has posted this draft on SSRN (Georgetown Journal of Legal Ethics). Here is the abstract:
For Justices of the U.S. Supreme Court, controversies pitting personal conflicts — whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison.
For all its seminal import, in Marbury, Chief Justice John Marshall adjudicated a case involving the validity of judicial commissions Marshall had himself signed and sealed. Equally remarkably, one of those judicial commissions belonged to Marshall’s own brother James.
In the centuries since, issues of actual and/or alleged Supreme Court conflicts have colored the context of landmark decisions, as well as the legacies of jurisprudential giants. Exploring many of the most compelling and controversial recusal sagas in the Court’s history, this Article trains attention on the factually-intensive real-world relationships that Supreme Court Justices have with issues and individuals. In today’s statutory disqualification terminology, these relationships fall — if anywhere — solely into the 28 U.S.C. § 455 nebulous catch-all provision in which a judge must disqualify himself or herself whenever their impartiality “might reasonably be questioned.”
The study yields a layered picture that is rich in historical imagery, anecdote, and analytically-critical context. In this respect, the Article includes, but is not limited to, treatments of the midnight Justices in Marbury; the Steel Seizure case and the “damned fool” whom Truman felt was the “biggest mistake he had made” as President; Thurgood Marshall’s long arc with the NAACP; perhaps the best-known duck-hunting trip of all time; Justice O’Connor’s election night outburst preceding Bush v. Gore; profound matters of issue identification involving Justices Ginsburg and Breyer; and finally the controversies surrounding the Patient Protection and Affordable Care Act, including the undisclosed income related to Virginia Thomas’s work opposing the health care legislation and Justice Kagan’s ill-advised e-mails including the memorable “I hear they have the votes, Larry!!”
The exploration serves as a navigational guide to the difficult but necessary task of separating the shrill cries from the serious constitutional concern of genuine Supreme Court conflict. The Article situates the analysis of Supreme Court disqualification practice, and particularly the circumstances involving Justices Thomas and Kagan vis-a`-vis the Patient Protection and Affordable Care Act, within the broader, enduring legal dichotomy of rules as opposed to standards. Pointing to Chief Justice Roberts’s recent, relatively bare assertion that when it comes to disqualification, the Supreme Court is simply constitution- ally and pragmatically different, the Article asserts that while the Chief Justice’s argument is neither emotionally nor intellectually satisfying, in an imperfect world, his argument is also entirely correct.
Finally, and in light of constitutional structure and historical norms, the Article asserts that it was entirely appropriate for both Justices Thomas and Kagan not to recuse themselves from the legal challenge to the Affordable Care Act. That said, the Article asserts that the controversies represent an important teachable moment — a moment in which the justices and the academy alike have the opportunity to elevate, rather than further denigrate, the national dialogue pertaining to high court conflicts.
James writes some of today’s most important work on judicial elections and judicial recusal. I’m looking forward to reading this.
Justice O’Connor, in Daily Show Interview, Seemed to Not Know Shelby County Case Was About Section 5
Howard Bashman links to all three segments. In the first segment, before Justice O’Connor came on, Stewart had a lengthy attack on the Shelby County case, and included audio from Justices Sotomayor and Justice Scalia from last week’s oral argument (another nail in the coffin for cameras in the courtroom).
In the first of two segments with Justice O’Connor, Stewart asked about the Shelby County case, and it seemed that Justice O’Connor was not following the case even closely enough to know it was about Section 5. Very odd.
Justice O’Connor also refused to say whether there were any cases in which she regretted her decision. Yet she has in the past indicated her regret over her decision in Republican Party of Minnesota v. White, striking down a judicial speech rule under the First Amendment.
This item appears at Gavel Grab.
This race will be fascinating to watch.
Milwaukee Journal-Sentinel on round 1 of a two-round race:
[The incumbent Justice] Roggensack has had the fundraising advantage in the race, raising more than $235,000 through early February. Fallone has raised about $80,000. Megna – who once said he planned to donate $100,000 of his own money to his campaign – has put in just $10,000 and decided at the beginning of the year not to ask others for money, saying he would ramp up his campaign if he makes it through the primary.
Roggensack is the only candidate with an ad on television. Her campaign is also being boosted by a spot run by the conservative Wisconsin Club for Growth. The other candidates are not getting help from outside groups.
In an unusual move for a court race, Megna early in the campaign declared himself a Democrat and announced he supports gay rights and limits on guns. He said the other candidates should state their partisan leanings and spell out their stances on issues.
Megna’s positions didn’t do anything to win him support from high-profile Democrats or their allies. That backing instead went to Fallone, who has received the endorsements of the Wisconsin Education Association Council and other labor groups, former U.S. Sen. Russ Feingold and Milwaukee Mayor Tom Barrett.
Meanwhile, Roggensack, 72, of Madison, has gotten financial support from Republican Party campaign committees and the endorsement of the anti-abortion group Wisconsin Right to Life.
Despite their partisan support, Roggensack and Fallone have rejected Megna’s call to state their political views. They both say it is essential for justices to be viewed as impartial.
I will be joining California Supreme Court Justice Ming W. Chin and California Court of Appeals Justice Douglas P. Miller at this event for the Inns of Court in Indian Wells, California on Tuesday, February 19.
Wow. Things go from bad to worse at Wisconsin Supreme Court.
Jim Gibson and Gregory Caldiera has posted this draft on SSRN (Journal of Empirical Legal Studies). Here is the abstract:
Legal scholars have of late become quite worried about how citizens form their impressions of the fairness of courts. This concern reflects the changing environments of courts, especially elected state courts, and what might generally be termed the politicization of the judiciary. The purpose of this article is to assess the effectiveness of judicial recusals at rehabilitating a court/judge tainted by perceived conflicts of interest associated with campaign activities by litigants. Based on an experimental design embedded in a nationally representative sample, our data first confirm that direct campaign contributions undermine perceptions of fairness; but, unexpectedly, so, too, does independent support for the candidate. Most important, recusal does indeed restore some perceived fairness; unfortunately, the repair to public perceptions is not to the level enjoyed when no conflict of interest exists. In a post‐Citizens United world, these findings therefore point to significant threats to the legitimacy of elected state courts.
Michael Elllement has written this article in the Reynolds Court & Media Law Journal. (You will have to flip through to get to the article)
Volume 60, No. 3 Spring 2012
AMERICAN JUDICATURE SOCIETY SYMPOSIUM
Lawyers, Judges, and Money: Evolving Legal Issues Surrounding Spending on Judicial Elections
Hon. Justice Sandra Day O’Connor
Citizens United Impact on Judicial Elections
The New Storm of Money and Politics Derail Judicial Retention Elections
A Coin on the Tracks: Can Big Money and Politics Derail Judicial Impartiality Through Election Spending?
Christine E. Branstad
David L. Phillips
Nathan A. Olson
The Futility of Contribution Limits in the Age of Super PACs
Anthony J. Gaughan
2010 Justice Kilbride Retention Election in Illinois
AP: “A series of emails shows plans by conservative Republicans to take over leadership of the state Senate from a more moderate faction. The documents also outline a long-term strategy that includes ‘changing the face of the Montana Supreme Court’ and remapping legislative districts to favor Republicans, according to an email written by Sen. Jeff Essmann of Billings last September.”
Two lower court judges, both Democrats, put Wisconsin’s voter id law on hold for the 2012 elections. The state supreme court, mired in other controversies, refused to get involved before the election.
But the case will eventually make it back to the state Supreme Court. And the Milwaukee Journal-Sentinel explains how the outcome of the voter id case may depend upon whether an incumbent conservative Justice is reelected or is replaced by a more liberal justice.
One of the incumbent’s competitors is Marquette U. Law professor Ed Fallone. According to the article: “Fallone wrote in an October 2011 blog post that any challenge to voter ID laws ‘faces an uphill battle under existing judicial precedent,’ but he also went on to write that there may be two possible ways to successfully challenge Wisconsin’s law. He did not take a position on the law itself, but said that groups that oppose voter ID laws should work to help voters get IDs and elect lawmakers who would repeal such laws, rather than focus on litigation.”
Andrew-Aaron P. Bruhl and Ethan Leib have written this article for the University of Chicago Law Review. Here is the abstract:
This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that elected judges and appointed judges should actually interpret statutes differently. We explain and defend that view and explore some of its implications and limits. We identify categories of cases in which the argument for interpretive divergence is at its strongest. We also show how the possibility of interpretive divergence might illuminate several specific doctrinal problems related to judicial federalism and judicial review of agency action.
National Law Journal: “An Ohio ethics rule that prohibits state judicial candidates from personally soliciting campaign contributions does not violate the First Amendment, a federal judge determined on December 10. At the same time, the judge found that the rule should not apply to candidates’ communications with family members.”
See this press release.
Law and Politics Book Review of WITHOUT FEAR OR FAVOR: JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY IN THE STATES
NC Policy Watch: “n papers filed today, the North Carolina NAACP and other state groups and individuals suing to overturn redistricting plans approved by the legislature in 2010 asked Supreme Court Justice Paul Newby to remove himself from the case, saying that the millions of dollars kicked in to support his reelection by conservatives with an interest in seeing those maps upheld by the court have undermined public perception of his impartiality. Click here to view the entire Motion for Recusal.”
Columbus Dispatch: “Following an election that left many scratching their heads as to why a pair of incumbent Ohio Supreme Court justices were ousted, some are asking whether the campaign and election process should be modified.”
Bert Brandenburg has written this piece for Slate.
William M. O’Neill, a former appellate judge and a Democrat, held a 4-point lead over incumbent Justice Robert R. Cupp, a Republican who has served on the high court since 2007. Cupp conceded the race last night….
A major theme of O’Neill’s campaign was that “money and judges don’t mix.” He proposes charging a $10 fee on every lawsuit filed in Ohio, which would raise money for judicial candidates and prevent them from taking contributions from donors who he says could influence the judges.
Under O’Neill’s plan, Supreme Court candidates would receive $1 million each, with lesser amounts provided to lower-court candidates.
Last weekend, an Ohio State Bar Association committee asked O’Neill to remove materials from his website that implied justices could be bought by campaign contributions. He refused.
“Judicial Election TV Spending Sets New Record, Yet Voters Reject Campaigns to Politicize the Judiciary”
Justice at Stake and the Brennan Center issued this press release.
“2012 Judicial Campaign TV Spending Surpasses $19.5 Million, Negative Ads Rise as Campaigns Enter Final Phase”
Justice at Stake and the Brennan Center have issued this release.
Press release: “Indianapolis – Marion County voters have less influence than they may think about which judges are chosen for the Marion Superior Court. Today the ACLU of Indiana, on behalf of Common Cause Indiana, filed a lawsuit challenging state law governing that process to ensure voters of every political stripe can cast meaningful votes for all judgeships to be filled in Marion County. ‘The system for electing judges in Marion County is unique in Indiana, and possibly the nation,’ said ACLU of Indiana Legal Director Ken Falk. ‘It is imperative that we ensure that when the State opts to fill positions through the ballot box, it does so in a manner that allows Hoosiers’ votes to matter.’”
Jim Gibson has a new book out which is sure to be important and controversial. Here’s a link to the book’s description and a form for a 20% ordering discount.
Jordan Singer has posted this draft on SSRN (Michigan State Law Review). Here is the abstract:
Scholarship on judicial elections has all but neglected the primary actors in the drama: the voters themselves. All too frequently, the electorate’s role in choosing its judges is relegated to secondary status, and the specific question of how citizens decide to cast their vote in judicial elections is almost totally ignored. But the question is important, and the answer may be surprising. Drawing from decades of research by social scientists and case studies of recent high-salience judicial elections in Iowa and Wisconsin, this Article argues that judicial voters are motivated first and foremost by considerations of procedural fairness, not policy preferences or expected case outcomes. The Article then assesses the consequences of this finding for both contestable judicial elections and retention elections, concluding that retention elections are better able to provide voters with the information they value most.
Justice at Stake and the Brennan Center have issued this press release.
“Are Koch Brothers, Ex-Candidates Using Judicial Elections to Boost Presidential Swing-State Turnout?”
Justice at Stake has issued this release.
“How Michigan judicial candidate Bridget Mary McCormack got ‘The West Wing’ cast for her campaign video”
WaPo’s “Reliable Source” blog reports.
9th Circuit, on 2-1 Vote, Strikes Down Montana Ban on Political Party Endorsement of Judicial Candidates
Gavel Grab: “In the run-up to the November elections, Justice at Stake and the Brennan Center for Justice reported on Thursday that changing spending patterns in judicial elections may signal a new phase in the hard-fought battle to influence the nation’s state courts. While court candidates spent more than $4.6 million in TV advertisements during the primary season, some states could actually see reduced spending due to the cumulative effects of a decade of record-setting spending, the groups said in a press release.”
AP: “The State of Louisiana is appealing a judge’s ruling that Louisiana Supreme Court Justice Bernette Johnson has the seniority that entitles her to become the court’s next chief justice. Friday’s court filing by a lawyer representing Gov. Bobby Jindal‘s office asked the 5th U.S. Circuit Court of Appeals to review U.S. District Judge Susie Morgan’s ruling. Morgan sided with Johnson’s bid to become the state’s first black chief justice and succeed Justice Catherine Kimball when she retires in 2013.”